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Fawzy v. Fawzy

September 22, 2010

CHRISTINE SABA FAWZY, PLAINTIFF-RESPONDENT,
v.
SAMIH M. FAWZY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-595-06H.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Gilroy and Simonelli.

On remand from the Supreme Court, the trial court entered a custody and parenting-time order on August 31, 2009; and on cross-motions for reconsideration the court amended and supplemented that order by order of October 23, 2009. Defendant Samih M. Fawzy appeals from those two orders. We affirm in part and dismiss in part.

Because the procedural history and facts leading to the remand hearing were discussed at length in our prior opinion, Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div. 2008), and in the Supreme Court's opinion, affirming on other grounds, 199 N.J. 456 (2009), it is unnecessary for us to fully detail them here. Rather, a summary will suffice to place this appeal in context.

The parties were married on September 28, 1991, and divorced on March 6, 2007. Two children were born of the marriage, a son in 1996, and a daughter in 1997. On September 13, 2005, plaintiff filed a complaint for divorce. On the first day of trial, the parties entered into a verbal agreement to submit all issues, including custody and parenting time, to binding arbitration. They also agreed to have the attorney who was previously appointed as guardian ad litem for the children by the court serve as arbitrator. On March 6, 2007, the court entered a judgment of divorce (JOD) ordering the parties to arbitration.

On April 4, 2007, the arbitrator issued a custody and parenting-time award. On May 14, 2007, the court entered an amended JOD enforcing the custody and parenting-time award; the arbitration proceeded as to financial issues. On July 11, 2007, the arbitrator issued his award resolving the financial issues.

On August 3, 2007, the court entered a second amended JOD, confirming and incorporating the financial award.

Defendant appealed, arguing that the custody and parenting-time provision contained in the second-amended JOD was not enforceable, contending that parties to a matrimonial action are prohibited from submitting child custody and parenting-time issues to binding arbitration. Fawzy, supra, 400 N.J. Super. at 568. Determining that an agreement to arbitrate violated the court's parens patriae obligation, we reversed and remanded for a plenary hearing on the custody and parenting-time issues. Ibid.

On cross-petitions for certification, the Court affirmed, but for different reasons. Fawzy, supra, 199 N.J. at 485. The Court held that parties to a matrimonial proceeding may submit issues of child custody and parenting time to binding arbitration, provided the agreement to do so is "in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1." Fawzy, supra, 199 N.J. at 482. Additionally, the Court held that the agreement to arbitrate issues of child custody and parenting time must, in clear and unmistakable language, state that: 1) "the parties understand their entitlement to a judicial adjudication of their dispute and are willing to waive that right"; 2) "the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree to those limitations"; 3) "the parties have had sufficient time to consider the implications of their decision to arbitrate"; and 4) "the parties have entered into the arbitration agreement freely and voluntarily, after due consideration of the consequences of doing so." Ibid. (footnote omitted). Applying those standards, the Court determined that the agreement to arbitrate issues of child custody and parenting time was insufficient to bind the parties. Id. at 482. Accordingly, the court affirmed, but remanded to the trial court to expeditiously resolve "all outstanding issues." Id. at 485. On October 6, 2009, the Court denied defendant's motion for clarification.

On remand, the trial court conducted a plenary hearing on the child custody and parenting-time issues. Although defendant requested the court to also address what he considered as outstanding financial issues and other claims, the court denied the request by order of August 12, 2009. The court conducted a plenary hearing on the custody and parenting-time issues on August 7, 11, and 12, 2009, during which the court heard testimony from the parties and interviewed the children in camera. Additionally, plaintiff presented testimony from Dr. Robert Rosenbaum, a licensed psychologist and the court-appointed custody expert; and from Donna Collossi, an elementary school counselor in the Monroe Township school district who had previously counseled both children. Defendant presented testimony from Hani Gergis, an acquaintance of the parties for fourteen or fifteen years. At the conclusion of the hearing, the court reserved decision pending submission of written summations of the parties.

On August 31, 2009, the trial court entered an order that, among other things: 1) awarded joint legal custody of the children to the parties; 2) designated plaintiff as the parent of primary residency; 3) provided a detailed schedule for shared parenting time; 4) directed that the children attend public school in the school district where plaintiff resides; and 5) appointed a third-party attorney "as the parenting coordinator for the parties in order to resolve any issues pertaining to parenting time with the costs split equally between the parties." The order was not supported by a statement of reasons setting forth the trial court's findings of fact and legal conclusions.

On cross-motions, the court granted reconsideration to address facts that it had previously overlooked, and to clarify its prior order as necessary. On October 23, 2009, the court entered an amended custody and parenting-time order that clarified certain provisions of the August 2009 order; denied plaintiff's request for counsel fees; and granted plaintiff's application for the parenting coordinator to hold in his possession the children's passports. Additionally, the order denied defendant's requests to strike the testimony of Dr. Rosenbaum and Collossi; and denied defendant's request to impute income to plaintiff and to terminate defendant's alimony obligation as moot, because those ...


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