On certification to the Superior Court, Appellate Division, whose opinion is reported at 411 N.J. Super. 161 (2009).
The opinion of the court was delivered by: Long, J.,
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 28, 2010 --
LONG, J., writing for the Court.
The issue in this appeal is whether the record created by the arbitrator is adequate for judicial review under this Court's opinion in Fawzy v. Fawzy, 199 N.J. 456 (2009), which set forth the prerequisites for an enforceable arbitration agreement and the methodology by which an arbitration award in the child custody setting may be judicially reviewed.
The parties were married on October 26, 1994 and were divorced on August 16, 2005. Two children were born during the marriage: Amelia, on February 9, 2001, and Elsie, on January 30, 2003. The couple separated in May 2005, and Ms. Johnson elected to move out of the marital home and ceded residential custody of the children to Mr. Johnson. From May 2005 until November 2005, Ms. Johnson spent parenting time at the marital residence. When she purchased her current home, the children began to spend time with her there.
The divorce judgment incorporated a property settlement agreement, which provided that the parents would share joint legal custody and that Mr. Johnson would continue as residential custodial parent. According to an informal parenting schedule, the girls would spend Sunday, Monday and Wednesday overnights with Mr. Johnson; Tuesday and Thursday overnights with Ms. Johnson; and alternate weekends, which ran from Friday evening to Sunday evening. Holidays were alternated and each party had one week of vacation with the children per year.
Following the divorce, the parties encountered difficulties with the parenting schedule and thereafter consented to resolving those issues in arbitration. Pursuant to a consent order, the parties chose to be governed by the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -19. The agreement was extremely thorough and detailed the parties' expectations about how the case was to be conducted. The agreement vested the arbitrator with the duty to make findings of fact and legal determinations, specified that there would be no transcript, and stated that the arbitrator's detailed findings would constitute the record.
As anticipated by the agreement, over the course of several months, the arbitrator conducted interviews with various individuals, including multiple interviews with Mr. and Ms. Johnson, Mr. Johnson's new wife, both children, a psychologist, and a clinical social worker who had previously counseled the parties. In April 2008, the arbitrator issued his award. The arbitrator recounted the substance of every interview and observation he undertook, including a particularized recitation to the parties' claims about their different approaches to parenting. Mr. Johnson, who remains angry over the divorce, contends that Ms. Johnson is unreliable and frequently late and tends to drop off the children without remembering to bring their things. Ms. Johnson countered that her former husband is rigid and has overscheduled the children with activities that interfere with her parenting time. The arbitrator reported the psychologist's conclusion that the parties are opposite in nature, with Ms. Johnson being "artsy, come-a-day, go-a-day," and Mr. Johnson "structured, highly organized, logical and linear." Yet, the psychologist expressed that she had no concern about either party's parenting abilities, though Ms. Johnson's organization could be improved upon. The arbitrator also detailed the results of his consultation with the social worker, who noted the obvious stylistic differences between the parties and found no basis to question their parental capacity.
The arbitrator concluded that both parties are decent, well-intentioned, non-pathological parents and that the children are positively developing in their care. The arbitrator stated that Ms. Johnson needed to accept responsibility for leaving the marriage and for her lackadaisical approach, and that Mr. Johnson needed to confront and resolve his anger towards Ms. Johnson over the divorce. In addition, the arbitrator reasoned that the children were too young to experience so many transitions, particularly in light of the tension between their parents and the dissimilarity of the home cultures. The arbitrator therefore crafted a scheduling calendar that increased the amount of uninterrupted weekly time the children spent with Mr. Johnson, but extended the weekend and holiday time spent with Ms. Johnson. In addition, the arbitrator referred Ms. Johnson to a neuropsychologist for an evaluation for Attention Deficit Hyperactivity Disorder based on her time management and attention difficulties, and referred Mr. Johnson to counseling for his unresolved emotions related to the divorce. Addressing Ms. Johnson's concern that the children were overly programmed, the arbitrator limited them to one scheduled activity in a given season.
Ms. Johnson filed a motion for reconsideration of the entire decision or clarification of the extent of her vacation time. The gravamen of the motion was that she did not feel as though her viewpoints and concerns were considered. In response, the arbitrator prepared an eleven-point decision in which he reaffirmed his conclusions. As an addendum, the arbitrator delayed implementation of the new schedule from the original decision until after the end of the current school year.
In July 2008, Ms. Johnson sought the arbitrator's removal based on the Appellate Division's decision in Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div. 2008), which held that parties cannot agree to binding arbitration in a custody matter. Mr. Johnson filed a motion to confirm the arbitrator's decision. After a hearing, the trial judge confirmed the arbitrator's award. Ms. Johnson appealed. Meanwhile, this Court issued its opinion in Fawzy v. Fawzy, 199 N.J. 456 (2009). The appellate panel in this case reversed the trial court decision based on Fawzy. The panel concluded that because there was no verbatim record of testimony, the trial court had no basis on which to evaluate the threat of harm to the children. This Court granted Mr. Johnson's petition for certification.
HELD: The principles established in Fawzy were intended to be applicable to all child custody arbitrations, including those conducted under the Alternative Procedure for Dispute Resolution Act. The record created by the arbitrator in this matter, which included a recitation of all evidence considered, a recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion on reconsideration, satisfies the spirit of Fawzy and is an acceptable substitute for a verbatim transcript.
1. In Fawzy the Court recognized the benefits of arbitration in the family law setting and, in particular, the potential to minimize the harmful effects of divorce litigation on both children and parents. In so ruling, the Court reaffirmed the constitutional right to parental autonomy in child-rearing. At the same time, the Court recognized that the right of parents to the care and custody of their children is not absolute, and the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child. Where no harm to the child is threatened, there is no justification for the infringement on the parents' choice to be bound by the arbitrator's decision. The Court then outlined the procedures required in the arbitration to ensure that there is an adequate record to permit judicial evaluation of the threat of harm to a child. (pp. 16-22)
2. The Procedures this Court put in place in Fawzy to assure an adequate record against which to test a child custody arbitration award are applicable to all child custody arbitrations, whether conducted under the Arbitration Act, the APDRA, or some other agreed-upon methodology. The parents' constitutional right to decide how to resolve their child-rearing disputes must give way to our constitutional duty to protect children from harm. Where a prima facie claim of harm is advanced, a courts' substantive review is compelled. That review can only take place on a full record. That is the principle of Fawzy and it is applicable regardless of the statute under which the arbitration is conducted. (pp.22-23 3. Here, the arbitrator did exactly what was anticipated by the parties and, in accordance with the provisions of the APDRA, created a full record of what transpired. He gave a complete recitation of what the parties told him and what he heard and saw during his observations. His opinions, both on the original award and on reconsideration, were painstakingly detailed. The Court has no reservation in declaring the record created by the arbitrator here as adequate to review the award. Obviously a verbatim transcript of a trial-type hearing will satisfy Fawzy, assuming the other requirements are met. However, where, as here, the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription. (pp. 23-24)
4. The Court agrees with Mr. Johnson that Ms. Johnson's claim of harm is insufficient to tee up the issue of entitlement to judicial review. As the Court stated in Fawzy, the threat of harm is a significantly higher burden than a best-interest analysis. Here, neither party raised any real claim of unfitness. The issue was always parenting style, not capacity, and the arbitrator's commission was to create a schedule that would minimize conflicts and problems in the face of such differential parenting styles. The new schedule was nothing more than a tweaking of an agreed- upon parenting time schedule to minimize disruption for the children. That does not begin to approach a showing of harm sufficient to warrant judicial inquiry. (pp. 25-26)
The judgment of the Appellate Division is REVERSED and the order of the trial judge confirming the arbitration award is REINSTATED.
CHIEF JUSTICE RABNER has filed a separate concurring opinion, in which JUSTICES LONG, LaVECCHIA, and ALBIN join, expressing the view that the holding of this Court in Henry v. Department of Human Services, N.J. (2010), also decided today, has settled the question whether the temporary appointment of a Superior Court judge to the Supreme Court is constitutional, and that a Justice should not abstain from voting in this appeal based on an interpretation of the New Jersey Constitution that differs from that holding.
JUSTICE ALBIN has filed a separate concurring opinion, in which JUSTICES LONG and LaVECCHIA join, expressing the view that although a Supreme Court Justice may disagree with the Court's decision that the Constitution authorizes the Chief Justice to appoint a Superior Court judge to serve temporarily on the Supreme Court, a Justice may not defy the Court's holding on that issue.
JUSTICE RIVERA-SOTO has filed a separate opinion abstaining, for the reasons expressed in his abstaining opinion filed in Henry v. Department of Human Services, N.J. (2010), namely, that the Court as presently constituted is unconstitutional and its acts are ultra vires.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and HOENS, and JUDGE STERN (temporarily assigned) join in JUSTICE LONG's opinion. CHIEF JUSTICE RABNER has filed a separate concurring opinion, in which JUSTICES LONG, LaVECCHIA, and ALBIN join. JUSTICE ALBIN has filed a separate concurring opinion, in which JUSTICES LONG and LaVECCHIA join. JUSTICE RIVERASOTO has filed a separate opinion abstaining.
DAVID JOHNSON, Plaintiff-Appellant, v. MOLLY V.G.B. JOHNSON, Defendant-Respondent.
Argued September 28, 2010 -- Decided December 10, 2010
JUSTICE LONG delivered the opinion of the Court.
Recently, in Fawzy v. Fawzy, 199 N.J. 456 (2009), we held that the constitutional guarantee of parental autonomy includes the right of parents to choose arbitration as the forum in which to resolve their disputes over child custody and parenting time. Id. at 461-62. In that case, we set forth the prerequisites for an enforceable arbitration agreement and the methodology by which an arbitration award in the child custody setting may be judicially reviewed. Ibid. In Fawzy, which was decided under New Jersey's version of the Uniform Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -32, we declared, in recognition of our parens patriae authority, that in addition to the remedies provided in the Arbitration Act, an arbitrator's award is subject to judicial review if a party establishes that the award threatens harm to a child. Fawzy, supra, 199 N.J. at 478-79. To ensure a basis on which to evaluate a claim of harm, we required that a record of all documentary evidence be kept; testimony be recorded verbatim; and that an award, including findings of fact and conclusions of law, issue. Id. at 480-81.
The case before us was not decided under the Arbitration Act, but under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -19, which conforms in many respects to the procedures we set forth in Fawzy. The trial judge ruled that the record was adequate for review and confirmed the arbitration award. However, because of the absence of a verbatim transcript, the Appellate Division reversed the trial judge's confirmation order and remanded the matter for a plenary hearing. Johnson v. Johnson, 411 N.J. Super. 161, 174-76 (App. Div. 2009).
We now reverse. Although we agree with the Appellate Division that the principles established in Fawzy were intended to be applicable across the board to all child custody arbitrations, we believe that the absence of a verbatim transcript was not fatal in this case. The purpose behind Fawzy's procedural safeguards was to assure a basis upon which meaningful judicial review of an arbitration award can occur in a case in which harm to a child is claimed. What Fawzy requires is the existence of an arbitration record against which the claim can be tested. That is so whether the arbitration is conducted under the Arbitration Act, APDRA, or under specific procedures agreed upon by the parties.
In this case, the arbitrator produced a complete record of all evidence he considered, a detailed recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion on reconsideration. That satisfies the spirit of Fawzy and constitutes an acceptable substitute for a verbatim transcript.
The case arose as follows: David Johnson and Molly V. G. B. Johnson were married on October 26, 1994, and divorced on August 16, 2005. Two children were born during the marriage: Amelia, on February 9, 2001, and Elsie, on January 30, 2003. In May 2005, the couple separated; Ms. Johnson elected to move out of the marital home and ceded residential custody of the children to Mr. Johnson. From May 2005 until November 2005, Ms. Johnson spent parenting time at the marital residence while she lived in an apartment with roommates. When she purchased her current home, the children began to spend time with her there.
The final judgment of divorce incorporated a May 24, 2005, property settlement agreement, which provided that the parties would share joint legal custody of the children and that Mr. Johnson would continue as the residential custodial parent. According to the informal parenting schedule the parties agreed on, Mr. Johnson had the children from Sunday evening to Tuesday evening (5:30 p.m.); Wednesday evening to after school Thursday; and alternate weekends from Friday evening until Sunday evening. Ms. Johnson had the children from Tuesday evening until Wednesday evening (5:30 p.m.); Thursday after school until Friday evening (5:30 p.m.); and alternate weekends from Friday evening until Sunday evening. Holidays were alternated and each party had one week of vacation with the children per year.
Following the divorce, the parties encountered difficulties with the parenting schedule and thereafter consented to resolving those issues in arbitration. Pursuant to a consent order, the parties chose to be governed by the APDRA. Their agreement was extremely thorough and explained what the parties viewed as the issue and how they intended the APDRA to operate. The agreement began by identifying the issue:
1A] The parties are the parents of AMELIA JOHNSON, age six, and ELSIE JOHNSON age four. For several years [they] have experienced on-going difficulties in resolving differing parenting approaches and Parenting Time Schedules that will advance their children's best interests.
The agreement went on to detail the parties' expectations regarding how the case was to be conducted:
1B] To resolve parenting differences and Parenting Time scheduling issue[s] in futuro, the parties have agreed to utilize the Arbitration services of MARK WHITE, Ph.D. It is not the intent of the parties and recognized and acknowledged that Dr. WHITE shall not provide any therapeutic or other psychological services in this case; as serving in this dual role would place Dr. WHITE in a conflict situation. Rather it is envisaged that Dr. WHITE shall initially meet with the parties and counsel; and thereafter meet with both parties on one or more occasions as he shall deem necessary in his sole discretion. Dr. WHITE shall receive position papers of the parties which may be prepared with the assistance of and prepared by their attorneys. The position papers may include examples of the difficulties the parties have faced, citing examples, findings of facts that are requested to be made by Dr. WHITE, as well as [the] law of the State of New Jersey applicable to such facts. Dr. WHITE will observe the children in the presence of the parents. With this input and without the necessity of taking formal testimony of the parties in the presence of their attorneys, it is anticipated that Dr. WHITE will have sufficient information to craft a decision intend[ed] to resolve the parenting issues and scheduling issues that currently [exist]. It is not envisaged that Dr. WHITE will require formal Arbitration in the presence of both parties and counsel to make findings of fact in this case; although he shall have the power and authority to do so, in his sound discretion. It is required that Dr. WHITE create a scheduling calendar, with the intent of limiting future parenting schedule controversy to a minimum. The fact that testimony of the parties in each other's presence and counsel's presence was not adduced by the Arbitrator/Umpire shall not constitute a good cause grounds for reversing the Arbitration Award.
In addition, the agreement vested the arbitrator with the duty to make findings of relevant material facts and legal determinations; provided that the arbitrator would make an award on all submitted issues in accordance with applicable principles of New Jersey substantive law, as required by N.J.S.A. 2A:23A-12(e); afforded a right to file a motion for reconsideration of the award and for modification, pursuant to N.J.S.A. 2A:23A-12(d); limited the parties' right to appeal to the issue of whether the arbitrator properly applied the law to the factual findings and issues presented for resolution; and specified that there would be no transcript of proceedings and that the detailed findings of the arbitrator would constitute the record, as supplemented by the written certified statements submitted by the parties prior to arbitration. The agreement was explicit that testimony outside a party's or counsel's presence would not constitute good cause grounds for reversing any award. Finally, the parties waived their rights to a trial on the merits and preserved the right to appeal the award within the constraints of the APDRA.
As anticipated by the agreement, over the course of several months the arbitrator conducted various interviews, including those with Mr. Johnson (multiple), his new wife, Sara Johnson, Ms. Johnson (multiple), Amelia and Elsie, a psychologist (Dr. Sandra Sessa), and a clinical social worker (Ms. Cheryl Daniel) who had previously counseled the parties. In addition, he observed the children in both home settings and reviewed their school records.
In April 2008, the arbitrator issued his award. At the outset, he detailed the parties' proposals, which were not vastly different from what was in effect at the time:
Proposal of Mr. Johnson The children would be at the home of Mr. Johnson Sunday night through Friday afternoon, and every other weekend. Alternation of parenting time during the two extended winter and spring breaks from school. Alternation of holidays. One week vacation with each parent. Sunday evening overnights with Ms. Johnson before all Monday holidays when the children are off from school. Children to be returned by noon Monday. Dinner with Ms. Johnson one night during the week, to be scheduled "based upon the best arrangement factoring everyone's schedule."
Proposal of Ms. Johnson The weekend the children are with Ms. Johnson should be extended to include Sunday overnights, and then drop off at schools Monday mornings. Scheduling of activities for the children only upon mutual consent of both parents. Pick up of the children from schools on Thursdays.
The arbitrator then recounted the substance of every interview and observation he undertook, including a particularized recitation of the parties' claims about their different approaches to parenting and the problems with scheduling transitions. Mr. Johnson, who remains angry at his former wife over the divorce, contended that she is unreliable and frequently late picking up the children; that she tends to drop the children off without remembering to bring their things; that the children are not dressed and ready when he picks them up or when their mother drops them off; that they are not ready for school on mornings after they stay with their mother; that they eat snacks at her house before dinner at his house; that Ms. Johnson creates emotionally dramatic transfers; that she is routinely five to ten minutes late; that she is more than ten minutes late almost twenty percent of the time; and that she has issues with boundaries (for example, she allows the girls to sleep with her) that cause problems in his home. The interview with Mr. Johnson's new wife, Sara Johnson, supported Mr. Johnson's claims regarding Ms. Johnson's unreliability.
Ms. Johnson countered that her former husband is rigid; has excessive control over the children's schedules; arranges activities during her parenting time; and that he has otherwise decreased the amount of time the children spend with her. She further claimed that he over schedules the children (e.g., dance, violin, swimming, T-ball, soccer), and that there is poor communication between the parties in that Mr. Johnson fails to convey essential information to her and verbally attacks her when the subject of increased parenting time comes up.
Ms. Johnson also contended that she had made the children late only a few times in two years; that the children benefit from the less structured, more creative environment at her home; that Mr. Johnson does not give her open phone access to the children; and that he does not consult her on scheduled activities. Following that interview, Ms. Johnson sent the arbitrator a long letter reiterating all of her concerns, in particular, that her former husband's actions have the effect of "marginalizing" her. The arbitrator recounted the contents of the letter in his decision.
The home visits, according to the arbitrator, were uneventful -- with both homes, though very different, fully appropriate for the girls. The arbitrator perceived the girls as well-adjusted, but affected by the parenting conflicts and the amount of moving around required.
The arbitrator reported Dr. Sessa's conclusion that the parties are opposite in nature, Ms. Johnson -- "artsy, come-aday, go-a-day" -- and Mr. Johnson -- "structured, highly organized, logical and linear." Yet, the psychologist expressed that she had no concern about either party's parenting abilities, though Ms. Johnson's organization could be improved upon. The psychologist did note significant animosity between the parties.
The arbitrator also detailed the results of his consultation with Ms. Daniel who had seen the parties several times in 2006. Like the psychologist, she noted the obvious stylistic differences between the parties and Mr. Johnson's continuing emotional response to the divorce. Despite Mr. Johnson's efforts to the contrary, she likewise found no basis to question Ms. Johnson's parental capacity. The arbitrator recapitulated the children's scholastic records from the 2007-2008 school year, which revealed that Amelia was tardy on six days, all of which followed overnights with her mother.
The arbitrator concluded that both parties are decent, well-intentioned, non-pathological parents and that the children are positively developing in their care. He proceeded to evaluate the case in terms of how the parties' behavior imposed on their daughters' experiences. He noted that it was his "fervent hope" that his involvement would "result in the prevention of escalation of the family system factors that could elevate the probability of [the girls] developing psychological symptoms later in their childhoods."
To accomplish that goal, the arbitrator stated that Ms. Johnson needed to accept responsibility for leaving the marriage and for her lackadaisical approach, evidenced by her tardiness and inefficiency which prevented a "more robust co-parenting alliance," and that Mr. Johnson needed to confront and resolve his anger towards Ms. Johnson over the divorce. In addition, the arbitrator reasoned that the children were too young to experience so many transitions, particularly in light of the "intrinsic tension" between their parents and the "dissimilarity of the home cultures." Accordingly, he set forth a decision "[i]n the hope that both parties will accept [the provisions] in the child-protective spirit in which they are offered."
With a view toward carrying out what the parties had commissioned him to do -- "create a scheduling calendar, with the intent of limiting future parenting schedule controversy to a minimum," the arbitrator increased the amount of uninterrupted weekly time the children spent with Mr. Johnson, but extended the weekend and holiday time spent with Ms. Johnson. Specifically, the arbitrator expanded Ms. Johnson's weekends with the children to Sunday overnights and limited her weekday overnights to Wednesdays only. He compensated for the time that the girls lost with their mother by providing her with a majority of three-day, four-overnight weekends and additional time during school vacations.
In addition, he referred Ms. Johnson to a neuropsychologist for an evaluation for Attention Deficit Hyperactivity Disorder based upon her "time management and attentional difficulties." He also referred Mr. Johnson to counseling for his unresolved emotions related to the divorce. Specifically addressing Ms. Johnson's concern that the children were overly programmed, the arbitrator limited them to one scheduled activity in a given season.
The award left open Ms. Johnson's request for expanded time with the children to be reconsidered after she had undergone her evaluation and demonstrated that Amelia could attend school for three consecutive months without receiving a tardy notice. The decision also permitted future meetings between the arbitrator ...