MIA A. KEBEA v. JOHN S. DAVID

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0807-08T20807-08T2

MIA A. KEBEA,

Plaintiff-Respondent,

v.

JOHN S. DAVID,

Defendant-Appellant.

______________________________

 

Argued April 1, 2009 - Decided

Before Judges Stern and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union

County, Docket No. FV-20-0493-09.

Thomas J. Cammarata argued the cause for

appellant (Cammarata, Nulty & Garrigan,

attorneys; Mr. Cammarata, of counsel and on

the brief).

Michael B. Blacker argued the cause for

respondent.

PER CURIAM

Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on August 29, 2008, after several days of trial. He contends that plaintiff's evidence failed to establish an act of harassment in violation of N.J.S.A. 2C:33-4.

Our reading of the trial transcript, including the judge's decision, reveals the following facts. Plaintiff Mia A. Kebea, 32, and defendant John S. David, 35, had been friends for about fourteen years. Both had been married and divorced, and each had children. They became romantically involved and David moved into Kebea's apartment in 2007. Although they both expressed strong sentiments of love and commitment to each other, they also argued and fought. Name-calling and profanity were common. Some of the fights became physical. At times, the arguments were caused by suspicion and jealousy. Each suspected the other of continuing interest in a past romantic relationship. The suspicions were not unjustified.

On July 14, 2008, Kebea and David were returning unexpectedly in the early morning hours from the shore area after a night of drinking that ended in an argument. As he was driving, David expressed his anger by repeatedly cursing and slamming the steering wheel with his hands. When they got home, she told him to leave the apartment. He packed his clothes and left, but he came back the next day without her knowledge, entered the apartment with a key that he had kept, and removed two flat-screen television sets that he had purchased and a dresser that was his. She obtained a temporary restraining order against him.

On the same day, within hours after David had been served with the temporary restraining order, Kebea called or emailed him and asked that he come to her apartment and help install the new television sets she had bought. He demanded a signed note from her permitting him to come, and she wrote one. He went to her apartment. During the next two weeks, they were in regular contact. They drove to the courthouse together on July 31, 2008, to dismiss the temporary restraining order. They sat together in the lobby until court staff ordered them to separate, and they continued to text message each other while waiting for their court appearance. They had lunch together. Eventually, their case was called and Kebea voluntarily dismissed her restraining order.

The next day, Friday, August 1, 2008, David traveled to Florida with his children. Suspicious that Kebea might be in contact with her ex-boyfriend Mickey while he was in Florida, David purchased a software program by which he could learn about the contents of her emails. In his testimony he claimed that his intent was to learn whether she would lie to him. If so, he intended to end the relationship and go his own way.

To activate the software program on her computer, she had to open an attachment to an email sent from him. He sent a touching poem as an attachment and called her several times on Saturday, August 2nd, to ask if she had opened and read the poem. Eventually she did.

That Saturday he learned of an email from Mickey to Kebea making reference to possibly seeing her in Hoboken. He called her shortly after midnight on August 3rd and asked about Mickey to see what she would say. She lied. He confronted her with the contents of the email. She was startled and alarmed that he knew.

She stayed awake in the early morning hours of Sunday, August 3, 2008, trying to determine how he knew that she had communicated with Mickey. She soon learned that her emails were also going to another email address. Shortly after 5:00 a.m., Kebea called David several times in Florida, where he was sleeping with his children. They argued. Before 6:00 a.m., he admitted that he had used a software program to intercept her emails. She threatened to have him arrested in Florida in front of his children and otherwise expressed herself strongly. He agreed to do what he could to remove the spy program from her computer. He immediately called the software company and others and eventually conveyed to her that morning what needed to be done to free her computer of the spy software. By 11:00 a.m. on Sunday morning August 3rd, the program had been dismantled from her computer.

During the several telephone calls between Kebea and David that night and morning, she threatened to damage his car while he was in Florida and to call his job and have him fired. She used coarse language in their discussions and, according to his testimony, threatened to report him falsely to the police as a pedophile. She admitted that she wanted to hurt him because he had invaded her privacy.

On Monday, August 4, 2008, she obtained a temporary restraining order against David alleging harassment, criminal trespass, and criminal mischief, all based on David's invasion of her computer and email file. Part of Kebea's demand in her complaint was for possession of two flat screen televisions.

A hearing started on Kebea's domestic violence complaint on August 13, 2008, and continued over four days through August 29, 2008. During that time, on August 19, David filed a domestic violence complaint against Kebea, alleging that she had harassed him by threatening to damage his car and cause him problems on the job during the telephone calls while he was in Florida.

Over the days of testimony at their joint hearing, each accused the other of past acts of domestic violence. She alleged that several months earlier he had struck her with a remote control and choked her, had shoved a cigarette down her throat because he opposed her smoking, had sent false emails to Mickey as if they were from her, and otherwise engaged in conduct that caused her to fear for her safety and the safety of her children. He alleged that she had struck him in the face on at least three occasions, including in the car while he was driving and in the presence of her children, that she had confronted his ex-girlfriend, and that she had engaged in strong, threatening, and harassing language in their arguments.

At the conclusion of the hearing, the trial court granted a final restraining order against each, finding that within a span of twenty-four hours on August 2-3, 2008, each had harassed the other. David filed a notice of appeal. Kebea has not appealed from the final restraining order entered against her.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and the conclusions of law based on those findings. In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the "expertise" of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:

[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'

[Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974))].

In this case, the trial judge made findings of fact by first reciting highlights from the parties' testimony. In assessing whether harassment had been proven against David, the judge focused on the invasion of Kebea's privacy when David intercepted her emails. She considered that electronic surveillance, if undetected by the target, may not be harassment because the secrecy would be contrary to a communication or conduct directed at the target, which is required to constitute harassment. See H.E.S. v. J.C.S., 349 N.J. Super. 332, 349 (App. Div. 2002), aff'd in part and rev'd in part, 175 N.J. 309 (2003). But the judge also noted that David had informed Kebea on that August night that he was aware of her communicating with Mickey. In fact, his purpose was to let her know that he was aware of her contacts and her lying to him. Thus, "the totality of circumstances" permitted an inference that David spied on Kebea's emails with purpose to harass and alarm her. See H.E.S. v. J.C.S., 175 N.J. 309, 325-27 (2003). See also State v. Hoffman, 149 N.J. 564, 577 (1997) ("A finding of purpose to harass may be inferred from the evidence presented.").

The judge then explained her decision with the following discussion, beginning with her finding regarding David's purpose to harass Kebea:

The question is what about this thing that he's doing, which objectively, when you find out about that, is just awful. So what is in his mind. But I'm thinking by confronting her with it you know, it wouldn't have been good if he just kept reading her e-mail. It would have been bad. But the thing that makes it affect her is he uses that, you know, by telling her the content to see what she says. And then he decides she's lying. And I don't know that he was going to stop using the system. I have no I don't remember any testimony about that.

But he's, he's confronting her with it, and that's like a way of controlling her. It's like keeping track of what she's up to. And he wants her to know that's what he's doing. And she finds out how, how deeply he's doing that between 12:00 and 5:00 in the morning.

And I agree that that issue in the in between there where he pretends he's, he's her and starts sending messages to the same guy is really kind of spooky. That's a prior act, but it's the same kind of stuff. It's how to keep up with what she's doing and can he trust her, and he needs to [know] what she's doing, which is a control issue that's always the issue in harassment, is trying to keep track of somebody to make sure that, you know, you can control them basically.

So I it's this use of it with her to let her know that he knows that she's really having a communication with him I guess you'd say kind of reckless about what she you know, whether she finds out or not exactly why he did it. But he's letting her know that he knows what the e-mails were about. And then she, you know, ponders this and comes to the conclusion of what the matter - of what the problem is. But I don't know that he would have disarmed if she didn't call him up and say what did you do and get very upset.

So you know, the you would expect the average person to be really upset. And 5:00 for these folks, she says they do talk at this hour. But she's not, she's not calling because she likes calling him at 5:00. She's calling him because she is just really worried and upset about what she figured out. And she's trying to get confirmation. So she does. And then they do make it better. But then she decides he needs to worry like she did and she needs to do this. So in the course of 24 hours they both harassed each other.

Do they and they didn't take the last restraining order very seriously. And the point is did they really, you know, did they really say this is nuts and we have to, you know, behave now, or are they just behaving because there's a restraining order. And if I dismiss it I don't know what's going to happen.

There is a prior history and I talked about his because [Kebea's attorney] brought that up, is this jealous, wanting to keep track part. And it's true, they're linked together. But they do have a history. I you know, the question of who was who did the most is really not the not something I have to decide.

They do have a lot of fights. They do get physical. People I act I do believe the thing about the cigarettes in the mouth. It's too disgusting, you know? And it's an issue that he doesn't want her to smoke. I don't I really believe that along the way she has popped him.

Fortunately nobody is really hurt, but they this is the way this relationship went. They're very physical. And they argue and they give each other a hard time. And they you know, they're kind of like [a] Gordian Knot. They want to fight, then they want to be you know, and get along. Then they want to fight, then they want to get along.

And the point is whether they're done. And I have to say, listening to the especially Ms. McKebea (sic) talk Ms. I'm sorry Mia Kebea talk, she is still really angry. She was just basically giving it to him off the stand this afternoon. I don't think she's done at all. And I don't really think he's done with her, keeping up with, up with what she's doing. I think there might be a time that they would get over it, but I don't think they're over.

I mean, I watch them, you know, here and they, you know they're basically just kind of giving each other they just have to bug each other. It's just not it's not good. And they have kids and things happen, and the kids get involved. And it's too bad, you know. I thought there was a way we could work this out.

But since we have to try it, I have to do what I have to do. And they both harassed each other. And they I really do not trust that they will leave each other alone at this point, so I'm going to have to give it to them both and say that's what you you know, you want you're going to take it to the end, take it to the end, that's it.

Although we suspect that the requisite findings and conclusions for entry of a final restraining order may be found in the judge's decision, we cannot discern from this record what specific predicate statutory violation is the basis for the final restraining order against David. Consequently, we are constrained to remand this matter to the trial judge to clarify her conclusions and to specify the statutory basis of the harassment violation.

In enacting the Prevention of Domestic Violence Act, the Legislature did not create a new class of offenses or prohibit acts that were not already prohibited by criminal laws. Cesare, supra, 154 N.J. at 401; Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Rather, entry of a domestic violence restraining order requires proof by a preponderance of the evidence that the defendant committed at least one of the offenses listed in N.J.S.A. 2C:25-19(a), which include harassment. In addition, commission of a listed offense by itself does not automatically warrant issuance of a domestic violence restraining order. Corrente, supra, 281 N.J. Super. at 248; Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Whether a restraining order should be issued depends on the seriousness of the predicate offense itself, see Cesare, supra, 154 N.J. at 402, on "the previous history of violence between the plaintiff and defendant including threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.

Taking first the history of the relationship and immediate danger, we understand the trial judge's findings to have been that the parties had a mutually volatile and at times violent relationship that created a risk of future acts of domestic violence. In stating, "I really do not trust that they will leave each other alone at this point," the trial judge was indicating her assessment of the need for mutual restraining orders. The evidence in the record adequately supports that conclusion.

But with respect to the predicate offense for entry of a restraining order, the trial judge did not identify the specific provision of the harassment statute that she concluded David had violated on August 2-3, 2008.

The harassment statute, N.J.S.A. 2C:33-4, states in relevant part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Subsection (b) has no application to the events of August 2-3, 2008. Before the trial court, Kebea alleged that David's conduct in spying on her email was a violation of subsection (c) of this statute. At the beginning of the closing argument by Kebea's attorney, the trial judge asked counsel to explain in terms of the statute how the evidence established harassment. Kebea's attorney promised that he would do so but became diverted from that question and never discussed the statute in his summation. In Kebea's appellate brief, counsel argues primarily in terms of the language of subsection (a), but, when questioned at oral argument, again said that David's violation comes within the language of subsection (c). We understand counsel's vacillation because the evidence fits neither subsection of the harassment statute easily.

In State v. Hoffman, supra, 149 N.J. 564, the Court discussed the differences between subsections (a) and (c) of the harassment statute. Id. at 575-84. Relevant to this case, the Court recognized that, "In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct." Id. at 580. Here, the trial judge concluded that the harassment committed by David occurred in a period of twenty-four hours during August 2-3, 2008, and was his spying on Kebea's email and letting her know about it. But on August 2-3, 2008, David only told Kebea about that one occasion when he was aware of her communication with Mickey. We cannot determine what "course of alarming conduct or of repeatedly committed acts" the judge found David committed in that twenty-four hour period that constituted a violation of N.J.S.A. 2C:33-4(c).

Plaintiff argues that this case resembles the facts and holding of Pazienza v. Camarata, 381 N.J. Super. 173 (App. Div. 2005), where a domestic violence restraining order had been entered based in part on the defendant's telephone call to plaintiff making it appear that he was watching her. Although that single incident was highlighted in Pazienza, plaintiff's complaint and evidence had alleged additional communications besides that one call. The trial court found grounds to enter a restraining order under both subsections (a) and (c) of the harassment statute, and we affirmed. Here, the prior conduct was appropriately considered as part of the relevant history of the relationship. Because the trial judge said the harassment occurred within twenty-four hours on August 2-3, 2008, she apparently was not relying on the prior history to establish a course of conduct or repeated acts as the predicate act of domestic violence. If our understanding is mistaken, the trial judge may choose on remand to clarify how she viewed the prior conduct in terms of the requirements of the applicable statutes.

Plaintiff also relies on H.E.S. v. J.C.S., supra, 175 N.J. 309. In that case, the Supreme Court found that surreptitious electronic surveillance of the wife's bedroom could constitute a violation of subsection (c), but only in conjunction with the husband's repeated conduct that made the wife aware that he was spying on her. He had revealed knowledge of her telephone calls, he would appear where she was at certain times although she did not expect him to know her plans, and she suspected him of stealing papers and checks that she had hidden in her bedroom. Id. at 326-27. The Court did not indicate the time frame for this conduct, but it apparently was repeated over some weeks or months. In this case, all of the spying activity occurred on one evening, it involved one relevant interception of an email, and the spying was quickly revealed and abandoned within hours of its inception. The trial judge must consider whether David's conduct violates the terms of N.J.S.A. 2C:33-4(c) as a "course of alarming conduct or of repeatedly committed acts," and she must give a statement of reasons for her findings and conclusion.

On the other hand, if David's informing Kebea is deemed a single alarming or annoying communication in violation of subsection (a), it must be found to have been made "anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." The only potentially applicable statutory language is the catchall provision of "any other manner likely to cause annoyance or alarm." To avoid constitutional infirmity, the Supreme Court has interpreted the catchall provision to mean a "mode of speech" or manner of communication that is similar to and within a classification that includes anonymous communications, those made at extremely inconvenient hours, or those with coarse language. State v. Hoffman, supra, 149 N.J. at 583-84. In this case, we cannot determine whether the trial judge would have placed within such a classification David's use of the spy software and then communicating his knowledge to Kebea on August 2-3. If so, the trial judge did not specifically say so.

The trial judge heard the testimony firsthand and observed the parties. She relied on those observations in reaching her decision. As the Supreme Court said in Cesare, supra, 154 N.J. at 413, 416, the trial judge is in a better position than we are to determine whether the evidence fulfills the elements of harassment under either subsection (a) or (c) of the statute.

We remand to the trial court for clarification or reconsideration of the court's conclusions regarding a violation of N.J.S.A. 2C:33-4 by defendant David. The court shall conduct whatever proceedings it deems appropriate and report its findings and conclusions to the clerk of this court and counsel within forty-five days.

 
If after remand the final restraining order remains in force, defendant David shall order the transcript of any proceedings on the remand. If the final restraining order is vacated, plaintiff Kebea may file a cross-appeal within fifteen days of the judgment and shall order the transcript. Within ten days of receipt of the transcript, the party ordering the transcript shall file a supplementary brief in this court limited to ten pages. Within ten days of service of the supplementary brief, the other party may file a responding brief, also limited to ten pages.

We retain jurisdiction.

Only harassment is contested on this appeal. The trial court did not find criminal trespass or mischief had been committed.

(continued)

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A-0807-08T2

RECORD IMPOUNDED

May 8, 2009