FRANCES PHILLIPS v. BRIAN GROGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2596-07T32596-07T3

FRANCES PHILLIPS,

Plaintiff-Respondent,

v.

BRIAN GROGAN,

Defendant-Appellant,

and

APRIL RUSSO,

Defendant.

__________________________________

 
 

Argued July 8, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FD-16-669-08.

William A. Teltser argued the cause for

appellant.

Judith A. Hartz argued the cause for respondent (Kozyra & Hartz, attorneys;

Ms. Hartz, of counsel and on the brief;

Leonard A. Peduto and Robyn E. Ross, on the brief).

PER CURIAM

By leave granted, defendant Brian Grogan appeals from interlocutory orders entered in an action for grandparent visitation filed by plaintiff Frances Phillips pursuant to N.J.S.A. 9:2-7.1. Phillips is the maternal grandmother of the only child born of Grogan's marriage to defendant April Russo. She filed the complaint on September 21, 2007. On December 12, 2007, the trial court, considering facts outside the pleadings in accordance with Rules 4:6-2 and 4:46-2, denied Grogan's motion to dismiss the complaint. On the same day, the court entered pendente lite orders granting Phillips visitation on alternate weekends, from 5:00 p.m. on Saturday until 6:00 p.m. on Sunday, and compelling the parties to participate in and share the cost of private mediation. Grogan sought a stay of the pendente lite orders, which the trial court denied.

On January 29, 2008, this court granted Grogan's motion for leave to appeal, and on March 14, 2008, this court stayed visitation but not mediation pending appeal. Phillips moved before the Supreme Court to vacate our stay pending final resolution of the dispute. On April 1, 2008, the Supreme Court granted Phillips partial relief by vacating the stay "pending disposition of the appeal in the Appellate Division."

There are two questions before us on this interlocutory appeal: Whether it was error to deny Grogan's motion to dismiss Phillips' complaint; and, if not, whether it was error to compel visitation pending final disposition.

These are the pertinent facts. Russo and Grogan married in August 2001. Their only child was born in March 2004. Russo and Grogan were both employed. Phillips, who lived within minutes of Grogan's residence, saw the child on a regular basis. According to Phillips, she developed a "strong bond" with her grandchild because she cared for the child "no less than three times a week," kept the child overnight "almost every Saturday night," and reserved a bedroom for the child in the home she shared with her husband, Russo's stepfather.

In August 2005, when the child was seventeen months old, a co-worker of Russo's entered Grogan's home through an unlocked door and attempted to shoot Grogan twice. The gun misfired. During the struggle that followed, Grogan's skull was "cracked."

Within days of the attack, evidence of Russo's involvement in planning and facilitating the crime against her husband was uncovered and she and the intruder were arrested. Russo and her co-worker were indicted on November 28, 2005. We are advised that she has been incarcerated since August 2005 and has entered a plea of guilty on the indictment.

On December 1, 2005, Grogan obtained a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. That order prohibits Russo from having any contact with either Grogan or the child.

According to Grogan, he cared for the child after the attack in August 2005 with assistance from his brother and sister-in-law and by enrolling the child in a day-care program. Sometime in fall 2005, however, he allowed Phillips to see the child, albeit on a less frequent basis than she had before August 2005. By summer 2006, the child was staying with Phillips overnight on Saturdays, and a pattern of Saturday night visits had developed by fall 2006. By that time, Grogan was involved in a new relationship with another woman, S.M., who frequently stayed with Grogan in his home and had begun establishing a relationship with the child.

In October 2006, law enforcement officers told Grogan that they had evidence of Russo's involvement in another plot, this one against his life and the life of S.M. Russo was again charged with conspiracy and attempted murder; this time there were two alleged victims, Grogan and S.M. Grogan suspected that Russo learned about S.M. from Phillips.

Russo and Grogan were divorced in February 2007. The final judgment incorporates the parties' agreement for Grogan to have sole custody of their child. After the divorce, Grogan continued to allow the child to spend Saturday nights with Phillips. On two occasions, Grogan's child told him that she had spoken to Russo.

According to Grogan, after hearing about the second plot and the child's contact with Russo, he decreased the frequency and regularity of the child's visitation with Phillips. By July 2007, he suspended all visitation with Phillips. A second indictment, which charged Russo with conspiracy and attempt to murder Grogan and S.M., was returned on July 23, 2007.

In August 2007, and despite the prohibition of communication included in the final restraining order, Russo filed post-judgment motions seeking authorization for telephone contact with the child and approval for Phillips to bring the child to the county jail to visit her once every week. On August 17, 2007, the trial court denied both requests.

As an intervenor in her daughter's divorce action, Phillips also had filed a post-judgment motion. Phillips sought an order setting a schedule for grandparent visitation that Grogan would be obligated to follow. The court denied Phillips' motion without prejudice to any separate action she might commence for grandparent visitation. That order was entered on September 21, 2007. On the same day, Phillips filed a separate complaint for grandparent visitation.

After Phillips' request for court-ordered visitation was denied, but apparently before service of her separate complaint for grandparent visitation, Grogan permitted the child to spend time with Phillips. The child stayed with Phillips on September 29 and 30, October 13 through 15, and November 4, 2007. Phillips did not withdraw her complaint for grandparent visitation.

Grogan filed a motion for summary judgment and dismissal of Phillips' complaint. He acknowledged that Phillips had enjoyed frequent contact with his child prior to the attack on his life in August 2005 and that he had stopped that contact after the attack but allowed it to resume by fall 2005. He noted that the child had not been harmed by the interruption. He acknowledged that he had reduced and discontinued the child's contact with Phillips again in early and late spring 2007. He also explained that he had recently "re-instituted visits," at his discretion, without harm to the child.

In response, Phillips and her husband denied that Grogan suspended visitation after the attack in August 2005 and asserted that Phillips' contact with her grandchild "was essential to [the child's] well-being." Phillips claimed that Grogan suspended visitation only briefly in September 2005, because he was angry that Phillips maintained contact with Russo, but she also admitted that he quickly "changed his mind" and allowed the child to spend nearly every Saturday with her between August 2005 and July 2007. Although Phillips acknowledged that Grogan again suspended and restored visitation, she maintained that she needed a court order establishing her right to visitation on a fixed schedule. She explained: "I fear that without intervention by the [c]ourt, there will come a point when [Grogan] will no longer allow [the child] to visit with me simply due to the animosity he feels for [Russo]."

With respect to harm to the child, Phillips noted that the child was happy when visits resumed and told Phillips she had missed her. She did not allege that her relationship with the child had been damaged in any way by the interruption or even suggest that the relationship was in need of any repair. Phillips concluded, however, that the current situation was harmful to the child, because "it [was] a significant departure from [her] relationship [with the child] prior to August 2005."

Phillips admitted that Grogan's recent "decision to allow [the child] to visit . . . show[ed] that he understands the importance of our relationship and the positive impact that we have in [the child's] life." She also alleged, however, that he was "allowing his personal feelings for [Russo] to cloud his judgment as far as what is best for [the child]." Based on Grogan's prior "threat to sever" her contact with the child and the limited contact he was permitting, Phillips urged the court to enter an order fixing a visitation schedule immediately.

In reply, Grogan expressed his concern that Phillips was facilitating communication between Russo and the child, contrary to the final restraining order. He suggested that the facts supported an inference that Russo learned about his relationship with S.M. from Phillips, and he relied on photographs Phillips provided in support of her cross-motion to infer that Phillips was permitting contact between Russo and the child that was prohibited by the restraining order. He claimed the photos appeared to depict a birthday card Russo had sent to the child.

After a review of the entire record presented on the motion and giving Phillips the benefit of all favorable evidence and inferences, we conclude that the trial court erred in denying Grogan's motion to dismiss Phillips' complaint and ordering visitation pendente lite. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:6-2; R. 4:46-2. An order compelling a parent to permit a child to visit a grandparent implicates the parent's fundamental "right to family autonomy and privacy." Moriarty v. Bradt, 177 N.J. 84, 114, 116 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). "[T]he only state interest warranting the invocation of the State's parens patriae jurisdiction . . . to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child. When no harm threatens a child's welfare, the State lacks a sufficiently compelling justification," and the parents may "raise their children as they see fit." Id. at 115. When harm is established, the presumption in favor of a fit parent's choice about visitation is overcome, and the court may require visitation with grandparents when it is in the child's best interests. Ibid. The showing of harm adequate to overcome the presumption in favor of a fit parent's decision is a "threshold" that is "a constitutional necessity"; it is a prerequisite to entry of an order compelling grandparent visitation in the child's best interests. Id. at 118.

In Moriarty, the Supreme Court explained the showing of harm a grandparent must make in order to warrant interference with the parent's fundamental right to make a decision about visitation. When "visitation is denied, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child." Id. at 117 (emphasis added). In that context, "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." Ibid. "When visitation is not denied outright but the grandparents challenge the sufficiency of the proffered schedule, the same standard [applies]. They will be required to prove that visitation is necessary and that the proffered visitation schedule is inadequate to avoid harm to the child." Id. at 118 (emphasis added).

Applying Moriarty, this court has recognized that "[i]n order to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children, trial courts must focus first on whether the grandparent has made a clear and specific allegation of concrete harm to the children." Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). If the plaintiff does not plead or present proof of harm to the child, "the complaint is properly dismissed" for failure to establish the threshold harm required by Moriarty. Ibid.; Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005).

Dismissal of a complaint for grandparent visitation on failure to raise a genuine factual question about harm to the child is appropriate. "The economic and emotional cost of litigation can represent an enormous intrusion into a family's life." Daniels, supra, 381 N.J. Super. at 293; see also Troxel v. Granville, 530 U.S. 57, 101, 120 S. Ct. 2054, 2079, 147

L. Ed.2d 49, 78 (2000) (Kennedy, J., dissenting) (recognizing that the litigation itself may constitute a "state intervention . . . disruptive of the parent-child relationship" and the "right of a custodial parent to make certain basic determinations" about the child's welfare); id. at 73, 120 S. Ct. at 2064, 147 L. Ed. 2d at 61 (plurality opinion agreeing with Justice Kennedy's observation about the burdens of litigation). In Daniels, we held that when there is no evidence "of any concrete harm to the children, the complaint is properly dismissed." 381 N.J. Super. at 294; cf. Rente v. Rente, 390 N.J. Super. 487, 494-95 (App. Div. 2007) (discussing dismissal at the close of plaintiff's case).

There was a sufficient showing that Phillips and the child had a long-term relationship; that relationship was developed only because Grogan allowed Phillips to maintain contact with his seventeen-month old child after the attack on his life in August 2005. There was, however, no evidence that permits a finding of the "threshold" of harm that Moriarty requires to allow this litigation to continue. Phillips did not demonstrate either a denial of visitation or an offer of visitation that was so inadequate that the child would be harmed. Moriarty, supra, 177 N.J. at 117-18.

Visitation was not "denied." Grandparent visitation was discontinued in July 2007 and restored in September, within eight days of the court's denial of Phillips' first request for a court order compelling it. See Rente, supra, 390 N.J. Super. at 494-95 (noting that the complaint should have been dismissed "[i]n light of [the parent's] willingness to allow the grandparent to have visitation, though limited in time and scope").

Similarly, there was no evidence of a probable and realistic risk of future termination of the relationship between Phillips and the child through a denial of visitation. To the contrary, as Phillips acknowledged, Grogan restored visitation after a brief hiatus because he understood the importance of his child's contact with her. Moreover, the history of the relationship, as recounted by Phillips, is generally one of uninterrupted contact between grandparent and grandchild despite her daughter's admission of a role in a violent attempt to end Grogan's life in August 2005.

Because Phillips' fear that Grogan would "deny" visitation without good reason, out of hostility to his former wife and in disregard of his child's best interest, was not grounded in fact, there was no need for a court order to avoid the harm of "the termination of a long-standing relationship" between Phillips and the child. Moriarty, supra, 177 N.J. at 117. Past conduct is well-recognized as relevant to the prediction of probable future behavior. See State v. Fields, 77 N.J. 282, 307 (1978). Grogan's past conduct simply does not suggest a legitimate basis for finding a realistic, let alone a probable, threat of conduct severely restricting Phillips' relationship with his child. See Moriarty, supra, 177 N.J. at 90, 118-19 (discussing refusal of all visitation and evidence of father's conduct tending to alienate the children from their maternal grandparents). He suspended visitation when Russo and Phillips were attempting to obtain a court order authorizing contact between mother and child and after he had received warning that Russo knew about his relationship with S.M. and intended to harm them both. Those circumstances were, to say the least, extraordinary and warranted Grogan's measured response. There was no other evidence.

Contrary to Phillips' unsupported allegation that Grogan was "allowing his personal feelings for [Russo] to cloud his judgment as to what is best for [the child]," the extraordinary circumstances leading up to his suspension of grandparent visitation demonstrate otherwise. The law has long recognized that a child's best interest and the well-being of the child's custodial parent are intertwined. See Baures v. Lewis, 167 N.J. 91, 115-116 (2001) (explaining Holder v. Polanski, 111 N.J. 344 (1988)); see also Wilde v. Wilde, 341 N.J. Super. 381, 399 (App. Div. 2001) (noting the relevance of a grandparent's conduct demeaning to the custodial parent); N.J.S.A. 9:2-7.1b (2), (4) (listing factors relevant to the best interest analysis conducted in grandparent visitation cases if the "threshold" harm is shown, which include: "[t]he relationship between each of the child's parents or the person with whom the child is residing and the applicant"; and "[t]he effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing"). Grogan's action to preserve his well-being and the well-being of S.M., both of whom were involved in caring for the child, was consistent with and not in derogation of the child's best interest.

There also is no support for a finding that grandparent visitation at Grogan's discretion would be "inadequate to avoid harm to the child." Id. at 118. When he reinstated visitation, he allowed the child to stay with Phillips on September 29 and 30, October 13 through 15, and November 4, 2007. This is not a case in which the grandparent visitation provided by a parent was so obviously inadequate as to preclude continuation of a meaningful relationship. See Moriarty, supra, 177 N.J. at 92 (discussing father's proposal of visitation one-day per month during an activity of the children and for two hours after the event). Grogan was affording meaningful overnight visits that allowed Phillips the opportunity to play a role in nurturing the child. Even Phillips acknowledged that this conduct demonstrated Grogan's understanding of the importance of the child's relationship with her and her husband.

Further, Phillips' complaint and the certifications contain nothing beyond Grogan's conduct to show the visitation Grogan would offer would be so inadequate that it would harm the child. Phillips offered nothing but generalizations based on an unreasonable assumption. She concluded that contact with the child on a basis that was a "significant departure" from the contact she enjoyed before August 2005, when this child was an infant, would be harmful. She offered no expert opinion to support that assumption, and common sense and general understanding do not suggest that contact with a grandparent who is assisting with the care of a child under two years of age must remain constant throughout the child's minority in order to avoid harm to the child. Thus, Phillips' fear that the child would be harmed by anything other than a schedule similar to the de facto visitation prior to August 2005 was unsupported and unreasonable. Her fear was not enough to overcome the presumption in favor of parental decision making. Moriarty, supra, 177 N.J. at 115.

Phillips was insisting on continuation of what the child's parent deemed appropriate under circumstances that were dramatically different than those existing at the time of her application. Her insistence on a schedule that was the status quo before August 2005 demonstrates that Phillips is either unable or unwilling to recognize the gravity and significance of subsequent events. Perhaps Phillips' unwillingness is understandable, but her daughter's role in the attack on Grogan's life is a real world circumstance relevant to the harm to the child posed by conduct directed against the child's father.

We stress that it is not proper to infer the threshold harm required by Moriarty based on a parent's resistance to incorporation of a schedule for grandparent visitation in a court order. As discussed above, court-ordered visitation is an interference with a fit parent's right to make autonomous decisions in the best interest of his or her child. Even when the court order incorporates a schedule reached by agreement, the implication is that any deviation from the schedule will lead to intrusive litigation. For that reason, a parent's desire to maintain flexibility in making decisions that are in the child's best interest cannot, in itself, be viewed as a threat of harm to the child. A different approach would equate a parent's action to preserve his or her autonomy with the harm that must be established to warrant interference with the right. We are unaware of any context in which lawful action taken to preserve exercise of a constitutional right, without more, constitutes adequate reason for intrusion upon the right.

For all of the foregoing reasons, we conclude that Phillips failed to raise a genuine question of harm sufficient to permit continuation of this litigation. Thus, we reverse the order denying Grogan's motion and remand for dismissal of plaintiff's complaint.

Our decision should not be read to encourage manipulation of the court that would be harmful to the interests of justice and the welfare of the child at the center of a dispute between parent and grandparent. We do not hold that a parent who acts to terminate a long-standing relationship between his or her child and a grandparent can secure a dismissal of the grandparent's complaint simply by reinstating visitation until such time as the litigation is dismissed. The facts in this case simply do not support a finding of disregard for the child's best interest or manipulation of the grandparent or the court.

This decision moots the question of the validity of the pendente lite visitation order entered by the trial court. We stayed that order because Phillips had not established her entitlement to preliminary injunctive relief. Crowe v. De Gioia, 90 N.J. 126, 132-36 (1982). If for no reason other than the fact that Grogan had reinstated visitation, there was no showing that the order was necessary to avoid irreparable harm or maintain a status quo. Id. at 132, 135. Because Phillips had not shown harm adequate to meet the constitutional threshold, there was no reasonable probability of ultimate success on the merits. Id. at 132, 133-34. Finally, the balance of relative hardships - on one side, affirmative interference with Grogan's parental autonomy, and on the other side, a speculative risk of harm that would ensue only if Grogan again suspended visitation - weighed against a court order compelling visitation before final disposition and while the child's father was providing visitation. Id. at 134.

The Supreme Court's order vacating this court's stay of visitation pending our decision on the merits of this appeal expires with issuance of this decision. In the interest of judicial economy and out of concern for adding to the litigants' costs, we have considered whether to stay our mandate in order to permit Phillips to file a petition for certification. For the reasons stated above, we conclude that a stay is not warranted. Id. at 132-36.

Reversed and remanded for dismissal of plaintiff's complaint for grandparent visitation.

 

Phillips did not deny discussing S.M. with Russo. The photocopies of the photographs in this record are not clear enough to permit us to determine what they depict.

We discern from Phillips' arguments that she does not appreciate the unique and highly relevant circumstances of this case the grandparent's daughter's attempt to kill the child's father. In our view, the earlier proceedings did not give sufficient weight to this fact. Even if Phillips had shown the requisite harm, the trial court would be required to consider the unique and highly relevant circumstances in order to determine whether court-ordered grandparent visitation was in the child's best interests. N.J.S.A. 9:2-7.1b sets forth the factors to be considered in determining whether or to what extent grandparent visitation may be ordered. Subsection (8) permits a court to consider "[a]ny other factor relevant to the best interests of the child." In applying this broad factor in the context of this unusual case, we conclude that Grogan was well within his rights to reduce visitation from that which existed prior to August 2005. Grogan was certainly permitted to weigh the potential of harm to the child of being exposed to Russo during grandparent visitation. Moreover, Grogan alleged in opposition to Phillips' request for a visitation order that Phillips' daughter's second plot, which included an attempt to kill his girlfriend, S.M., may have been based on information provided to Russo by Phillips, which was obtained through Phillips' access to the child. Although we do not base our determination to mandate a dismissal of the complaint on this factual contention since Phillips apparently denies it had we allowed the action to proceed, the judge would have been required to resolve this factual dispute and, if substantiated, would have been required to give it considerable weight in determining, along with the application of the other factors, whether or to what extent statutory grandparent visitation would be ordered.

As noted earlier, there was a factual dispute about whether Russo learned of S.M. through Phillips' access to the child. The existence of a dispute on this highly material fact further illustrates how Phillips failed to demonstrate a reasonable likelihood of success on the merits. See Waste Mgmt. of N.J., Inc. v. Union County Utils. Auth., 399 N.J. Super. 508, 528 (App. Div. 2008) (observing "[t]he time-honored approach in ascertaining whether a party has demonstrated a reasonable likelihood of success requires a determination of whether the material facts are in dispute"; the failure to demonstrate the absence of a material factual dispute weighs against the party seeking relief).

(continued)

(continued)

7

A-2596-07T3

 

August 4, 2008