On appeal from the Superior Court, Appellate Division.
For modification and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
[101 NJ Page 509] This matrimonial appeal raises questions concerning the conclusiveness of an agreement between the parties, on the record,
awarding custody to the mother and the extent of deference owed to determinations of the trial court. The majority in the Appellate Division ruled that the trial court erred in failing to accord finality to the agreement as well as in numerous rulings involved in the court's award of custody to the father. The dissent would have affirmed the trial court's ultimate determination including its refusal to give effect to the record stipulation. Agreeing, in part, with the majority's result -- a remand for a new trial -- and, in part, with the dissent's analysis, we modify the Appellate Division's judgment in accordance with this opinion.
Plaintiff, Anne Wist, sued her husband, George Wist, and he counterclaimed, both for divorce on the grounds of extreme cruelty. The record indicates that both were suitable parents. The trial court, concluding that the custody issue was "genuine and substantial," set an early hearing date pursuant to R. 5:8-6.
As the Appellate Division majority noted:
Prior to the commencement of the hearing, the parties' attorneys advised the judge that they had reached agreement on custody and visitation. The parties then each testified as to the terms of the agreement. Both agreed that the children would live with plaintiff and that the husband would have visitation rights two evenings each week and on alternate weekends and alternate holidays, dividing Christmas Day and the children's birthdays between them. Each also agreed to "call this arrangement joint custody." The further details of this arrangement were that the husband would have free access to all the children's medical and school reports, that he be consulted about intended medical and dental care for the children and be permitted to obtain a second medical opinion except in the case of emergencies, that he could from time to time take the children on non-visitation weekends for the purpose of participating in a sports program, that he would have "first refusal" on babysitting and that his parents would have some visitation rights. The parties further agreed that neither parent would remove the children from the state without giving the other 30 days prior notice and that neither would remove the children from the state for trips longer than three weeks without the consent of the other. Each party also acknowledged the view that the agreement was fair and reasonable. In short, irrespective of its denomination, the actual arrangement was the entirely unexceptionable and typical one of custody in one parent, the mother, with liberal visitation and participation in the lives of the children by the other parent, the father. The trial judge expressly approved the agreement, directing the submission of a conforming form of judgment.
Thereafter the parties were unable to agree on the form of judgment. The trial court, after hearing their differing positions, determined to reject the agreement and ordered a trial on all issues, including custody. At the conclusion of the trial, custody was awarded to the father despite the agreement which appeared to give custody to the mother. The trial court, in its opinion, did not view the agreement as being final or conclusive, and accorded it no weight in the ultimate resolution of the custody case.
The Appellate Division majority and dissent differed in their interpretation of the agreement and, implicitly, in their views of the extent of the trial court's discretion. The majority ruled that the completeness of the agreement combined with the trial court's approval amounted, as a matter of law, to a final judgment for custody pursuant to R. 5:8-6; that the matters disputed after the agreement was put on the record could either have been resolved or tried by the court; and that under all of the circumstances the failure to agree on the form of written judgment was irrelevant. From the majority's point of view, the custody trial was therefore unwarranted and "subjected the litigants and the court system to an unjustifiable expenditure of time, money and energy" since, as a matter of law, the agreement had the effect of awarding custody to the mother. The dissent, stressing the parties' explicit characterization of custody in the record agreement as "joint," concluded that the subsequent dispute over who was to make day-to-day decisions, especially when considered in light of the mother's ambiguous testimony on that issue in the proceeding when the agreement was put on record, was fundamental. Based on that and other differences between the parties, the dissent concluded that no agreement had been reached and that its rejection by the trial court was therefore proper.
We disagree with the majority's ruling that the trial court as a matter of law was required to accept the agreement [101 NJ Page 512] governing custody.*fn1 We also disagree with the dissent, to the extent that it implies that, as a matter of law, the agreement could not govern the custody issue even if the trial court were able to resolve the parties' differences. Where the issue, whether there was complete agreement on custody, is as close as it was here, the parties contending that important matters remained in dispute, the trial court, in its discretion, depending on all of the circumstances, could have determined that the disputed matters were not substantial or genuine, or resolved them consistent with the agreement of the parties, or attempted to persuade the parties to agree, or tried the unresolved issues, or rejected the agreement entirely. Numerous factors bear on that discretion, not the least of which is the trial court's perception concerning the likely constructive effect of what once may have been an agreement, but is no longer: will it produce a stable custodial relationship in the best interests of the children or, given the dispute as to its terms, is its enforcement more likely to produce simply more litigation?*fn2 Obviously a record agreement may be so complete that subsequent disagreement, even in good faith, will not undo it. The trial court's contrary conclusion in this case, however, was neither
arbitrary nor an abuse of discretion. It would have been preferable, of course, had the trial court detailed ...