TAMMY ERICKSON v. KRISTINA BOKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0090-10T4

TAMMY ERICKSON,

Plaintiff-Appellant,

v.

KRISTINA BOKA,

Defendant-Respondent.

________________________________________________________________

Argued March 14, 2011 Decided June 2, 2011

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-588-08E.

Robert B. Woods argued the cause for appellant.

Ronald J. Busch argued the cause for respondent (Busch and Busch, LLP, attorneys; Mr. Busch, on the brief).

PER CURIAM

Plaintiff, Tammy Erickson, appeals from the August 11, 2010 Family Part order denying her application for visitation of her granddaughter H.B., who was born in 2003, under the grandparent visitation statute, N.J.S.A. 9:2-7.1. Defendant, Kristina Boka, is H.B.'s mother. Plaintiff is the mother of H.B.'s father, who died before H.B. was born.

The order under review also contains a provision establishing special procedures which plaintiff must follow as a prerequisite to her ability to file any subsequent similar application with the court. This provision was included at defendant's request because plaintiff had previously filed three similar applications, two in 2007 and one in 2009, which were ultimately dismissed because plaintiff failed to prosecute them.

In denying plaintiff's application, the trial court refused to schedule a plenary hearing. Plaintiff now argues that the court erred in that regard. We do not agree with plaintiff, and we affirm the portion of the order denying grandparent visitation without a plenary hearing. However, we agree with plaintiff's argument that the court erred in establishing a special procedure as a prerequisite to further filings. Accordingly, we reverse that aspect of the order.

I

Defendant had retained the services of counsel in connection with plaintiff's previous applications and incurred counsel fees. The previous dismissal orders awarded counsel fees to defendant to be paid by plaintiff.

On April 20, 2010, defendant filed a motion seeking enforcement of litigant's rights, namely an order to compel plaintiff to pay the counsel fee awards contained in the prior orders. As part of her response, plaintiff filed a cross-motion on June 2, 2010 seeking visitation rights to H.B. The cross-motion was not accompanied by a brief and did not request a plenary hearing.

In a certification in support of her cross-motion, defendant acknowledged that she had not seen H.B. since September 2009. She stated that during the summer months of 2009 she had seen H.B. on a number of occasions, including trips to Great Adventure, Keansburg Amusement Park, and the East Brunswick Water Park. She stated that during those three months, she saw her granddaughter "every week or every two weeks."

Apparently, in September 2009, relations between plaintiff and defendant deteriorated, and defendant declined to allow her mother-in-law further visitation with H.B. As we have stated, it was the filing of defendant's motion to compel payment of outstanding court-ordered counsel fees that prompted plaintiff to again seek visitation rights. In her initial certification, plaintiff did not assert that any harm would befall H.B. if plaintiff was not granted visitation rights.

Defendant filed a responding certification. She noted that H.B. had been in her sole custody since the time of her birth. She acknowledged that during the summer of 2009 her daughter had four visits with plaintiff. However, she further stated that for about two years prior to the summer of 2009 there had been no contact between plaintiff and H.B., and prior to those two years there was only "very limited contact." Defendant certified that plaintiff frequently failed to show up when she was offered the opportunity for visitation, and that her behavior with respect to H.B. was "irresponsible." She stated that any contacts over the years were very limited and random in nature, and there was no relationship whatsoever between her daughter and mother-in-law. She objected to any form of visitation, concluding that her daughter "does not know [plaintiff], would not recognize her in any social setting and indeed, she is not in any way a part of my daughter's life."

Plaintiff filed an answering certification. In it, she stated several times, in conclusory terms, that she had a long and substantial relationship with H.B. However, she filled in very little by way of details. She mentioned that defendant and H.B. stayed with her for four days when there was some problem between defendant and her parents. She did not refute defendant's certified statements regarding the long gaps during which there was no contact. Plaintiff concluded that "there would be substantial harm that would result to my granddaughter because the child has a right to know that there are two sides to her family, [defendant]'s side and my son's side." This was the only assertion of harm plaintiff made.

Oral argument was conducted on July 28, 2010. The court considered the certifications filed by both parties. Referring to defendant's certification, the court concluded that "there's no statement as -- that I can glean from [her] certification, other than a non-particularized concern with [H.B.] getting to know her paternal family, as to what the basis would be for that particularized harm to the child." The court noted that plaintiff's assertion that she spent a great deal of time with her granddaughter was nothing more than a conclusory statement, and that she hadn't specified particulars "other than a couple of instances which she refers to over the years." The court concluded that, accepting as true everything in plaintiff's certification, there was no "prima facie showing of the kind of relationship that would force this [c]ourt or require this [c]ourt to schedule a plenary hearing."

II

Our grandparent visitation statute constitutes a departure from the common law, which afforded no legal right for persons to petition for visitation with their grandchildren. Moriarty v. Bradt, 177 N.J. 84, 95 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Even with the passage of the statute, the law still recognizes the presumptive force of a parent's "right to rear one's children [which] is so deeply embedded in our history and culture that it has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Id. at 101. "[I]n every case in which 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; see also N.J.S.A. 9:2-7.1a.

To meet that burden, the grandparent must demonstrate a "special need for continued contact," one that exceeds that associated with "an ordinary grandparent-child relationship and its unwanted termination." Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005). The grandparent must present "a clear and specific allegation of concrete harm to the children," such as harm that "rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death." Id. at 294; see also Rente v. Rente, 390 N.J. Super. 487, 491 (App. Div. 2007) (finding a showing of such a preexisting special relationship absent, despite the fact that the grandparents had babysat for the children approximately twenty-five times a year while the parent was at work); Mizrahi v. Cannon, 375 N.J. Super. 221, 233-34 (App. Div. 2005) (holding that conventional harms such as the "loss of potentially happy memories," and the deprivation of a grandparent's "unconditional love, affection and caring" are insufficient to compel visitation under the statute).

In reviewing the trial court's determinations, we are mindful of the deference that appellate courts rightly afford to the decisions of Family Part judges, particularly, as here, decisions that are fact-specific and contextual. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We recognize that, as a general proposition, when competing certifications contain disputed facts, a plenary hearing might be necessary. However, when the facts asserted by the party seeking a plenary hearing would not entitle that party to the relief requested, a plenary hearing would serve no purpose. This is particularly so in the discrete context of a complaint seeking relief under the grandparent visitation statute, in light of the strong presumptive right of parents to raise their children as they see fit, as well as the "economic and emotional cost of litigation [which] can represent an enormous intrusion into a family's life[.]" Daniels, supra, 381 N.J. Super. at 293.

Applying these principles, it is plain to us that the court did not err in denying plaintiff's visitation request on the papers, and declining to conduct a plenary hearing. The court reasonably found that plaintiff's contentions fell short of demonstrating the kind of special relationship or unusual harm that would distinguish this case from the severance of an ordinary grandparent-grandchild relationship. The circumstances, even if they are viewed in a light most favorable to plaintiff, do not rise to the exceptional sort of harm contemplated to obtain relief under the statute and under the case law, including Moriarty, Daniels, Rente, and Mizrahi. The factual assertions in plaintiff's certifications do not portray a preexisting relationship that is fundamentally different from the typical interaction between a grandparent and her grandchild. Nor can the death of H.B.'s father be deemed a traumatic circumstance in H.B.'s life, because he died before she was born.

Accordingly, we affirm that portion of the August 11, 2010 order that denied plaintiff's request for grandparent visitation of H.B.

III

At defendant's request, the court included a provision in the order restraining plaintiff "from bringing any [m]otion in any jurisdiction seeking to obtain visitation with [H.B.]." The provision required plaintiff to first file with the judge who heard this motion a letter "setting forth the basis for any future [m]otions seeking visitation by the [p]laintiff with [H.B.], setting forth in said letter any new basis for [plaintiff] seeking visitation with [H.B.] based on new information not previously set forth in her prior [c]ourt applications to this [c]ourt." Under this procedure, plaintiff would be required to send a copy of the letter to both defendant and defendant's lawyer. The judge would then "determine if any new [m]otion can be filed by the [p]laintiff against the [d]efendant seeking visitation with [H.B.]."

The judge did not cite any authority for the imposition of the provision, nor does defendant cite any in her appellate brief. In our view, the provision constitutes an impermissible obstacle to a litigant's access to the courts. Plaintiff's conduct has not been vexatious or unconscionable, nor have other available remedies been imposed but proven unsuccessful. See Parish v. Parish, 412 N.J. Super. 39, 57-58 (App. Div. 2010). This extreme measure was not warranted, and this portion of the order is reversed.