KEVIN VOGEL v. DEBORAH SCHULTZ BALKUS, GERY E. BALKUS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1009-04T51009-04T5

KEVIN VOGEL,

Plaintiff-Appellant,

v.

DEBORAH SCHULTZ BALKUS,

GERY E. BALKUS, and GERALDINE

M. WARICK,

Defendants-Respondents.

____________________________________________________________

 

Argued October 18, 2005 - Decided June 2, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FD-02-286-05A.

Robin T. Wernik argued the cause for appellant (Granata, Wernik, Zaccardi & LaMantia, attorneys; Ms. Wernik, on the brief).

Edward J. Bowen argued the cause for respondent Geraldine M. Warick.

PER CURIAM

Plaintiff, Kevin Vogel, appeals from a September 17, 2004 order denying his motion (a) for supervised visitation with the minor, Edward Balkus; (b) for appointment of a guardian ad litem; and (c) for a risk assessment. He also appeals from a November 17, 2004 order requiring him to pay $4,475 in counsel fees to his ex-wife, defendant Geraldine M. Warick (Geraldine). Plaintiff argues that he was a psychological parent to Eddie, and that material factual disputes existed with respect to his ability to make a prima facie showing on that issue. Even if plaintiff had made or could make such a prima facie showing, we conclude the trial court's decision not to allow visitation was justified due to the existence of a Final Restraining Order (FRO). We affirm.

Eddie is the biological son of defendants Gery and Debbie Balkus. He was born September 22, 1991. In May 1995, Debbie was granted a restraining order against Gery under the Prevention of Domestic Violence Act. Gery never returned to the household. On December 8, 1995, Debbie was granted sole legal and physical custody of Eddie; however, Debbie suffers from multiple scleroses and in the mid to late 1990s, when her health deteriorated significantly, Debbie enlisted the aid of her close friend, Geraldine. In July 1997, prior to Eddie's sixth birthday, he started living with Geraldine and plaintiff. On March 31, 1998, Geraldine was named standby guardian and in October 1998, she became Eddie's permanent guardian. Debbie gave Geraldine power of attorney and medical power of attorney over her affairs and over Eddie. Debbie named plaintiff her alternate attorney-in-fact. In her Will, she named Geraldine as Eddie's primary guardian. She named plaintiff the contingent guardian.

On February 8, 2002, J.S., Geraldine's biological daughter and plaintiff's step-daughter, brought a domestic violence complaint against plaintiff and obtained a temporary restraining order. As a result of the ensuing domestic violence trial, an FRO was entered against plaintiff which prohibits him from having any contact with J.S. or any members of her household, including Geraldine and Eddie. The judge reserved decision, pending completion of a risk assessment, on plaintiff's request for visitation with Eddie but, eventually, upon review of that risk assessment, the judge entered a May 12, 2002 order refusing to remove Eddie's name from the FRO.

Thereafter, on April 14, 2003, although J.S. had alleged that plaintiff molested her for a ten-year period beginning when she was thirteen years old, plaintiff pleaded guilty to a single count of fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b, for touching J.S.'s breast without her consent. Plaintiff was sentenced to five years probation and three-hundred sixty-four days in the Bergen County Jail. The community supervision provisions of Megan's Law did not apply to plaintiff. He served the custodial portion of his sentence and was released from jail on March 5, 2004. Following his release, he renewed his efforts to maintain a relationship with Eddie.

Plaintiff contends the undisputed facts establish that he was a psychological parent to Eddie as a result of the bond that formed between them during the time he and Eddie lived in the same household. In spite of plaintiff's assertions as to the role he played in Eddie's life, on September 17, 2004, the judge of the Family Part concluded that plaintiff was not Eddie's psychological parent under the test set forth in V.C. v. M.J.B., 163 N.J. 200 (2000). Pursuant to V.C., a four-part test is utilized to determine psychological parenthood in cases where the third party has lived a substantial period with the legal parent and the child:

[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.

[Id. at 223.]

Applying the V.C. test, the judge concluded that the only element plaintiff satisfied was that he had lived in the same household as the child. Hence, the court entered summary judgment in favor of defendant and refused to modify the FRO that barred plaintiff from contact with Eddie. Thereafter, on November 12, 2004, the court entered an order requiring plaintiff to pay defendant's counsel fees in the amount of $4,475.

Plaintiff appeals from the denial of visitation and the award of counsel fees. First, he asserts the trial judge erred by refusing to entertain his application to modify the FRO entered by another judge. In addition, plaintiff argues that, since the FRO was granted to protect J.S., and not Eddie, plaintiff should be permitted visitation with Eddie. While we do not necessarily agree that the judge lacked authority to modify the FRO, we, nevertheless, uphold the result.

N.J.S.A. 2C:25-29(d) governs the modification or removal of an FRO issued under the Domestic Violence Act. The statute states:

Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.

[Ibid.]

Plainly, where a complete record of the domestic violence hearing is available, a judge other than the one who granted the FRO may remove or modify such an order. When using the exception to the same-judge rule, the abuser must provide the new judge with the full record, including the complete transcript of the FRO hearing, all pleadings and orders and the court file. Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998). Even when a victim requests the dissolution of the restraints, the court must "make an independent finding that continued protection is unnecessary before vacating a restraining order." Stephenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998) (emphasis in original). "Only where the movant demonstrates substantial changes in the circumstances that existed at the time of the final hearing should the court entertain the application for dismissal." Kanaszka, supra, 313 N.J. Super. at 608. Moreover, "[t]he court should carefully consider the factors set forth in N.J.S.A. 2C:25-29a before removing the shield of protection afforded by the restraining order." Id. at 605 (quoting A.B. v. C.M., 289 N.J. Super. 125, 131 (App. Div. 1996)).

Here, plaintiff did not show a substantial change of circumstances in seeking to modify the FRO. In fact, plaintiff failed to show any change of circumstances other than the completion of the jail sentence of three-hundred sixty-four days imposed after he pled guilty to criminal sexual contact, N.J.S.A. 2C:14-36. Plaintiff's admitted abuse of J.S. furnished a rational basis for the court to decline to modify the restraining order to allow visitation with Eddie. Moreover, J.S. had alleged and the court had found in the domestic violence proceeding that plaintiff had molested her for a ten-year period beginning when she was thirteen years old.

Pursuant to N.J.S.A. 2C:25-29a(4), the court must take into account the best interests of "any child." In light of plaintiff's conviction for a sex related crime and the allegations that underlay the FRO, the court was justified in concluding that Eddie's best interests are not served by permitting plaintiff to visit with him. The decision was properly within the trial judge's discretion and his denial of the request to modify the FRO did not abuse that discretion in light of the facts presented.

As noted above, the trial judge considered plaintiff's request for visitation under the four-pronged test set forth in V.C., supra, 163 N.J. at 223 and concluded that plaintiff did not satisfy three of the prongs for determining that he was a psychological parent. In a supplemental opinion dated December 8, 2004, the judge provided a concise statement of his decision and analysis, in which he reached the following conclusions: (1) "that there was no prima facie showing that [Eddie's] biological mother or father even consented to or fostered a parent-like relationship between [Eddie] and [p]laintiff[;]" (2) "that the evidence put forth did not establish that [p]laintiff had assumed the obligations of a parent by taking on significant responsibilities concerning [Eddie's] care, education and development[;]" and (3) that the relationship "was not a parental relationship." Although the judge determined that he was in a position based upon the papers before him, to rule on the matter as if it were an application for summary judgment, we have grave concerns that the evidence submitted by the parties and the legitimate inferences from such evidence were not viewed in the light most favorable to the party opposing the motion. R. 4:46-2(c). "The 'judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986); A.F. v. D.K.P., 339 N.J. Super. 312, 325 (App. Div.), certif. denied, 170 N.J. 89 (2001). Accordingly, we affirm on a different ground.

First, we note that the trial court found that plaintiff's role was that of an uncle and not that of a parent. The court further found there was no evidence that the biological mother ever consented to or fostered a psychological parental relationship between Eddie and plaintiff. We have recognized that consent under prong one of V.C. does not have to come from the biological parent. Instead, a person who has permanent custody of the child can consent to a psychological parent relationship being formed. See P.B. v. T.H., 370 N.J. Super. 586, 597 (App. Div. 2004) (observing that an aunt who had been awarded permanent custody of a child was the child's legal parent and she "stood in the shoes of [the] mother for purposes of the first prong of V.C."). As a consequence of Debbie's unfortunate illness, Geraldine stood in her shoes as Eddie's legal parent. She had the authority or capacity to consent to the formation of a relationship between Eddie and a third party under prong one. Though we are compelled to clarify the existence of Debbie's authority as Eddie's legal guardian, we agree with the trial court that the guardian would not have consented if she had known that plaintiff was molesting her daughter, his step-daughter, and that "the reason why [plaintiff] was removed from the house [is a] major, major factor."

We are also constrained to comment that the trial judge appears to have construed the third prong under V.C. too narrowly. That prong does not require, as the trial judge concluded, that one must make significant major decisions regarding the child to become a psychological parent. The requirement is that the third party "must perform parental functions for the child to a significant degree." V.C., supra, 163 N.J. at 223. The breadth of such parental functions must be defined on a case-by-case basis. Here, plaintiff has alleged he was involved in a variety of Eddie's activities and though Debbie has characterized his role as akin to an uncle, he characterizes it as the role of a parent. Plaintiff also points out that he was even recognized as a parent at Eddie's school. Hence, if no other determinative circumstances were present, we would conclude that the existence of factual disputes would militate against the grant of summary judgment based on the nature of the role played by plaintiff.

In spite of our concern that summary judgment may have been precipitously granted under the V.C. analysis, we are convinced that plaintiff could not prevail on a best interests of the child analysis, which ultimately governs plaintiff's application for visitation. V.C., supra, 163 N.J. at 227-28. As the motion judge properly noted, "plaintiff did not demonstrate by clear and convincing evidence that it would be in the child's best interest to award visitation to plaintiff."

In that regard, plaintiff is subject to N.J.S.A. 9:2-4.1(b), as a result of the guilty plea he entered to the charge of fourth degree criminal sexual conduct, N.J.S.A. 2C:14-3b. N.J.S.A. 9:2-4.1(b) provides that:

Notwithstanding any provision of law to the contrary, a person convicted of sexual contact under N.J.S.A. 2C:14-3 or endangering the welfare of a child under N.J.S.A. 2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded.

The trial judge in his supplemental opinion stated that in applying N.J.S.A. 9:2-4.1(b) "it is imperative to note the fact that the Plaintiff here was convicted of sexual contact of a minor child, who was the same age as Edward, and living in the same household as Edward." Although plaintiff argues he never admitted that he assaulted J.S. while she was still a minor, it cannot be disputed that he was convicted of N.J.S.A. 2C:14-3b. The trial court found plaintiff failed to provide clear and convincing evidence that visitation with him was in the best interests of Eddie. We agree. Moreover, plaintiff admitted at his plea hearing that the purpose of touching J.S.'s breast without her consent was either to humiliate her or to sexually arouse or sexually gratify himself. The trial judge reasoned, and we concur, that this demonstrates a potential risk of harm to Eddie.

Finally, plaintiff asserts that since case information statements were not submitted, the trial court erred by awarding defendant attorneys' fees. In his undated written decision on counsel fees, the court considered fully the factors set forth in R. 5:3-5. In his supplemental opinion, he reiterated his reasons for awarding counsel fees. We perceive no basis to disturb the trial court's determination to award counsel fees. Kanaszka, supra, 313 N.J. Super. at 608. The trial judge, focusing on plaintiff's lack of good faith and unmeritorious arguments, acted within his discretion to award defendant attorneys' fees.

Affirmed.

 

The FRO granted in Stephenson permitted supervised visitation. Though the victim's request to dissolve the FRO was denied, the court permitted supervised visitation to continue.

The factors enumerated in N.J.S.A. 2C:25-29a include: (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant; (4) The best interests of the victim and any child; (5) In determining custody and parenting time the protection of the victim's safety; and (6) The existence of a verifiable order of protection from another jurisdiction.

(continued)

(continued)

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A-1009-04T5

June 2, 2006