In the Matter of the Estate of Michael D. Fisher, II

128 A.3d 203, 443 N.J. Super. 180, 2015 N.J. Super. LEXIS 204
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 11, 2015
DocketA-0878-14T2
StatusPublished
Cited by14 cases

This text of 128 A.3d 203 (In the Matter of the Estate of Michael D. Fisher, II) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of the Estate of Michael D. Fisher, II, 128 A.3d 203, 443 N.J. Super. 180, 2015 N.J. Super. LEXIS 204 (N.J. Ct. App. 2015).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0878-14T2 APPROVED FOR PUBLICATION

December 11, 2015 IN THE MATTER OF THE ESTATE OF MICHAEL D. FISHER, II. APPELLATE DIVISION ___________________________

Argued November 18, 2015 – Decided December 11, 2015

Before Judges Ostrer, Haas and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. P-20-14.

Michael A. Gill argued the cause for appellant Michael D. Fisher, Sr., (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr. Gill, on the briefs).

I. Dominic Simeone argued the cause for respondent Justina M. Nees, individually and as administratrix (Simeone & Raynor, LLC, attorneys; Mr. Simeone, of counsel and on the brief; Bryan T. Eggert and Kenneth E. Raynor, on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

In this case of first impression, appellant Michael D.

Fisher, Sr. appeals from a September 10, 2014 order, granting

respondent Justina Nees's application to bar him from receiving

a share of the intestate estate of their deceased son. Because we conclude that Nees failed to demonstrate that Fisher

"abandoned" the child "by willfully forsaking" him within the

intendment of the governing statute, N.J.S.A. 3B:5-14.1(b)(1),

we reverse.

I.

We derive the following facts from the parties' pleadings

and certifications. The parties were married in 1994 and had

one child, Michael, born in February 1995.

The parties separated in April 2001.1 One month later, Nees

obtained a Final Restraining Order (FRO) against Fisher after he

attempted to remove Michael from school without first notifying

her. Under the terms of the FRO, Fisher was permitted to have

supervised parenting time with Michael at Fisher's

psychologist's office. The FRO also ordered Fisher to submit to

a risk assessment and to "receive professional domestic violence

counseling[.]" Fisher did not attend all of his supervised

parenting time sessions with his son. He also did not appear

for the risk assessment or counseling.

1 According to Nees's certification, the separation was prompted by Fisher's December 2000 arrest for peering into the window of a dwelling, which resulted in his indictment for fourth-degree criminal trespass, N.J.S.A. 2C:18-3(c). Fisher had previously been arrested in April 1996 for lewdness, N.J.S.A. 2C:14-4, and, in November 1999, for another incident of peering into the window of a dwelling, N.J.S.A. 2C:18-3(c). The record does not reveal whether any of these arrests led to convictions.

2 A-0878-14T2 In November 2001, Fisher filed a motion, seeking permission

to have unsupervised parenting time with Michael. In response,

Nees filed a cross-motion, requesting that all of Fisher's

parenting time be supervised until he completed the anger

management program and the risk assessment.

On January 29, 2002, the court temporarily suspended

Fisher's parenting time pending his enrollment in an anger

management program and completion of an assessment by the

"Family Court Assessment Team." In his decision, the judge

remarked "that [Fisher] ha[d] not exerted himself to take the

basic steps" set forth in the FRO concerning the required risk

assessment and counseling and stated that Fisher's "contumacious

disregard of the court's explicit requirements" supported the

denial of Fisher's request for unsupervised parenting time.

On March 7, 2002, the court entered a Final Judgment of

Divorce (FJOD), which incorporated the terms of the parties'

agreement as to the terms of the dissolution. The FJOD granted

sole custody of Michael to Nees, with Fisher's parenting time

remaining suspended until he complied with the January 29, 2002

order. Fisher agreed to pay Nees $85 per week2 in child support

2 By 2010, Fisher's child support obligation had increased to $105 per week.

3 A-0878-14T2 for Michael, with the payments to be made through the County

Probation Department by way of wage garnishment.

In Fisher's certification, he stated:

During our divorce litigation, [Nees] made an offer to me, through our attorneys, that she would not ask for any child support if I were to agree to give up my parental rights to Michael. I emphatically said that I would absolutely never agree to that. Although I was having financial difficulties, I was never going to give up my parental rights to Michael in consideration for no child support. I wanted to have a relationship with Michael.

Nees did not contradict Fisher's statement in her pleadings.

Fisher did not "present[] himself for the" Family Court

Assessment Team evaluation required by the January 29, 2002

order. Therefore, on May 8, 2002, the trial court sent the

parties a letter stating that "the suspension of [Fisher's]

visitation with Michael . . . continues in full force and

effect."

From January 2002 until Michael's death at the age of

fifteen on September 24, 2010, Fisher "never had any legal

visitation with his son." Fisher spoke to Michael during "some"

telephone conversations in 2001 and 2002. Fisher stated he

"would occasionally see Michael in public places." One summer,

he saw Michael on a beach, approached him, and began talking to

his son. At that point, Nees appeared, reminded Fisher of the

4 A-0878-14T2 FRO, and told him she would call the police if he did not leave.

Fisher complied.

In 2006, Fisher moved to Florida. Fisher certified that he

was going "through some difficult times including having

significant health issues." He fell behind in his child support

obligations and, by 2010, was over $10,000 in arrears.

In May 2010, Fisher filed a motion to decrease or terminate

his child support obligation. Fisher stated that he was

diagnosed with a serious health condition in February 2008 and

could no longer work as a painter. Nees opposed the motion and

attached a photograph of Fisher working on a ladder in 2009 to

her pleadings.3 On July 6, 2010, the trial judge granted

Fisher's motion and terminated his child support obligation as

of May 13, 2010, the date he filed his motion. The judge

explained his ruling as follows:

[Fisher] has demonstrated that his circumstances have changed so that the current child support order is no longer feasible. [Fisher] is seriously ill and unable to work. There is no indication that he will recover and be able to resume work. Although [Nees] has provided a picture of [Fisher] working, this does not, in the court's view, outweigh the medical information [Fisher] has provided and his statements that he is unable to work. Even if [Fisher] did work for a day or two in October, that does not mean he can work now

3 Nees obtained the photograph from Fisher's Facebook page.

5 A-0878-14T2 or has been able to work consistently for the past two years. It is pointless and impractical to maintain a child support order which [Fisher] cannot now and may never be able to pay.[4]

Fisher stated that, about two months before Michael's

death, Fisher "located" his son on Facebook and sent him some

messages. Michael responded to the messages. However, Fisher

then discovered he "was blocked" from Michael's account. Fisher

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Cite This Page — Counsel Stack

Bluebook (online)
128 A.3d 203, 443 N.J. Super. 180, 2015 N.J. Super. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-estate-of-michael-d-fisher-ii-njsuperctappdiv-2015.