THERESA M. CONAHAN et al. v. DWIGHT L. KLINGENBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4579-04T44579-04T4

THERESA M. CONAHAN and

NEAL F. CONAHAN,

Plaintiffs-Respondents,

v.

DWIGHT L. KLINGENBERG,

Defendant-Appellant.

________________________________________

 

Argued November 2, 2005 - Decided

Before Judges Stern and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, FD-12-319-04.

Richard B. Tucker, Jr. argued the cause for appellant (Miller, Miller & Tucker, attorneys; Mr. Tucker, of counsel and on

the brief).

Robert S. Seguin argued the cause for

respondents.

PER CURIAM

Defendant Dwight L. Klingenberg appeals from a final order of the Family Part, Chancery Division, awarding custody of his seventeen year-old son Thomas to plaintiffs Theresa M. and Neal F. Conahan and requiring him to pay the Conahans $20,000 for counsel fees and costs. The Conahans are the child's maternal grandparents. His mother Frances Klingenberg is deceased.

Thomas was born on March 2, 1988. His parents both had demanding jobs that required travel, and they hired nannies to help with his care. In 1998, Thomas' mother was diagnosed with a reoccurrence of cancer. The Klingenbergs lived in Yardley, Pennsylvania, and Dwight Klingenberg frequently traveled to California for the entire workweek. Neal Conahan, Mrs. Klingenberg's father, left his home in Old Bridge, New Jersey to stay with and help her family. When Frances died in 1998, Thomas was ten years old. He and his father stayed in Yardley.

In 1999, Klingenberg became ill. His liver failed, and he needed a transplant. He was quite ill before and after the surgery. Fortunately, he fully recovered and by January 2000 was able to return to work.

In April 2000, Klingenberg remarried. Thomas, his father and his stepmother moved to Tennessee in August of that year. In May 2001 Klingenberg's employer sent him to London. Thomas remained in Tennessee with his stepmother. Although Klingenberg talked to Thomas about joining him in London when it became apparent that his assignment was not short-term, Thomas stayed in Tennessee.

Thomas spent the summer of 2001, as he had spent the two prior summers following his mother's death, with his grandparents in New Jersey. Although the relationship between Thomas and his stepmother had become strained, he returned to Tennessee at the end of the summer. According to the Conahans, in September 2001 Klingenberg asked them to take Thomas back. They declined, and Klingenberg arranged for Thomas and his stepmother to see a counselor.

In May 2002, after completing the eighth grade, Thomas moved to his grandparents' home. Klingenberg signed an affidavit in support of Thomas' admission to Old Bridge public schools in which he acknowledged that he had surrendered physical custody of Thomas to the Conahans on May 25, 2002.

According to Klingenberg, it was his intention to allow Thomas to remain in New Jersey only until he returned from London in December 2002. Upon his return, however, he allowed Thomas to complete the school year and spend the first part of the summer of 2003 with the Conahans. Thomas has aunts, uncles and cousins who reside in Old Bridge whom he sees on a regular basis. He plays lacrosse and baseball.

Klingenberg had plans to bring Thomas from New Jersey to Tennessee on August 9, 2003, but in July 2003 the Conahans filed a complaint for custody and a order to show cause seeking temporary custody. On July 22, 2003, the order to show cause was granted and a return date was set for August 8, 2003. Klingenberg received the complaint and order to show cause when he returned to Tennessee from vacation on August 6, 2003. Thomas spent the school year in New Jersey and much of the summer of 2004 in Tennessee. Trial on the custody complaint was held on February 22, 23, 24, and 25, 2005.

At the time of trial, Thomas was days away from his seventeenth birthday and in the eleventh grade at Old Bridge High School. He explained that he had asked his grandparents to take action in the summer of 2003 so that he could stay with them rather than return to Tennessee.

From Thomas' perspective, the time that he had spent in Tennessee in the summer of 2004 had not gone well. His father had continued to travel for work, and he spent some time with a half-brother, his father's son from a prior marriage. Otherwise he was with his stepmother, with whom he could not establish a relationship. Although Thomas testified that he wished to remain in New Jersey with his grandparents, he acknowledged that he wanted to have contact with his father and would be willing to travel with him to visit colleges.

Thomas had not done well in school during the marking periods preceding trial. He explained that he had been troubled by the litigation and was trying to bring his grades up. His grandparents were receiving weekly progress reports from each of his teachers, and they required him to do his homework. They set curfews for him, and they had hired several tutors to help him catch-up with his school work. Thomas also testified about dental and medical appointments his grandparents had scheduled for him. He gave his account of his problems with his stepmother and contrasted his life in New Jersey with his life in Tennessee.

Two custody experts prepared reports in connection with this litigation. The experts' conclusions are remarkably similar. James S. Wulach, Ph.D., who did an evaluation on behalf of the Conahans, concluded:

It is my professional opinion that, if Tommy Klingenberg were required to return to his father and stepmother in Nashville, there would be a substantial likelihood of psychological harm, which would lead to serious clinical depression as well as significant behavior problems. This vulnerable adolescent has finally achieved some emotional stability. A forced move to Tennessee would re-create intense fears of isolation and loneliness, a toxic relationship with his stepmother, and an environment devoid of supportive friends and family.

However, Tommy's maternal grandparents have become psychological parents to him. He feels comfortable and secure in their home, and likes sharing his feelings with them. Serious regression in his mental state and his behavior could be avoided if he remained with his grandparents in Old Bridge. While Dwight sincerely fears that Tommy would resent him in future years if he did not fight to bring Tommy back to Nashville now, the opposite is far more likely to be true, that Tommy would appreciate and respect his father more in future years if Dwight understood and supported Tommy's need to remain in Old Bridge until he finishes his high school years.

Dr. Amie B. Wolf-Mehlman, Ph.D., who prepared a report on behalf of Klingenberg, concluded:

After a review of Dr. Wulach's evaluation and report, as well as meeting with all parties and reviewing documentation provided, this examiner essentially is in agreement with the previous evaluator's recommendations. Tommy has established himself at his grandparents' home in New Jersey, and experiences both grandmother and grandfather as loving and supportive. They have been a consistent and stabilizing presence in his life not only while he was growing up, but during that crucial time when his mother was dying and after. He has a strong support system of friends and family in New Jersey, and it is believed that this support system has been a buffer against feelings of loneliness and depression that were developing when his mother died and after. While his father clearly loves and is concerned about Tommy's welfare, he has not been as involved in his care over the years, has traveled a great deal, and has not always been attuned to his son's emotional needs. By all accounts, Tommy and his stepmother have great difficulty getting along, and though each expresses valid concerns and grievances, when all is said and done, it is clear that neither is anxious to reside with the other, nor would this be in Tommy's best interest.

At the same time, Mr. Klingenberg has demonstrated sound judgment with regard to his son's health and education, and has a more grounded and structured approach toward his son's upbringing that the Conahans have lacked. . . . Mr. Klingenberg has a great deal to offer Tommy in terms of guidance with regard to education, physical health, and achievement as he becomes an adult. While the Conahans have provided a loving environment for their grandson, they have not been particularly oriented toward Tommy's long-term development. It is thus recommended that Mr. Klingenberg be given primary decision-making ability with regard to health, education, and welfare.

. . . .

Based upon Klingenberg's subsequent reports to her about Thomas' declining grades and increasingly distant attitude, and about the Conahans' failure to inform him about Thomas' medical and dental care, follow-up on recommended therapy and encourage Thomas' relationship with him, Dr. Wolf-Mehlman supplemented her report as follows:

If the preceding is accurate, this information only reinforces previous recommendations that Mr. Klingenberg should have sole decision-making over Tommy's health, education, and welfare. The Conahans surely love their grandson, but appear to be seriously lacking in judgment where some of the more fundamental aspects of his care are concerned.

At trial Klingenberg and the Conahans testified about their disagreements with one another, their differing views about Thomas' best interests, complete with recriminations relevant to topics ranging from Thomas' distant relationship with his father to his declining grades and frequent dental cavities. The relationship between the adults in Thomas' life had deteriorated significantly since the time that Mr. Conahan came to help the Klingenberg family during his daughter's illness.

Consistent with the expert reports and Thomas' testimony, the trial judge found that the Conahans had developed a relationship with Thomas that was equivalent to that of psychological parents and that it would be harmful to remove him from their custody. Although the judge's orders provide that "legal custody of Thomas Klingenberg [is] awarded to Theresa Conahan and Neal Conahan," the orders include several provisions designed to repair the father's relationship with his son and maintain for him an active and influential role in his son's life. In pertinent part, the order of April 7, 2005, provides:

IT IS FURTHER ORDERED that Defendant

is to immediately furnish Plaintiffs with a list of counselors in the Old Bridge/New Brunswick area that are covered under Defendant's insurance plan; and

IT IS FURTHER ORDERED that Plaintiffs are then to arrange to place Thomas in said counseling; and

IT IS FURTHER ORDERED that the counselor shall then evaluate the situation and determine what counseling services are needed and all parties, Dwight Klingenberg, Patricia Klingenberg, Thomas Klingenberg, and Plaintiffs shall cooperate with the counselor to implement the needed counseling; and

IT IS FURTHER ORDERED that tutors as necessary shall be obtained as soon as possible for Thomas Klingenberg to improve his academic performance; and

. . . .

IT IS FURTHER ORDERED that Plaintiffs shall immediately contact the Old Bridge High School Guidance Dept. to determine what specific programs including summer school may be needed to improve Thomas' academic performance. A copy of said evaluation shall be sent by Plaintiffs to Defendant; and

IT IS FURTHER ORDERED that Plaintiffs are to continue to complete any needed dental work for Thomas Klingenberg; and

IT IS FURTHER ORDERED that the Plaintiffs are to put together a list of chores and daily activities of Thomas Klingenberg and to forward same to Defendant; and

IT IS FURTHER ORDERED that Thomas and Defendant are to set up a schedule for telephone contact or e-mail contact; and

IT IS FURTHER ORDERED that Plaintiff and defendant are to remain in contact with each other regarding Thomas' welfare; and

IT IS FURTHER ORDERED that Defendant's summer visitation for Summer 2005 is to be arranged between the parties and to be dependent upon Summer School or other special educational assisted programs that Thomas may be involved in this summer; and

. . . .

IT IS FURTHER ORDERED that Defendant is to visit with Thomas anytime he is in the area; and

IT IS FURTHER ORDERED that Plaintiffs send a copy of Thomas' SAT result[s] to Defendant when available; and

. . . .

IT IS FURTHER ORDERED that the counselor may designate a parenting coordinator; and

. . . .

FURTHER ORDERED that the accompanying order supercedes portions of this order.

A supplemental order also dated April 7, 2005, further ensures the father's input by providing that plaintiff and defendant "shall confer as to whether Tom should repeat [eleventh] grade, remain in Old Bridge Schools or transfer to a parochial school for grades [eleven] and or [twelve]."

We consider the orders under appeal in the context of the complex and tragic facts of this case. So considered, the orders are designed to take Thomas and his three psychological parents, his father and maternal grandparents, through his final year of high school and preceding his eighteenth birthday, while insulating Thomas from adult disputes and preserving his father's parental role.

This court accepts a trial judge's factual findings unless those findings are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence" and gives special deference to the expertise of the judges of the Family Part. In re J.D.S., 353 N.J. Super. 378, 394 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 175 N.J. 432 (2003), aff'd on other grounds, 176 N.J. 154 (2003). The judge's decision also must be consistent with controlling legal standards. See, e.g., Watkins v. Nelson, 163 N.J. 235, 237 (2000).

"[I]n an action between a parent and a third party, a presumption of custody exists in favor of the parent." Id. at 244. "A third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or 'exceptional circumstances.'" Id. at 244-45. "[W]hen a third party . . . establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. That means that when the 'exceptional circumstances' prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child's best interest . . . ." Id. at 254. Psychological parenthood is established by showing: the parent has consented to and fostered the third party's relationship with the child; the third party has lived with the child; the third party has functioned as a parent to a significant degree; and a parental bond has been formed. V.C. v. M.J.B., 163 N.J. 200, 223 (2000).

The essential findings for psychological parenthood were supported by the record in this case. Thomas' grandfather was the family member who was most regularly available to him during his mother's fatal illness. After his mother's death, Thomas, with the consent of his father, spent summers with his grandparents. At his father's request, the grandparents assumed custody during part of a school year and, with his consent, retained custody for the entire school year and one-half of a summer. Moreover, there was expert opinion that Thomas, at seventeen years of age, was a "vulnerable adolescent," who had "finally achieved some emotional stability" and was at risk of "a substantial likelihood of psychological harm, which would lead to serious clinical depression as well as significant behavior problems" if he were "forced to return to Tennessee."

Thus, there was a showing of exceptional circumstances as that term was explained by the Court in Watkins, supra, 163 N.J. at 246-48. The presumption in favor of a biological parent was overcome by a clear showing of exceptional circumstances within the meaning of Watkins. See Moriarty v. Bradt, 177 N.J. 84, 112 (2003) (discussing Watkins in the context of grandparent visitation), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). The trial court did not apply the best interest standard without this prerequisite finding.

Given the duration of this order, which we hold governs only that period until Thomas completes high school, and the trial judge's efforts to craft an order that minimizes the impact upon the "normal parent-child relationship" through measures designed to repair and foster "the bond between [the] parent and child," we see no abuse of discretion or unwarranted intrusion upon parental rights. See Watkins, supra, 163 N.J. at 253-54 (discussing the impact of an award of custody to a third party on parental rights). As we have recognized in the past, "[j]udges of the Family Part are regularly called upon to make exceedingly difficult and delicate decisions as to the best interest of children . . . ." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif. denied, 178 N.J. 34 (2003). This case illustrates the point, and the orders addressing custody are affirmed.

The counsel fee award is not supported by findings of fact or legal conclusions critical to application of R. 5:3-5. See Loro v. Del Colliano, 354 N.J. Super. 212, 227 (App. Div.) certif. denied, 174 N.J. 544 (2002); Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999). Accordingly, that order is vacated, and the matter is remanded so that the trial judge may address counsel fees in light of the record and under the controlling standards.

Affirmed in part and reversed in part and remanded.

 

Klingenberg does not challenge the entry of the order to show cause or any other aspect of the pretrial proceedings on appeal. Although it is apparent that there were pendente lite orders, neither party has included them in an appendix filed on this appeal.

(continued)

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A-4579-04T4

November 29, 2005