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Fawzy v. Fawzy


September 22, 2010


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

Per curiam.


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 financial issues were previously the subject of the prior arbitration award. Paragraphs 8 and 9 of the amended order also addressed the appointment of the parenting-time coordinator:

8. Plaintiff's request that the parties shall follow the current parenting plan until the parenting coordinator prepares another is granted in part. The parties are to abide by the August 31, 2009 Order and any amendments pursuant to the current Order pending any changes made by the parenting coordinator.

9. Plaintiff's request that Defendant shall pay all retainer fees required by the parenting coordinator up front and that the parenting coordinator shall allocate the percentage of payment each party will be responsible for at the conclusion of the sessions is denied without prejudice. Pursuant to Paragraph 10 of the August 31, 2009 Order, the parties shall split the cost of the parenting coordinator. Each party shall contact the parenting coordinator and send payment for the retainer within fourteen (14) days. If the parties cannot afford the retainer fee, the parties shall reach out to the parenting coordinator to try and work out a payment plan.

On appeal, defendant argues that the trial court erred in not addressing his challenges to some of the financial determinations made by the arbitrator, as previously confirmed by the trial court and incorporated into the second amended JOD. Defendant also contends that the trial court exceeded its authority by appointing a parenting-time coordinator to resolve parenting-time issues.

Defendant first argues that the trial court erroneously denied his request to reconsider some financial issues the parties previously submitted to in binding arbitration. Defendant contends that the Court remanded the case to the trial court to "decide all outstanding issues" including financial issues. We disagree.

A trial court is required "to comply with the pronouncements of an appellate court." Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003), certif. denied, 179, N.J. 310 (2004). Although a trial court may disagree with an appellate decision, "'the privilege does not extend to non-compliance.'" Id. at 233 (quoting Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961)). Simply stated, "trial [courts] are bound to follow the rulings and orders of [an appellate court]; they are not free to disregard them." Ibid.

Here, no evidence exists that the trial court disregarded the Supreme Court's remand by confining the remand hearing to issues of child custody and parenting time. Although the Court phrased its remand directive as one to "decide all outstanding issues," Fawzy, supra, 199 N.J. at 485, at the outset of its opinion, the Court noted "[a]t issue in this appeal is whether parties to a matrimonial action may agree to submit questions regarding child custody and parenting time to binding arbitration." Id. at 461. The Court also stated that it granted certification to determine "whether an arbitrator in a child-custody proceeding may also serve as a guardian ad litem in that proceeding." Id. at 467. Accordingly, we conclude that the trial court correctly construed the Court's remand directive as limited to child custody and parenting-time issues.

Additionally, we only addressed the issues of child custody and parenting time on appeal. We did not consider the trial court's determinations as to financial issues. Fawzy, supra, 400 N.J. Super. at 572. We "remanded for a plenary hearing on the custody and parenting[-]time issues" only. Ibid. Because defendant did not appeal from that part of the second-amended JOD incorporating the arbitrator's award resolving the parties' financial issues, that part of the second-amended JOD is final.

Defendant argues next that the trial court improvidently appointed a parenting-time coordinator and directed that the parties submit parenting-time issues to the coordinator. Defendant contends that the court erroneously failed to consider the preferences of the children as to which parent they desired to reside with and which schools they desired to attend. Because defendant failed to properly provide this court with the necessary record to consider the merits of defendant's arguments, we dismiss the balance of defendant's appeal "for flagrant violation of the rules governing appeals to this court." In re Zakhari, 330 N.J. Super. 493, 494 (App. Div. 2000).

As previously stated, the trial court's August 31, 2009 custody and parenting-time order was not supported by a statement of reasons. Upon ascertaining that the appendix, including the transcripts of the plenary hearing provided to this court, did not contain either an oral or written opinion supporting the trial court's order, the Appellate Division Clerk's Office contacted the trial court and ascertained that the trial court had placed reasons supporting its August 31, 2009 order on the record. On September 3, 2010, the Clerk's Office contacted defendant and directed him to obtain and file a copy of the transcript of the trial court's oral opinion. Defendant informed the Clerk's Office that he refused to do so.

Although we are generally hesitant to dismiss an appeal on procedural grounds, particularly one concerning child custody and parenting-time issues, we are satisfied that we have no alternative because of defendant's refusal to comply with the rules of procedure. Defendant's failure to properly prosecute the appeal by providing us with the transcript of the trial court's oral decision impedes us from properly reviewing the issues presented. Id. at 495. See also Pressler, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2010) ("[T]he Appellate Court may decline to address issues requiring review of those parts of the trial record not included in the appendix."). Moreover, based on the insufficient record, we find no basis to interfere with the trial court's decision.

Accordingly, because defendant failed to comply with the rules of appellate procedure by filing the transcript of the trial court's decision underpinning the August 31, 2009 order, R. 2:6-1(a)(1), we dismiss the balance of defendant's appeal.

R. 2:9-9.

Affirmed in part; and dismissed in part.


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