C.O.M. VS. J.O.G.-M. (FD-03-0952-17, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4300-16T4
C.O.M.,1
Plaintiff-Appellant,
v.
J.O.G.-M.,
Defendant-Respondent.
________________________________
Submitted March 13, 2018 – Decided July 30, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FD-03-0952-17.
Law office of Thomas J. Hurley, LLC, attorney
for appellant (Thomas J. Hurley, on the
brief).
Hegge & Confusione, LLC, attorneys for
respondent (Michael Confusione, of counsel and
on the brief).
PER CURIAM
1
We use initials to protect the parties' privacy issues.
Plaintiff C.O.M. (Clay)2 appeals from a Family Court order
denying without prejudice his application for visitation with his
grandson, T.G. (Tim). We conclude that Clay failed to satisfy his
burden of proof under Major v. Maguire, 224 N.J. 1, 6-7 (2016),
and, thus, we affirm.
In February 2014, defendant J.O.G.-M. (Janet) separated from
her husband, leaving him in Hawaii where he was stationed in the
military, and returned to New Jersey with their two-year-old son,
Tim, to live with her father Clay and her stepmother. According
to Janet, she left her father's house in May 2016, to move in with
her mother.3 In November 2016, she and Tim moved into a
condominium. In January 2017, Clay filed a pro se application for
grandparent visitation rights with Tim, then five-years-old,
because Janet refused to allow him to see Tim. Two months later,
after unsuccessful mediation, the court dismissed the action
without prejudice.
Undaunted, Clay refiled his application, and later retained
counsel. Janet filed a counterclaim seeking attorney fees for
filing a frivolous action. Clay then filed a motion seeking
2
We also use pseudonyms because the parties have the same surname
and for ease of reference.
3
Although Clay certified that Janet moved out of his house in
November 2016, this factual dispute has no bearing on our analysis.
2 A-4300-16T4
grandparenting time involving weekend visitation; regularly
scheduled video communication; vacation time; overnight birthday
visitation; and advance notification of school or extracurricular
events to enable him to attend. In support of his motion, Clay
submitted a certification detailing the close relationship he had
developed with Tim during the period that Janet and Tim resided
with him. When the motion was heard, Clay's testimony echoed his
certification about how he assisted Janet on a daily basis in
caring for Tim while she was attending nursing school. The court
denied Clay's application for grandparenting time and Janet's
request for attorney's fees.
Before us, Clay argues the court failed to address the
statutory factors set forth in N.J.S.A. 9:2-7.1 and failed to
follow Major v. Maguire, 224 N.J. 1, 6-7 (2016).4 He also contends
the court should have allowed discovery before dismissing his
application.
"The scope of appellate review of a trial court's fact-finding
function is limited. The general rule is that findings by the
trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
4
Incorrectly cited as Major v. Maguire, 218 N.J. 530 (2014), the
Supreme Court's decision granting petition for certification for
its subsequent decision in Major v. Maguire, 224 N.J. 1, 7 (2016).
3 A-4300-16T4
411-12 (1998). Moreover, "[b]ecause of the family courts' special
jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Id. at 413.
An appellate court should intervene only when convinced that the
trial court's factual findings and legal conclusions "are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice." Id. at 412 (quoting Rova Farms Resort,
Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore,
"[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference," and this court review questions of law de
novo. Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995)
(citations omitted).
Turning to the legal issues raised by Clay, we review the
principles set forth in Moriarty v. Bradt, 177 N.J. 84 (2003), 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, 177 N.J. at 103 (citation omitted). 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
4 A-4300-16T4
by a preponderance of the evidence "that visitation is necessary
to avoid harm to the child." Moriarty, 177 N.J. at 117. 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;
(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
5 A-4300-16T4
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 addition, N.J.S.A. 9:2-7.1(c) provides: "With regard to any
application made pursuant to this section, it shall be prima facie
evidence that visitation is in the child's best interest if the
applicant had, in the past, been a full-time caretaker for the
child."
In its oral decision, the court found there was nothing in
Clay's certification nor his testimony indicating that Janet was
not a fit parent and that he had a psychological bond with Tim
that would be harmed unless there is grandparenting time. The
court pointed out that even though Clay and Tim have "shared some
time together," this alone does not establish Clay's right to
court ordered grandparent visitation over Janet's autonomy as
Tim's mother. We conclude that the record supports this factual
finding. While the record speaks to Clay forming a sound and
loving relationship with Tim, Clay fails to present the necessary
6 A-4300-16T4
evidence that his grandson will suffer serious psychological or
physical harm due to Janet's decision not to allow visitation.
Only upon showing that such harm will occur, is there an analysis
of the best interest standard under N.J.S.A. 9:2-7.1.
Lastly, we find no merit to Clay's contention that the court's
denial was premature because discovery should have been allowed.
First, he initiated the court's ruling by making the motion to
obtain grandparenting time based upon the assertion that he could
prevail on his certification and testimony – thereby suggesting
that discovery was unnecessary. Second, and equally important,
since the court's order was without prejudice, Clay is not
foreclosed from seeking visitation in the future, and can seek
discovery at that time if he believes that it is needed.5
Affirmed.
5
Since the issue was not presented to the court, we have no
opinion as to the scope of any discovery that may take place.
7 A-4300-16T4