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Superior Court of New Jersey, Appellate Division.

ANTHONY C. MAJOR and SUZANNE MAJOR, Plaintiffs–Appellants, v. JULIE MAGUIRE n/k/a/ JULIE DI LIBERTO, Defendant–Respondent.

DOCKET NO. A–5560–12T1

    Decided: April 17, 2014

Before Judges Fuentes, Simonelli and Haas. Laurie L. Newmark argued the cause for appellants (Townsend, Tomaio & Newmark, L.L.C., attorneys;  John E. Clancy, on the briefs). Kristyl M. Berckes argued the cause for respondent (Lyons & Associates, P.C., attorneys;  Ms. Berckes, on the brief).

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.


1.  FN1. The trial judge noted it was “quarter to five” in the afternoon at the time.

2.  FN2. 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.  FN3. 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.


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