On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-515-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Jeffrey Scheeler appeals from a decision rendered on June 29, 2007 denying his motion to reopen a domestic violence matter.*fn1 The facts relevant to this appeal are as follows.
The parties were married on February 5, 1997 and separated on August 10, 2006. After they separated, they continued to work together as painters. On April 29, 2007, plaintiff filed a domestic violence complaint and was issued a temporary restraining order after she claimed that defendant left messages on her cell phone using vulgar language and threatening plaintiff and her boyfriend. Defendant was charged with burglary on the same date for allegedly entering a residence while trying to locate his wife, and engaging in an altercation with the homeowner.
The return date for the final hearing was May 9, 2007. Defendant did not appear for trial on that date because his then-attorney advised him that he did not have to do so. The trial proceeded unopposed with the judge reading the allegations in the complaint and plaintiff responding "yes" after each sentence. Plaintiff then testified that defendant had been "in rehab a few times" and that two years earlier "he started breaking things and pushing [her] around." She did not file a complaint at that time, however.
A default was entered against defendant and a final restraining order was issued on May 9, 2007 after the court found that defendant had harassed plaintiff.
Eight days later, on May 17, 2007, defendant's new attorney moved for a new trial pursuant to Rule 4:49-1. The trial court denied the motion on the ground that it was "unable to determine that there has been excusable neglect and accordingly [the court] need not reach the issue of whether there is a meritorious defense." The court stated that "Mr. Scheeler's bald assertion that 'I did not appear for the final restraining order as it was explained to me that I did not need to appear' does not qualify" as a clear and convincing evidence of a miscarriage of justice.
In this appeal, defendant argues:
THE FAMILY PART ERRED IN ITS DISCRETION BY DENYING DEFENDANT'S APPLICATION FOR A NEW TRIAL PURSUANT TO RULE 4:49-1, AFTER THE PLAINTIFF WAS GRANTED A FINAL RESTRAINING ...