In the Matter of the Estate of Michael D. Fisher, II
128 A.3d 203
| N.J. Super. Ct. App. Div. | 2015Background
- Michael D. Fisher Sr. and Justina Nees divorced in 2002; their son Michael (b. 1995) was awarded sole custody to Nees and Fisher’s visitation was suspended pending risk assessment and counseling after a Final Restraining Order (FRO).
- Fisher failed to complete court-ordered assessment and counseling, resulting in continued suspension of supervised visitation from 2002 until Michael’s death in 2010.
- Fisher paid child support via wage garnishment for much of the period, fell into arrears (≈ $10,000 by 2010), moved to Florida in 2006, and later had support terminated in July 2010 due to serious illness (termination retroactive to his May 2010 motion).
- Months before Michael’s death Fisher communicated briefly (telephone, an in-person encounter, and Facebook), and he attended the funeral; he also continued making payments on accrued arrears after the death.
- Michael died intestate at age 15; Nees, as administratrix, sought an order barring Fisher from inheriting under N.J.S.A. 3B:5-14.1(b)(1) (parental abandonment exception), and the trial court granted relief; Fisher appealed.
Issues
| Issue | Nees's Argument | Fisher's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 3B:5-14.1(b)(1) permits barring a parent who “willfully forsook” a child even if the child was not exposed to risk or placed in State custody | The statute’s first clause ("willfully forsaking") by itself supports barring inheritance when a parent intentionally forsakes the child | The statute’s subsequent clauses limit application — parent must have exposed child to physical/moral risk or caused State custody | Court: Clauses are disjunctive; abandonment can be (1) willful forsaking, or (2) failing to care so child exposed to risk, or (3) failing to care so child became State custody; statute applies to willful forsaking alone |
| Standard to prove abandonment under N.J.S.A. 3B:5-14.1(b)(1) | N/A (plaintiff did not specify a higher standard) | Clear and convincing evidence should apply (analogous to TPR cases) | Court: Preponderance of the evidence applies (Legislature did not set higher standard; aligns with Title 9 abandonment cases) |
| Meaning of “abandoned … by willfully forsaking” | Fisher’s conduct (noncompliance with orders, lack of contact, arrears) manifested willful forsaking | Fisher contended his conduct did not show settled purpose to permanently relinquish parental duties or claims | Court: To abandon by willful forsaking, plaintiff must show unambiguous, intentional conduct manifesting a settled purpose to permanently forgo parental duties and claims; Nees failed to meet preponderance standard here |
| Application of facts to statute: Did Fisher willfully forsake Michael? | Fisher’s failure to comply with court orders, lack of visitation after 2002, arrears, move to Florida show abandonment | Fisher argued he rejected offers to surrender parental rights, paid substantial support, made intermittent contact, sought support modification due to illness, and attended funeral — showing no settled intent to relinquish parenthood | Held: Trial court erred. Record lacked proof of a settled, permanent intent to relinquish parental duties; Fisher did not abandon by willful forsaking. Reversed. |
Key Cases Cited
- Lavigne v. Family & Children’s Soc’y, 11 A.2d 473 (N.J. 1953) (defines abandonment as conduct showing settled purpose to forego parental duties and relinquish claims)
- Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366 (1995) (statutory interpretation reviewed de novo)
- DiProspero v. Penn, 183 N.J. 477 (2005) (extrinsic aids considered when plain reading leads to absurd results)
- Liberty Mut. Ins. Co. v. Land, 186 N.J. 163 (2006) (Legislature’s silence on evidentiary standard implies default civil standard)
- In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376 (App. Div. 1998) (termination of parental rights requires clear and convincing evidence; distinguished from intestacy-bar proceedings)
- State v. N.I., 349 N.J. Super. 299 (App. Div. 2002) ("forsaking" construed as permanent relinquishment and "willfully" as intentional)