June 29, 2007
DEBRA SCHETLICK, PLAINTIFF-RESPONDENT,
GARY SCHETLICK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-2416-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2007
Before Judges Sabatino and Lyons.
After a trial in which both parties chose to be self-represented, the Family Part entered a final restraining order (FRO) on February 23, 2006 in favor of plaintiff Debra Schetlick against her former husband, defendant Gary Schetlick. The trial judge subsequently denied reconsideration of that order. Defendant appeals.
The parties were divorced in 2003. They have two minor children that live with plaintiff. Defendant has periodic parenting time, pursuant to terms specified in the matrimonial litigation.
The trial proofs reflect that the parties have had longstanding conflicts over their children since they divorced. According to plaintiff's testimony, defendant would telephone her home virtually every morning and would demand to speak with the children. These persistent calls sometimes would make plaintiff late for work and the children late for school. Plaintiff alleged that defendant typically would make repeated calls to her and to the children's cell phones multiple times daily.
On the weekend commencing February 10, 2006, defendant was scheduled to have parenting time with both children. However, his daughter, who was then age fourteen, elected not to join her father because she had an overnight birthday party with friends. The parties dispute whether defendant was informed of this change in plans in advance of the weekend.
Defendant went to the library at about 3:00 p.m. that Friday, February 10, and picked up his son. He remained there until about 5:00 p.m. looking for his daughter. The daughter hid from defendant, who questioned her friends as to her whereabouts. After he was unable to locate her, defendant left with his son. He made several calls to plaintiff, but was not successful in reaching her.
At or about 7:10 p.m.*fn1 that evening, defendant left a message on plaintiff's voice mail. In that message, which was preserved and replayed for the trial judge, defendant falsely reported to plaintiff that their son had been injured in an accident. After receiving that urgent message, plaintiff tried to call defendant but he did not answer. Plaintiff called family members and then the police. She eventually learned later that evening that her son was safe.
According to plaintiff, she felt that defendant's false message was "very abusive," and part of a pattern of ongoing harassment. The temporary restraining order application, which plaintiff reaffirmed at trial, stated that the call was "false in nature and meant to alarm her." She ascribed retaliatory motives to defendant, explaining that "he's using the two children to try to get back at me."
Defendant does not deny leaving the false telephone message on plaintiff's phone, and admits that it is his voice on the tape. He testified that he left the message because he did not know where his daughter was, and that he had acted "in exasperation." The proofs showed that defendant did not call plaintiff back immediately to retract the call and assure her that their son was safe.*fn2
Upon considering these proofs, Judge Margaret Hayden found that defendant had committed an act of domestic violence, namely harassment, in leaving the false message with plaintiff. The judge specifically found that the call was "the essence of a harassing phone call," and that it was made by defendant "with the intent to annoy and alarm the plaintiff . . . ." The judge also observed that
I don't think there's any dispute . . . that a phone call from a father saying . . . to a mother that [their] child has been involved in an accident and you must call right away, is a call that would have the purpose to annoy and alarm that other parent.
Accordingly, the judge issued the requested FRO, prohibiting further contact with plaintiff and limiting his contact with the children to one call per day.
The trial judge on May 10, 2006 denied defendant's motion for reconsideration of her finding of domestic violence.
However, the judge did modify the FRO to permit defendant to make contact with the minor children up to three times daily.
On his appeal, which plaintiff has not briefed in response, defendant makes the following arguments:
THE TRIAL COURT ERRED IN CONCLUDING A VIOLATION OF N.J.S.A. 2C:33-4(a) HARASSMENT WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUGGEST A PATTERN OF PERSISTENT ANNOYING OR ALARMING COMMUNICATIONS.
THE TRIAL COURT ERRED IN CONCLUDING A VIOLATION OF N.J.S.A. 2C:33-4(a) HARASSMENT WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUGGEST THE SINGLE VOICE MAIL COMMUNICATION WAS MADE WITH PURPOSE TO HARASS.
THE TRIAL COURT ERRED IN CONCLUDING A VIOLATION OF N.J.S.A. 2C:33-4(a) HARASSMENT WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUGGEST THE PLAINTIFF MIGHT BE ALARMED.
THE TRIAL COURT ERRED IN CONCLUDING A VIOLATION OF N.J.S.A. 2C:33-4(a) HARASSMENT WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUGGEST THE PROBABILITY OF FUTURE DANGER TO THE PLAINTIFF.
THE TRIAL COURT ERRED IN APPLYING A DOMESTIC VIOLENCE ORDER PER N.J.S.A. 2C:33-4(a) WITHOUT REASONABLY CONSIDERING ALL FACTORS.
THE TRIAL COURT ERRED IN CONCLUDING A DOMESTIC VIOLENCE VIOLATION PER N.J.S.A. 2C:33-4(a) IN CONCLUDING THAT THE STATUTE INTENDED TO CRIMINALIZE VOICE MAIL COMMUNICATION BETWEEN EX-SPOUSES.
THE TRIAL COURT ERRED IN IT[S] INTERPRETATION OF N.J.S.A. 2C:33-4(a) "ALARM" TO INDICATE EMOTIONAL DISTRESS REGARDING ANYONE OTHER THAN THE PLAINTIFF.
THE TRIAL COURT ERRED IN CONCLUDING A DOMESTIC VIOLENCE VIOLATION PER N.J.S.A. 2C:33-4(a) BY DENYING DEFENDANT DUE PROCESS WHICH WOULD HAVE ALLOWED DEFENDANT'S INTRODUCTION OF EVIDENCE TO SHOW BY A PREPONDERANCE OF EVIDENCE.
After fully considering these arguments, we affirm the judgment entered in the Family Part.
Our scope of review of a final restraining order issued after a trial is limited. We will not disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.
As a matter of law, we are guided here by the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). The statute is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.
Under the Act, N.J.S.A. 2C:25-19(a)(13) enumerates that harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final restraining order. Harassment, in turn, is defined in the Criminal Code to include conduct in which a defendant, "with purpose to harass another[,] . . . [m]akes, 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[.]" N.J.S.A. 2C:33-4(a). Hence, a single harassing communication may suffice under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997).
We concur with the trial judge that defendant's admitted conduct in leaving a message on his ex-wife's answering machine, falsely reporting that their son had just been injured in an accident, involved the sort of communication that inherently would alarm any parent. The harassing nature of that message was compounded by defendant's failure to retract it promptly, and by his inaccessibility to plaintiff for at least an hour after he made the distressing call.
Defendant now acknowledges that he acted inappropriately in leaving the message. But his realization of error comes long after the upset was felt. We can appreciate that defendant may have been frustrated by his loss of weekend parenting time with his daughter and his inability to reach her or her mother, but there are more civilized means of expressing his feelings and obtaining redress. The trial judge's ruling was eminently sound, and was further supported by plaintiff's testimony recounting other past instances of harassing calls. See N.J.S.A. 2C:25-29(a)(1)(authorizing judges to consider the previous history of domestic violence between plaintiff and defendant, including harassment); see also Cesare, supra, 154 N.J. at 405.
Reconsideration was justifiably denied, as the additional post-hearing proofs tendered by defendant could have been mustered and presented at an original FRO hearing. R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). If defendant needed more time to gather phone records and the like, he should have accepted the judge's initial invitation that he consider an adjournment. The trial was not simply a dry run.
Defendant includes within his appeal concerns about the limited contact that he has had with his children since the FRO was procured, arguing that such diminished contact is detrimental to his children. We will not entertain those claims here, but note that defendant may pursue appropriate relief in the Family Part by way of enforcement or modification, if it is justified by current circumstances. Additionally, our disposition does not foreclose defendant from making a renewed application to dissolve the FRO if the need for protection is no longer present. See Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).*fn3
We have considered defendant's remaining points, and find them without sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(1)(E).