L.K. AND M.K. VS. A.K.(FD-16-0875-12, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4056-15T2
L.K. and M.K.,
Plaintiffs-Appellants,
v.
A.K.,
Defendant-Respondent.
____________________________________________
Argued May 23, 2017 – Decided July 7, 2017
Before Judges Yannotti, Gilson and
Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FD-16-0875-12.
Jay Joseph Friedrich argued the cause for
appellants (Friedrich & Friedrich, PA,
attorneys; Mr. Friedrich, on the briefs).
Francis W. Donahue argued the cause for
respondent (Donahue, Hagan, Klein & Weisberg,
LLC, attorneys; Mr. Donahue, of counsel and
on the brief; Alex M. Miller, on the brief).
PER CURIAM
Plaintiffs L.K. and M.K. appeal from an order entered by the
Family Part on May 13, 2016, which denied their motion to enforce
prior orders of the court granting plaintiffs visitation pursuant
to the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1.1 We
affirm.
I.
We briefly summarize the relevant facts and procedural
history of this matter. In 1997, defendant and Max were married
and had two children: Jeffrey, who was born in May 2000, and
Jennifer, who was born in July 2002. Max died unexpectedly in July
2011. After Max died, plaintiffs had disagreements with defendant
about their contacts with the children, and defendant stopped
regular contacts between the children and members of Max's family.
In December 2011, plaintiffs filed a complaint against
defendant seeking grandparent visitation pursuant to the GVS. They
claimed that defendant was not acting in the best interests of the
children, and her actions were causing the children to suffer
emotional harm and trauma. They claimed that the denial of
visitation could lead the children to believe that plaintiffs had
some responsibility for their father's death.
The Family Part judge conducted in camera interviews with the
children. Among other things, Jeffrey expressed hostility toward
1
In this opinion, we use initials when referring to the parties
and other persons, and fictitious names for the children, their
father, and others.
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plaintiffs and downplayed their role in his life. Jennifer said
plaintiffs were mean and never really liked her or her brother.
The judge determined that a psychological evaluation of the
children was required, and he appointed Paul Dasher, Ph.D. (Dr.
Dasher), to undertake the evaluation.
Dr. Dasher issued a report dated January 13, 2013, in which
he concluded that the children had a "significant and positive
bond" with plaintiffs and benefited from their relationship with
them. Dr. Dasher opined that "continued alienation" of plaintiffs
and the children was "emotionally harmful" to the children. He
recommended visitation between plaintiffs and the children, as
well as with their paternal aunt and her family.
Defendant retained Serge Mosovich, M.D., M.P.H. (Dr.
Mosovich) as an expert, and he submitted a report dated April 29,
2013. He disputed many of Dr. Dasher's findings. He noted that
both children had informed Dr. Dasher that they did not want to
have a relationship with plaintiffs, and they were angry that
plaintiffs would sue their mother. He stated that the record did
not support Dr. Dasher's conclusion that the children would be
harmed if they did not have a bond with plaintiffs.
The judge conducted a hearing in the matter at which Dr.
Dasher and Dr. Mosovich testified. On August 22, 2013, the judge
filed an opinion concluding that plaintiffs had established
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grounds for relief under the GVS. The judge accepted Dr. Dasher's
testimony and found that Dr. Mosovich's testimony was not
persuasive or helpful.
The judge determined that plaintiffs had shown by "more than
the preponderance of the evidence" that Jeffrey and Jennifer will
suffer harm if plaintiffs are denied visitation with them. The
judge ordered defendant to submit a proposed visitation schedule,
and thereafter denied defendant's motion for a stay of his order
pending appeal.
On October 1, 2013, the judge entered orders establishing a
visitation schedule and appointing a visitation coordinator. On
October 4, 2013, the court issued an order which detailed the
manner in which the children would be picked-up and dropped off
for visits with plaintiffs and appointed clinical psychologist
Thomas H. Golden, Ph.D. (Dr. Golden), to serve as a visitation
coordinator.
Defendant filed a motion in this court to stay visitation
pending appeal. On October 31, 2013, we denied defendant's motion
and remanded the motion to the trial court so that the parties
could submit additional evidence as to whether visitation should
be stayed pending disposition of the appeal.
The parties submitted additional evidence to the trial court
regarding the stay, and the court conducted a hearing on the
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motion. On December 10, 2013, the judge filed an opinion and order
denying the motion for a stay. Defendant then filed a motion in
this court for a stay of visitation. We denied the motion.
While the appeal was pending, plaintiffs filed a motion in
the trial court pursuant to Rule 1:10-3. They asserted that
defendant had willfully violated the court's prior orders granting
visitation, and the court should enforce those orders. Defendant
opposed the motion. Among other things, defendant stated that the
children did not want to visit plaintiffs, and she could not
persuade them to do so.
The trial court appointed a mediator to attempt to resolve
the dispute over visitation, but the mediator's efforts were not
successful. The trial court then conducted an evidentiary hearing
on the motion, and on October 10, 2014, filed an opinion finding
that defendant had willfully failed to comply with the court's
orders.
The judge required defendant to: open Gmail and messaging-
service accounts for the children; send two photos of the children
to plaintiffs each month; participate in therapy on the issue of
grandparent visitation; and meet with Dr. Golden. The judge also
issued an order dated November 13, 2014, appointing Jonathan
Gordon, Esq. as a therapist for defendant for the term of one
year. On January 21, 2015, the court entered a case management
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order, which ordered that the children participate in court-
supervised Skype-communication sessions in February 2015 and
attend visits with plaintiffs at their home in March 2015.
Thereafter, we filed an opinion affirming the trial court's
order granting plaintiffs' application for visitation. M.K. v.
A.K., No. A-0629-13 (App. Div. Apr. 10, 2015) (slip op. at 23).
We concluded that the court's factual findings were supported by
sufficient credible evidence, the court had applied the correct
legal principles in ordering visitation, and the court did not err
by relying upon Dr. Dasher's opinion and testimony. Id. at 15-23.
Defendant filed a petition for certification with the Supreme
Court. The Court later denied the petition. M.K. v. A.K., 223 N.J.
162 (2015).
On June 2, 2015, the trial court issued an order directing
the Division of Child Protection and Permanency (DCPP) to open a
Title 30 case for the immediate care and supervision of the
children after becoming concerned with defendant's "decision-
making." Defendant filed an emergent application with this court
thereafter. On June 19, 2015, we reversed the portion of the trial
court's June 2, 2015 order that directed DCPP to open a Title 30
investigation, holding that the trial courts do not have the
authority to order a state agency to open an investigation. In
light of our decision, the trial court issued an order on June 20,
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2015, vacating the portion of the June 2, 2015 order regarding the
opening of a Title 30 investigation, and the portion of a February
25, 2015 order regarding transportation of the children by DCPP.
The trial court also ordered a mental health professional, Dr.
Marc Singer, to evaluate defendant.
In August 2015, after defendant objected to the trial court's
use of Dr. Singer, the trial court appointed Gerald A. Figurelli,
Ph.D. (Dr. Figurelli), to perform a forensic psychological
evaluation of defendant. Defendant met with the doctor on three
occasions in November and December 2015.
In November 2015, plaintiffs filed another motion pursuant
to Rule 1:10-3, seeking an order declaring that defendant had
refused to comply with the court's prior orders. Plaintiffs sought
additional remedies to enforce those orders, including economic
sanctions; counseling for the children or parent; defendant's
participation in an approved community-service program;
incarceration; issuance of a bench warrant upon further violation
of the court's orders; and appointment of a guardian ad litem for
the children. Defendant opposed the motion.
It appears that the judge who had been handling the matter
was transferred from the Family Part, and the matter was re-
assigned to another Family Part judge. In March 2016, Dr. Figurelli
provided the court with his psychological evaluation of defendant.
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The judge conducted oral argument in the matter on March 29, 2016,
and on April 5, 2016, the judge filed an opinion and order denying
the motion.
The judge found that it was not in the children's best
interest to force them to participate in visitation that they did
not want, or to compel them to undergo further psychological
testing. The judge also found that appointment of a guardian ad
litem or imposing sanctions upon defendant was not in the
children's best interests. The judge modified the court's prior
orders to cease all court-ordered visitation between plaintiffs
and the children "to protect the best interests of the children"
and "insulate them from the traumatizing effects of further
litigation and testing."
Plaintiffs appeal and argue that: (1) the judge did not have
the "right" to impose his opinion and refuse to enforce the prior
decisions of the trial court and this court; (2) the judge denied
them due process of law; and (3) the judge violated the "law of
the case" doctrine.
II.
We turn first to plaintiffs' argument that the Family Part
judge erred by failing to enforce the trial court's previous order
granting them visitation with the grandchildren. Plaintiffs argue
that the judge violated the "law of the case" doctrine by failing
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to adhere to the prior order granting visitation, which was upheld
by this court. We disagree.
The law of the case doctrine provides "that a legal decision
made in a particular matter 'should be respected by all other
lower or equal courts during the pendency of that case.'" Lombardi
v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg,
126 N.J. 168, 192 (1991)); State v. Reldan, 100 N.J. 187, 203
(1985). To that end, the doctrine "is a non-binding rule intended
to 'prevent relitigation of a previously resolved issue'" in the
same case, "by a different and co-equal court." Lombardi, supra,
207 N.J. at 538-39 (quoting In re Estate of Stockdale, 196 N.J.
275, 311 (2008)).
"When applicable, [the law of the case doctrine] prohibits
'a second judge on the same level, in the absence of additional
developments or proofs, from differing with an earlier ruling[.]'"
Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. Div. 2012) (second
alteration in original) (quoting Hart v. City of Jersey City, 308
N.J. Super. 487, 497 (App. Div. 1998)). It should be noted,
however, that the rule is discretionary, and the doctrine is to
"be applied flexibly to serve the interests of justice." Reldan,
supra, 100 N.J. at 205.
As we have explained, the Family Part judge entered an order
in August 2013, finding that plaintiffs should be granted
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visitation pursuant to the GVS. We affirmed that order, concluding
that there was sufficient credible evidence in the record to
support the order.
Thereafter, the judge found that defendant had willfully
violated the orders by taking actions to thwart visitations. The
judge entered several orders to enforce the visitation order.
Among other remedies, the judge mandated court-supervised
electronic communication and in-person visits between plaintiffs
and the children. The record shows that the children were opposed
to such compelled visitation and traumatized by them.
When the second judge assumed responsibility for the matter
in February 2016, he reviewed the entire record in the case. In
his opinion of April 5, 2016, the judge recognized that the prior
orders in the case were binding upon him, including the order
granting visitation which had been affirmed on appeal. The judge
determined, however, that he had to consider the specific
enforcement motion before him in light of the record.
The judge found that none of the remedies sought would have
any more likelihood of success than the remedies previously
ordered. The judge noted that imposing monetary sanctions would
only serve to deprive the children of funds that defendant could
use for their care. The judge stated the children's best interests
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would not be served if defendant was arrested or required to
participate in an approved community service program.
The judge found that further psychological counseling of the
children was not in their best interests. The judge observed that
the children's "fragile psyches have already been poked and prodded
several times during the course of this litigation." The judge
also found that appointment of a guardian ad litem for the children
would perpetuate the litigation and require investigation and
additional costs.
The judge pointed out that during a February 27, 2015 court-
ordered Skype session, Jeffrey began to yell and curse at his
grandparents. He refused to stop, forcing the court staff to
terminate the session. Thereafter, Jennifer had what appeared to
be an anxiety attack due to an anticipated visit with plaintiffs.
The court's staff had to intervene when Jennifer appeared to be
hyperventilating.
Further attempts to complete court-ordered Skype sessions
failed when Jennifer had "an adverse anticipatory reaction" prior
to the third session, and an anxiety attack at a sporting event
around the time of the fourth session. The judge observed that
[n]one of the psychologists assigned to review
this matter have been able to definitively
conclude whether this behavior by [Jeffrey and
Jennifer] was caused by their own feelings
about their grandparents, or was the result
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of coaching by their mother. Regardless of the
cause of the behavior, it is clear to the
[c]ourt that this litigation has traumatized
both children and they are being harmed by
continued attempts to force visitation with
their grandparents.
The judge also noted that the children had expressed to the
court and to the professionals involved in the matter that they
do not want to have visitation of any sort at this time with their
grandparents. The judge wrote, "[s]everal years have passed since
the inception of this litigation, but their position has not
[wavered]. They are now teenagers with minds of their own, and the
[c]ourt should give credence to their wishes."
Dr. Figurelli noted that further testing would be required
to determine if defendant was responsible for alienating the
grandchildren from their grandparents. The judge determined,
however, that additional psychological tests would not be in the
children's best interests.
The judge further found that Dr. Dasher had opined previously
that continued alienation of the children and their grandparents
was "emotionally harmful" to the children "in the long and short
term." The judge stated that Dr. Dasher's opinion had to be weighed
against "what has transpired since then."
The judge determined that the "most persuasive evidence" of
the effect that visitation was having on the children was the
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children's reaction to the court-ordered Skype sessions. The judge
noted that the judge who previously handled the matter and this
court had not been able to evaluate the effect the mandated Skype
sessions had upon the children.
The judge determined that further enforcement of the
visitation orders in the case would only increase the animosity
amongst the parties, who "need time to recover and move forward
from the tragic events in their lives." The judge stated that his
responsibility was to do what is best for the children. He
determined that it is not in their best interests "to continue to
subject them to unwanted visitation or forced psychological
testing."
The newly-assigned judge did not mistakenly exercise his
discretion by considering the latest enforcement motion in light
of Dr. Figurelli's more recent psychological report, and the
evidence regarding the children's reaction to the court-ordered
Skype sessions. The judge noted that the children had grown older.
The children were teenagers and had their own views concerning the
visits, which the court properly considered. The law of the case
doctrine did not preclude the judge from determining that further
enforcement of the trial court's previous orders would not be in
the children's best interests.
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We reject plaintiffs' contention that the judge erred by
revisiting an issue that they believe was settled by the prior
decisions of the court. Previously, the court had determined that
plaintiffs had shown, in light of the record that then existed,
that they should be granted visitation pursuant to the GVS. The
newly-assigned judge was required to decide the enforcement motion
in light of evidence of what had transpired since the court's
earlier orders were entered. The judge found that forced visitation
was having a harmful effect upon the children.
We must defer to the trial court's findings of fact if
supported by sufficient credible evidence in the record. Cesare
v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We also
must "accord deference" to the factual findings of the Family Part
because of that court's "special jurisdiction and expertise in
family matters." Id. at 413.
We conclude that there is sufficient credible evidence in the
record for the judge's finding that further attempts to force the
children to participate in court-ordered visits with their
grandparents, further litigation, and additional psychological
evaluations would not be in the children's best interests.
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III.
Next, plaintiffs argue that the judge denied them due process
by modifying the prior orders in this case, and ceasing all court-
ordered visitation between plaintiffs and their grandchildren.
Plaintiffs contend that, by adjourning their motion to enforce the
prior orders several times, the judge denied their due process
right to enforce the prior orders in the case.
Plaintiffs further argue that the case should not have been
transferred to a new judge, and the newly-assigned judge did not
fully review the entire record. They contend the evidence does not
support the judge's finding that the children would be harmed by
visitation or further psychological evaluations. We cannot agree.
The grandparents "bear 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. In
this case, the trial court initially determined that visitation
should be granted because their grandchildren would suffer harm
without such visits. The evidence later presented to the trial
court showed, however, that enforcement of the visitation order
was having a harmful effect upon the children. Thus, visits that
were intended to avoid harm were, in fact, causing harm.
Thus, plaintiffs did not have a due process right to enforce
the trial court's prior orders. They had a right to have the court
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consider their motion to enforce the court's prior orders in light
of the new evidence presented to the court. That evidence supports
the trial court's finding that compelled visitation and further
psychological evaluations would not be in the children's best
interests. Therefore, the newly-assigned judge did not mistakenly
exercise his discretion by refusing to mandate continued
enforcement of the court's prior orders.
We have considered plaintiffs' other arguments and have
determined that they are without sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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