Grandparent visitation cases require discovery
ANTHONY C. MAJOR and
SUZANNE MAJOR,
Plaintiffs-Appellants,
v.
JULIE MAGUIRE n/k/a/
JULIE DI LIBERTO,
Defendant-Respondent.
_______________________________________
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Argued April 2, 2014 – Decided
Before Judges Fuentes, Simonelli and Haas.
On appeal from Superior Court of New Jersey, Chancery
Division, Family Part, Somerset County, Docket No. FD-18-330-10.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
Plaintiffs
Suzanne and Anthony Major are the paternal grandparents of a six-year-old child
whom we identify here as "Jane" to protect her privacy. Defendant Julie Di Liberto is Jane's mother;
Jane's father Anthony C. Major died approximately two months before plaintiffs
filed this complaint seeking visitation with their grandchild pursuant to N.J.S.A.
9:2-7.1. The Family Part dismissed
plaintiffs' complaint without an evidentiary hearing or permitting the parties
to engage in discovery. The court also
did not conduct a case management conference or otherwise make any effort to
identify the issues in the case or determine the potential for settlement
through alternative methods of dispute resolution.
In this appeal,
plaintiffs argue the trial court erred in dismissing their complaint as a
matter of law because they established a prima facie case for relief pursuant
to the standards established by the Legislature in N.J.S.A. 9:2-7.1, and
our Supreme Court's holding 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). Plaintiffs also
argue the court abused its discretion in failing to permit the parties to
engage in discovery, in precluding them from presenting the testimony of an
expert who would have opined as to the potential harm Jane would suffer from
being denied regular contacts with her paternal grandparents, and failing to
conduct a case management conference to identify the particular issues in the
case and determine the potential for resolution through mediation.
Defendant argues
the trial court properly dismissed plaintiffs' complaint because they failed to
overcome her presumptively valid objections to visitation as Jane's mother. She
also claims the court did not abuse its discretionary authority under Rule
5:5-4(a) in denying discovery or conducting a case management conference
because the nature of this summary action required expedited resolution.
After reviewing
the record before us, we are compelled to remand this matter for the Family
Part to manage and adjudicate this grandparent visitation action consistent
with the procedural guidelines we described in R.K. v. D.L., 434 N.J.
Super. 113, 137-40 (App. Div. 2014).
In the interest of clarity, we will briefly describe the limited facts
that informed the trial court's ruling.
Defendant and
Jane's father had a romantic relationship and cohabitated during the period of
time Jane was born. Jane's father was
diagnosed with cancer in August 2009, while he and defendant resided together
as a committed, though unmarried,
couple. Defendant and Jane's
father ended their relationship and separated as a couple in November
2009. Despite their separation, the
couple wanted to maintain a fair and balanced relationship with respect to
their daughter, equally sharing their parental responsibilities. As defendant indicated in her certification
to the Family Part:
After we separated and through [Jane's] father's
diagnosis, we continued our parenting arrangement, 50-50, because I believed it
was in the best interest of our daughter to spend time with her father, and
also in the best interest of [Jane's] father, who was experiencing a very
difficult challenge with his health and who was not going to be around much
longer.
Jane's father died on February 21,
2013.
The
role plaintiffs played in their granddaughter's life during her father's
illness is strongly disputed by the parties.
What appears to be clear, however, is that communication and cooperation
between plaintiffs and defendant deteriorated during Jane's father's illness,
and reached a critical impasse after his death.
Although not explicitly stated, we can safely assume plaintiffs were
experiencing an emotionally difficult situation during the time leading to
their son's demise. We can also
appreciate how difficult it must have been for defendant to protect her young
daughter from the fallout of this emotional turmoil, while trying to honor the
child's father's rights to share the last moments of his life with her. These and other critical details need to be
explored and placed in their proper context by the Family Part.
Defendant
is now married and has a son with her husband.
Although seemingly sympathetic to plaintiffs' wishes to have Jane honor
her father's memory, defendant alleges plaintiffs' actions have improperly
undermined her parental authority.
Plaintiffs argue the child will suffer emotional and psychological harm
if they are not permitted to nurture the relationship they developed with their
granddaughter during the time the child was with her father in the waning
months of his life.
Unable
to reach a suitable compromise, plaintiffs filed a complaint seeking visitation
with their granddaughter pursuant to N.J.S.A. 9:2-7.1. Although represented by counsel, plaintiffs
used the standard uniform "Verified Complaint" form for summary
proceedings. This "complaint"
was filed on April 17, 2013. Before
receiving any response from defendant, the Family Part scheduled a visitation
hearing on May 29, 2013. By letter dated
May 24, 2013, counsel for defendant advised the vicinage's "FD UNIT"
that she had been retained to represent defendant's interests in the matter and
requested an adjournment of the hearing scheduled for May 29, 2013. This prompted plaintiffs' counsel to send her
own letter dated May 28, 2013, (just one day before the visitation hearing),
objecting to the adjournment "unless the Defendant will agree to interim
grandparent visitation."
By
notice dated May 28, 2013, the Family Part informed counsel that the visitation
hearing scheduled on May 29, 2013, at 8:30 a.m., had been rescheduled to June
12, 2013, at 1:30 p.m., before a specifically named judge. On June 5, 2013, just one week before the
visitation hearing, defendant filed an answer and counterclaim (again utilizing
the standard form provided by the Family Part), supplemented by thirty pages of
exhibits, including a certification from defendant with thirty-six separate
paragraphs, legal memorandum, and a certification from counsel in support of
her application for counsel fees.
The
parties and their respective attorneys appeared before the Family Part on June
12, 2013 at 1:30 p.m. Plaintiffs'
counsel requested leave from the court to respond to defendant's belated
submissions. After an extensive colloquy
with counsel from both sides, the trial judge advised plaintiffs' counsel that
they needed
to make a prima facie showing that denial of
visitation would assert a particularized identifiable harm on the child, which
would warrant intervention by the Judiciary.
I think that is clear in the case law in New
Jersey. The parental -- the parents'
fundamental rights to raise their child, as they see fit, are paramount in
these cases and while -- and I'll say this on behalf of the court -- our
condolences on behalf of your son. It is
a tragedy –- anyone who dies of a terrible disease at such a young age.
But that -- but in a particular case of
grandparent visitation, which is what you are asking for, the applicant must
clear that first hurdle.
And it is clear in the case law. You don't get a plenary hearing unless you
clear that first hurdle.
After
engaging in further colloquy with counsel, the judge found that based on facts
set out in plaintiffs' standardized form-pleading, plaintiffs had not met their
burden of showing
a particularized harm to the child. That said it is a complaint and, therefore,
the court should take testimony on that issue.
And for the sole purpose of determining whether or
not the grandparents' proofs are sufficient to overcome the presumption if they
were parental decision-making and whether or not they can meet the prima facie
showing that they can prove to the court that there is a particularized harm to
the children or child in this case, as set forth in Moriarty and
progeny, that if they are not granted parenting time it will be harmful to the
child.
Given
the lateness of the hour,[1]
the judge directed the parties to appear the following day for the purpose of
hearing testimony from plaintiffs to supplement the allegations made in their
complaint. Overruling defense counsel's
repeated objections, the judge permitted plaintiffs to testify without being
subjected to cross-examination. The
judge viewed the proceedings as plaintiffs' opportunity "to amend [their]
complaint orally as opposed to in writing.
If I see fit, I will allow [defense counsel's] client to amend her
cross-complaint or counterclaim orally as well."
At
the conclusion of this ad hoc approach, the judge found plaintiff had not made
a prima facie showing
of two things.
Number one, that there is a particularized harm to the child by not
having visitation.
And number two -- and I think this is just as
important -- and I'll use the Wilde[[2]]
case as my basis.
Suits of this nature occur when relations between
the parent and the grandparent have deteriorated. Before engaging the courts, grandparents
should be obliged and obligated to make substantial efforts at repairing the
breach, if any. In addition, litigation,
ordinarily, should not be threatened before visitation has been denied with
finality. In this particular case that
hasn't happened yet.
Unfortunately, when we come to court and we
rush to court before we have even explored those options, it creates an even
greater strain on the relationship.
And here we are.
Clearly, they have had some visitation -- not visitation – but have been able to visit with their granddaughter.
What wasn't testified to at all was any kind of
efforts that have been made. Without
anything in particular, there was some phone calls and there was a luncheon set
up. But, clearly, visitation has not
been denied with finality.
Therefore, I
will dismiss their complaint without prejudice in this case.
And I would instruct the parties to follow the
case law and at least be aware that those are what the court will rely on if
another complaint is brought.
[(Emphasis added.)]
Conspicuously
missing from the trial judge's analysis is any reference to the statutory
standards established by the Legislature in N.J.S.A. 9:2-7.1. In R.K., supra, this court
recently addressed in great detail the procedural and substantive approach the
Family Part must employ in adjudicating grandparent visitation complaints. 434 N.J. Super. at 140 -44. This approach is grounded in the
constitutional concerns expressed by the Court in Moriarty and the
Legislature's codified standards in N.J.S.A. 9:2-7.1. Notwithstanding their designation as summary
actions, we emphasized the need for the Family Part judge assigned to the case to
meet with the parties and their attorneys
as soon practical after joinder of issue, to
determine, on the record: (1) the nature of the harm to the child alleged by
plaintiff; (2) the possibility of settlement through mediation or as otherwise
provided in Rule 5:5-5; (3) whether pendente lite relief is warranted;
(4) the extent to which any of the facts related to the statutory factors
identified in N.J.S.A. 9:2-7.1(b)(1) through (8) can be stipulated by
the parties; (5) whether discovery is necessary, and if so, the extent and
scope of the discovery, as permitted by Rule 5:5-1(a), written
interrogatories, production of documents, Rule 4:18-1, request for admissions,
and consent to release documents not within the possession of the party --
discovery may be completed within the time allotted in Rule 5:5-1(e), or
as otherwise ordered by the court; (6) whether expert testimony will be
required, and if so, the time for submission of the expert's report and
curriculum vitae, the time for submission of defendant's rebuttal report if
any, and whether deposition of the expert(s) will be required or permitted; (7)
a protocol for the filing of motions, including motions to compel discovery,
motions seeking protective orders to exclude or limit evidence based on an
assertion of privilege, or because the release of the information would
adversely affect the child's best interest, or unduly infringe upon the privacy
rights of the custodial parent; and (8) a tentative date for the filing of
dispositive motions and/or a plenary hearing if necessary to adjudicate
plaintiff's complaint and resolve any material facts in dispute.
[Id. at 138.]
We recognize that R.K.
had not been decided at the time this case came before the trial court. We also reaffirm that the list of possible
case management issues we described in R.K. "is by no means
exhaustive of the myriad of potential case management issues that may arise in
any given case. The need and degree of
judicial supervision is left entirely to the discretion of the trial judge."
Ibid. That being said, the ad hoc approach employed
by the trial court here is inconsistent with the legal principles expressed by
the Court in Moriarty and untethered to the standards codified in N.J.S.A.
9:2-7.1. We are thus compelled to
reverse and remand this matter for the trial court to reexamine plaintiffs'
complaint de novo, adhering to the procedures and principles we described in R.K.
Finally, we are
duty-bound to comment on the trial judge's expression of his personal views
concerning the wisdom of litigants exploring non-adversarial means of resolving
these disputes as a jurisdictional prerequisite to these causes of action.[3] Although likely well-intended and arguably
couched as commonsense observations, a judge's personal views should play no
role in determining the legal viability of a case, especially when, as here,
the Legislature has codified the elements of the cause of action as a matter of
public policy. We thus caution our
colleagues at the trial court not to permit their personal views to overwhelm
the legal process. A judge must always act
in a manner that reassures all affected that he or she will be guided
exclusively by the factors established by law and not by the judge's personal
code of conduct. See State v.
Tindell, 417 N.J. Super. 530, 571 (App. Div. 2011).
Reversed and
remanded. We do not retain jurisdiction.
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[1]
The trial judge noted it was "quarter to five" in the afternoon at
the time.
[2]
Wilde v. Wilde, 341 N.J. Super. 381 (App. Div. 2001), upheld the
constitutionality of N.J.S.A. 9:2-7.1 as applied to the particular facts
of that case. This opinion predates our
Supreme Court's decision in Moriarty.
[3]
The trial judge's reliance on our decision in Wilde as "a
basis" for endorsing such an approach is misplaced. In Wilde, we quoted parts of Justice
Kennedy's dissenting opinion in Troxel v. Granville, 530 U.S. 57,
120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), which noted the
disruptive effect certain domestic relations cases can have on the parent-child
relationship, and how the cost of such litigation, including counsel fees, can
"destroy" the hopes and plans a single parent may have for her child's
future. Wilde, supra, 341 N.J.
Super. at 389 (quoting Troxel, supra, 530 U.S. at 101,
120 S. Ct. at 2079, 147 L. Ed. 2d at 78 (Kennedy, J.,
dissenting); approved by the plurality, 530 U.S. at 73, 120 S. Ct.
at 2064, 147 L. Ed. 2d at 61). We
used Justice Kennedy's remarks in Wilde as part of a three-prong
analysis for declining to remand the matter to the trial court and assert
original jurisdiction to address and decide the plaintiff's as-applied
constitutional challenge to N.J.S.A. 9:2-7.1. Ibid.
