In the Matter of the Estate of Michael D. Fisher, II

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0878-14T2
APPROVED FOR PUBLICATION
December 11, 2015
IN THE MATTER OF THE ESTATE
OF MICHAEL D. FISHER, II. APPELLATE DIVISION
___________________________
Argued November 18, 2015 – Decided December 11, 2015
Before Judges Ostrer, Haas and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Cape May County, Docket
No. P-20-14.
Michael A. Gill argued the cause for
appellant Michael D. Fisher, Sr.,
(Goldenberg, Mackler, Sayegh, Mintz,
Pfeffer, Bonchi & Gill, attorneys; Mr. Gill,
on the briefs).
I. Dominic Simeone argued the cause for
respondent Justina M. Nees, individually and
as administratrix (Simeone & Raynor, LLC,
attorneys; Mr. Simeone, of counsel and on
the brief; Bryan T. Eggert and Kenneth E.
Raynor, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this case of first impression, appellant Michael D.
Fisher, Sr. appeals from a September 10, 2014 order, granting
respondent Justina Nees's application to bar him from receiving
a share of the intestate estate of their deceased son. Because
we conclude that Nees failed to demonstrate that Fisher
"abandoned" the child "by willfully forsaking" him within the
intendment of the governing statute, N.J.S.A. 3B:5-14.1(b)(1),
we reverse.
I.
We derive the following facts from the parties' pleadings
and certifications. The parties were married in 1994 and had
one child, Michael, born in February 1995.
The parties separated in April 2001.1 One month later, Nees
obtained a Final Restraining Order (FRO) against Fisher after he
attempted to remove Michael from school without first notifying
her. Under the terms of the FRO, Fisher was permitted to have
supervised parenting time with Michael at Fisher's
psychologist's office. The FRO also ordered Fisher to submit to
a risk assessment and to "receive professional domestic violence
counseling[.]" Fisher did not attend all of his supervised
parenting time sessions with his son. He also did not appear
for the risk assessment or counseling.
1
According to Nees's certification, the separation was prompted
by Fisher's December 2000 arrest for peering into the window of
a dwelling, which resulted in his indictment for fourth-degree
criminal trespass, N.J.S.A. 2C:18-3(c). Fisher had previously
been arrested in April 1996 for lewdness, N.J.S.A. 2C:14-4, and,
in November 1999, for another incident of peering into the
window of a dwelling, N.J.S.A. 2C:18-3(c). The record does not
reveal whether any of these arrests led to convictions.
2 A-0878-14T2
In November 2001, Fisher filed a motion, seeking permission
to have unsupervised parenting time with Michael. In response,
Nees filed a cross-motion, requesting that all of Fisher's
parenting time be supervised until he completed the anger
management program and the risk assessment.
On January 29, 2002, the court temporarily suspended
Fisher's parenting time pending his enrollment in an anger
management program and completion of an assessment by the
"Family Court Assessment Team." In his decision, the judge
remarked "that [Fisher] ha[d] not exerted himself to take the
basic steps" set forth in the FRO concerning the required risk
assessment and counseling and stated that Fisher's "contumacious
disregard of the court's explicit requirements" supported the
denial of Fisher's request for unsupervised parenting time.
On March 7, 2002, the court entered a Final Judgment of
Divorce (FJOD), which incorporated the terms of the parties'
agreement as to the terms of the dissolution. The FJOD granted
sole custody of Michael to Nees, with Fisher's parenting time
remaining suspended until he complied with the January 29, 2002
order. Fisher agreed to pay Nees $85 per week2 in child support
2
By 2010, Fisher's child support obligation had increased to
$105 per week.
3 A-0878-14T2
for Michael, with the payments to be made through the County
Probation Department by way of wage garnishment.
In Fisher's certification, he stated:
During our divorce litigation, [Nees]
made an offer to me, through our attorneys,
that she would not ask for any child support
if I were to agree to give up my parental
rights to Michael. I emphatically said that
I would absolutely never agree to that.
Although I was having financial
difficulties, I was never going to give up
my parental rights to Michael in
consideration for no child support. I
wanted to have a relationship with Michael.
Nees did not contradict Fisher's statement in her pleadings.
Fisher did not "present[] himself for the" Family Court
Assessment Team evaluation required by the January 29, 2002
order. Therefore, on May 8, 2002, the trial court sent the
parties a letter stating that "the suspension of [Fisher's]
visitation with Michael . . . continues in full force and
effect."
From January 2002 until Michael's death at the age of
fifteen on September 24, 2010, Fisher "never had any legal
visitation with his son." Fisher spoke to Michael during "some"
telephone conversations in 2001 and 2002. Fisher stated he
"would occasionally see Michael in public places." One summer,
he saw Michael on a beach, approached him, and began talking to
his son. At that point, Nees appeared, reminded Fisher of the
4 A-0878-14T2
FRO, and told him she would call the police if he did not leave.
Fisher complied.
In 2006, Fisher moved to Florida. Fisher certified that he
was going "through some difficult times including having
significant health issues." He fell behind in his child support
obligations and, by 2010, was over $10,000 in arrears.
In May 2010, Fisher filed a motion to decrease or terminate
his child support obligation. Fisher stated that he was
diagnosed with a serious health condition in February 2008 and
could no longer work as a painter. Nees opposed the motion and
attached a photograph of Fisher working on a ladder in 2009 to
her pleadings.3 On July 6, 2010, the trial judge granted
Fisher's motion and terminated his child support obligation as
of May 13, 2010, the date he filed his motion. The judge
explained his ruling as follows:
[Fisher] has demonstrated that his
circumstances have changed so that the
current child support order is no longer
feasible. [Fisher] is seriously ill and
unable to work. There is no indication that
he will recover and be able to resume work.
Although [Nees] has provided a picture of
[Fisher] working, this does not, in the
court's view, outweigh the medical
information [Fisher] has provided and his
statements that he is unable to work. Even
if [Fisher] did work for a day or two in
October, that does not mean he can work now
3
Nees obtained the photograph from Fisher's Facebook page.
5 A-0878-14T2
or has been able to work consistently for
the past two years. It is pointless and
impractical to maintain a child support
order which [Fisher] cannot now and may
never be able to pay.[4]
Fisher stated that, about two months before Michael's
death, Fisher "located" his son on Facebook and sent him some
messages. Michael responded to the messages. However, Fisher
then discovered he "was blocked" from Michael's account. Fisher
certified that he did not "know who orchestrated that or why."
In August 2010, Nees filed a motion to reinstate Fisher's
child support obligation or, in the alternative, to require
Fisher to apply for Social Security Disability benefits. Fisher
did not file any opposition to the motion. On September 24,
2010, the judge ordered Fisher to apply for the benefits within
thirty days. However, Michael passed away later that day.5
Fisher learned of his son's death from a relative and
returned to New Jersey to attend the funeral. Nees stated that
she asked Fisher "to pay for half of the funeral costs and he
would not do so."
4
Despite the court's order terminating his ongoing child support
obligation, Fisher remained responsible for paying the accrued
arrears. Fisher continued to make payments toward that
obligation after Michael's death and, by the time of the
proceedings involved in this appeal, had reduced the arrears to
approximately $5000.
5
Nees asserts that Michael's death was "caused by the wrongful
act, negligence or recklessness of his physicians . . . ."
6 A-0878-14T2
Michael died intestate and, with Fisher's consent, Nees was
appointed on June 1, 2012 as the administratrix and
administratrix ad prosequendum of Michael's estate.
Because Michael had no spouse or children, his parents
would each share equally in his intestate estate. N.J.S.A.
3B:5-4(b). However, N.J.S.A. 3B:5-14.1, which became effective
on July 1, 2009, provides in pertinent part that:
b. A parent of a decedent shall lose all
right to intestate succession in any part of
the decedent's estate . . . if:
(1) The parent refused to acknowledge the
decedent or abandoned the decedent when the
decedent was a minor by willfully forsaking
the decedent, failing to care for and keep
the control and custody of the decedent so
that the decedent was exposed to physical or
moral risk without proper and sufficient
protection, or failing to care for and keep
the control and custody of the decedent so
that the decedent was in the care, custody
and control of the State at the time of
death . . . .
[(emphasis added)].6
On March 21, 2014, Nees filed a verified complaint seeking
to bar Fisher from receiving a share of Michael's estate under
6
The other provisions of N.J.S.A. 3B:5-14.1 prevent parents from
taking under the intestacy scheme if they have committed certain
enumerated crimes against the decedent, or "[t]he parent abused
or neglected the decedent . . . , and the abuse or neglect
contributed to the decedent's death." N.J.S.A. 3B:5-14.1(b)(2)-
(4). These provisions are not applicable here.
7 A-0878-14T2
N.J.S.A. 3B:5-14.1(b). She alleged that Fisher abandoned
Michael after the parties' divorce by failing to have any
contact with the child or pay his full child support obligation.
On that same date, the Chancery Division issued an order to show
cause. Fisher filed an answer to the complaint, denying that he
abandoned his son.
Following oral argument on the return date of the order to
show cause,7 the trial judge granted Nees's request to bar Fisher
from receiving a share of Michael's intestate estate. In his
written opinion, the judge found that "N.J.S.A. 3B:5-14.1(b)(1)
bars a parent from inheriting a share of his [or her] child's
intestate estate if that parent abandoned that child by
willfully forsaking him [or her]" and stated that the "court's
task [was] to determine whether the actions and inactions of
[Fisher], in the context of the previous court orders limiting
his parental rights, qualify as a willful forsaking."
In conducting this analysis, the judge did not refer to any
of the case law interpreting the terms "abandoned" and
"willfully forsaking" in other contexts.8 Instead, the judge
7
Neither party requested an evidentiary hearing, and the trial
judge found that "[t]he material facts at issue in this matter
are not in dispute." The parties have not contested that
finding on appeal.
8
We will discuss these cases below.
8 A-0878-14T2
referred to a dictionary definition of the word "willful," which
defined the term as "'[p]roceeding from a conscious motion of
the will; voluntary; [i]ntending the result which actually comes
to pass; designed; intentional; not accidental or involuntary.'"
The judge then summarized the facts in the record
supporting his determination that Fisher "abandoned his son by
willfully forsaking him." The judge found that, although
Fisher's parenting time had been limited by the FRO and the
FJOD, Fisher still had the opportunity for supervised parenting
time with Michael if he complied with the court's directives.
However, Fisher failed to attend the supervised sessions and,
when those sessions were suspended, failed to submit to a risk
assessment or complete counseling in order to regain the
opportunity to resume parenting time with Michael. The judge
highlighted the comments made by the court in the January 29,
2002 order that Fisher had "'continued his contumacious
disregard for the orders of [the] court by not cooperating or
presenting himself for the [required] evaluations.'"
The judge noted that Fisher had no contact with his son
after 2002, and moved to Florida in 2006. The judge also found
that Fisher "failed to voluntarily comply with his child support
obligations, which resulted in a wage garnishment and
9 A-0878-14T2
substantial arrears as of the date of his son's death." Thus,
the judge concluded:
Previously, [Fisher], as a result of
his own actions, was subject to severe
limitations of his parental rights.
[Fisher] failed to complete any of the
court[-]mandated prerequisites to continue
visitations with his son or regain his full
parental rights. [Fisher] failed to provide
his son with any voluntary financial support
over the remainder of his life. Although
his rights with respect to his son had been
limited by [the] court, the facts here
demonstrate that [Fisher] abandoned what
relationship remained.
At the same time, however, the judge stated that "[t]he
court does not question that [Fisher] cared for his son or mean
to imply that it was his purpose or specific intent to abandon
him." The judge observed:
The paradigm case of abandonment by
willfully forsaking [a child] would be where
a parent, with uninhibited rights of custody
and visitation, chooses to leave the
familial unit, has no further involvement
with the child, and provides no voluntary
support for the child. This is not such a
case.
Finally, the judge stated, "[a]dmittedly, it may not have been
[Fisher's] specific intent or purpose to abandon his son."
In spite of these findings, the judge granted Nees's
application, stating that Fisher's
acts were unequivocally intentional rather
than accidental or involuntary. His choice
not to attend his supervised visits with his
10 A-0878-14T2
son and court[-]mandated anger management
therapy was not accidental or involuntary.
His failure to voluntarily fulfill his child
support obligations was not accidental or
involuntary. And ultimately, the absence of
his presence from the remainder of his son's
regrettably short life was not accidental or
involuntary.
This appeal followed.9
II.
Whether Fisher "abandoned" Michael turns upon an
interpretation of N.J.S.A. 3B:5-14.1(b)(1). "A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference" on appeal. Manalapan Realty, L.P. v. Twp. Comm., 140
N.J. 366, 378 (1995). "On appeal, a trial judge's statutory
interpretation is reviewed de novo." Commerce Bancorp, Inc. v.
InterArch, Inc., 417 N.J. Super. 329, 334 (App. Div. 2010)
(citing State v. Gandhi, 201 N.J. 161, 176 (2010)), certif.
denied, 205 N.J. 519 (2011).
"It is well settled that the goal of statutory
interpretation is to ascertain and effectuate the Legislature's
intent." State v. Olivero, 221 N.J. 632, 639 (2015) (citing
Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)).
9
On October 17, 2014, the judge granted Fisher's motion to
enjoin and restrain Nees from distributing funds from Michael's
estate that would have passed to Fisher pending appeal.
11 A-0878-14T2
Our analysis of a statute begins with its plain language, giving
the words their ordinary meaning and significance. Ibid. "It
is a basic rule of statutory construction to ascribe to plain
language its ordinary meaning." Bridgewater-Raritan Educ. Ass'n
v. Bd. of Educ., 221 N.J. 349, 361 (2015) (citing D'Annunzio v.
Prudential Ins. Co. of Am., 192 N.J. 110, 119-20 (2007)). "When
that language 'clearly reveals the meaning of the statute, the
court's sole function is to enforce the statute in accordance
with those terms.'" Olivero, supra, 221 N.J. at 639 (quoting
McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001)).
However, if there is any ambiguity in the statutory
language, a court may look at extrinsic evidence "such as 'the
statute's purpose, legislative history, and statutory context.'"
State v. Fortin, 178 N.J. 540, 607 (2004) (quoting Twp. of
Pennsauken v. Schad, 160 N.J. 156, 170 (1999)). A court may
also consider "extrinsic evidence if a plain reading of the
statute leads to an absurd result or if the overall statutory
scheme is at odds with the plain language." DiProspero v. Penn,
183 N.J. 477, 493 (2005).
As noted above, N.J.S.A. 3B:5-14.1(b)(1) provides in
pertinent part:
b. A parent of a decedent shall lose all
right to intestate succession in any part of
the decedent's estate . . . if:
12 A-0878-14T2
(1) The parent refused to acknowledge the
decedent or abandoned the decedent when the
decedent was a minor by willfully forsaking
the decedent, failing to care for and keep
the control and custody of the decedent so
that the decedent was exposed to physical or
moral risk without proper and sufficient
protection, or failing to care for and keep
the control and custody of the decedent so
that the decedent was in the care, custody
and control of the State at the time of
death . . . .
Fisher contends that the trial judge erred in only considering
the first phrase of N.J.S.A. 3B:5-14.1(b)(1) and determining
that Fisher "abandoned" Michael by "willfully forsaking him."
Fisher states that the two phrases that follow were meant to
modify the words "abandoned the decedent . . . by willfully
forsaking him." Thus, Fisher argues that a parent may lose his
or her right to intestate succession under the statute only if
the abandonment resulted in the child being "exposed to physical
or moral risk without proper and sufficient protection," or
having to be placed "in the care, custody and control of the
State" prior to his or her death. Because there is no evidence
that Fisher's actions exposed Michael to "physical or moral
risk" or caused him to become a ward of the State, Fisher argues
that the judge should not have determined that he abandoned his
son. We disagree with Fisher's interpretation of N.J.S.A. 3B:5-
14.1(b)(1).
13 A-0878-14T2
As noted above, the plain language of a statute "is
typically the best indicator of intent." In re Plan for the
Abolition of the Council on Affordable Hous., 214 N.J. 444, 467
(2013). Fisher's proposed interpretation ignores the
punctuation used and the Legislature's inclusion of the word
"or" in the statute. "Punctuation is part of an act and may be
considered in its interpretation." Commerce Bancorp, supra, 417
N.J. Super. at 336 (quoting Moore v. Magor Car Corp., 27 N.J.
82, 87 (1958)). "[T]he word 'or' in a statute is to be
considered a disjunctive particle indicating an alternative."
State v. Kress, 105 N.J. Super. 514, 520 (Law Div. 1969).
"When[, as here,] items in a list are joined by a comma or
semicolon, with an 'or' preceding the last item, the items are
disjunctive." State v. Smith, 262 N.J. Super. 487, 506 (App.
Div. 1993). Thus, purely as a matter of grammar, the three
clauses in N.J.S.A. 3B:5-14.1(b)(1) are distinct and separate
from each other.
Based on this well-established rule of statutory
construction and the plain language of the statute, we conclude
that a parent may lose his or her right to intestate succession
if the parent abandoned the decedent when he or she was a minor
by: (1) "willfully forsaking the decedent"; (2) "failing to
care for and keep the control and custody of the decedent so
14 A-0878-14T2
that the decedent was exposed to physical or moral risk without
proper and sufficient protection"; or (3) "failing to care for
and keep the control and custody of the decedent so that the
decedent was in the care, custody and control of the State at
the time of death . . . ."
"When the Legislature's chosen words lead to one clear and
unambiguous result, the interpretative process comes to a close,
without the need to consider extrinsic aids." State v. Buckley,
216 N.J. 249, 263 (2013) (quoting State v. Shelley, 205 N.J.
320, 323 (2011)). Therefore, we need proceed no further in
considering Fisher's argument on this point. Nevertheless, the
legislative history of N.J.S.A. 3B:5.14.1(b)(1) fully supports
our conclusion that a parent may abandon his or her child by
taking any of the three specific actions set forth in the
statute.
As originally introduced on May 12, 2008, Assembly Bill
2681, (the bill that was eventually enacted as N.J.S.A. 3B:5-
14.1), defined the term "abandonment" only by a specific
reference to N.J.S.A. 9:6-1, without the inclusion of the
language of that statute. In pertinent part, N.J.S.A. 9:6-1
provides:
Abandonment of a child shall consist of any
of the following acts by anyone having the
custody or control of the child: (a)
willfully forsaking a child; (b) failing to
15 A-0878-14T2
care for and keep the control and custody of
a child so that the child shall be exposed
to physical or moral risk without proper and
sufficient protection; (c) failing to care
for and keep control and custody of a child
so that the child shall be liable to be
supported and maintained at the expense of
the public, or by child caring societies or
private persons not legally chargeable with
its care or their care, custody and control.
As is readily apparent from an examination of the language
it used in the final version of N.J.S.A. 3B:5-14.1(b)(1), (L.
2009, c. 43), the Legislature simply replaced its "shorthand"
reference to N.J.S.A. 9:6-1 in the original bill with virtually
the same language set forth in that statute. Indeed, the main
difference between the two statutes is that, when it enacted
N.J.S.A. 3B:5-14.1(b)(1), the Legislature neglected to include
specific letter designations ((a), (b), and (c)) for the three
subsections of the statute as it did in N.J.S.A. 9:6-1. This
omission, however, is of no moment because, as discussed above,
the punctuation and language the Legislature used in N.J.S.A.
3B:5-14.1(b)(1) clearly demonstrate that "abandonment" under
that statute, as was the case under N.J.S.A. 9:6-1, can consist
of three distinct actions. See In re Petition for Referendum on
City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010) ("When
reviewing two separate enactments, the [c]ourt has an
affirmative duty to reconcile them, so as to give effect to both
16 A-0878-14T2
expressions of the lawmakers' will.") (quoting St. Peter's Univ.
Hosp. v. Lacy, 185 N.J. 1, 14 (2005)).
Fisher makes a final argument in support of his contention
that a parent may only lose his or her right to a child's
intestate estate if the abandonment exposes the child to the
risk of physical harm. The sponsor of Senate Bill 1640, which
was the Senate's version of Assembly Bill 2681, appended a
statement to the bill when it was introduced. In pertinent
part, the statement provided:
This bill is in response to a recent
decision of the Superior Court of New
Jersey, Appellate Division, which held that
the mother of an abused, abandoned, and
neglected child was not entitled to inherit
the $1 million the State paid to her son's
estate to settle a lawsuit. The court
concluded, using its equitable powers, that
allowing the woman whose abuse and neglect
led to the child's death to collect that
child's inheritance would be "cruel, ironic,
and inequitable." This bill seeks to fill
the gap in the statutory law on this issue.
[Sponsor's Statement to S. 1640, at 4 (May
5, 2008).]
The sponsor's statement refers to our decision in New
Jersey Division of Youth and Family Services v. M.W., 398 N.J.
Super. 266 (App. Div.), certif. denied, 196 N.J. 347 (2008). In
that case, the mother abused her three children and then left
them in the care of a cousin who burned, beat, restrained,
starved, and confined the children in a basement without access
17 A-0878-14T2
to a bathroom. Id. at 271-279. Two of the children were
eventually rescued, but the third child was found dead in the
basement. Id. at 274. The Division was supposed to be
supervising and providing services to the children, but it
failed to do so. Id. at 277-82.
While she was still in jail, the mother brought an action
against the Division on behalf of the two surviving children,
"alleging that the Division had negligently failed to protect
her children from abuse while they were in the care of" the
cousin. Id. at 282-83. The Division settled the case and, as
part of the settlement, agreed to pay $1 million to the deceased
child's estate. Id. at 283.
Because N.J.S.A. 3B:5-14.1 had not yet been enacted, there
was no statute to prevent the mother from inheriting the $1
million. However, the trial court granted the Division's
application to retroactively terminate the mother's parental
rights to prevent the inheritance from taking place. Id. at
285-286. On appeal, we upheld the trial court's decision. Id.
at 286.
In our ruling, we noted that New Jersey had not "adopted a
statutory exception to the mandatory succession by intestacy
statutes applicable to children to extinguish the inheritance
rights of 'bad parents.'" Id. at 292. In the present case,
18 A-0878-14T2
Fisher argues that, based on the sponsor's statement that Senate
Bill 1640 would address the horrific situation involved in M.W.,
N.J.S.A. 3B:5-14.1(b)(1) should be interpreted to only apply to
acts constituting "abandonment" that result in death or serious
harm to the child. This argument lacks merit.
A statement appended to a proposed bill is often "a highly
persuasive indication of legislative intent." Toogood v. St.
Andrews Condo. Ass'n, 313 N.J. Super. 418, 425 (App. Div. 1998)
(citing Helfrich v. Hamilton Twp., 182 N.J. Super. 365, 371
(App. Div. 1981)). And, we do not doubt that the tragic
circumstances of M.W. prompted the Legislature to examine the
issues raised by that case. Thus, N.J.S.A. 3B:5-14.1(b)(4)
prohibits a parent from sharing in his or her deceased child's
estate if "[t]he parent abused or neglected the decedent . . . ,
and the abuse or neglect contributed to the decedent's death."
That provision specifically covers the problem presented in M.W.
As demonstrated above, however, the Legislature did not
limit N.J.S.A. 3B:5-14.1 only to cases where a parent causes
serious physical or emotional harm to a child. By enacting
subsection (b)(1), the Legislature obviously intended to address
a broader array of concerns, including a situation where a
parent "abandoned the decedent when the decedent was a minor by
19 A-0878-14T2
willfully forsaking the decedent . . . ."10 Therefore, we reject
Fisher's contention on this point.
III.
We now turn to the question of whether Fisher "abandoned"
Michael when he was a minor by "willfully forsaking him" within
the intendment of N.J.S.A. 3B:5-14.1(b)(1). In construing this
statutory provision, the trial judge focused only on the word
"willfully", which he defined through the use of a dictionary.
"But dictionary definitions are not necessar[ily] a reliable
guide to the meaning of words of . . . statutes of this breadth
and significance." Whateley v. Leonia Bd. of Educ., 141 N.J.
Super. 476, 479 (Ch. Div. 1976). Indeed, "it is one of the
surest indexes of a mature and developed jurisprudence not to
make a fortress out of the dictionary; but to remember that
statutes always have some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest guide to
10
Less than a year before Assembly Bill 2681 was introduced, we
observed that no statute then in effect prevented a parent, who
never provided any support for their child, from inheriting from
the child's intestate estate. In re Rogiers, 396 N.J. Super.
317, 326 (App. Div. 2007). In our opinion, we noted that the
Legislature was then considering a bill that would eliminate the
inheritance rights of a surviving parent if that parent had
abandoned the child and another bill that would do the same if
the parent failed to provide support to the child while the
child was alive. Ibid. Thus, in its review of the subject of
intestate succession in the estates of children, the Legislature
was obviously considering a host of issues and did not limit its
review to circumstances similar to what occurred in M.W.
20 A-0878-14T2
their meaning." Wilde v. Wilde, 341 N.J. Super. 381, 394 (App.
Div. 2001) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d
Cir.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165(1945)).
Here, the terms "abandoned" and "willfully forsaking" have
been construed in several of our prior decisions concerning
N.J.S.A. 9:6-1. "There is a long-standing canon of statutory
construction that presumes that the Legislature is knowledgeable
regarding the judicial interpretation of its enactments." Coyle
v. Bd. of Chosen Freeholders, 170 N.J. 260, 267 (2002) (citing
State v. Burford, 163 N.J. 16, 20 (2000)). Therefore, these
decisions, rather than a dictionary definition of one of the
statute's terms, would most likely have guided the Legislature
in its enactment of N.J.S.A. 3B:5-14.1(b)(1).
None of our prior cases have interpreted the language of
N.J.S.A. 3B:5-14.1(b)(1). However, as already noted, the terms
of that statute are almost identical to those used in N.J.S.A.
9:6-1. Both statutes state that abandonment can occur when a
parent willfully forsakes his or her child. Thus, cases
interpreting N.J.S.A. 9:6-1 are particularly relevant to our
current analysis.
The leading case construing the terms of N.J.S.A. 9:6-1 is
Lavigne v. Family & Children's Soc'y, 11 N.J. 473 (1953). In
21 A-0878-14T2
that case, the parents took their seven-month old child to a
child adoption agency, which agreed to place her in a temporary
foster home. Id. at 475-76. Eventually, the parents "executed
a formal surrender and consent to" the child's adoption. Id. at
476. Fourteen months later, the father attempted to have the
child returned to him. Id. at 478.
On these facts, the Court found "that the actions of the
[parents] constitute[d] an abandonment of their child under"
N.J.S.A. 9:6-1. Id. at 480. In defining the word
"abandonment," the Court stated:
The statutory notion of abandonment does not
necessarily, we think, imply that the parent
has deserted the child, or even ceased to
feel any concern for its interests. It
fairly may, and in our judgment does, import
any conduct on the part of the parent which
evinces a settled purpose to forego all
parental duties and relinquish all parental
claims to the child.
[Ibid. (quoting Winans v. Luppie, 47 N.J.
Eq. 302, 304 (E. & A. 1890)).]
The Court also emphasized that the parent's "purpose" to
abandon the child must be "clearly manifested[.]" Ibid.(quoting Winans, supra, 47 N.J. Eq. at 304). In that same vein,
we defined the term "forsaking" as used in N.J.S.A. 9:6-1 as a
"permanent giving up or relinquishment of the child." State v.
22 A-0878-14T2
N.I., 349 N.J. Super. 299, 312 (App. Div. 2002).11 "[T]he word
willfully used in conjunction with forsaking . . . 'means
intentionally or purposely as distinguished from inadvertently
or accidentally.'" Ibid. (quoting State v. Burden, 126 N.J.
Super. 424, 427 (App. Div.), certif. denied, 65 N.J. 282(1974)).
After carefully reviewing these precedents and distilling
them to their essence, we hold that, in order for a court to
conclude that a parent has "abandoned" his or her child "by
willfully forsaking" him or her under N.J.S.A. 3B:5-14.1(b)(1),
the court must find that the parent, through his or her
unambiguous and intentional conduct, has clearly manifested a
settled purpose to permanently forego all parental duties and
relinquish all parental claims to the child.
The Legislature did not specify what standard of proof
should apply under N.J.S.A. 3B:5-14.1(b)(1) when a party seeks
to bar a parent from succeeding to a child's estate, and the
trial judge did not address this issue. It appears the judge
applied the preponderance of the evidence standard normally
11
The issue in N.I. was whether a trial judge erred by failing
to provide the jury with a definition of "abandonment" as used
in N.J.S.A. 9:6-1 where the defendant was charged with
endangering the welfare of a child under N.J.S.A. 2C:24-4.
N.I., supra, 349 N.J. Super. at 302-03.
23 A-0878-14T2
applied in civil cases. See State v. Seven Thousand Dollars,
136 N.J. 233, 238 (1994).
Fisher argues that a clear and convincing evidence standard
should have been used because that is the standard applied in
termination of parental rights cases. See N.J. Div. of Youth &
Family Servs. v A.L., 213 N.J. 1, 25 (2013). We disagree.
In a termination of parental rights case, "[t]he burden
rests on the party seeking to terminate parental rights 'to
demonstrate by clear and convincing evidence' that risk of
'serious and lasting [future] harm to the child' is sufficiently
great as to require severance of parental ties." In re Adoption
of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div.
l998) (alteration in original) (quoting In re Guardianship of
J.C., 129 N.J. 1, 10 (1992)). The question for the court
"focuses upon what course serves the 'best interests' of the
child." W.P. & M.P., supra, 308 N.J. Super. at 383.
On the other hand, in a proceeding under N.J.S.A. 3B:5-
14.1, the "best interests" of the child are not at issue; the
only question is whether a parent may share in the child's
financial estate. Therefore, we reject Fisher's argument that
the termination of parental rights standard of proof should be
applied in this case.
24 A-0878-14T2
In so ruling, we recognize that the clear and convincing
evidence standard is often used to determine issues involving
will contests. Thus, for example, the burden of establishing
lack of testamentary capacity is on the one who contests the
will being offered for probate. This "burden must be sustained
by clear and convincing evidence." In re Estate of Hoover, 21
N.J. Super. 323, 325 (App. Div. 1952), certif. denied, 11 N.J.
211 (1953). We also note that a provision in the Uniform
Probate Code, that has not been adopted by our Legislature, bars
a parent from inheriting from their child if
the child dies before reaching [18] years of
age and there is clear and convincing
evidence that immediately before the child's
death the parental rights of the parent
could have been terminated under law of this
state other than this [code] on the basis of
nonsupport, abandonment, abuse, neglect, or
other actions or inactions of the parent
toward the child.
[Unif. Probate Code § 2-114 (amended 2010),
1 U.L.A. 118 (2013).]
However, we presume that the Legislature was aware of these
precedents when it enacted N.J.S.A. 3B:5-14.1 and nevertheless
chose not to specifically impose a clear and convincing evidence
burden of proof. See Liberty Mut. Ins. Co. v. Land, 186 N.J.
163, 178 (2006) (noting "that the Legislature is well aware of
its ability to impose a higher standard of proof when it so
desires"). When, as here, the Legislature does not designate
25 A-0878-14T2
the standard of proof to be applied in a civil case, it is
reasonable to conclude that the "absence of an evidentiary
standard indicates that a preponderance of the evidence -- the
traditional, default standard -- applies." Id. at 179.
Moreover, we have determined that the Legislature intended
to import the standard for determining "abandonment" that
applies in cases arising under N.J.S.A. 9:6-1 into N.J.S.A.
3B:5-14.1(b)(1). It is well established that the burden of
proof in abandonment cases under Title 9 is the preponderance of
the evidence standard. N.J.S.A. 9:6-8.46(b)(1). That standard
is therefore the most appropriate to use in cases arising under
N.J.S.A. 3B:5-14.1(b)(1).
IV.
Applying these standards to the facts of this case, we
conclude that the evidence presented to the trial court did not
preponderate in favor of a finding that Fisher "abandoned" his
son by "willfully forsaking him." To be sure, Fisher did not
take the actions necessary to enable him to have parenting time
with Michael after Nees obtained the FRO against him. He did
not submit to a risk assessment or counseling as ordered by the
judge in the parties' divorce action. As a result, Fisher did
not have parenting time with Michael for the period between the
26 A-0878-14T2
court's January 29, 2002 order suspending visitation and the
date of Michael's death in September 2010.
The judge in this case focused almost solely on these
actions in determining that Fisher "abandoned" his son. The
judge found that Fisher's actions "were unequivocally
intentional rather than accidental or involuntary." However,
that is only part of the test under N.J.S.A. 3B:5-14(b)(1). As
we hold in this opinion, the issue is whether Fisher clearly
manifested a settled purpose to permanently forego all parental
duties and relinquish all parental claims to the child. That
purpose was not demonstrated here.
As the judge specifically stated, "[t]he court does not
question that [Fisher] cared for his son" and did not "mean to
imply that it was his purpose or specific intent to abandon
him." The judge subsequently observed that "it may not have
been [Fisher's] specific intent or purpose to abandon his son."
However, without that settled "purpose" or "specific intent,"
there can be no abandonment or willful forsaking of a child.
Lavigne, supra, 11 N.J. at 480.
The judge ignored facts in the record which demonstrated
that, in spite of his repeated failure to take steps to restore
parenting time with his son, Fisher never acted with the settled
purpose to permanently forego all of his parental duties or
27 A-0878-14T2
relinquish all parental claims to Michael. For example, Fisher
certified, without contradiction, that during the divorce
proceedings, he was presented with an offer that, if he agreed
to give up his rights to the child, Nees would not seek child
support. Fisher rejected this offer out of hand.
The record also demonstrates that Fisher paid child support
for Michael throughout the child's life. At oral argument
before us, the parties estimated that Fisher's total child
support obligation for the period between the parties' March
2002 divorce and the court's July 2010 order terminating the
support obligation due to Fisher's extremely poor health was
approximately $37,000. Although Fisher was approximately
$10,000 in arrears at the time of the July 2010 order, he had
still paid more than two-thirds of the total amount due.
We do not view Fisher's May 2010 motion to reduce or
terminate his child support obligation as evidence of a settled
purpose on his part to permanently forego all parental duties
and claims to his child. Child "support orders define only the
present obligations of the former spouses. Those duties are
always subject to review and modification on a showing of
'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146
(1980).
28 A-0878-14T2
In his motion, Fisher stated that his "support would never
have stopped if not for [his] illness" and, based upon the
proofs submitted, the motion judge determined that Fisher's
"circumstances have changed so that the current child support
order is no longer feasible." Nevertheless, Fisher remained
obligated to pay the existing arrears, and he continued to do so
even after Michael's death. Fisher also did not oppose Nees'
motion to reinstate child support if Fisher were able to obtain
Social Security Disability benefits. Under these circumstances,
we are unable to conclude that Fisher intended to permanently
abandon Michael when he filed this motion.
The trial judge was critical of Fisher because the child
support payments were made by way of wage garnishment. The
judge therefore concluded that Fisher "failed to voluntarily
comply with his child support obligations . . . ." However, the
preferred method of paying child support is by way of wage
garnishment. N.J.S.A. 2A:17-56.8 provides that a child support
order "shall be paid by income withholding unless the order
. . . specifically provides for an alternative payment
arrangement to which the parties agree in writing or [one of the
parties] demonstrates and the court finds good cause for
establishing an alternative arrangement." See also R. 5:7-
4A(a). Moreover, the parties agreed in the FJOD that child
29 A-0878-14T2
support should "be paid via income withholding through the . . .
Probation Department. . . ." Thus, this is not a case where a
parent has willfully withheld all support from a child.
Although Fisher did not have parenting time with Michael
after 2002, he did see and speak to the child on one occasion in
violation of the FRO. Fisher also made contact with his son on
Facebook a few months before his death. He returned to New
Jersey to attend Michael's funeral. These actions are not
consistent with those of a parent whose "settled purpose" was to
permanently forego all parental duties and relinquish all
parental claims to his child.
Under these circumstances, we conclude that Nees did not
demonstrate by a preponderance of the evidence that Fisher
"abandoned" his son "by willfully forsaking" him. Therefore,
the exception to intestate succession set forth in N.J.S.A.
3B:5-14.1(b)(1) should not have been invoked in this case.
Reversed.
30 A-0878-14T2