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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...