On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, FD-20-713-00.
Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs, Harry and Joan Wilde, sued defendant, Tracy Wilde, whose fitness as a mother is unquestioned, seeking visitation with her children under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1 ("the GVS"). The children have four grandparents. Harry is their paternal grandfather and Joan, his second wife, is their step-grandmother. Tracy appeals from an order denying her motion to dismiss the complaint on the ground that the statute is unconstitutional on its face and as applied. Although the facial attack has substance, we reverse because the GVS is unconstitutional as applied.
The parties recognize that the procedural posture of this case is somewhat irregular with respect to the "as applied" issue. Ordinarily, the anomaly would require a remand for further proceedings in the trial court; however, both sides urge us to conclude the litigation with finality, and we believe that course serves the interests of justice. To place our decision in perspective, we will first discuss the significant proceedings leading to this appeal.
After the initial pleadings had been filed, plaintiffs filed their first motion demanding immediate visitation with Tracy's children pendente lite. On April 24, 2000, faced with conflicting certifications reflecting intense animosity between the parties, the trial court entered an order that temporarily denied visitation and, instead, appointed a psychologist as a "therapeutic evaluator." He was charged with the responsibility of interviewing and testing the parties and the children and making recommendations to the trial court respecting therapeutic mediation and visitation. Tracy was ordered to pay half of his bill. Both sides were permitted to retain their own experts, with each being obliged to cooperate with the other's expert. All discovery was to be completed by June 5, and a "plenary" hearing was set for June 27. Although the April 24 order seemed to be setting the date for trial, that is not what occurred.
In late May, Tracy filed a motion seeking dismissal of the complaint on constitutional grounds. On June 28, the court-appointed psychologist, Dr. Edwin Rosenberg, testified. On July 14, the trial court entered an order requiring Tracy to "seek intensive therapy in addition to the supportive therapy which she is currently receiving from her treating therapist . . . ." Five specific dates were scheduled for the therapy, which would "specifically focus on the displacement issues described by Dr. Rosenberg in his testimony . . . ." The order appointed Dr. Judith Brown Grief as "therapeutic mediator," with the costs of her services "to be shared equally between the plaintiffs and the defendant." Visitation pendente lite was again denied. Finally, the order set a date in September for "further argument on defendant's motion challenging the constitutionality of N.J.S.A. 9:3-7, both on its face and as applied." By this time the Attorney General was involved in the case because of the facial attack on the GVS, and Tracy had moved unsuccessfully for the judge's recusal.
On July 28, plaintiffs moved for the third time for visitation pendente lite. The trial court again denied the motion and ordered the parties to "begin the process of therapeutic mediation with Dr. Grief." Before argument on the constitutional issues, joint mediation sessions were only to occur with the consent of all parties. However, Tracy was ordered to continue receiving therapy from her psychologist.
Tracy sought leave to appeal from those portions of the orders of July 14 and July 28 requiring intensive therapy and therapeutic mediation. On September 28, we granted leave to appeal. R. 2:5-6. Since the dates set for defendant's intensive therapy had passed, we only ruled on that portion of the order requiring her to submit to therapeutic mediation with Dr. Grief. We summarily reversed that aspect of the orders because we believed Tracy was entitled to resolution of the constitutional questions before having to submit to psychological mediation. We remanded "for disposition of defendant's claim that N.J.S.A. 9:2-7.1 is unconstitutional." We added, "This court will retain jurisdiction to review the trial court's decision on constitutionality and upon disposition of that issue on appeal, this court will then reconsider the trial court's decision as to the requirement that the defendant engage in therapeutic mediation, and such other issues as may arise."
On October 10, the trial court entertained oral argument on the constitutionality of the GVS, both facially and as applied, and rendered an oral opinion, which was subsequently placed in written form. Although the trial court was still confronted with certifications from the parties that conflicted in many important regards, neither side requested a plenary hearing before or after the trial court's decision.
After holding the GVS facially constitutional, the trial court turned to the question of the statute as applied. With respect to that issue, the trial court appears to have perceived defendant as arguing that she should not be forced to spend money defending her position and she should not be required to submit to individual psychological therapy or therapeutic mediation with plaintiffs. The trial court rejected the first claim because the Legislature had provided for suits of this nature and deferred ruling on the second claim apparently because we had indicated in our remand order that we would address it subsequently. Then, without resolving the disputed facts, the trial court proceeded to hold that the GVS was constitutional as applied.
As should be evident, the trial court's opinion is anomalous. Generally, the "as applied" constitutional validity of a statute cannot be determined without first establishing relevant facts. Nevertheless, the opinion purports to do precisely that. Rather than speculate about the reasons that might have led the trial court to its resolution of the case, and rather than remand for a plenary trial on the constitutionality of the GVS as applied, we will exercise the original jurisdiction necessary to definitively conclude these proceedings. R. 2:10-5.
We follow that course for three reasons. The first was articulated by Justice Kennedy and approved by the plurality in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed.2d 49 (2000), the Supreme Court's initial consideration of the constitutionality of nonparental visitation statutes. He wrote this:
It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated. . . . If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney's fees alone might destroy her hopes and plans for the child's future. [530 U.S. at 101, 120 S. Ct. at 2079, 147 L. Ed. 2d at 78 (Kennedy, J., dissenting); approved by the plurality, 530 U.S. at 73, 120 S. Ct. at 2064, 147 L. Ed. 2d at 61.]
Second, although the certifications conflict in many regards, the undisputed facts, coupled with Dr. Rosenberg's uncontested opinions, provide a sufficient basis for resolution of the case in Tracy's favor under a summary judgment model. R. 4:46. And third, plaintiffs have specifically asked in "light of the delay" (they have not seen the children for over seventeen months) that we "exercise original jurisdiction."
Tracy and Russell Wilde were married in 1992 and had two children, Russell, Jr., now eight, and Hayden, now six. On September 18, 1999, Russell, Sr., a Cranford Police Department Lieutenant, committed suicide with a handgun at home and in Tracy's presence. Harry Wilde, the Chief of Police in Cranford, is Russell Sr.'s father and the children's grandfather. He is divorced from their grandmother and is married to Joan, the children's step-grandmother.
The relations between plaintiffs and defendant had been strained for many years; nonetheless, Tracy's children had visited with Harry and Joan on numerous occasions though not regularly. Plaintiffs were permitted to visit briefly with the children on the day of the funeral and for a longer time the next day at Tracy's parents' home. Although Harry certified that after his son's burial on September 22, "defendant became very distant towards the plaintiffs and made it difficult for them to have any grandparenting time with their grandchildren," he did not specify any actions plaintiffs took to secure such time until December 21.
In the meantime, on four occasions in November, Harry went to the children's school, visiting there with Russell, Jr. three times and with Hayden once, all without asking Tracy's approval. On November 29, when Tracy came to the police station to complain about these visits, Harry rejected her complaint as unwarranted since the school had permitted them. He described the conversation as "illustrative of the several conversations which plaintiffs had with defendant after the death of their son in which defendant expressed her hostility toward plaintiffs." About a month later, on December 21, Joan called Tracy, leaving a message that they wanted "to schedule some time to spend with the grandchildren during the day on Christmas Eve." She left the same message on December 22, and the next day Tracy returned the calls and agreed that plaintiffs could see the children on Sunday, December 26, which they did, spending about two hours playing with the children. On December 29, Tracy returned the Christmas gift she had received from plaintiffs with a note that read, "Due to the circumstances, I really cannot accept this. Tracy."
On January 13, 2000, plaintiffs called Tracy and asked "if they could pick up the children on January 17, 2000 (a school holiday) to celebrate Hayden's birthday and take them to breakfast" and purchase some toys. Harry certified that "[t]here was a very long pause from defendant, after which time she told plaintiff that she had to work and that she would check her schedule. Plaintiffs have not heard from defendant since."
On January 21, plaintiffs had their attorney write this letter to Tracy:
Please be advised that this firm has been retained by Harry and Joan Wilde to pursue their rights as grandparents with ...