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Phillips v. Grogan

August 4, 2008

FRANCES PHILLIPS, PLAINTIFF-RESPONDENT,
v.
BRIAN GROGAN, DEFENDANT-APPELLANT, AND APRIL RUSSO, DEFENDANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-669-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 8, 2008

Before Judges C.S. Fisher and Grall.

By leave granted, defendant Brian Grogan appeals from interlocutory orders entered in an action for grandparent visitation filed by plaintiff Frances Phillips pursuant to N.J.S.A. 9:2-7.1. Phillips is the maternal grandmother of the only child born of Grogan's marriage to defendant April Russo. She filed the complaint on September 21, 2007. On December 12, 2007, the trial court, considering facts outside the pleadings in accordance with Rules 4:6-2 and 4:46-2, denied Grogan's motion to dismiss the complaint. On the same day, the court entered pendente lite orders granting Phillips visitation on alternate weekends, from 5:00 p.m. on Saturday until 6:00 p.m. on Sunday, and compelling the parties to participate in and share the cost of private mediation. Grogan sought a stay of the pendente lite orders, which the trial court denied.

On January 29, 2008, this court granted Grogan's motion for leave to appeal, and on March 14, 2008, this court stayed visitation but not mediation pending appeal. Phillips moved before the Supreme Court to vacate our stay pending final resolution of the dispute. On April 1, 2008, the Supreme Court granted Phillips partial relief by vacating the stay "pending disposition of the appeal in the Appellate Division."

There are two questions before us on this interlocutory appeal: Whether it was error to deny Grogan's motion to dismiss Phillips' complaint; and, if not, whether it was error to compel visitation pending final disposition.

These are the pertinent facts. Russo and Grogan married in August 2001. Their only child was born in March 2004. Russo and Grogan were both employed. Phillips, who lived within minutes of Grogan's residence, saw the child on a regular basis. According to Phillips, she developed a "strong bond" with her grandchild because she cared for the child "no less than three times a week," kept the child overnight "almost every Saturday night," and reserved a bedroom for the child in the home she shared with her husband, Russo's stepfather.

In August 2005, when the child was seventeen months old, a co-worker of Russo's entered Grogan's home through an unlocked door and attempted to shoot Grogan twice. The gun misfired. During the struggle that followed, Grogan's skull was "cracked."

Within days of the attack, evidence of Russo's involvement in planning and facilitating the crime against her husband was uncovered and she and the intruder were arrested. Russo and her co-worker were indicted on November 28, 2005. We are advised that she has been incarcerated since August 2005 and has entered a plea of guilty on the indictment.

On December 1, 2005, Grogan obtained a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. That order prohibits Russo from having any contact with either Grogan or the child.

According to Grogan, he cared for the child after the attack in August 2005 with assistance from his brother and sister-in-law and by enrolling the child in a day-care program. Sometime in fall 2005, however, he allowed Phillips to see the child, albeit on a less frequent basis than she had before August 2005. By summer 2006, the child was staying with Phillips overnight on Saturdays, and a pattern of Saturday night visits had developed by fall 2006. By that time, Grogan was involved in a new relationship with another woman, S.M., who frequently stayed with Grogan in his home and had begun establishing a relationship with the child.

In October 2006, law enforcement officers told Grogan that they had evidence of Russo's involvement in another plot, this one against his life and the life of S.M. Russo was again charged with conspiracy and attempted murder; this time there were two alleged victims, Grogan and S.M. Grogan suspected that Russo learned about S.M. from Phillips.

Russo and Grogan were divorced in February 2007. The final judgment incorporates the parties' agreement for Grogan to have sole custody of their child. After the divorce, Grogan continued to allow the child to spend Saturday nights with Phillips. On two ...


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