L.K. AND M.K. VS. A.K.(FD-16-0875-12, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-4056-15T2

L.K. and M.K.,

Plaintiffs-Appellants,

v.

A.K.,

Defendant-Respondent.
____________________________________________

Argued May 23, 2017 – Decided July 7, 2017

Before Judges Yannotti, Gilson and
Sapp-Peterson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FD-16-0875-12.

Jay Joseph Friedrich argued the cause for
appellants (Friedrich & Friedrich, PA,
attorneys; Mr. Friedrich, on the briefs).

Francis W. Donahue argued the cause for
respondent (Donahue, Hagan, Klein & Weisberg,
LLC, attorneys; Mr. Donahue, of counsel and
on the brief; Alex M. Miller, on the brief).

PER CURIAM

Plaintiffs L.K. and M.K. appeal from an order entered by the

Family Part on May 13, 2016, which denied their motion to enforce
prior orders of the court granting plaintiffs visitation pursuant

to the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1.1 We

affirm.

I.

We briefly summarize the relevant facts and procedural

history of this matter. In 1997, defendant and Max were married

and had two children: Jeffrey, who was born in May 2000, and

Jennifer, who was born in July 2002. Max died unexpectedly in July

2011. After Max died, plaintiffs had disagreements with defendant

about their contacts with the children, and defendant stopped

regular contacts between the children and members of Max's family.

In December 2011, plaintiffs filed a complaint against

defendant seeking grandparent visitation pursuant to the GVS. They

claimed that defendant was not acting in the best interests of the

children, and her actions were causing the children to suffer

emotional harm and trauma. They claimed that the denial of

visitation could lead the children to believe that plaintiffs had

some responsibility for their father's death.

The Family Part judge conducted in camera interviews with the

children. Among other things, Jeffrey expressed hostility toward

1
In this opinion, we use initials when referring to the parties
and other persons, and fictitious names for the children, their
father, and others.

2 A-4056-15T2
plaintiffs and downplayed their role in his life. Jennifer said

plaintiffs were mean and never really liked her or her brother.

The judge determined that a psychological evaluation of the

children was required, and he appointed Paul Dasher, Ph.D. (Dr.

Dasher), to undertake the evaluation.

Dr. Dasher issued a report dated January 13, 2013, in which

he concluded that the children had a "significant and positive

bond" with plaintiffs and benefited from their relationship with

them. Dr. Dasher opined that "continued alienation" of plaintiffs

and the children was "emotionally harmful" to the children. He

recommended visitation between plaintiffs and the children, as

well as with their paternal aunt and her family.

Defendant retained Serge Mosovich, M.D., M.P.H. (Dr.

Mosovich) as an expert, and he submitted a report dated April 29,

2013. He disputed many of Dr. Dasher's findings. He noted that

both children had informed Dr. Dasher that they did not want to

have a relationship with plaintiffs, and they were angry that

plaintiffs would sue their mother. He stated that the record did

not support Dr. Dasher's conclusion that the children would be

harmed if they did not have a bond with plaintiffs.

The judge conducted a hearing in the matter at which Dr.

Dasher and Dr. Mosovich testified. On August 22, 2013, the judge

filed an opinion concluding that plaintiffs had established

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grounds for relief under the GVS. The judge accepted Dr. Dasher's

testimony and found that Dr. Mosovich's testimony was not

persuasive or helpful.

The judge determined that plaintiffs had shown by "more than

the preponderance of the evidence" that Jeffrey and Jennifer will

suffer harm if plaintiffs are denied visitation with them. The

judge ordered defendant to submit a proposed visitation schedule,

and thereafter denied defendant's motion for a stay of his order

pending appeal.

On October 1, 2013, the judge entered orders establishing a

visitation schedule and appointing a visitation coordinator. On

October 4, 2013, the court issued an order which detailed the

manner in which the children would be picked-up and dropped off

for visits with plaintiffs and appointed clinical psychologist

Thomas H. Golden, Ph.D. (Dr. Golden), to serve as a visitation

coordinator.

Defendant filed a motion in this court to stay visitation

pending appeal. On October 31, 2013, we denied defendant's motion

and remanded the motion to the trial court so that the parties

could submit additional evidence as to whether visitation should

be stayed pending disposition of the appeal.

The parties submitted additional evidence to the trial court

regarding the stay, and the court conducted a hearing on the

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motion. On December 10, 2013, the judge filed an opinion and order

denying the motion for a stay. Defendant then filed a motion in

this court for a stay of visitation. We denied the motion.

While the appeal was pending, plaintiffs filed a motion in

the trial court pursuant to Rule 1:10-3. They asserted that

defendant had willfully violated the court's prior orders granting

visitation, and the court should enforce those orders. Defendant

opposed the motion. Among other things, defendant stated that the

children did not want to visit plaintiffs, and she could not

persuade them to do so.

The trial court appointed a mediator to attempt to resolve

the dispute over visitation, but the mediator's efforts were not

successful. The trial court then conducted an evidentiary hearing

on the motion, and on October 10, 2014, filed an opinion finding

that defendant had willfully failed to comply with the court's

orders.

The judge required defendant to: open Gmail and messaging-

service accounts for the children; send two photos of the children

to plaintiffs each month; participate in therapy on the issue of

grandparent visitation; and meet with Dr. Golden. The judge also

issued an order dated November 13, 2014, appointing Jonathan

Gordon, Esq. as a therapist for defendant for the term of one

year. On January 21, 2015, the court entered a case management

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order, which ordered that the children participate in court-

supervised Skype-communication sessions in February 2015 and

attend visits with plaintiffs at their home in March 2015.

Thereafter, we filed an opinion affirming the trial court's

order granting plaintiffs' application for visitation. M.K. v.

A.K., No. A-0629-13 (App. Div. Apr. 10, 2015) (slip op. at 23).

We concluded that the court's factual findings were supported by

sufficient credible evidence, the court had applied the correct

legal principles in ordering visitation, and the court did not err

by relying upon Dr. Dasher's opinion and testimony. Id. at 15-23.

Defendant filed a petition for certification with the Supreme

Court. The Court later denied the petition. M.K. v. A.K., 223 N.J.

162 (2015).

On June 2, 2015, the trial court issued an order directing

the Division of Child Protection and Permanency (DCPP) to open a

Title 30 case for the immediate care and supervision of the

children after becoming concerned with defendant's "decision-

making." Defendant filed an emergent application with this court

thereafter. On June 19, 2015, we reversed the portion of the trial

court's June 2, 2015 order that directed DCPP to open a Title 30

investigation, holding that the trial courts do not have the

authority to order a state agency to open an investigation. In

light of our decision, the trial court issued an order on June 20,

6 A-4056-15T2
2015, vacating the portion of the June 2, 2015 order regarding the

opening of a Title 30 investigation, and the portion of a February

25, 2015 order regarding transportation of the children by DCPP.

The trial court also ordered a mental health professional, Dr.

Marc Singer, to evaluate defendant.

In August 2015, after defendant objected to the trial court's

use of Dr. Singer, the trial court appointed Gerald A. Figurelli,

Ph.D. (Dr. Figurelli), to perform a forensic psychological

evaluation of defendant. Defendant met with the doctor on three

occasions in November and December 2015.

In November 2015, plaintiffs filed another motion pursuant

to Rule 1:10-3, seeking an order declaring that defendant had

refused to comply with the court's prior orders. Plaintiffs sought

additional remedies to enforce those orders, including economic

sanctions; counseling for the children or parent; defendant's

participation in an approved community-service program;

incarceration; issuance of a bench warrant upon further violation

of the court's orders; and appointment of a guardian ad litem for

the children. Defendant opposed the motion.

It appears that the judge who had been handling the matter

was transferred from the Family Part, and the matter was re-

assigned to another Family Part judge. In March 2016, Dr. Figurelli

provided the court with his psychological evaluation of defendant.

7 A-4056-15T2
The judge conducted oral argument in the matter on March 29, 2016,

and on April 5, 2016, the judge filed an opinion and order denying

the motion.

The judge found that it was not in the children's best

interest to force them to participate in visitation that they did

not want, or to compel them to undergo further psychological

testing. The judge also found that appointment of a guardian ad

litem or imposing sanctions upon defendant was not in the

children's best interests. The judge modified the court's prior

orders to cease all court-ordered visitation between plaintiffs

and the children "to protect the best interests of the children"

and "insulate them from the traumatizing effects of further

litigation and testing."

Plaintiffs appeal and argue that: (1) the judge did not have

the "right" to impose his opinion and refuse to enforce the prior

decisions of the trial court and this court; (2) the judge denied

them due process of law; and (3) the judge violated the "law of

the case" doctrine.

II.

We turn first to plaintiffs' argument that the Family Part

judge erred by failing to enforce the trial court's previous order

granting them visitation with the grandchildren. Plaintiffs argue

that the judge violated the "law of the case" doctrine by failing

8 A-4056-15T2
to adhere to the prior order granting visitation, which was upheld

by this court. We disagree.

The law of the case doctrine provides "that a legal decision

made in a particular matter 'should be respected by all other

lower or equal courts during the pendency of that case.'" Lombardi

v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg,

126 N.J. 168, 192 (1991)); State v. Reldan, 100 N.J. 187, 203

(1985). To that end, the doctrine "is a non-binding rule intended

to 'prevent relitigation of a previously resolved issue'" in the

same case, "by a different and co-equal court." Lombardi, supra,

207 N.J. at 538-39 (quoting In re Estate of Stockdale, 196 N.J.

275, 311 (2008)).

"When applicable, [the law of the case doctrine] prohibits

'a second judge on the same level, in the absence of additional

developments or proofs, from differing with an earlier ruling[.]'"

Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. Div. 2012) (second

alteration in original) (quoting Hart v. City of Jersey City, 308

N.J. Super. 487, 497 (App. Div. 1998)). It should be noted,

however, that the rule is discretionary, and the doctrine is to

"be applied flexibly to serve the interests of justice." Reldan,

supra, 100 N.J. at 205.

As we have explained, the Family Part judge entered an order

in August 2013, finding that plaintiffs should be granted

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visitation pursuant to the GVS. We affirmed that order, concluding

that there was sufficient credible evidence in the record to

support the order.

Thereafter, the judge found that defendant had willfully

violated the orders by taking actions to thwart visitations. The

judge entered several orders to enforce the visitation order.

Among other remedies, the judge mandated court-supervised

electronic communication and in-person visits between plaintiffs

and the children. The record shows that the children were opposed

to such compelled visitation and traumatized by them.

When the second judge assumed responsibility for the matter

in February 2016, he reviewed the entire record in the case. In

his opinion of April 5, 2016, the judge recognized that the prior

orders in the case were binding upon him, including the order

granting visitation which had been affirmed on appeal. The judge

determined, however, that he had to consider the specific

enforcement motion before him in light of the record.

The judge found that none of the remedies sought would have

any more likelihood of success than the remedies previously

ordered. The judge noted that imposing monetary sanctions would

only serve to deprive the children of funds that defendant could

use for their care. The judge stated the children's best interests

10 A-4056-15T2
would not be served if defendant was arrested or required to

participate in an approved community service program.

The judge found that further psychological counseling of the

children was not in their best interests. The judge observed that

the children's "fragile psyches have already been poked and prodded

several times during the course of this litigation." The judge

also found that appointment of a guardian ad litem for the children

would perpetuate the litigation and require investigation and

additional costs.

The judge pointed out that during a February 27, 2015 court-

ordered Skype session, Jeffrey began to yell and curse at his

grandparents. He refused to stop, forcing the court staff to

terminate the session. Thereafter, Jennifer had what appeared to

be an anxiety attack due to an anticipated visit with plaintiffs.

The court's staff had to intervene when Jennifer appeared to be

hyperventilating.

Further attempts to complete court-ordered Skype sessions

failed when Jennifer had "an adverse anticipatory reaction" prior

to the third session, and an anxiety attack at a sporting event

around the time of the fourth session. The judge observed that

[n]one of the psychologists assigned to review
this matter have been able to definitively
conclude whether this behavior by [Jeffrey and
Jennifer] was caused by their own feelings
about their grandparents, or was the result

11 A-4056-15T2
 of coaching by their mother. Regardless of the
cause of the behavior, it is clear to the
[c]ourt that this litigation has traumatized
both children and they are being harmed by
continued attempts to force visitation with
their grandparents.

The judge also noted that the children had expressed to the

court and to the professionals involved in the matter that they

do not want to have visitation of any sort at this time with their

grandparents. The judge wrote, "[s]everal years have passed since

the inception of this litigation, but their position has not

[wavered]. They are now teenagers with minds of their own, and the

[c]ourt should give credence to their wishes."

Dr. Figurelli noted that further testing would be required

to determine if defendant was responsible for alienating the

grandchildren from their grandparents. The judge determined,

however, that additional psychological tests would not be in the

children's best interests.

The judge further found that Dr. Dasher had opined previously

that continued alienation of the children and their grandparents

was "emotionally harmful" to the children "in the long and short

term." The judge stated that Dr. Dasher's opinion had to be weighed

against "what has transpired since then."

The judge determined that the "most persuasive evidence" of

the effect that visitation was having on the children was the

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children's reaction to the court-ordered Skype sessions. The judge

noted that the judge who previously handled the matter and this

court had not been able to evaluate the effect the mandated Skype

sessions had upon the children.

The judge determined that further enforcement of the

visitation orders in the case would only increase the animosity

amongst the parties, who "need time to recover and move forward

from the tragic events in their lives." The judge stated that his

responsibility was to do what is best for the children. He

determined that it is not in their best interests "to continue to

subject them to unwanted visitation or forced psychological

testing."

The newly-assigned judge did not mistakenly exercise his

discretion by considering the latest enforcement motion in light

of Dr. Figurelli's more recent psychological report, and the

evidence regarding the children's reaction to the court-ordered

Skype sessions. The judge noted that the children had grown older.

The children were teenagers and had their own views concerning the

visits, which the court properly considered. The law of the case

doctrine did not preclude the judge from determining that further

enforcement of the trial court's previous orders would not be in

the children's best interests.

13 A-4056-15T2
 We reject plaintiffs' contention that the judge erred by

revisiting an issue that they believe was settled by the prior

decisions of the court. Previously, the court had determined that

plaintiffs had shown, in light of the record that then existed,

that they should be granted visitation pursuant to the GVS. The

newly-assigned judge was required to decide the enforcement motion

in light of evidence of what had transpired since the court's

earlier orders were entered. The judge found that forced visitation

was having a harmful effect upon the children.

We must defer to the trial court's findings of fact if

supported by sufficient credible evidence in the record. Cesare

v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We also

must "accord deference" to the factual findings of the Family Part

because of that court's "special jurisdiction and expertise in

family matters." Id. at 413.

We conclude that there is sufficient credible evidence in the

record for the judge's finding that further attempts to force the

children to participate in court-ordered visits with their

grandparents, further litigation, and additional psychological

evaluations would not be in the children's best interests.

14 A-4056-15T2
 III.

Next, plaintiffs argue that the judge denied them due process

by modifying the prior orders in this case, and ceasing all court-

ordered visitation between plaintiffs and their grandchildren.

Plaintiffs contend that, by adjourning their motion to enforce the

prior orders several times, the judge denied their due process

right to enforce the prior orders in the case.

Plaintiffs further argue that the case should not have been

transferred to a new judge, and the newly-assigned judge did not

fully review the entire record. They contend the evidence does not

support the judge's finding that the children would be harmed by

visitation or further psychological evaluations. We cannot agree.

The grandparents "bear the burden of establishing by a

preponderance of the evidence that visitation is necessary to

avoid harm to the child." Moriarty, supra, 177 N.J. at 117. In

this case, the trial court initially determined that visitation

should be granted because their grandchildren would suffer harm

without such visits. The evidence later presented to the trial

court showed, however, that enforcement of the visitation order

was having a harmful effect upon the children. Thus, visits that

were intended to avoid harm were, in fact, causing harm.

Thus, plaintiffs did not have a due process right to enforce

the trial court's prior orders. They had a right to have the court

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consider their motion to enforce the court's prior orders in light

of the new evidence presented to the court. That evidence supports

the trial court's finding that compelled visitation and further

psychological evaluations would not be in the children's best

interests. Therefore, the newly-assigned judge did not mistakenly

exercise his discretion by refusing to mandate continued

enforcement of the court's prior orders.

We have considered plaintiffs' other arguments and have

determined that they are without sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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