ADAEZE NJOKU v. CHRISTIAN NJOKU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6584-05T56584-05T5

ADAEZE NJOKU,

Plaintiff-Respondent,

v.

CHRISTIAN NJOKU,

Defendant-Appellant.

________________________________

 

Submitted February 13, 2007 - Decided March 5, 2007

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-140-07.

Michael I. Okechuku, attorney for appellant.

Lorane L. Posner, attorney for respondent.

PER CURIAM

On July 13, 2006, Adaeze Njoku filed a domestic violence civil complaint alleging that she was assaulted by Christian Njoku on July 9, 2006, in violation of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. A temporary restraining order was entered in her favor on the same day. Christian filed a cross-complaint alleging harassment. Both complaints were consolidated for trial. Following a bench trial, the judge found that Christian had assaulted Adaeze on July 9, 2006, and had also participated in other acts of violence by way of harassment, including assault, causing one to believe that there could be future acts of domestic violence. The judge also found that Christian did not establish a prima facie case of harassment on his cross-complaint for domestic violence and dismissed his complaint. Christian appeals from the final restraining order finding him in violation of the Act. We affirm.

Adaeze, appearing pro se, testified that on the afternoon of July 9, 2005, while she was preparing to go to medical school to study, Christian told her that he could not afford her car payments and was going to sell the car that she used. She told him that, because the car was supposed to be in her name, he should transfer it to her and she would see if she could obtain a student loan to meet the payments. A verbal dispute ensued in which Christian demanded the keys and Adaeze refused to turn them over. According to Adaeze, Christian then grabbed one of her arms, twisting it behind her back, took hold of her neck, choked her, and threw her into the corner. Adaeze told her seven-year-old son to call the police. Christian responded by ordering the boy to drop the phone. When Christian went over to the boy, Adaeze escaped to a neighbor's house with her two other children and called the police.

During her testimony, Adaeze related two other occasions when Christian threatened her. On June 30, 2001, Christian told Adaeze that because he brought her from Nigeria he owned her and that whatever he said she had to do. According to Adaeze, Christian told her if she did not do what he said he would end her life. He took her to a cemetery and asked her "what would you want written on your headstone, bitch[?]" She also related that on April 30, 2006, when she refused to give him money from her student loan, which she was going to use to purchase books, Christian told her he would end her life and her medical career. He then pushed her to the floor, causing her head to hit the floor. Three weeks later, as she was about to go to school, Christian asked her to step out of the car because he wanted to talk to her. When she entered the house, he assaulted her by twisting her arm behind her back, choking her, and throwing her into the corner while telling her that he would end her life and medical career.

Christian's description of the July 9 incident was strikingly different. Christian confirmed that they had a dispute about the car. However, he denied assaulting her, claiming he merely grabbed for Adaeze's purse to get the car keys, causing the strap to break. He denied the cemetery incident and also denied ever threatening her life or her medical career. He did, however, relate the incident when he asked her to come back to the house when she was going to school. Although he denied threatening Adaeze's medical career, he told her at that time that she was not helping the family by going to medical school and he did not want her to go to medical school any longer. According to Christian, Adaeze then grabbed him by the shirt, tearing it. She then asked, "you want to hit me, you want to hit me?" Christian replied, "I'm not going to hit you, 'cause I know what you're trying to do."

Christian presented testimony from his niece, Chenora, who Christian called after the July 9 incident. According to Chenora, after she and her mother came to the house, Adaeze told her that they had a dispute about selling the car and Christian grabbed her purse, she grabbed it back and then called the police. Chenora testified that Adaeze never told her about the assault.

After considering the testimony of the parties and Christian's niece, the judge found Adaeze's testimony consistent on both direct examination and cross, while he found Christian's testimony inconsistent. She also found the demeanor of the parties "quite telling" and Adaeze to be "more believable." The judge found that Christian assaulted Adaeze on July 9 by twisting her hand behind her back, putting her in a chokehold, and pushing her into a corner. The judge also found that the incident qualified as "a course of alarming conduct likely to cause annoyance and alarm," which was done "with the intent to annoy and alarm," thus, was an act of harassment. She considered plaintiff's testimony concerning the prior acts of domestic violence, finding that the prior acts, including an assault, established that there could be future acts of domestic violence, thus supporting the issuance of a final restraining order.

On appeal, Christian asserts (1) "the record of the case is bereft of factual or evidentiary support for finding that [he] committed acts of domestic violence . . . on July 9, 2006"; (2) Adaeze's assertion "of past [acts of] domestic violence . . . raised for the first time during trial were clearly fabricated and the court's adoption of those allegations . . . violated [his] due process rights"; and (3) reversal is required in the interest of justice to prevent manifest injustice.

N.J.S.A. 2C:25-19a(2) defines "[d]omestic violence" in terms of acts constituting a violation of the specific provisions of the criminal code, including N.J.S.A. 2C:12-1. Assault under N.J.S.A. 2C:12-1 includes "[a]ttempts to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another." The judge accepted Adaeze's testimony as credible and found that Christian assaulted her on July 9 when trying to take her keys by grabbing and twisting her arm, putting her in a chokehold and pushing her into the corner. It would be improper for us to engage in any independent assessment of credibility. State v. Locurto, 157 N.J. 463, 472-75 (1999). The judge's factual conclusions were neither "'manifestly unsupported by [nor] inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

We address Christian's contention that the judge's consideration of testimony concerning prior incidents of domestic violence not alleged in the complaint violated his due process rights. Initially, we note that the complaint has not been supplied in the appellant's appendix. More importantly, Christian's counsel neither objected to the trial judge's inquiry into past incidents of domestic violence nor requested an adjournment. See Pazienza v. Camarata, 381 N.J. Super. 173, 185 (App. Div. 2005). Instead, counsel chose to cross-examine Adaeze on the checked answer "no" on the complaint form, which asked for prior acts of domestic violence. The judge made specific factual findings and legal conclusions regarding the predicate assault offense that occurred on July 9, 2006.

The judge's conclusions regarding past incidents of domestic violence were, at most, supplemental. Hence, unlike the situations in L.D. v. W.D., 327 N.J. Super. 1, 4-5 (App. Div. 1999), and J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998), the judge did not reach her decision solely on allegations not found in Adaeze's complaint. See Pazienza, supra, 381 N.J. Super. at 186. Under these circumstances, we are satisfied that any lack of advance notice of the prior acts of domestic violence was inconsequential and any error in that regard was harmless. Moreover, we are satisfied that the July 9 incident was sufficiently egregious to constitute domestic violence under the Act, even in the absence of a prior history of abuse. See Cesare v. Cesare, 154 N.J. 394, 402 (1998).

Affirmed.

 

Copies of the complaint and temporary restraining order are not provided in the Appellant's appendix.

Christian does not appeal from the order dismissing his complaint.

(continued)

(continued)

8

A-6584-05T5

RECORD IMPOUNDED

 

March 5, 2007