On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FO-07-321-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
Defendant Richard Hartobey appeals from the July 17, 2009 judgment*fn1 of the Family Part finding him guilty of contempt of a domestic violence final restraining order, N.J.S.A. 2C:29-9(b), and sentencing him to a six-month term of probation. We reverse.
Defendant and L.W. had a dating relationship more than two years ago, which lasted for about ten months. On January 7, 2008, L.W. obtained a final restraining order (FRO) against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Under the terms of that FRO, defendant was prohibited from having any form of contact or communication with L.W.
Defendant appealed that FRO, and we reversed. On June 26, 2009, the Family Part entered an order dismissing the FRO pursuant to our decision.
The incident that gave rise to the contempt charge occurred while defendant's appeal from the FRO was pending.
Specifically, L.W. described an incident that occurred on April 18, 2009:
I was at work, . . . and I came out of work like, around, 'cause I get out of work around 10:00, and it was a little bit afterwards, so, I saw a missed call, it looked familiar but I didn't recognize it. So I gave it a call just to see who it was. And . . . I called, a familiar voice answered, I asked who it was, the person asked me . . . who . . . this was. I said you called me. I would like to know who this is. And . . . after a while I kind of picked up on the voice, I was like I know who this is. And he said [L.W.], I hung up.
Over defendant's objection, L.W. was permitted to testify that defendant had contacted her prior to this date; the judge permitted the testimony to eliminate any claim of "mistake in dialing."
L.W. testified that defendant previously contacted her by telephone twice; she considered the first call "an accident[,]" because defendant told her it was. "The second time . . . [she] was given the same reason." At that time, she told defendant, "[p]lease let this be the last time that you call." She filed no contempt charges against defendant on those two prior occasions.
On cross-examination, L.W. stated that defendant left a voicemail on her cell phone on April 18, 2009, but she did not "realize it [un]til afterwards . . . ." She was unable to produce the voicemail at trial because it was "only saved for a certain amount of days . . . ."
L.W. acknowledged that she had no knowledge of who else may have been living in defendant's "household" on April 18, 2009, and, therefore, did not know ...