NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1859-23
M.M.,1
Plaintiff-Appellant,
v.
M.B.,
Defendant-Respondent. __________________________
Submitted October 23, 2024 – Decided December 3, 2024
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0255-24.
Sidoti Law Firm, LLC, attorneys for appellant (Thomas Sidoti, on the briefs).
Marotta Tuchman & Blazini, LLC, attorneys for respondent (Genevieve Blazini, on the brief).
1 We refer to the adult parties by initials, and to the child by a fictitious name, to protect their privacy. R. 1:38-3(d)(3). PER CURIAM
Plaintiffs M.M. and W.M. appeal from two Family Part orders: (1) the
January 18, 2024 order dismissing plaintiffs' application for grandparent
visitation with their grandson O.H.M. (Oscar) under the grandparent visitation
statute, N.J.S.A. 9:2-7.1, and denying their request for discovery and the
appointment of an expert; and granting defendant M.B.'s cross-motion to
maintain sole custody 2 and counsel fees; and (2) the April 17, 2024 order
granting defendant's motion to enforce the order for counsel fees and to compel
plaintiffs to file a Case Information Statement (CIS).
On appeal, plaintiffs argue the trial court was obligated to conduct a
plenary hearing on their complaint because they established a prima facie
showing that it would be harmful to Oscar if he were not allowed to visit with
plaintiffs, and there were material facts in dispute that warranted a plenary
hearing. They further argue the court erred in imposing a civil no-contact order
against them and in granting, then enforcing, a counsel fee award to defendant.
We disagree and affirm substantially for the reasons expressed by Judge
2 The provision of the order maintaining defendant's sole custody of Oscar is not at issue in this appeal. A-1859-23 2 Marybel Mercado-Ramirez in her thorough and comprehensive oral and written
decisions.
I.
We write primarily for the parties, who are familiar with the facts in the
record, and incorporate by reference the factual findings and legal conclusions
contained in Judge Mercado-Ramirez's decision. We add the following
comments.
Plaintiffs M.M. and W.M. are Oscar's paternal grandparents. Plaintiffs'
son, H.M., is Oscar's biological father and defendant is his biological mother.
Oscar was born in May 2021 during the marriage of H.M. and defendant. The
parties were separated at the time of H.M.'s suicide in January 2022. Shortly
thereafter, defendant was granted sole legal and residential custody of Oscar.
In August 2023, plaintiffs filed an application for grandparent visitation
or, in the alternative, for discovery and appointment of an expert. Defendant
cross-moved to dismiss the application, impose civil restraints prohibiting
plaintiffs from contacting her or Oscar, continue sole legal and residential
custody of Oscar, and counsel fees.
In her thorough and comprehensive decision, Judge Mercado-Ramirez
reviewed the facts as alleged by plaintiffs in light of the grandparent visitation
A-1859-23 3 statute and the Supreme Court's holding in Major v. Maguire, 224 N.J. 1 (2016).
After giving plaintiffs all reasonable inferences, she concluded they failed to
establish a prima facie case that denial of visitation would cause harm to the
child, and therefore they were not entitled to discovery or an expert. She also
found the no-contact order was necessary to protect defendant and Oscar. And,
because Judge Mercado-Ramirez concluded plaintiffs' application was made in
bad faith, she awarded defendant counsel fees.
When plaintiffs failed to pay the court-ordered fees, the judge granted
defendant's motion to enforce the order and entered a judgment in the amount
of the awarded counsel fees. She further ordered plaintiffs to file a CIS to
determine their assets for collection of the judgment.
II.
Our review of an order of dismissal under Rule 4:6-2(e) "is plenary and
we apply the same test as the" trial court. Major, 224 N.J. at 26 (quoting
Smerling v. Harrah's Ent., Inc., 389 N.J. Super. 181, 186 (App. Div. 2006)).
The "Rule affords to plaintiffs 'every reasonable inference of fact'; a
reviewing court 'searches the complaint in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary.'" Ibid.
A-1859-23 4 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)).
Where, as here, a Rule 4:6-2(e) motion involves the consideration of
"factual allegations made by the parties in certifications outside the pleadings,
[we are] required to apply the standard governing summary judgment motions
in Rule 4:46-2(c)." R.K. v. D.L., 434 N.J. Super. 113, 121 (App. Div. 2014).
"Our review of a summary judgment ruling is de novo. We apply the same
standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017)
(citations omitted). "That is, summary judgment will be granted if there is no
genuine issue of material fact and 'the moving party is entitled to a judgment or
order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).
Applying that standard here, we conclude Judge Mercado-Ramirez
correctly determined plaintiffs failed to establish the requisite showing of
particular "concrete harm" to Oscar, see Daniels v. Daniels, 381 N.J. Super. 286,
294 (App. Div. 2005), such that they overcame the presumption against
interference with defendant's fundamental right to parent him. Moriarty v.
Bradt, 177 N.J. 84, 103 (2003). The probability that a child will suffer serious
A-1859-23 5 psychological or physical harm provides grounds for interference with parental
autonomy under the doctrine of parens patriae. Id. at 112-13.
Under N.J.S.A. 9:2-7.1, grandparents seeking visitation over the objection
of a fit parent must prove by a preponderance of the evidence "that visitation is
necessary to avoid harm to the child." Id. at 117. Only "[i]f . . . the potential
for harm has been shown[] [can] the presumption in favor of parental decision
making . . . be deemed overcome." Slawinski v. Nicholas, 448 N.J. Super. 25,
33 (App. Div. 2016) (quoting Moriarty, 177 N.J. at 117).
"[G]randparents seeking visitation . . . must prove by a preponderance of
the evidence that denial of the visitation they seek would result in harm to the
child." Ibid. (quoting Moriarty, 177 N.J. at 88). "Substantively, it is a 'heavy
burden.'" Id. at 34 (quoting Major, 224 N.J. at 18).
In Slawinski, we described the level of harm that a grandparent must
demonstrate before a court is required to determine whether visitation is in a
child's best interest. We stated:
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1859-23
M.M.,1
Plaintiff-Appellant,
v.
M.B.,
Defendant-Respondent. __________________________
Submitted October 23, 2024 – Decided December 3, 2024
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0255-24.
Sidoti Law Firm, LLC, attorneys for appellant (Thomas Sidoti, on the briefs).
Marotta Tuchman & Blazini, LLC, attorneys for respondent (Genevieve Blazini, on the brief).
1 We refer to the adult parties by initials, and to the child by a fictitious name, to protect their privacy. R. 1:38-3(d)(3). PER CURIAM
Plaintiffs M.M. and W.M. appeal from two Family Part orders: (1) the
January 18, 2024 order dismissing plaintiffs' application for grandparent
visitation with their grandson O.H.M. (Oscar) under the grandparent visitation
statute, N.J.S.A. 9:2-7.1, and denying their request for discovery and the
appointment of an expert; and granting defendant M.B.'s cross-motion to
maintain sole custody 2 and counsel fees; and (2) the April 17, 2024 order
granting defendant's motion to enforce the order for counsel fees and to compel
plaintiffs to file a Case Information Statement (CIS).
On appeal, plaintiffs argue the trial court was obligated to conduct a
plenary hearing on their complaint because they established a prima facie
showing that it would be harmful to Oscar if he were not allowed to visit with
plaintiffs, and there were material facts in dispute that warranted a plenary
hearing. They further argue the court erred in imposing a civil no-contact order
against them and in granting, then enforcing, a counsel fee award to defendant.
We disagree and affirm substantially for the reasons expressed by Judge
2 The provision of the order maintaining defendant's sole custody of Oscar is not at issue in this appeal. A-1859-23 2 Marybel Mercado-Ramirez in her thorough and comprehensive oral and written
decisions.
I.
We write primarily for the parties, who are familiar with the facts in the
record, and incorporate by reference the factual findings and legal conclusions
contained in Judge Mercado-Ramirez's decision. We add the following
comments.
Plaintiffs M.M. and W.M. are Oscar's paternal grandparents. Plaintiffs'
son, H.M., is Oscar's biological father and defendant is his biological mother.
Oscar was born in May 2021 during the marriage of H.M. and defendant. The
parties were separated at the time of H.M.'s suicide in January 2022. Shortly
thereafter, defendant was granted sole legal and residential custody of Oscar.
In August 2023, plaintiffs filed an application for grandparent visitation
or, in the alternative, for discovery and appointment of an expert. Defendant
cross-moved to dismiss the application, impose civil restraints prohibiting
plaintiffs from contacting her or Oscar, continue sole legal and residential
custody of Oscar, and counsel fees.
In her thorough and comprehensive decision, Judge Mercado-Ramirez
reviewed the facts as alleged by plaintiffs in light of the grandparent visitation
A-1859-23 3 statute and the Supreme Court's holding in Major v. Maguire, 224 N.J. 1 (2016).
After giving plaintiffs all reasonable inferences, she concluded they failed to
establish a prima facie case that denial of visitation would cause harm to the
child, and therefore they were not entitled to discovery or an expert. She also
found the no-contact order was necessary to protect defendant and Oscar. And,
because Judge Mercado-Ramirez concluded plaintiffs' application was made in
bad faith, she awarded defendant counsel fees.
When plaintiffs failed to pay the court-ordered fees, the judge granted
defendant's motion to enforce the order and entered a judgment in the amount
of the awarded counsel fees. She further ordered plaintiffs to file a CIS to
determine their assets for collection of the judgment.
II.
Our review of an order of dismissal under Rule 4:6-2(e) "is plenary and
we apply the same test as the" trial court. Major, 224 N.J. at 26 (quoting
Smerling v. Harrah's Ent., Inc., 389 N.J. Super. 181, 186 (App. Div. 2006)).
The "Rule affords to plaintiffs 'every reasonable inference of fact'; a
reviewing court 'searches the complaint in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary.'" Ibid.
A-1859-23 4 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)).
Where, as here, a Rule 4:6-2(e) motion involves the consideration of
"factual allegations made by the parties in certifications outside the pleadings,
[we are] required to apply the standard governing summary judgment motions
in Rule 4:46-2(c)." R.K. v. D.L., 434 N.J. Super. 113, 121 (App. Div. 2014).
"Our review of a summary judgment ruling is de novo. We apply the same
standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017)
(citations omitted). "That is, summary judgment will be granted if there is no
genuine issue of material fact and 'the moving party is entitled to a judgment or
order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).
Applying that standard here, we conclude Judge Mercado-Ramirez
correctly determined plaintiffs failed to establish the requisite showing of
particular "concrete harm" to Oscar, see Daniels v. Daniels, 381 N.J. Super. 286,
294 (App. Div. 2005), such that they overcame the presumption against
interference with defendant's fundamental right to parent him. Moriarty v.
Bradt, 177 N.J. 84, 103 (2003). The probability that a child will suffer serious
A-1859-23 5 psychological or physical harm provides grounds for interference with parental
autonomy under the doctrine of parens patriae. Id. at 112-13.
Under N.J.S.A. 9:2-7.1, grandparents seeking visitation over the objection
of a fit parent must prove by a preponderance of the evidence "that visitation is
necessary to avoid harm to the child." Id. at 117. Only "[i]f . . . the potential
for harm has been shown[] [can] the presumption in favor of parental decision
making . . . be deemed overcome." Slawinski v. Nicholas, 448 N.J. Super. 25,
33 (App. Div. 2016) (quoting Moriarty, 177 N.J. at 117).
"[G]randparents seeking visitation . . . must prove by a preponderance of
the evidence that denial of the visitation they seek would result in harm to the
child." Ibid. (quoting Moriarty, 177 N.J. at 88). "Substantively, it is a 'heavy
burden.'" Id. at 34 (quoting Major, 224 N.J. at 18).
In Slawinski, we described the level of harm that a grandparent must
demonstrate before a court is required to determine whether visitation is in a
child's best interest. We stated:
[P]roof of harm involves a greater showing than simply the best interests of the child. Moriarty, 177 N.J. at 116 (stating that a dispute between a "fit custodial parent and the child's grandparent is not a contest between equals[,]" consequently "the best interest standard, which is the tiebreaker between fit parents, is inapplicable"). . . . The harm to the grandchild must be "a particular identifiable harm, specific to the child."
A-1859-23 6 Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It "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." Daniels, 381 N.J. Super. at 294. By contrast, missed opportunities for creating "happy memories" do not suffice. Mizrahi, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of- harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, 177 N.J. at 117.
[Slawinski, 448 N.J. Super. at 34 (second alteration in original) (citations reformatted).]
Where a grandparent fails to make a threshold showing of harm, the
complaint should be dismissed. A "trial court should not hesitate to dismiss an
action without conducting a full trial if the grandparents cannot sustain their
burden to make the required showing of harm." Major, 224 N.J. at 25. Under
those circumstances, "a court may dismiss . . . by summary judgment under Rule
4:46-2(e) . . . [so as] not [to] prolong litigation that is clearly meritless." Ibid.
As the judge here found, plaintiffs' certification in support of their
application failed to establish the requisite proof of an identifiable, particular
harm to Oscar. At best, plaintiffs alleged they were "devastated" by the loss of
H.M. and asserted Oscar was unable to develop a relationship with his father's
family, which was particularly critical given his father's suicide. Oscar was
eight months old when his father died, not a "toddler" as plaintiffs alleged, and
A-1859-23 7 plaintiffs did not have contact with Oscar since then. Thus, the judge found the
relationship here was nowhere near the extensive one between the grandparents
and grandchild in Major, and plaintiffs' "speculative and conclusory" harms
were insufficient to meet the "heavy burden imposed on them by law."
Because we concur with Judge Mercado-Ramirez's finding plaintiffs
failed to meet their initial burden, we find no error in her decision dismissing
the complaint without a plenary hearing and denying plaintiffs' alternative
requests for discovery and an expert. We likewise reject plaintiffs' contention
the judge erred by accepting defendant's assertions in her certification in support
of the cross-motion as true and unopposed. The judge noted the facts alleged in
defendant's certification but, consonant with the grandparent visitation statute
and governing case law, decided the application based on plaintiffs' allegations,
taken in the light most favorable to them.
We next turn to defendant's motion for civil restraints, which we review
for an abuse of discretion, so long as the decision is consistent with applicable
legal principles. Marioni v. Roxy Garments Delivery Co., 417 N.J. Super. 269,
275-76 (App. Div. 2010).
Family courts are courts of equity. Randazzo v. Randazzo, 184 N.J. 101,
113 (2005). While "[Family Part judges'] equitable discretion is not governed
A-1859-23 8 by fixed principles and definite rules, '[i]mplicit [in the exercise of equitable
discretion] is conscientious judgment directed by law and reason and looking to
a just result.'" Kaye v. Rosefielde, 223 N.J. 218, 231 (2015) (second and third
alterations in original) (quoting In re Estate of Hope, 390 N.J. Super. 533, 541
(App. Div. 2007)). Family Part judges' responsibilities include, where
appropriate, the resolution of "[d]isputes which do not rise to the level of
domestic violence . . . ." N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997).
Applying these guiding principles here, we discern no abuse of the judge's
discretion in granting civil restraints under the circumstances presented in this
matter. Judge Mercado-Ramirez's written decision recited nearly five pages of
incidents detailed in defendant's certification and supported by police reports,
text messages and photographs. Having found "that [d]efendant and [Oscar]
have been subjected to a persistent and repeated course of harassment and
intimidation by [p]laintiffs, [p]laintiffs' family, and those who have joined
[p]laintiffs in their abhorrent onslaught against [them]," the no-contact order
was entirely appropriate to protect defendant and Oscar from plaintiffs'
"troubling course of conduct."
We also find no error in the judge's determination the allegations in
defendant's certification were unopposed. As detailed in Judge Mercado-
A-1859-23 9 Ramirez's written opinion, plaintiffs had ample opportunity to file opposition to
defendant's motion and did not do so. During the November 2, 2023 motion
conference, plaintiffs' counsel stated he did not intend to file opposition to
defendant's cross-motion, despite the court's repeated invitation for him to do
so. During the January 18, 2024 oral argument on the motion, counsel again
confirmed he was relying solely on his moving papers and reiterated his position
that the trial court lacked the authority to enter a no-contact order. Thus, we
find no merit to plaintiffs' contention they were "surprised" by the judge's
rendering a decision on that date.
Lastly, we address the issue of counsel fees. Generally, Rule 5:3-5(c)
governs the award of counsel fees in family actions. However, an award of
counsel fees may be appropriate when one party acts in bad faith, regardless of
the parties' economic circumstances. See Yueh v. Yueh, 329 N.J. Super. 447,
461 (App. Div. 2000) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch.
Div. 1992)) ("'[W]here one party acts in bad faith, the relative economic position
of the parties has little relevance' because the purpose of the award is to protect
the innocent party from unnecessary costs and to punish the guilty party."); see
also Pressler & Verniero, Current N.J. Court Rules, cmt. 4.3.3 on R. 5:3-5 (2025)
("An award of attorney's fees to the adverse party is appropriate if the court finds
A-1859-23 10 the proceedings to have been frivolous and instituted for the purpose of
harassment as well as abuse of the judicial system.").
Here, Judge Mercado-Ramirez concluded the submissions filed in
connection with the motions compelled a finding plaintiffs' application was filed
in bad faith: "Although [p]laintiffs[] certify [they] are seeking visitation with
[Oscar] out of their love and affection for him, the record is replete with
evidence of their deep-seated disdain for both [him] and [d]efendant." Having
found bad faith, the judge was not required to consider the financial
circumstances of the parties; she determined the fees incurred were reasonable,
which plaintiffs do not dispute on appeal.
Plaintiffs' sole contention regarding the enforcement order is that the
counsel fees were imposed without basis. Having found no abuse of discretion
in the award of counsel fees, we likewise reject this argument.
Affirmed.
A-1859-23 11