VICKI BOCELLE VS. LAUREN K. CALDWELL (FD-01-0150-16, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0245-16T1
VICKI BOCELLE AND
RANDALL BOCELLE,
Plaintiffs-Appellants,
v.
LAUREN K. CALDWELL AND
CHRISTOPHER MARTIN,
Defendants-Respondents.
______________________________
Submitted October 2, 2017 – Decided October 27, 2017
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FD-01-0150-16.
Faia & Frick, PC, attorneys for appellants
(Carmen R. Faia, on the brief).
Respondents have not filed a brief.
PER CURIAM
Vicki and Randall Bocelle (grandparents), appeal from an
August 29, 2016 Family Part order modifying their visitation with
their now nine-year-old grandson. We reverse and remand in light
of our decision in Slawinski v. Nicholas, 448 N.J. Super. 25 (App.
Div. 2016), which requires a showing of changed circumstances to
modify a consent order granting visitation.
We discern the following relevant facts from the record. The
grandson was born in July 2008, to Lauren Caldwell (mother) and
Christopher Martin (father). The mother and father thereafter
became estranged, and, in 2009, the father had two days parenting
time with no overnights. The parents officially divorced in 2011.
In August 2015, the father's visitation was modified to provide
for weekends with his son.
From the time the child was about three-and-a-half years old
until he was about seven years old, in August 2015, with the father
on active military duty and the mother working weekends, the child
spent most weekends, from Thursday to Sunday, at the grandparents'
house. The child also spent holidays with his grandparents,
including Christmas, Thanksgiving, and Easter. Additionally, the
grandparents were involved with the child's education, including
attending special event days at his school, such as parades and
school parties.
Our review of the record reflects heightened animosity
between the mother and the grandparents. The record includes
allegations both sides engaged in hurtful and harassing conduct
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on social media. Past court-ordered family counseling sessions
have been unsuccessful.
On August 5, 2015, the grandparents filed a verified complaint
seeking custody of the child, or in the alternative, seeking
parenting time. On March 11, 2016, the Family Part entered a
consent order granting the grandparents visitation for one
Saturday per month. Additionally, the grandparents continued to
attend the child's school events, and occasionally babysat him
overnight when requested by the father.
On June 8, 2016, the mother moved to terminate the
grandparents' visitation and ban them from attending school
events. On August 24, 2016, the grandparents filed a cross-motion
requesting modification to provide them with a full weekend of
visitation per month, and permit them to attend all school events.
On August 29, 2016, the court conducted a short hearing and
entered an order declaring grandparenting time to be at the
discretion of either the mother or father, but permitting the
grandparents to attend all school functions unless both the mother
and father objected. Without addressing the consent order, the
judge determined under Moriarty v. Brandt, 177 N.J. 84 (2003),
that the situation involved a dispute between grandparents and two
fit parents, and the grandparents had not made a sufficient showing
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of harm to the child to mandate guaranteed grandparent visitation.
This appeal followed.
We reviews errors not brought to the trial court's attention
under the plain error standard, and will not reverse unless the
appellant shows that the error is "clearly capable of producing
an unjust result." R. 2:10-2. When the parties do not raise an
error before the appellate court, the appellate court may raise
it, sua sponte, "where . . . it is manifest that justice requires
consideration of an issue central to a correct resolution of the
controversy[.]" Ctr. for Molecular Med. and Immunology v. Twp.
of Belleville, 357 N.J. Super. 41, 48 (App. Div. 2003) (quoting
In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446 (1962)).
Our Supreme Court has said the grandparent-applicant bears
the burden of establishing, by a preponderance of the evidence,
that visitation is necessary to avoid harm to the child. Moriarty,
supra, 177 N.J. at 117; Major v. Maguire, 224 N.J. 1 (2016).
However, once a parent enters into a consent order allowing
grandparent visitation, a request to modify such an order must be
supported by a prima facie showing of changed circumstances.
Slawinski, supra, 448 N.J. Super. at 34 (citing Lepis v. Lepis,
83 N.J. 139 (1980)); see Bisbing v. Bisbing, ___ N.J. ___, ___
(2017) (slip op. at 45).
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The burden is on the moving party to show a change in
circumstances. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135,
152 (App. Div.), certif. denied, 178 N.J. 34 (2003); Mimkon v.
Ford, 66 N.J. 426, 438 (1975); Sheehan v. Sheehan, 51 N.J. Super.
276, 287 (App. Div. 1958). The change in circumstances must be
such "as would warrant relief" from the provisions involved, and
must involve the child's welfare. Slawinski, supra, 448 N.J.
Super. at 33-35 (quoting Lepis, supra, 83 N.J. at 157).
Once the change in circumstances has been proven, the
arrangements made by consent shall then be revised "based on the
factors and standards that otherwise govern." Ibid. Thus, once
a party established changed circumstances sufficient to warrant
modifying the consent order, only then does the question of harm
to the child come into play. Id. at 36; Lepis, supra, 83 N.J. at
157.
Here, the trial judge skipped this threshold step by jumping
directly to a determination there was no harm to the child.
Instead, the mother was permitted to unilaterally terminate the
grandparent's visitation by removing their guaranteed one-day-per-
month visitation and replacing it with a discretionary
arrangement.
Neither party argued changed circumstances at the hearing,
nor did the trial court consider whether the circumstances had
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changed from those present when the consent order was entered.
However, "justice requires consideration of an issue" as central
as whether changed circumstances warrant a modification of the
order. Ctr. for Molecular Med. and Immunology v. Twp. of
Belleville, supra, 357 N.J. Super. at 48. Furthermore, under the
terms of the order as it stands, the parents in their discretion
can cut off all visitation with the child, a situation that is
"clearly capable of producing an unjust result." R. 2:10-2.
Accordingly, we reverse and remand for the trial court to
consider the motions consistent with this opinion. We do not
retain jurisdiction.
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