Opinion
DOCKET NO. A-4078-14T3
03-30-2016
B.S., Plaintiff-Appellant/Cross-Respondent, v. A.S., Defendant-Respondent/Cross-Appellant, and J.S., Defendant-Respondent.
Matheu D. Nunn argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn, of counsel and on the briefs; Mark Wechsler, on the briefs). Jessica Ragno Sprague argued the cause for respondent/cross-appellant (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-219-15. Matheu D. Nunn argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn, of counsel and on the briefs; Mark Wechsler, on the briefs). Jessica Ragno Sprague argued the cause for respondent/cross-appellant (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the briefs). PER CURIAM
Plaintiff B.S. (Ben) appeals from an order that denied his application for visitation with his granddaughter M.S. (Mindy). Mindy's mother, defendant A.S. (Amy), cross-appeals from the denial of her request for counsel fees. For the reasons that follow, we reverse and remand for further proceedings.
We use pseudonyms to protect the privacy of the child.
I
Ben's son, J.S. (Jack), and Amy were divorced in June 2010. Their marriage was marred by Jack's chronic alcoholism. They had one daughter, Mindy, and agreed to joint legal custody with Amy as the parent of primary residence and Jack as the parent of alternative residence. However, in November 2011, Jack's parenting time was suspended after an alcohol-related arrest. Because he failed to comply with conditions imposed by the court, his privileges were never reinstated before he became terminally ill with cirrhosis of the liver and associated maladies.
Ben filed a verified complaint pro se seeking grandparent visitation with Mindy in October 2014. He offered the following reasons for his request:
As I am an extension of my son [Jack] - and with his inability to see his daughter since he is now on a respirator in critical condition - my grandchild would feel abandoned by me. The consequences would be unbelievable. If a young girl loses her father, no rational[e] would suffice. . . .
. . . .
There is no history to warrant a detachment in our relationship. My grandchild would suffer greatly since her father is unable to see her and is now terminally ill. It would only compound her feelings of abandonment if my relationship with my grandchild were terminated.
Because of these reasons, I beg the Court's compassion to intervene as it is necessary to prevent harm to this child. [Amy] has the right to the primary role of bringing up her child as she may deem fit. But to not challenge her judgment in this instance would allow her the freedom to decide wrongly - visitation with me at this time is necessary to avoid severe emotional trauma to my grandchild. She would be losing her father and grandfather and interpret it as complete abandonment by her paternal family.
Ben attached a handwritten schedule of dates and activities he shared with his granddaughter from January 2010 through June 2013.
Amy opposed Ben's motion. Her certification recounted the damage caused by Jack's alcoholism and stated she had "grave concerns regarding [Ben]'s character and his ability as a caretaker," describing him as "an enabler, a manipulator [who] is simply trying to control the situation." Her description of her interaction with Ben can fairly be described as hostile, due in part to Ben's effort, as power of attorney, to relieve Jack of any child support obligation for Mindy. Amy also refuted Ben's characterization of his relationship with Mindy. She insisted that any relationship between Ben and Mindy should be at her "sole discretion" because Ben had "failed to meet his burden to establish any grandparent rights." She asked that his application be outright denied or, in the alternative, that he be ordered to undergo a psychological evaluation and a best interests evaluation at Ben's cost.
In February 2015, Ben, through counsel, filed a motion asking the court to: conduct a case management conference and provide a scheduling order for interrogatories, notices to produce documents and depositions; compel Amy to fully cooperate with Ben's expert; conduct a plenary hearing after discovery was completed; and award Ben parenting time with Mindy pending the hearing.
In his supporting certification, Ben described difficulties in dealing with Jack, who was then terminally ill. Ben stated he enjoyed "a wonderful relationship" with Amy "[u]ntil recently" and that she permitted him to see Mindy "regularly and consistently" until she stopped allowing him to see Mindy in 2013. Ben said his relationship with Mindy was "wonderful," and that he took her to shows, parks, various events, and shopping. He asserted he was "the only connection [Mindy] has to her dying father and the only connection to her paternal family." He contended that Amy was punishing Mindy and him because he filed an application on Jack's behalf as power of attorney to vacate the two-week warrant status on his child support obligation. He explained that if a warrant were issued for Jack's arrest he would lose Medicaid coverage for dialysis. Ben stated it would be detrimental to Mindy to lose the relationship:
We were advised at oral argument that Jack died in September 2015.
It is bad enough that [Mindy], at 8 years old, is losing her father and she many never be able to see him again, but to cut her off from me, her only connection to her father, is detrimental. She must feel abandoned by her father and now me, her grandfather. I ask the Court not to allow [Mindy] to lose the only connection she has to her father and paternal family.
By order dated February 23, 2015, the court denied Ben's requests for a scheduling order, discovery, and to compel Amy to cooperate with his expert. The order also denied the requests for grandparent visitation rights and a plenary hearing without prejudice. Ben's subsequent motion for modification or reconsideration was denied.
In this appeal, Ben argues the court erred in denying his application for a plenary hearing and further requests that the matter be remanded to a different judge. We agree that the trial court's analysis was flawed but see no reason for this matter to be assigned to a different judge on remand.
II
We begin with reviewing the applicable legal principles as set forth in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), and recently reaffirmed by the Supreme Court in Major v. Maguire, 224 N.J. 1, 7 (2016). Parental autonomy in decisions regarding the "care, custody and control of their children" is a fundamental right that will only yield to a compelling state interest. Moriarty, supra, 177 N.J. at 103. Pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, the grandparent seeking visitation over the objection of a fit parent must prove by a preponderance of the evidence "that visitation is necessary to avoid harm to the child." Moriarty, supra, 177 N.J. at 117-18. The probability that a child will suffer serious psychological or physical harm provides grounds for interference with parental autonomy under the doctrine of parens patriae. Id. at 112-13. The Court provided the following examples of supporting evidence:
The grandparents' evidence can be expert or factual. For example, they may rely on the death of a parent or the breakup of the child's home through divorce or separation. . . . In addition, the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm.
[Id. at 117.]
If a grandparent meets that burden, the presumption in favor of parental decision-making is overcome and the best interest standard applies. Ibid. N.J.S.A. 9:2-7.1(b) lists the relevant factors to be considered:
(1) The relationship between the child and the applicant;A "fact-sensitive analysis addressing all of the relevant statutory factors is required." R.K. v. D.L., 434 N.J. Super. 113, 151 (App. Div. 2014).
(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
In his oral and written statements of reasons, the judge acknowledged that Ben's application was made in good faith. N.J.S.A. 9:2-7.1(b)(6). Regarding N.J.S.A. 9:2-7.1(b)(2), the judge observed that the relationship between Amy and Ben had "broken down, deteriorating to a degree that it is [Amy's] judgment that [Ben] should not have visitation." Addressing the time-sharing arrangement, N.J.S.A. 9:2-7.1(b)(5), the judge stated he "[took] into account that dad is ill, but also that dad has an order against his direct visitation with the child." In considering "any other factor relevant to the best interests of the child," N.J.S.A. 9:2-7.1(b)(8), the judge found it unnecessary to subject Mindy to expert evaluations, describing them as "disruptive," and to put her "through that whole process on the basis of what is a fairly straightforward and unfortunate breach of the parental and grandparent relationship."
The focus of the trial judge's analysis was, however, the nature of the relationship between Ben and Mindy, which he treated as a threshold for relief:
[T]his Court concludes that Plaintiff's allegations failed to establish the kind of special preexisting relationship — beyond an ordinary healthy and loving grandparent-grandchild relationship — that is needed to obtain relief under the statute. This case presents a situation in which the relationship between the parent and the applicant here has broken down, deteriorating to a degree that it is the Defendant parents' [sic] judgment
that Plaintiff should not have visitation with the grandchild[]. The certifications do not support the notion that, and it would be speculative to consider Plaintiff, as a psychological parent or a primary attachment figure.
The moving papers and oral argument bespeak "a typical grandparent relationship" rather than the sort of special relationship that could be sufficient to justify an incursion into the lives of the parents [sic] and their children [sic] in an "intact family." It is inappropriate to presume that the grandchild[] demonstrably would suffer "significant and material harm."
. . . .
Plaintiff's contentions fall short of demonstrating the kind of special relationship or unusual harm that would distinguish this case from the severance of a conventional healthy and loving grandparent-grandchild relationship.
When a grandparent has been "a full-time caretaker for the child," N.J.S.A. 9:2-7.1(c) equates that status with "prima facie evidence that visitation is in the child's best interest." However, that status is not a pre-requisite for a grandparent to obtain an order compelling visitation. The trial judge's premise that Ben was required to show he was a "psychological parent or a primary attachment figure" or that he had something more than a "healthy and loving grandparent-grandchild relationship" in order to be entitled to relief is erroneous. None of the factors enumerated in N.J.S.A. 9:2-7.1(b) establishes a threshold relationship that must be met. While the relationship between the grandparent and child is surely an important factor to be weighed, it is but one of the factors to be considered.
"[A]voiding harm to the child is polestar" to the analysis, Moriarty, supra, 177 N.J. at 113, and an assessment of the potential harm to the child requires consideration of the other statutory factors. In a case relied upon by the trial judge here, we cited Moriarty as demonstrating that the "special need for continued contact" was satisfied by "the death of the children's mother and the children's consequent need to 'continue a bond with their mother's side of the family.'" Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005) (quoting Moriarty, supra, 177 N.J. at 121). The trial judge's statement of reasons makes no mention of the harm to Mindy of losing a bond with Jack's side of the family following his impending death.
The need for a fact-sensitive approach has been emphasized as part of the development of reforms to the procedures applicable to grandparent visitation cases. In R.K., supra, 434 N.J. Super. at 133, we instructed trial courts to adopt a case-sensitive approach to grandparent visitation cases rather than automatically relegating such matters to treatment as summary actions. We recognized such procedures were ill-suited for use in grandparent visitation cases because they "inadvertently inhibited [the grandparents'] ability to present their case in a manner likely to produce a sustainable adjudicative outcome." Id. at 129.
Following our decision, the Supreme Court adopted rule amendments, effective September 1, 2015, that: permitted a party to request that the case be designated complex, R. 5:4-2(j); authorized the filing of a non-conforming complaint with a supplement in such matters, R. 5:4-2(i); and permitted the trial court to assign non-dissolution cases that "cannot be heard in a summary manner" to the complex track when "discovery, expert evaluations, extended trial time or another material complexity requires such an assignment." R. 5:5-7(c). Cases that are not deemed complex remain summary actions. See R. 5:5-7(c) (reserving complex track procedures for "exceptional cases" ill-suited to be managed as summary actions).
Then, approximately one year after the trial court's decision here, the Court issued its decision in Major. Recognizing that "the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law" in some cases, the Court provided "guiding principles" for the management of grandparent visitation cases and determined that Rule 5:5-7(c) should govern grandparent visitation cases that warrant assignment to the complex track. Major, supra, 224 N.J. at 22.
The Court instructed that a plaintiff seeking to have the matter designated as complex should file a non-conforming complaint "[w]ith no constraints on the length of their pleadings." Id. at 23. The Court reasoned that with this procedure:
[M]any plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent's death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. Relevant facts within a grandparent's knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents' factual allegations on disputed issues. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.
[Ibid. (citations omitted).]
The Court acknowledged that expert testimony may be necessary, "[p]articularly in settings in which one of the child's parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child." Id. at 24. As we have observed, "the nature of [this] litigation is per se extremely stressful as well as economically disruptive." R.K., supra, 434 N.J. Super. at 139. The guidance provided by the Supreme Court serves to minimize these factors. Trial courts were instructed to "streamline the process" when discovery is required. Major, supra, 224 N.J. at 24. The Court cautioned trial courts to "be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert's potential value to the court and parties in suggesting a resolution of the dispute." Id. at 25. The Court advised that, even when fact and expert discovery is warranted, "the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm." Ibid. Finally, the Court encouraged the use of mediation or arbitration to resolve these disputes. Id. at 20.
The Court encouraged the use of Rule 4:67-5 for the dismissal of summary actions and the summary judgment rule, R. 4:46-2(c), to decide complex visitation cases under such circumstances. Major, supra, 224 N.J. at 25. --------
When the facts of this case are viewed in light of the Court's decision in Major, we note the following. As in Major, the situation here now involves a grandparent's effort to maintain a relationship with a child following the death of a parent. Also, in each case, the trial court's decision was based upon the pleadings and the conflicting certifications of the parties, rather than on a full record. See id. at 7-8.
There are similarities between Ben's allegations and those presented by the grandparents in Major. In Major, the plaintiffs alleged their involvement in their granddaughter's life prior to their son's death and contended she would be harmed if deprived of that relationship. Id. at 8. The Court rejected the trial court's conclusion that the plaintiffs had failed to make a prima facie showing of harm, stating:
Plaintiffs' showing meets the requirements of Moriarty for several reasons. First, it was not merely a separation or divorce that prompted the family dispute in this case but the death of the child's father. In Moriarty, this Court recognized the significance of the death of the mother, crediting the trial court's finding that the children's bond with their mother's side of the family was critically important to their security and self-esteem in the wake of their loss. The same concerns are raised by the record here. Plaintiffs demonstrated that their granddaughter enjoyed a close relationship with her father, who shared custody with the girl's mother, and contended that his death caused a major trauma in the child's life. Plaintiffs represented that they are the only relatives on their side of the family with whom their grandchild has a relationship. While a parent's death, without more, does not automatically give rise to a prima facie showing of harm, it is an important factor in this setting.
Second, plaintiffs presented evidence that they had maintained a close bond with their granddaughter prior to her father's
death, and assumed significant responsibility for her care during her father's parenting time. Plaintiff Suzanne Major, the child's grandmother, testified that she visited the child every weekend when the child was staying at her father's home, hosted her granddaughter at her own home about once a month, attended dance recitals, traveled with the child, and annually brought the child to work for a special event. She stated that after the child's father became ill, she lived part-time with her son and her granddaughter and cared for the child, and then later assumed the burden of full-time care for her son. The recent death of this child's father, in concert with plaintiff's allegation that the child was deprived of the consistent presence of her grandmother, gave rise to a prima facie showing of harm.
Although plaintiff Anthony Major offered less compelling evidence than did his co-plaintiff, he nonetheless presented sufficient evidence to meet his prima facie burden. He testified that between his son's separation from defendant and his son's death, he saw his granddaughter about every other week, then more frequently after he purchased his boat. Plaintiff also testified that during his son's final illness, he was present in the home with his former wife, his son, and his granddaughter several days a week. He met his burden to make a prima facie showing of harm under N.J.S.A. 9:2-7.1 and Moriarty at the pleading stage.
[Id. at 26-28 (emphasis added) (citations omitted).]
Ben does not contend he was a consistent presence in Mindy's life to the degree that the plaintiffs in Major alleged. However, his claim similarly rests upon allegations that he enjoyed a "wonderful" relationship with Mindy, Amy curtailed his opportunity to see her and Mindy would suffer harm if she is deprived of a relationship with him as the sole representative of her father's side of the family.
Because the allegations are not as compelling as those in Major, we cannot conclude it is unnecessary for the trial court to reexamine the complaint to determine whether sufficient facts have been alleged for a prima facie showing. See id. at 25-26. However, the allegations are sufficient to warrant a remand for the court to evaluate the allegations, giving due consideration to all the statutory factors. In addition, in light of the subsequent rule amendments and Major, the trial court should determine whether this matter should proceed as a complex matter, as Ben has requested, with discovery as necessary, or as a summary action. We echo the Court's advice that: mediation or arbitration should be encouraged; discovery, if any, should be streamlined; the trial court should be mindful of the emotional and financial toll of the proceeding, particularly on the child; and "the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparent[] cannot sustain [his] burden to make the required showing of harm." Id. at 24-25.
We recognize that the remand of this matter entails, at a minimum, additional counsel fees and the potential for increased costs in the event that fact and expert discovery is deemed necessary. Under these circumstances, we conclude it is appropriate to vacate the order denying Amy counsel fees and for the trial court to reconsider her application for costs incurred thus far as well as the estimated costs of further litigation pursuant to Rule 5:3-5(c).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION