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Tammy Erickson v. Kristina Boka

June 2, 2011

TAMMY ERICKSON, PLAINTIFF-APPELLANT,
v.
KRISTINA BOKA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-588-08E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2011

Before Judges Lisa and Alvarez.

Plaintiff, Tammy Erickson, appeals from the August 11, 2010 Family Part order denying her application for visitation of her granddaughter H.B., who was born in 2003, under the grandparent visitation statute, N.J.S.A. 9:2-7.1. Defendant, Kristina Boka, is H.B.'s mother. Plaintiff is the mother of H.B.'s father, who died before H.B. was born.

The order under review also contains a provision establishing special procedures which plaintiff must follow as a prerequisite to her ability to file any subsequent similar application with the court. This provision was included at defendant's request because plaintiff had previously filed three similar applications, two in 2007 and one in 2009, which were ultimately dismissed because plaintiff failed to prosecute them.

In denying plaintiff's application, the trial court refused to schedule a plenary hearing. Plaintiff now argues that the court erred in that regard. We do not agree with plaintiff, and we affirm the portion of the order denying grandparent visitation without a plenary hearing. However, we agree with plaintiff's argument that the court erred in establishing a special procedure as a prerequisite to further filings. Accordingly, we reverse that aspect of the order.

I

Defendant had retained the services of counsel in connection with plaintiff's previous applications and incurred counsel fees. The previous dismissal orders awarded counsel fees to defendant to be paid by plaintiff.

On April 20, 2010, defendant filed a motion seeking enforcement of litigant's rights, namely an order to compel plaintiff to pay the counsel fee awards contained in the prior orders. As part of her response, plaintiff filed a cross-motion on June 2, 2010 seeking visitation rights to H.B. The cross-motion was not accompanied by a brief and did not request a plenary hearing.

In a certification in support of her cross-motion, defendant acknowledged that she had not seen H.B. since September 2009. She stated that during the summer months of 2009 she had seen H.B. on a number of occasions, including trips to Great Adventure, Keansburg Amusement Park, and the East Brunswick Water Park. She stated that during those three months, she saw her granddaughter "every week or every two weeks."

Apparently, in September 2009, relations between plaintiff and defendant deteriorated, and defendant declined to allow her mother-in-law further visitation with H.B. As we have stated, it was the filing of defendant's motion to compel payment of outstanding court-ordered counsel fees that prompted plaintiff to again seek visitation rights. In her initial certification, plaintiff did not assert that any harm would befall H.B. if plaintiff was not granted visitation rights.

Defendant filed a responding certification. She noted that H.B. had been in her sole custody since the time of her birth. She acknowledged that during the summer of 2009 her daughter had four visits with plaintiff. However, she further stated that for about two years prior to the summer of 2009 there had been no contact between plaintiff and H.B., and prior to those two years there was only "very limited contact." Defendant certified that plaintiff frequently failed to show up when she was offered the opportunity for visitation, and that her behavior with respect to H.B. was "irresponsible." She stated that any contacts over the years were very limited and random in nature, and there was no relationship whatsoever between her daughter and mother-in-law. She objected to any form of visitation, concluding that her daughter "does not know [plaintiff], would not recognize her in any social setting and indeed, she is not in any way a part of my daughter's life."

Plaintiff filed an answering certification. In it, she stated several times, in conclusory terms, that she had a long and substantial relationship with H.B. However, she filled in very little by way of details. She mentioned that defendant and H.B. stayed with her for four days when there was some problem between defendant and her parents. She did not refute defendant's certified statements regarding the long gaps during which there was no contact. Plaintiff concluded that "there would be substantial harm that would result to my granddaughter because the child has a ...


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