On appeal from the Superior Court, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1711-05A.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Payne, C.L. Miniman and Waugh.
Defendant Molly V.G.B. Johnson appeals from an order confirming an arbitration award respecting custody and parenting time. Because the parties did not have the benefit of Fawzy v. Fawzy, 199 N.J. 456 (2009), at the time of the arbitration and because we conclude that decision should be applied retroactively to this appeal, we reverse.
Plaintiff and defendant were married on October 26, 1994. Their first child was born in 2001 and their second child was born in 2003. The parties divorced on August 16, 2005. The final judgment of divorce incorporated the family and property settlement agreement, executed on May 24, 2005. The agreement included a joint custody arrangement designating plaintiff as the residential custodial parent for the children.
In 2007, the parties were experiencing issues regarding the amount of time that each parent would spend with the children. The parties agreed to binding arbitration to "resolve parenting differences and Parenting Time scheduling issues." A referral to arbitration was granted by a Family Part judge on October 31, 2007, which incorporated the previously executed arbitration agreement.
In the arbitration agreement, the parties agreed to have Mark White, Ph.D., serve as the arbitrator. The agreement made the arbitration subject to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. The agreement further specified that "[t]he decision of the selected arbitrator... shall be reviewable and subject to modification or vacation for any of the reasons recognized in N.J.S.A. 2A:23A-13 of the APDRA." It limited appeals to the Family Part for a determination of whether the arbitrator "failed to properly apply applicable law to the factual findings and issues presented for resolution through ADR." Also, the arbitration agreement referenced and adopted the provisions of N.J.S.A. 2A:23A-13(e)(4), allowing the Superior Court to review and modify a decision pursuant to N.J.S.A. 2A:23A-13(f) if a party is "prejudiced by the Arbitrator erroneously applying the law to the issues and facts presented for Alternative Resolution[.]"
Dr. White began the arbitration in this matter on December 5, 2007. The arbitration proceedings consisted of meetings with the parties and their attorneys; interviews of the parties and the children; visits and observations of the children at each party's home; and consultations with Sandra Sessa, Ph.D., and Cheryl Daniel, L.C.S.W.
Dr. White delivered his findings and final decision on April 11, 2008. Dr. White's decision extended the amount of time the children would spend at plaintiff's home by limiting defendant's time to one weekday night and every other weekend. However, the decision extended defendant's weekends to include Sunday evenings. Also, defendant was given the majority of three-day weekends and other periods of vacation time to compensate for the disparity between her and plaintiff's allotted times with the children. The decision allowed for reconsideration of the visitation schedule if defendant submitted to an evaluation by a neuropsychologist specializing in attention deficit hyperactivity disorders and showed that her older child had three consecutive months of no tardy notices from school. The decision allowed for future meetings commencing on or about October 1, 2008, at which Dr. White could meet with the parties to consider further modifications of the schedule.
Defendant filed a motion for reconsideration on May 16, 2008, in which she requested that Dr. White reconsider the entire decision or clarify the defendant's vacation time with the children. Dr. White issued his response on May 22, 2008. Dr. White explained that "[t]he restructuring of the children's schedules was put forth on the basis of the children's needs, and not on the basis of a conclusion that [defendant] is 'subaverage' or 'inferior' or 'inadequate' or 'without boundaries or morals' as a parent."
Defendant then sent correspondence to plaintiff and Dr. White regarding removal of Dr. White from the matter in light of our June 16, 2008, decision in Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div. 2008), aff'd on other grounds, 199 N.J. 456 (2009). Plaintiff filed a motion to confirm Dr. White's decision, and defendant filed a cross-motion opposing confirmation and requesting modification of custody and visitation.
On September 26, 2008, the motions were argued at which time defendant relied on our holding in Fawzy. She asserted that our opinion invalidated final binding arbitration awards dealing with custody and parenting time issues because APDRA does not allow full plenary review of the best interests of the children but rather limits review to the issues identified in N.J.S.A. 2A:23A-13. Plaintiff, on the other hand, argued that Fawzy was inapplicable because it pertained to arbitration under the Arbitration Act, N.J.S.A. 2A:23B-1 to -32, and the arbitration in this matter was under APDRA.
The Family Part judge delivered an oral decision on September 29, 2008, in which he confirmed Dr. White's decision. He reviewed the arbitrator's decision in detail. He found from that decision that plaintiff was more likely than defendant to provide a structured and stable environment. He found the defendant was frequently tardy getting and returning the children, which had a negative impact on them. He recited the scope of review under APDRA as set forth in N.J.S.A. 2A:23A-13(f) and then considered our opinion in Fawzy, specifically the focus placed on the court's role to determine the best interests of the children. The judge noted that while we stated in Fawzy "that custody and parenting time issues cannot be subject to binding arbitration or to any form of arbitration that restricts the court's ability to consider the best interests of the child," Fawzy, supra, 400 N.J. Super. at 572, he found that the ...