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Henry v. Zekovitch

Superior Court of New Jersey, Appellate Division

September 27, 2013

COLLEEN HENRY and THOMAS HENRY, Plaintiffs-Respondents,


Argued June 11, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-3017-10.

Dale W. Keith argued the cause for appellants (Grimes & Grimes, LLC, attorneys; Mr. Keith, on the brief).

Colleen Henry, respondent, argued the cause pro se (Maryann J. Rabkin, on the brief).

Before Judges Parrillo and Messano.


Linda Zerkovitch appeals from those provisions of the Family Part's order of April 13, 2012 that: increased the amount of grandparent visitation for Colleen and Thomas Henry (the Henrys) for the summer of 2012; ordered reimbursement to the Henrys of $100 for "airfare expenses"; and granted the Henrys counsel fees, not to exceed $1000. The order also merged the Henrys' application, filed under the non-dissolution (FD) docket, with previous litigation between Linda and her ex-husband, Michael, the son of Colleen Henry, under the matrimonial (FM) docket.[1]

We have considered the arguments raised by Linda in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings consistent with this opinion.


The procedural history, although largely undisputed, requires some explication. Linda and Michael married in 2002 and had two children born in 2003 and 2005. A complaint for divorce was filed by Linda in July 2008. At the time, Michael was in active military service out of the country, and since service was not effectuated, the FM action was placed on inactive status. In February 2010, however, service was effected after Michael was located and served at an Air Force base in North Carolina.

In the interim, relations between Linda and the Henrys deteriorated, leading to the Henrys filing an FD complaint seeking grandparent visitation. On December 14, 2010, the Family Part entered an order that granted the Henrys grandparent visitation from Friday at 4:00 p.m. through Sunday at 6:00 p.m., as well as overnight visitation with the children on alternate Wednesdays.

Linda filed an appeal. However, on March 2, 2011, Michael and Linda entered into a consent final judgment of divorce (JOD). The JOD provided that Michael and Linda would have joint custody of the children, with Linda as the parent of primary residential custody. The JOD also permitted Linda to relocate to California with the children.

The JOD further provided that Michael and the Henrys "shall have reasonable and liberal visitation/parenting time with the children" including "thirty-eight . . . days of summer visitation, at least fourteen . . . of which shall be allocated to" the Henrys "in New Jersey." Michael "and/or" the Henrys were to have alternating Christmas visitation, and Michael "and/or" the Henrys were to have one week of visitation during "spring break." Transportation costs for the three visitation periods were to be shared equally by Linda, Michael, and the Henrys. The JOD was consented to, and executed, by Michael, Linda, and the Henrys.[2]

Linda alleges that, at the time of the entry of the JOD, Michael indicated his intention to relocate to New Jersey when possible. Linda dismissed her appeal as a result of the entry of the JOD, relocated with the children to California and has subsequently re-married.

In 2011, the children spent the entire summer visitation, a total of thirty-eight days, with the Henrys. Michael did not relocate to New Jersey, but instead relocated apparently first to Colorado and then to California.[3] In March 2012, the Henrys filed an application seeking, among other things: merger of the FD litigation with the FM litigation; enforcement of visitation under the JOD; an award of additional "make-up [visitation] time" allegedly denied from the prior year; reimbursement of travel expenses; and counsel fees.

In their certification, the Henrys alleged things "broke down" in November 2011, and Linda denied visitation time granted by the JOD. They claimed they did not see their grandchildren during Christmas. They further claimed that Linda and her current husband were denying them communication with their grandchildren, and they "had no idea" whether visitation during spring break would occur. The Henrys acknowledged only "sporadic" contact with Michael since he moved to Colorado.

Linda opposed the request and sought counsel fees. In her certification, she stated that Michael had not paid child support since April 2011. She claimed her son had contracted a serious case of poison ivy while in the Henrys' care during the summer of 2011 and gained a significant amount of weight. Linda also stated that Michael had not visited the children while they were in New Jersey in 2011 and had "only called to speak with [them] on a few occasions since the divorce."

On April 13, 2012, the Family Part judge, who was not the judge who presided over the FD or FM litigation, held oral argument on the Henrys' application. The judge granted the Henrys' request to merge the two matters.[4] The judge then noted:

The fact that Michael . . . has checked out on his own children is very disturbing, but it is not something that, presumably, the [Henrys] have asked him to do or that, necessarily, they can control. He's a grown man, he's been in the Air Force, he presumably is not taking orders from his parents anymore.

The judge observed that the JOD was "a negotiated agreement, " which allowed Linda to move with the children to California. The judge determined that, under the terms of the JOD, the Henrys were entitled to exercise the full thirty-eight days of visitation, whether Michael participated or not.

Citing the terms of the FD order that found the children had "psychologically bonded" with the Henrys, the judge also decided that Linda "should have delivered" the children to the Henrys during the prior Christmas visitation period, and he awarded them an additional seven days of visitation in 2012, for a total of forty-five days. We gather from the judge's colloquy that he decided circumstances had not significantly changed since the entry of the FD order or the JOD. The judge did not grant the entire amount of counsel fees sought by the Henrys, concluding "there's some fault on the parts of the [Henrys]." He ordered Linda to pay $1000 in counsel fees to the Henrys when Michael paid child support in that amount to Linda.

After filing her notice of appeal, Linda filed a motion on the FM docket in the Family Part apparently seeking termination of the Henrys' visitation and a stay pending appeal. We have only the order entered by the judge on June 15. That order, among other things, denied Linda's request to terminate the Henrys' visitation, and it further ordered Linda to comply with the April 13, 2012 order and make the children available for visitation with the Henrys from June 18 through August 1, 2012. In a separate order entered on the FD docket on July 6, 2012, the judge denied Linda's request to terminate the Henrys' visitation and her request for a stay.[5]

Linda argues the merger of the FD and FM dockets was error because it served to deny her parental rights "to be the sole determiner of what [was] in the bests interests of the children . . . ." Linda also argues that the judge erred in awarding the Henrys visitation under the JOD because it was contrary to the best interests of the children. She also challenges the other relief granted, including the make-up visitation time, the reimbursement of travel costs and the award of counsel fees to the Henrys.

We begin by noting that this appeal does not, nor could it, seek review of the original FD order granting the Henrys limited grandparent visitation. At the time, the judge made a finding that the Henrys had established "a psychological parenting bond" with their grandchildren. See J.M.S. v. J.W., 420 N.J.Super. 242, 254-55 (App. Div. 2011) (discussing consideration of the grandparents' role as "psychological parents" in the context of a grandparent visitation dispute).

We presume the judge's legal conclusion evidenced the determinations required by Moriarty v. Bradt, 177 N.J. 84, 117 (2003), i.e., that the Henrys bore their "burden of establishing by a preponderance of the evidence that visitation [was] necessary to avoid harm to the child[ren]." Moreover, to the extent the visitation schedule was contested at that time, we assume the judge followed the Court's further instructions. When "[t]he presumption in favor of parental decision making ha[s] been overcome, the court should approve a schedule that it finds is in the child's best interest, based on the application of the statutory factors." Ibid. (citations omitted).

Thus, in December 2010, the Henrys had secured limited grandparent visitation with the children while they still resided with their mother in New Jersey. That judicial determination reflected the reasoned judgment of the Family Part that such limited visitation was in the best interests of the children.

Nor do we consider the merits of Linda's contention that all grandparent visitation should be terminated because it no longer is in the best interests of her children. In this regard, we are not persuaded that the merger of the two cases was error. Clearly, the JOD was negotiated with the Henrys participating as interested parties under the FM docket, and, contrary to Linda's argument, we do not believe that the merger prejudiced her rights as the children's natural parent.

Additionally, and perhaps most importantly, Linda's opposition to the Henrys' motion never sought termination of grandparent visitation. Indeed, at oral argument on that motion, Linda's counsel acknowledged his understanding of the JOD provisions was "that it was two weeks for the Henry[s] and not all these other weeks." As noted, Linda's subsequent application seeking termination of grandparent visitation was denied, and that order is not before us for review.

However, it must be acknowledged that following entry of the original FD order, the entire landscape of the controversy changed. Literally within months thereafter, Michael and Linda settled their divorce litigation via the consent JOD. Linda was permitted to relocate with the children to California. The visitation anticipated under the JOD included time with Michael "and/or" the Henrys. Linda alleges that the JOD was executed in anticipation of Michael residing in New Jersey, and, there is nothing in the record to dispute that assertion.

The judge gave literal interpretation to the "and/or" provisions of the JOD and reasoned that the grandparent visitation time allocated to the Henrys was the equivalent to Michael's right to parenting time with his children. We disagree with this analysis.

First, although "[t]he basic contractual nature of matrimonial agreements has long been recognized[, ] Pacifico v. Pacifico, 190 N.J. 258, 265 (2007), "[d]ivorce agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns." Konzelman v. Konzelman, 158 N.J. 185, 194 (1994). Therefore, "[t]he interpretation, application, and enforceability of divorce agreements are not governed solely by contract law." Ibid. If the meaning of the agreement is in dispute, "[t]he court's role is to consider what is written in the context of the circumstances at the time of the drafting and to apply a rational meaning in keeping with the expressed general purpose." Pacifico, supra, 190 N.J. at 266 (emphasis added).

Here, in considering the language of the JOD, the judge concluded its "and/or" provisions were clear, unambiguous and agreed to by Linda. However, we think that analysis ignored "the circumstances at the time of the drafting" of the JOD, and it failed to "infuse" the terms "with equitable considerations, " namely the intended parenting time between Michael and his children.

Second, as the Court made clear in Moriarty, grandparent visitation, a statutorily-created right, is not on equal footing with the constitutional rights of a parent. See Moriarty, supra, 177 N.J. at 118 (the Court construed the Grandparents Visitation Act, N.J.S.A. 9:2-7.1, holding that "adding a threshold harm standard" was "a constitutional necessity because a parent's right to family privacy and autonomy are at issue"). Based upon the language of the JOD, the judge erroneously equated the Henrys' visitation time with Michael's parenting time.

Third, the polestar in deciding a contested issue as to the appropriate amount of grandparent visitation time is the best interests of the children. Moriarty, supra, 177 N.J. at 117. We think consideration should have been given to whether it was in the children's best interests to stay in New Jersey for more than forty days without seeing either their mother or father. See, e.g., P.T. v. M.S., 325 N.J.Super. 193, 215 (App. Div. 1999) (in the context of a dispute over supervised visitation, we noted: "[w]hile custody agreements should be taken into account by the court, . . . a trial court must determine whether the agreement is in the best interests of the children.") (citing Wist v. Wist, 101 N.J. 509, 512-13 (1986)).

Fourth, although Linda, Michael and the Henrys consented to the JOD, like all orders or agreements, it was subject to review and modification upon a showing of changed circumstances affecting the children. See, e.g., Abouzahr v. Matera-Abouzahr, 361 N.J.Super. 135, 152 (App. Div. 2003) certif. denied, 178 N.J. 34 (2003). ("A party seeking modification of a judgment, incorporating a [property settlement agreement] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.") While Linda did not seek modification of the JOD, the construction she urged, i.e., the Henrys should have no more than fourteen days of visitation during the summer, relied in large part on two essential circumstances that had changed since the JOD was entered. Michael never relocated to New Jersey as anticipated, and he had virtually no contact with his children after the JOD was entered.

For these reasons, we reverse the April 13, 2012 order awarding the Henrys both visitation time provided to them under the JOD and all of Michael's parenting time, including the increased "one week" "make-up" visitation. Based upon our reasoning, we also reverse the conditional award of counsel fees to the Henrys. We also reverse the portion of the order that required Linda to pay reimbursement of $100 to the Henrys, because of changed airline reservations. In this regard, there were disputed facts that could not be resolved solely on the certifications filed.

We remand the matter to the Family Part for further consideration of the appropriate amount of grandparent visitation time to be awarded to the Henrys in light of our decision.[6] We leave the conduct of the remand hearing to the sound discretion of the Family Part.

Reversed and remanded.

We do not retain jurisdiction.

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