D.G.G v. B.B.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5783-10T3

D.G.G.,

Plaintiff-Respondent,

v.

B.B.G. (Deceased),

Defendant,

v.

R.R.F. and S.B.R.,

Third-Party Defendants-

Appellants.

__________________________________

Argued June 6, 2012 Decided July 11, 2012

 

Before Judges Graves, J. N. Harris and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0395-05.

 

Jonathan W. Wolfe argued the cause for appellant S.B.R. (Skoloff & Wolfe, P.C., attorneys; Mr. Wolfe, Gary N. Skoloff, Grant W. Waterson and Barbara A. Schweiger, on the briefs).

 

Patricia E. Apy argued the cause for respondent D.G.G. (Paras, Apy & Reiss, P.C., attorneys; Ms. Apy and Michael J. Fleres, on the brief).

PER CURIAM

Grandmother S.B.R. (Sara)1 appeals from the order of February 17, 2011 dismissing, without a hearing, her complaint seeking visitation with her grandson, Steve. She also appeals from the order of June 17, 2011 assessing counsel fees of $89,716.27 against her and her husband, R.R.F. (Rafael), who passed away March 21, 2011. After reviewing the record in light of the contentions advanced on appeal, we reverse both orders and remand for a plenary hearing.

In May 2000, Steve was born in New Jersey to D.G.G. (Dan), an American citizen, and his now-deceased wife, B.B.G. (Belinda), a Brazilian citizen. The Brazilian maternal grandparents purchased a condominium near the marital home in New Jersey for their use during their frequent visits. Four years later, Belinda took Steve to Brazil for a visit and refused to return him to the United States. Lawsuits were brought by all parties in New Jersey and Brazil.2

In September 2004, Dan filed an application with the United States Department of State for transmission to the Brazilian Central Authority, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction,seeking Steve's immediate return. Meanwhile, Belinda was granted a divorce in Brazil and, in 2007, she married a Brazilian lawyer, J.P.L. (Juan). She died after giving birth to their first child, Cara, in 2008. After Belinda's death, Juan lived in the home of Sara and Rafael in Brazil with his newborn daughter and step-son Steve.

Juan refused to return Steve to Dan, and obtained a custody order in his favor from the Brazilian courts. Dan traveled to Brazil, but was unable to visit with Steve. In February 2009, Dan went to Brazil with a concerned United States Congressman and saw Steve for the first time since June 2004. Judge Rafael De Souza Pereira Pinto, a Federal Alternate Judge for the Regional Federal Court of Brazil, found that there was an "urgent need" to return Steve to the United States after three Brazilian court-appointed expert psychologists, who interviewed Steve, Dan, Juan, and the grandparents, had "clearly and convincingly" demonstrated in their April 2009 report that Steve had suffered psychological damage and had been "subjected to a pernicious process of parental alienation." After appeals and further involvement by government officials, and pursuant to a decision by Brazil's Supreme Federal Court, Dan regained legal and physical custody of Steve in December 2009 when he was nine years old, five years after Steve was brought to Brazil by his mother.

After returning to New Jersey, Steve spoke to his grandparents on the phone and exchanged email several times. In January 2010, through their counsel, the grandparents: (1) agreed to consult with Steve's therapist, Dr. Charles Diament, Ph.D.; (2) agreed "not to disparage [Dan] to [Steve] in any way;" and (3) agreed "not to discuss any litigation or mention [Steve] returning to Brazil." According to Dan, however, the grandparents and other family members tried to set up secret email accounts with Steve, sent him cell phones without telling Dan, and told Steve they were fighting to get him back. The grandparents denied those allegations.

Dan explained:

My position has been consistent. I believe that [Steve's] maternal grandparents should be permitted to visit with [Steve] only and to the extent that I, as [Steve's] only living parent, determine, in consultation with [Steve's] therapist, that he will benefit from such contact. I told them, both in person and to their counsel, that the indicia that I require to know that they have accepted the current situation and will support the father/son relationship is that they:

a) Discontinue their litigation in Brazil which still seeks [Steve's] return;

 

b) Agree to attend upon Dr. Charles Diament, [Steve's] therapist, in supporting [Steve's] acclimating to the United States, and to keep these communications entirely private;

 

c) Agree to protecting [Steve] by refusing to disclose information about him and this process to the media.

 

They have refused to abide by these most reasonable conditions.

 

[Emphasis in the original.]

 

In February 2010, through their counsel, the grandparents agreed to contact Dr. Diament, but they refused to consent to "Dr. Diament's unilateral determination as to how and to what extent their contact with [Steve] would be permitted to expand," and they refused to "withdraw all legal proceedings that may be pending in Brazil."

On March 31, 2010, the grandparents filed a complaint seeking to enforce unlimited visitation rights under N.J.S.A. 9:2 7.1 and an order to show cause for an "emergent application" seeking "immediate visitation" with Steve, that is, at least "one visit with [Steve] before they depart" to Brazil. In their complaint, they alleged that Dan was denying them all visitation, and that:

12. During the time [Steve] was residing in Brazil, [the grandparents] did not interfere with [Dan]'s ability to visit or communicate with [Steve]. To the contrary, [they] encouraged such contact and even offered to pay [Dan]'s expenses to come to Brazil to see [Steve].

 

13. Since [Steve's] return to New Jersey on December 24, [2]009, [the grandparents] have made ongoing and repeated attempts to have contact with [Steve]. With the exception of a few telephone calls, said requests have been denied by [Dan]. [They] have not been permitted to see [Steve] at all since he returned to New Jersey.

 

14. [Steve] will suffer significant harm and extreme emotional distress if he is not permitted to have frequent visits and telephone or video contact with [them]. The harm that [Steve], who already has suffered the tragic loss of his mother, will suffer from the severance of his relationship with his [g]randparents, is based on[,] among other things (1) the harm that will be caused by the severance of extremely close emotional bond formed with [them], inter alia, during the years that [Steve] lived with [them] (the significant danger of which was previously set forth in the January 25, 2010 report from [Steve's] Brazilian therapist); (2) the harm that will be caused by the loss of the connection to [them] from whom [Steve] will be able to continue to know, love and under-stand and cherish the memory of his mother; (3) the harm that will be caused by loss of access to the only people that can ensure that [Steve] does not lose the connection to his mother's Brazilian family -- including the bond that he formed with his sister, [Cara] with whom he has lived since August 2008, and the remainder of the family with whom he has visited frequently since 2004; and (4) the harm that will be caused by the loss of the only people that can ensure that [Steve] continues to have access to his mother's Brazilian heritage, language, and customs.

Therefore, the grandparents demanded judgment:

A. Establishing a reasonable and liberal visitation schedule to enable [them] to spend time with [Steve] under conditions to be specified by the Court.

 

B. Enabling [them] to have reasonable and liberal telephone and/or video contact with [Steve] in Portuguese.

 

C. Appointing a mental health expert to assess the harm to [Steve] which would result if the requested relief is not granted.

 

D. For such other and further relief as the Court may deem appropriate under the circumstances.

 

The initial judge who heard the matter denied the emergent application but signed an order to show cause, setting a return date of May 7, 2010, for arguments on establishing a temporary visitation schedule during the pendency of the action.

In early April 2010, the grandparents asked Dan to execute a consent order and agree to the dismissal of their complaint without prejudice. According to Sara, the grandparents were trying to heed the court's advice "that it would be best if these issues could be worked out between us, rather than litigated." But Dan opposed dismissing the order to show cause, and declared his intention to file motions to enforce litigant's rights and for counsel fees and costs.

On or about April 27, 2010, Dan filed a motion for a protective order to seal the records related to custody and access, and for an award of counsel fees and costs, together with his opposition to the grandparents' application for visitation.

In response, the grandparents filed a cross-motion on or about May 28, 2010, and relying on Sara's certification of that same date with exhibits, requested an order: (1) denying Dan's motion in its entirety; (2) permitting them "to have reasonable and liberal visitation with [Steve] during the pendency of this matter"; (3) permitting them "to have regularly scheduled phone or videoconferencing with [Steve] during the pendency of this action a minimum of two (2) times per week"; (4) "[a]ppointing a mental health professional to serve as an expert in this matter"; (5) "[a]ppointing an attorney to represent [Steve] and his best interest in this matter"; (6) docketing the matter under a new docket number; and (7) awarding them counsel fees.

Sara also submitted a report dated January 25, 2010, of Dr. Maria Helena Bartholo, who had treated Steve in Brazil after Belinda's death until his return to New Jersey. Dr. Bartholo opined that Steve had developed close ties to his Brazilian family, and that it would be in his "best interest" to have visitation with his grandparents, his half-sister, and Juan. She did not discuss the conditions Dan had set for access and visitation.

The parties exchanged opposing reply certifications and exhibits. On or about June 24, 2010, Dan submitted a certification with exhibits, in which he explained that he had "set some simple, but crucial, [access and visitation] conditions for [Steve's] welfare," and that the grandparents

had to affirmatively demonstrate that they were no longer an abduction risk, and that they could personally and psychologically act to support [Steve's] permanent return to [Dan's] care and custody. . . . To do this, they must first drop alllitigation in Brazil, particularly the litigation in which they are the sole plaintiffs, seeking the return of [Steve] and continued exercise of jurisdiction of the Brazilian courts. . . . They have redoubled their efforts meeting with ministry officials and others in the Brazilian government, now seeking a change in the law . . . requiring all Hague abduction litigation to remain exclusively in Brazil's family court.

. . . .

The second condition . . . [is] they needed to attend upon [Steve's] therapist and demonstrate their willingness to be cooperative with his recommendations.

 

[emphasis added.]

 

Dan's exhibits included a report from Dr. Diament dated June 21, 2010. Dr. Diament, a licensed psychologist, had been Steve's treating therapist since 2010, had met extensively with Steve and Dan since that time, and had had various phone sessions "and one face-to-face session with his maternal grandparents." Dr. Diament declared:

I am pleased to report that overall, [Steve's] adjustment has thus far been positively remarkable. . . . Nevertheless, despite his progress, in my opinion, he remains very emotionally fragile and is still trying to adequately integrate his experiences in Brazil with his new life here in America.

. . . .

[Steve's] vulnerability to developing psychological symptoms and distress has become very apparent several times during my treatment when he is put in the position of attempting to accommodate his positive feelings about his father and reconcile them with his feelings about his past experiences with Brazil and his maternal grandparents. Loyalty and loss are central issues for him and he is still trying to understand his internal conflicts in this regard and manage his emotional reactions to them. As [Steve] is still in the process of adjusting and remains somewhat emotionally brittle in certain respects, I have significant concerns about involving him, directly or indirectly, in additional litigation and/or having him involved with yet another mental health professional or expert for evaluative or litigation purposes. The impact of such involvement, as far as [Steve] is concerned could only have [a] negative outcome and awaken in him feelings that we have actively therapeutically worked to put to rest. Such involvement, in my estimation, would not be in [Steve's] best psychological interest and in fact, could be harmful to his progress.

 

I believe that it is extremelyimportant for [Steve] tomaintain his relationshipwith his grandparents inBrazil and my extensive conversations with Mr. [G.] on this subject lead me to believe that he fully concurs with my assessment. More importantly, I believe thatmy therapeutic relationshipwith [Steve] issufficiently equipped todeal with his reactionsand adjustment to increasedgrandparental access ifsuch access is constructiveand focused on [Steve's]needs rather thanself-serving. In this case, in my opinion, more involve-ment of more professionals or processes, would not serve to increase any advantage to [Steve] or the reconciliation process and would only serve to detract from this youngster's positive adjustment to a set of extraordinary circumstances.

 

[emphasis added.]

Sara submitted her own certification of August 24, 2010 with exhibits, including the report of a forensic psychological evaluation conducted by Dr. Mathias R. Hagovsky, Ph.D., dated August 25, 2010.

Based on various certifications, briefs and letters supplied by the grandparents' counsel, Dr. Hagovsky opined that Steve would be harmed if he were prevented from seeing his grandparents. Although he never conducted any interviews, he opined: "[I]t would follow that while separation from [Steve's] father, mother, or step-father might have been traumatic, separation from his grandparents . . . would be especially potentially damaging." Also, as to one of Dan's visitation conditions, Dr. Hagovsky said:

It is further evident that contact during the pendency of this matter is necessary to avoid potential harm to [Steve] in light of the severance of his relationship with his maternal grandparents (and the remainder of his Brazilian family, including his sister). The need for contact is evidenced by Mr. [G.'s] refusal to permit phone calls with the grandparents even after they agreed to conduct them in English, allow Mr. [G.] to be on the call, and not discuss a) this matter, b) [Steve's] visiting them in Brazil, or c) any other subject matter that might be upsetting to [Steve]. It is my understanding that Mr. [G.] believes that the few telephone calls that he has permitted with the maternal grandparents over the past seven months have been upsetting and difficult for [Steve], and he has therefore only allowed approximately a single, five-minute phone call over the past three months. I further understand that he is now denying [Steve] the ability to have any further contact with them, even by phone, on that basis.

. . . .

I understand that the grandparents have offered to travel to New Jersey again to see [Steve] and do not object to such visitation taking place in the presence of Dr. Diament. . . . It is this examiner s recommendation that such contact take place without delay . . . and that additional long-distance contact occur frequently via on-line video conferencing during the same time and pending the outcome of a thorough evaluation.

 

On August 31, 2010, after hearing oral argument on the motions, the second judge to hear this application made no decision on visitation, and also reserved decision on Dan's motion to seal the record and prohibit contact with the media. After learning that Dan was not opposing visitation but merely seeking to impose conditions for Steve's protection, the judge suggested that the parties attempt to resolve this matter without further litigation. Although the parties thereafter exchanged correspondence and tried to amicably resolve visitation during the fall of 2010, Dan's counsel informed the court on November 30, 2010, "that, as a result of the [grandparents'] unwillingness to terminate litigation in Brazil," Dan was "withdrawing the offer and the court would have to decide the matter."

On February 17, 2011, without holding further oral argument or a hearing, the judge issued a written decision, dismissing the complaint, denying Dan's motion to seal the record and for a protective order, reserving decision on Dan's request for counsel fees, and directing Dan's counsel to provide a certification of attorney services, while also giving the grandparents' counsel permission to make submissions on the fee issue. The judge filed a memorializing order on the same date.3

On June 17, 2011, the judge issued an order assessing counsel fees, in part based on his finding of bad faith by the grandparents in the litigation and the reasonableness of the conditions Dan placed on visitation. The judge handwrote on the order: "It is respectfully requested that the Appellate Division require payment of this award before permitting [Sara] to seek further relief pursuant to Matsumoto v. Matsumoto, 335 N.J. Super. 174 (App. Div. 2000), aff'd[as modified], [ ] 171 N.J. 110 (2002)."4

The motion judge indicated that, although he granted summary judgment to Dan, he anticipated Steve would be able to see his grandparents. The judge stated:

While the complaint of the grandparents will be dismissed, they continue to hold the keys to the portal of visitation with their grandson. Compliance with the fair and reasonable conditions established by [Dan] will allow them to again enjoy the special relationship recognized by the legislature when it enacted [N.J.S.A. 9:2-7.1].

 

Sara argues on appeal that the conditions placed on visitation were beyond her power to accomplish, as Juan's Brazilian litigation could not have been dismissed by her and her husband.5 She maintains that, given the impossibility of her performing the conditions precedent to visitation, she raised sufficient evidence of harm to Steve occasioned by the lack of any grandparental visitation to defeat Dan's summary judgment motion.

We review a grant of summary judgment under Rule 4:46-2(c), using the same legal standard applied by the trial judge, SpringCreek Holding Co., Inc.v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif.denied, 196 N.J. 85 (2008), which is to determine whether the competent evidentiary materials presented, viewed in the light most favorable to the non-moving party, establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Brill v.Guardian Life Ins. Co.of Am., 142 N.J. 520, 529, 539-41 (1995).

Generally, the findings of the Family Part are entitled to particular deference in view of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, because there was no plenary hearing with witness testimony, the judge's ruling here is not entitled to such deference. Yueh v.Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).

In granting Dan's summary judgment motion, the judge concluded that Steve had formed a strong bond with his maternal grandparents, but also that the bond was obtained illegally and was thus too tainted by misconduct to provide the basis for grandparental visitation beyond that permitted by Dan. He also determined that the conditions placed by Dan on Sara's visitation were reasonable. We disagree with this reasoning.

First, we view one of the precedent conditions imposed by Dan to be unduly onerous in light of the heavy, if not impossible, burden on Sara to dismiss litigation pursued by another party. Secondly, the judge was misguided in focusing on the grandparents' support of their daughter's illegal retention of Steve. Although we do not condone any part Sara took in her daughter's illegal actions, we note that the character of Sara's participation is contested. Most importantly, in his legal ruling, the motion judge failed to consider the proposed visitation in light of Steve's best interests. Steve unquestionably formed a close bond with his maternal grandparents during the nine years from his birth until his return to the United States. Steve's therapist, retained by Dan, issued a report on June 21, 2010, opining that "it is extremely important for [Steve] to maintain his relationship with his grandparents in Brazil."

Our grandparent visitation statute, N.J.S.A. 9:2-7.1, constitutes a departure from the common law, which afforded no legal right for grandparents 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. 9:2-7.1(a).

To meet that burden, the grandparent must demonstrate a "special need for continued contact," one that exceeds "an ordinary grandparent-child relationship and its unwanted termination." Daniels v. Daniels, 381 N.J.Super. 286, 293 (App. Div. 2005) (holding that the trial court properly dismissed the grandmother's visitation complaint without allowing discovery where her complaint did not allege that the children would suffer any harm from the lack of visitation). The grandparent must present "a clear and specific allegation of concrete harm to the children." Id. at 294; see,e.g., Rente v. Rente, 390 N.J. Super. 487, 494 (App. Div. 2007) (reversing the trial court's award of unsupervised visitation after trial, finding that the fact that the grandparents had served as babysitters for the children approximately twenty-five times a year while the parent was at work was insufficient to satisfy the required burden of harm); Mizrahi v. Cannon, 375 N.J. Super. 221, 233-34 (App. Div. 2005) (reversing the trial court's decision granting grandparent visitation after a plenary hearing, and 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 Moriarty, supra, the Court affirmed the trial court's decision to allow greater visitation with the maternal grandparents over the father's objection where the children's mother had passed away and the children had an unusually close relationship with the grandparents prior to their mother's death. 177 N.J. at 118-19. The Court explained that in establishing that visitation is necessary to avoid harm to the children, the grandparents "may rely on the death of a parent . . . " Id. at 117. The Court indicated that "many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied." Ibid. In affirming the trial court's decision, the Court found that "the death of the mother and the fact that it is extremely important that the children continue a bond with their mother's side of the family" was one of the trial court's "most critical findings." Id. at 121.

We have also recognized that the death of a parent could create a "special need for continued contact" between the child and the grandparents from the deceased parent's side of the family. Daniels, supra, 381 N.J. Super. at 293. In Daniels, we explained that "harm of the type recognized in Moriarty generally 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 (emphasis added).

Here we have both circumstances, the death of Steve's mother and an unusually close bond between Steve and his maternal grandmother. Sara has demonstrated sufficient reason to require a plenary hearing and the opportunity for discovery.

Dr. Hagofsky was not given the opportunity to speak with Steve. Dr. Diament opined that the further involvement of experts and further litigation could have a negative impact on Steve. At oral argument, Sara agreed through counsel to all the conditions requested by Dan that are within her power to perform, including the dismissal of any continuing litigation in which she is a moving party in Brazil.

Unfortunately, further litigation will necessitate the type of stress on Steve that Dr. Diament counseled against. Steve has already lost the opportunity for further contact with his maternal grandfather. We urge the parties to find a compromise so that Steve is not similarly deprived of contact with his maternal grandmother or subjected to the rigors of the litigation process.

Sara has asked us to disqualify the motion judge in light of his decision, in which she claims he made credibility findings based on disputed facts without complete discovery or a hearing. See Johnson v. Johnson, 390 N.J.Super. 269, 275-76 (App. Div. 2007). Given the judge's reassignment out of the Family Part, we need not address her concerns. Additionally, our disagreement with the motion judge's findings regarding the parties' good faith, made without an opportunity to assess their credibility through an evidentiary hearing, requires reversal of the counsel fee award as well.

We express no opinion concerning Sara's request that the court on remand allow interim visitation or appoint an attorney to represent Steve. R. 5:8A. To the extent that we have not specifically addressed any of her other arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).

R

eversed and remanded. We do not retain jurisdiction.

1 We use pseudonyms to preserve the parties' confidentiality.

2 On December 8, 2006, Dan settled his lawsuit against the maternal grandparents for assisting their daughter, financially and otherwise, to illegally relocate Steve out of the United States and violate the orders of the New Jersey courts, without an admission of liability, for $150,000, the sale price of the grandparents' New Jersey condominium.

3 Generally, the substantive order and counsel fees should be determined in the same order. R. 4:42-9(d).

4 By way of this opinion, we deny Dan's motion to dismiss the appeal for failure of Sara to pay the court-ordered counsel fees.

5 At oral argument, Dan's counsel confirmed that dismissal of the Brazilian litigation pursued by Juan had been a condition precedent of the grandparents visiting Steve.