May 2, 2008
SIMONY O. SCHEELER, PLAINTIFF-RESPONDENT,
JEFFREY A. SCHEELER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2008
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 ORDER BY DEFAULT WHEN DEFENDANT FAILED TO APPEAR
THE DEFENDANT'S FAILURE TO APPEAR FOR TRIAL RESULTED IN GRANTING THE PLAINTIFF'S APPLICATION FOR THE FINAL RESTRAINING ORDER BY DEFAULT, WHICH SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE, PURSUANT TO RULE 4:43-3 Rule 4:49-1(a) provides in pertinent part:
On a motion for a new trial in an action tried without a jury, the trial judge may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
Here, defendant's motion was made well within the twenty-day time limit of Rule 4:49-2, but was not argued. "This rule is particularly useful where an opinion or order deals with unlitigated or unargued matters." Pressler, Current N.J. Court Rules, comment on R. 4:49-2 (citing Calcaterra v. Calcaterra, 206 N.J. Super. 398 (App. Div. 1986)). Defendant did not have an opportunity to defend against the domestic violence complaint, nor did he have the opportunity to argue the motion for a new trial. "Ordinarily a new trial is regarded as wiping the slate clean, permitting the parties to introduce new evidence and rely on new theories not presented at the first trial." Id. at R. 4:49-1[2.3].
Moreover, a motion for a new trial made pursuant to Rule 4:49-1 is not subject to the same requirements as a motion for relief from judgment pursuant to Rule 4:50-1. Consequently, a party need not show excusable neglect or any of the reasons specified in Rule 4:50-1. The standard for granting a motion for a new trial is whether there was clear and convincing evidence of a miscarriage of justice. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
Here, defendant's first attorney could be subject to a legal malpractice action if he submitted a certification confirming defendant's assertion that he told defendant not to appear for the final hearing. Under these circumstances, we are satisfied that defendant's sworn attestation is sufficient to warrant vacating the default and granting defendant a new trial on the final restraining order. We are not, however, vacating the temporary restraining order, which will remain in effect until the matter is re-tried on the issue of whether a final restraining order should issue.
Reversed and remanded. We do not retain jurisdiction.