J.S. v. L.M.S. (L-2071-20, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2332-20

J.S.,

Plaintiff-Respondent,

v.

L.M.S.,

Defendant-Appellant.

________________________

Argued March 31, 2022 – Decided August 31, 2022

Before Judges Mitterhoff and Alvarez.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Morris County,

Docket No. L-2071-20.

Rebekah R. Conroy argued the cause for appellant

(Stone Conroy LLC, attorney; Rebekah R. Conroy of

counsel and on the briefs).

Marc J. Gross argued the cause for respondent (Fox

Rothschild LLP, attorneys; Marc J. Gross, of counsel

and on the brief; Christine F. Marks, on the brief).

PER CURIAM

Defendant L.M.S., the former wife of plaintiff J.S., appeals from a January

29, 2021 Law Division order denying her motion to dismiss plaintiff's civil

claims for damages premised on intentional infliction of emotional distress

(IIED) and defamation. The IIED claim arises from defendant's alleged

alienation of the affection of the parties' children. We conclude plaintiff's

allegations fail to state a viable claim under either cause of action. Accordingly,

we reverse.

The genesis of this case is an incident that occurred in July 2017, when

the parties' then eight-year-old daughter, S.S., disclosed to her therapist that

plaintiff rubbed her vagina. The therapist reported S.S.'s disclosure to the

Division of Child Protection and Permanency (DCPP). The agency, in

conjunction with the Morris County Prosecutor's Office (MCPO), conducted a

brief but thorough investigation during which plaintiff, defendant, S.S. , and her

two siblings were interviewed. Defendant denied that S.S. had ever disclosed

any sexual abuse to her. Plaintiff acknowledged that he had on one occasion

rubbed Desitin on S.S.'s genital area because it was itchy and that on a separate

occasion, he instructed S.S. to apply the cream herself. S.S. confirmed to several

evaluators that her father had rubbed cream on her vagina when she was in the

shower and commented it was red. Concluding there was insufficient evidence

to establish whether the acknowledged vaginal touching was sexual or

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caretaking in nature, the MCPO closed the matter and DCPP made a final

determination that sexual abuse was "not established." 1

Prior to, during, and after the resolution of the Title 9 investigation, the

parties were engaged in an ongoing FM matter 2 relating to custody, parenting

time, and support issues. Plaintiff's parenting time with S.S. was gradually

restored with the assistance of therapists to address the family dysfunction. 3 By

1

Plaintiff appealed the agency's disposition that sexual abuse was "not

established" and we agreed the finding was "unfounded" based on our reading

of N.J.S.A. 9:6-8.2 and its implementing regulations. See Dep't of Child. and

Fams. v. J.S., No. A-1001-17 (App. Div. May 30, 2019). The allegation of

sexual abuse being deemed unfounded, however, does not render S.S.'s report

of vaginal touching "false." To the contrary, the allegation of touching has

irrefutably been established by plaintiff's own admission.

2

Docket No. UNN-FM-20-1855-16.

3

Continued therapy was recommended by psychologist Sarah Seung-

McFarland, Ph.D., who evaluated S.S. during the DCPP investigation. Seung-

McFarland diagnosed S.S. with Adjustment Disorder with Anxiety, Parent-

Child Relational Problems, and Disruption of Family by Separation or Divorce.

Her report concluded:

With regard to the allegations, this evaluator cannot

determine with any degree of psychological certainty

whether or not [S.S.] was sexually abused by her father

as suggested. Nevertheless, S.S. reported that her

father touched her private area, (e.g. toto), while

showering, made statements that it is red, and put cream

on it more than once. There are also reports that he sees

her naked, comes into the bathroom to pee when she is

there, and does "raspberries." At the very least, these

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January 12, 2018, plaintiff's parenting time was fully restored, with the

exception of overnights. Overnight parenting resumed on March 16, 2018.

Despite the full resolution of his parenting time issues, plaintiff continued to file

applications in the FM matter based on defendant's alleged alienation of the

children's affection. In support of these applications, in May 2019, he certified

to various grievances, gleaned from comments by the children, that defendant

denigrated him by referring to him as "Jeff" rather than "papa;" she shared with

the children that there was ongoing litigation concerning their religious

upbringing; that the food defendant gave them was "bad" and "full of chemicals"

because she gave them vegetables from a can; that plaintiff was responsible for

60% of child support because he earned more, and that his current wife was only

with him for the money.

In the same certification, plaintiff complained that after a court-ordered

mediation to address the children's religious upbringing, 4 defendant would not

behaviors suggest inappropriate boundaries, and are

consistent with reports that [defendant] does not respect

the children, is dismissive of them, and treats the twins

like babies.

4

The issues whether defendant had to take the children to Hebrew school during

her parenting time and whether she could be prevented from educating them

about her Catholic upbrininging were ultimately resolved on appeal. Solar v.

Stark, No. A-2156-18 (App. Div. Nov. 6, 2019).

A-2332-20

4

voluntarily agree to a second session to address other disputes including whether

defendant should attend parenting classes, whether S.S. should resume therapy,

and whether defendant should accede to the request to adjust the parenting drop-

off time. Under the heading "Alienation and Estrangement," plaintiff stated that

his son A.S. told him that defendant "interrogated" him about a scratch on his

arm and "exerted heavy pressure on him" to suggest plaintiff was somehow

responsible for the injury.

Unsatisfied with the results he was getting in the Union County FM

matter, plaintiff filed this four-count complaint seeking damages against

defendant for intentional infliction of emotional distress (IIED), aiding the

commission of a tort, conspiracy, and defamation. 5 The crux of the IIED claim

is set forth on paragraph 17 of the complaint, which alleges:

As set forth in the various Certifications filed by J.S. in

the Family [P]art against [d]efendant and incorporated

herein, [d]efendant has engaged in a campaign that was

and continues to be destructive to all three . . . of the

parties' children, with a focus on S.S., namely

[d]efendant's refusal to allow the children to all enjoy

overnight parenting time together, objecting

5

This matter was originally the subject of a complaint filed in July 2018, under

Docket No. MRS-1316-18 (the "original complaint"). After an interlocutory

appeal in which we reversed the trial court's order denying disqualification of

plaintiff's former counsel, the parties agreed to dismiss the original complaint

without prejudice, preserving the parties' claims and defenses for period of sixty

days, and that plaintiff would file a new complaint.

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specifically that S.S. should not have overnight time

with J.S. due to the false sexual abuse allegations. . . .

The complaint, read indulgently, reiterates the same grievances that were

presented to and resolved with finality by the Union County Family Part. In

particular, plaintiff complains that defendant objected to the immediate

resumption of overnight parenting despite his misguided belief that the

"unfounded" disposition "proved" the touching allegation was utterly false.

Plaintiff now asserts, "upon information and belief," that defendant must have

"coached" S.S. He also feels "denigrated" by the comments she made about him

to the children. Although he has enjoyed full parenting time including

overnights since March 2018, he claims to continue to suffer extreme emotional

distress based on his fear that defendant will make false allegations in the future.

Defendant filed a motion to dismiss pursuant to R. 4:6-2(e), which the

judge denied by order dated January 29, 2021. In his oral opinion, the judge

gave his reasons.

Now, as to the [motion to dismiss], there's no

question that the [Segal6] case confirms that the

intentional infliction of emotional distress is a valid

cause of action in a [c]ivil [c]ourt under circumstances

like this. I found it interesting that the Appellate

Division decision in [Segal], they said, well, she moved

and didn't tell him where they were, but for three

6

Segal v. Lynch, 413 N.J. Super. 171 (App. Div. 2010).

A-2332-20

6

months he had no idea where they even were. That

doesn't constitute intentional infliction of emotional

distress.

Well, the facts are different here. My job is to

look at this in accordance with Rule 4:62 and the

Printing Mart [7] case. If there are sufficient facts pled,

it would require this matter to go further to avoid

dismissal at this point to allow the plaintiff to undertake

discovery. So that's one.

There are two John Does clients of theories. And

I agree with Mr. Gross. Well, let me say, I'm not going

to dismiss the application. I -- I'm required to let it go

forward. I'm tempted to dismiss the two aiding in the

commission of the conspiracy, but I think [plaintiff's

counsel] is right. He's -- he's pled John Doe theories.

And under the court rule, if somebody else turns up to

have conspired with her and aid and abet her, then I

guess he can then move to add them specifically. I can't

imagine who that would be, but not my place. The point

is that he's got a right to maintain at this point those

causes of action.

And I know that if he finds nothing -- if he finds

that there's no factual basis to confirm that there was

somebody in conspiracy or aid and abetting, I know

they'll move to withdraw those claims at some point in

the future.

Then we come to the defamation claim. It's

interesting. The claim -- the specific allegations of

defamation that are in the Complaint with the possible

exception of one are simply opinion testimony. He's

not a good father. I don't have them in front of me so I

don't remember. The one that, I guess, could sustain is

he revealed I think it was DV information, I guess. If,

7

Printing Mart–Morristown v. Sharp Electronics Corp., 116 N.J. 739 (1989).

A-2332-20

7

indeed, he went around telling -- if she went around

telling people that he's a child abuser, certainly, then I

guess defamation occurs so. I can't let that be dismissed

either.

So I will grant -- I will not grant the application

to dismiss under Printing Mart in 462. I think the

plaintiff has pled sufficient facts to assert the

recognized causes of action of defamation and

intentional infliction of emotional distress.

On appeal, defendant presents the following arguments for our

consideration:

POINT I8

THE TRIAL COURT ERRED BY FAILING TO

APPLY THE STATUTORY IMMUNITY AFFORDED

TO INDIVIDUALS COOPERATING WITH DCPP

INVESTIGATIONS.

A. New Jersey Provides Immunity to Reports

Made to DCPP.

B. Defendant Cooperated with the 2017 DCPP

Investigation and Provided Information

Requested by the Division.

C. The Reporting Privilege is Absolute.

POINT II

8

Defendant-appellant's Point I is dedicated to the standard of review.

Defendant's legal arguments have been renumbered to reflect actual points of

argument.

A-2332-20

8

THE TRIAL COURT ERRED IN FAILING TO

DISMISS THE COMPLAINT BASED ON THE

LITIGATION PRIVILEGE.

A. Statements Made by Defendant in Connection

with Pending Litigation Are Subject to the

Litigation Privilege.

B. The Law of the Case Doctrine is Not

Applicable to [the Law Division judge's]

Decision, and in Any Event, [the Law Division

judge's] Ruling was Clearly Incorrect.

POINT III

DEFENDANT'S STATEMENTS TO DCPP ARE

PROTECTED BY THE CONDITIONAL SPECIAL

INTEREST PRIVILEGE.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO FIND

THAT STATEMENTS TO DCPP CANNOT BE THE

BASIS FOR CIVIL LIABILITY.

POINT V

THE TRIAL COURT ERRING IN REFUSING TO

DISMISS THE CASE PURSUANT TO SEGAL V.

LYNCH.

POINT VI

THE TRIAL COURT ERRED IN FAILING TO

DISMISS COUNT FOUR (DEFAMATION) IN THAT

NO ACTIONABLE MISSTATEMENTS OF FACT

ARE PLED.

A. The Allegations of Count Four.

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B. None of the Statements in Count Four are

Actionable.

Our review of a trial court's ruling on a motion to dismiss for failure to

state a claim under Rule 4:6–2(e) is de novo. Flinn v. Amboy Nat'l Bank, 436

N.J. Super. 274, 287 (App. Div. 2014). We look to "the complaint to determine

whether the allegations suggest a cause of action." In re Reglan Litigation, 226

N.J. 315, 324 n.5 (2016). Assuming the facts stated within the four corners of

plaintiff's complaint are true and granting plaintiff the benefit of all rational

inferences that can be drawn from such facts, see Green v. Morgan Properties,

215 N.J. 431, 452 (2013) (citation omitted), we must determine whether

plaintiff's complaint "suggest[s]" a cause of action. Printing Mart, 116 N.J. at

746 (1989) (citations omitted). Our search must be conducted "in depth and

with liberality to ascertain whether the fundament of a cause of action may be

gleaned even from an obscure statement of claim, opportunity being given to

amend if necessary." Ibid. (citation omitted). Our indulgent review does not,

however, require us to disregard facts that have irrefutably been established in

related proceedings.

Applying this standard to the allegations in plaintiff's complaint, we are

satisfied plaintiff failed to state a prima facie case of intentional infliction of

emotional distress.

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[T]o make out a prima facie case of intentional

infliction of emotional distress, plaintiff must show

that: (1) defendant acted intentionally; (2) defendant's

conduct was "so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community;" (3) defendant's

actions proximately caused him emotional distress; and

(4) the emotional distress was "so severe that no

reasonable [person] could be expected to endure it."

[Segal, 413 N.J. Super. at 191 (quoting Buckley v.

Trenton Sav. Fund Soc., 111 N.J. 355, 366 (1988)).]

As our examination of plaintiff's allegations reveals, the vague

inflammatory language in the complaint does not describe the type of conduct

that is "so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community[.]" See id. at 192 (quoting Buckley, 111

N.J. at 366). Nor is plaintiff's fear of future misconduct, or his dismay at

defendant's refusal to engage in mediation, establish the requisite degree of

emotional distress.

In that regard, the trial judge erred in concluding that "there's no question

that the [Segal] case confirms that the intentional infliction of emotional distress

is a valid cause of action in a Civil Court under circumstances like this." To the

contrary, in Segal, we stressed that our parens patriae responsibility empowers

us "to intervene to protect children from both physical and emotional harm" that

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would come from being deposed and placed in the middle of the litigation as

key witnesses. Id. at 188.

We can plausibly envision such children being deposed

about: (1) what mom or dad said; (2) when and how

often mom or dad said it; (3) who else was present when

they said it; and (4) how did the child feel when mom

or dad said it. These depositions will surely be followed

or preceded by psychological examinations of the child

by experts selected by each side; teachers, counselors,

schoolmates, extended family members, and other

confidants will also be interrogated and called as

witnesses.

In the midst of this litigation tug-of-war will be the

children. After all, liability will be established only if

plaintiff can show that the bond and affection that

would have otherwise existed between him and the

children has been severely compromised by defendant's

outrageous and malicious acts. Thereafter, the measure

of damages will depend upon the extent of the injury to

that parent/child relationship. Here again, the children

will be featured as the key witnesses.

[Id. at 189-90.]

We concluded that "[e]xtending the tort of [IIED] to this context directly

contravenes the principles embodied in the best interests of the child standard."

Id. at 190. Thus, we found that a civil claim for damages in an IIED claim based

on alienation of a child's affection is cognizable only in extreme circumstances.

In dicta, we theorized,

we are not blind to scenarios in which one parent

intentionally or recklessly imbues a child with such

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calumnious accounts of the other parent, so wicked in

their intent and so destructive in their effect, that the

situation necessitates civil redress. For example, a case

in which one parent falsely and intentionally accuses

the other parent of sexually abusing the child is so

despicable on its face and so destructive in its effect on

the innocent parent that it cries out for compensation

which is not available in the Family Part or even in the

criminal courts.

[Id. at 189.]

This case, however, does not present a scenario where defendant "falsely and

intentionally accuses the other parent of sexually abusing [S.S.]" Id. at 189. No

amount of discovery will alter the fundamental undeniable facts that (1)

defendant was not the person who reported J.S. to DCPP, and (2) S.S.'s

allegation of vaginal touching by J.S. is true. We will not extend the imposition

of liability to a parent who relies on something that has in fact happened to

support their position in court whether overnight visitation is appropriate.

Because plaintiff failed to set forth a legally cognizable claim of

intentional infliction of emotional distress, his cause of action for conspiracy

and aiding the commission of a tort must also fail as a matter of law. See Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 177–78 (2005) (holding the "gist" of a

claim for civil conspiracy is not the unlawful agreement, but the underl ying

predicate tort); State, Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest

Commc'ns Int'l., Inc., 387 N.J. Super. 469, 484 (App. Div. 2006) (explaining

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that a claim for aiding the commission of a tort requires proof of the underlying

tort).

Plaintiff's defamation claim is also fatally defective. Our Supreme Court

has observed that when alleging defamation "it is not necessary for the

complaint to contain a 'verbatim transcription of the words spoken.'" Printing

Mart, 116 N.J. at 767 (citing Kotok Bldg. v. Charvine Co., 183 N.J. Super. 101,

105 (Law Div. 1981)). A plaintiff may "'bolster a defamation cause of action

through discovery, but not [] file a conclusory complaint to find out if one

exists.'" Id. at 768 (quoting Zoneraich v. Overlook Hosp., 212 N.J. Super. 83,

101-02 (1986)).

To determine whether a statement has a defamatory meaning, a court

considers three factors: "1) the content, 2) the verifiability, and 3) the context

of the challenged statement." Leang v. Jersey City Bd. of Educ., 198 N.J. 557,

585 (2009) (quoting DeAngelis v. Hill, 180 N.J. 1, 14 (2004)). Statements of

opinion are generally not actionable, as opinions "are generally not capable of

proof of truth or falsity because they reflect a person's state of mind." NuWave

Inv. Corp. v. Hyman Beck & Co., 432 N.J. Super. 539, 553 (App. Div. 2013).

"A statement's verifiability refers to whether it can be proved true or false."

Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167 (1999).

A-2332-20

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Paragraph 51 of the Complaint sets forth plaintiff's defamation claims

(Count V), alleging:

[A]t various times from July 6 2017 through present,

J.S. learned that [d]efendant made a barrage of false

statements to the Family Court, DCPP, mental health

professionals, and, upon information and belief,

directly or indirectly to the community at large arising

out of the afore-referenced circumstances as follows:

a. That [plaintiff] was not keeping S.S.

safe;

b. That [plaintiff] was a peripheral father,

not hands on;

c. That [plaintiff] did not know how to deal

appropriately with the children;

d. That [plaintiff] had difficulty

controlling himself;

e. Assertions that [plaintiff] does not

respect the children;

f. Assertions by [d]efendant to the DCPP

evaluator that J.S. did "raspberries" on the

breasts of S.S.;

g. Assertions by [d]efendant that S.S. did

not want to attend her Halloween parade

because [plaintiff] would be in attendance;

h. Assertions by [d]efendant that

[plaintiff] would not respect boundaries;

i. Assertions by [d]efendant that [plaintiff]

has difficulties managing the [three] kids;

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j. Assertions by [d]efendant that [plaintiff]

intimidates the kids by confronting them;

k. Causing S.S. to make false assertions

about a shower incident during the

evaluation at the Dorothy Hersh Center;

l. Assertions that [plaintiff] was not a fit

parent to S.S.;

m. Assertions that [plaintiff] has a recent

history of domestic violence; and

n. Assertions that the children suffer from

anxiety by having to spend parenting time

with J.S.

[(emphasis added).]

With the exception of paragraphs f, k and n, the remaining paragraphs are

all non-actionable statements of opinion. See NuWave, 432 N.J. Super. at 553.

Paragraph f specifies that the statement about "raspberries" was made to the

DCPP investigator in July 2017, and a claim based on that statement is therefore

barred by the litigation privilege. See Hawkins v. Harris, 141 N.J. 207, 216

(1995). Paragraph k is not a statement at all, and to the extent it refers to plaintiff

touching S.S.'s vagina, it is not actionable because it is true. With respect to

paragraph m, the motion judge found:

Then we come to the defamation claim. It's interesting.

The claim -- the specific allegations of defamation that

are in the Complaint with the possible exception of one

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are simply opinion testimony. ["]He's not a good

father.["] I don't have them in front of me to remember.

The one that, I guess, could sustain . . . . if she went

around telling people that he's a child abuser, certainly,

then I guess defamation occurs so. I can't let that one

be dismissed either.

We conclude the judge erred in allowing the claim to survive where

plaintiff's claim of disclosure to members of the community was based on

"information and belief." At oral argument, almost five years after the triggering

event, plaintiff was unable to identify with any specificity what defendant said,

nor could he identify a single third party to whom anything was allegedly stated .

Consequently, we are left to conclude that plaintiff filed this conclusory

complaint intending to use discovery to find out if a claim exists. The judge

erred in allowing plaintiff's unfounded defamation claim to go forward to enable

this impermissible fishing expedition. See Printing Mart, 116 N.J. at 768.

Reversed. We do not retain jurisdiction.

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