Johnson v. Johnson
9 A.3d 1003, 204 N.J. 529 (2010)
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Rule of Law:
The absence of a verbatim transcript in a child custody arbitration conducted under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA) is not fatal to judicial review, provided the arbitrator creates a sufficiently detailed record of all evidence considered, interviews, and findings of fact and conclusions of law, adequate to permit a meaningful review of any prima facie claim of harm to the child.
Facts:
- David Johnson and Molly V.G.B. Johnson were married on October 26, 1994, and had two daughters, Amelia (born Feb. 9, 2001) and Elsie (born Jan. 30, 2003).
- In May 2005, Ms. Johnson moved out of the marital home, and Mr. Johnson became the residential custodial parent.
- Their divorce was finalized on August 16, 2005, with a property settlement agreement outlining a joint legal custody arrangement and a detailed parenting schedule.
- Following the divorce, the parties experienced ongoing difficulties with the parenting schedule and consented to resolve these issues through arbitration, governed by the APDRA, explicitly agreeing there would be no verbatim transcript and that the arbitrator's detailed findings would constitute the record.
- The arbitrator, Dr. Mark White, conducted multiple interviews with Mr. Johnson, his new wife, Ms. Johnson, the children, and mental health professionals who had previously counseled the parties, and also observed the children in both home settings and reviewed school records.
- Mr. Johnson claimed Ms. Johnson was unreliable, frequently late, and unorganized, causing problems with transitions and routines; Ms. Johnson countered that Mr. Johnson was rigid, overly controlling, and failed to communicate.
- The arbitrator concluded that both parents were decent, well-intentioned, and non-pathological, but noted their differing parenting styles and the children's difficulty with frequent transitions, designing a new schedule to minimize conflict and disruption.
- The arbitrator's award included recommendations for Ms. Johnson to undergo a neuropsychological evaluation for Attention Deficit Hyperactivity Disorder and for Mr. Johnson to attend counseling for unresolved anger related to the divorce.
Procedural Posture:
- David Johnson and Molly V.G.B. Johnson divorced, and their final judgment of divorce incorporated a property settlement agreement regarding child custody and parenting time.
- Following difficulties with the parenting schedule, the parties consented to resolve these issues through arbitration under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), agreeing there would be no verbatim transcript.
- The arbitrator issued an award in April 2008, and Ms. Johnson filed a motion for reconsideration, which the arbitrator addressed with an eleven-point decision reaffirming his conclusions with some modifications.
- In July 2008, Ms. Johnson sought the arbitrator's removal based on an Appellate Division decision in Fawzy v. Fawzy that had questioned binding arbitration in custody matters.
- Mr. Johnson filed a motion to confirm the arbitrator's decision in the Family Division (trial court); Ms. Johnson filed a cross-motion requesting modification of the parenting time schedule or a plenary hearing.
- The Family Division judge (Judge Robert A. Coogan) confirmed the arbitrator's award, finding a sufficient record and no basis to question parental capacity.
- Ms. Johnson appealed the Family Division's decision to the Appellate Division (intermediate appellate court).
- The Appellate Division reversed the trial court's confirmation order and remanded the case for a plenary hearing, concluding that the procedural requirements set forth in Fawzy (specifically, a verbatim record) were not satisfied.
- Mr. Johnson’s petition for certification to the New Jersey Supreme Court was granted.
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Issue:
Does the absence of a verbatim transcript in a child custody arbitration conducted under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA) automatically preclude judicial review and confirmation of the award, even if the arbitrator produces a detailed record of proceedings, evidence, and findings?
Opinions:
Majority - Justice LONG
No, the absence of a verbatim transcript in a child custody arbitration under the APDRA does not automatically preclude judicial review, provided the arbitrator creates a sufficiently detailed record that permits meaningful review of any claimed harm to the child. The Court reversed the Appellate Division, clarifying that the procedural safeguards established in Fawzy v. Fawzy (requiring a record of evidence, verbatim testimony, and written findings/conclusions) were intended to ensure a basis for judicial review when harm to a child is claimed, applicable to all child custody arbitrations. However, Fawzy's purpose was to ensure an adequate record for review, not to mandate a verbatim transcript in every instance. In this case, the arbitrator produced a complete record of all evidence, a detailed recapitulation of interviews and observations, a full explanation of the award's underpinnings, and a separate opinion on reconsideration, which fully satisfied the spirit of Fawzy and constituted an acceptable substitute for a verbatim transcript. The Court emphasized that a verbatim transcript is not strictly necessary if the record, as a whole, is sufficient to allow a court to evaluate a claim of harm. The Court also found Ms. Johnson's claims of "harm" (disagreement with parenting style/schedule) to be insufficient to trigger substantive judicial review beyond the APDRA's standards, as she did not allege unfitness or a threat of actual harm as defined in Fawzy.
Concurring - Chief Justice RABNER
A justice has a fundamental duty to participate and vote in all matters before the Court, even if holding a contrary view on a settled legal issue. Chief Justice Rabner argued against Justice Rivera-Soto's abstention, asserting that respect for precedent (stare decisis) and the fundamental duty to sit and vote (unless disqualified for an actual conflict) are core tenets of the judicial system. He cited Flomerfelt v. Cardiello and Justice Rehnquist in Laird v. Tatum to support the duty to sit where not disqualified. He stated that abstaining due to disagreement with a majority ruling on a legal question (referencing Henry v. New Jersey Department of Human Services) is improper and undermines the rule of law.
Concurring - Justice ALBIN
A Justice must respect the will of the majority and fulfill their constitutional duties by voting on matters before the Court, even if disagreeing with a prior ruling on a constitutional question related to court composition. Justice Albin echoed Chief Justice Rabner's points, criticizing Justice Rivera-Soto's abstention as creating an "artificially created crisis" that undermines the Chief Justice's authority and reduces the court to six members. He argued that the Chief Justice's temporary assignment power is consistent with the New Jersey Constitution and long-accepted custom, and that prior Justices also made such assignments. He stressed that a Justice should not politicize judicial decisions or defy a majority ruling, and that adherence to the rule of law requires participation and voting.
Abstaining - Justice RIVERA-SOTO
Justice Rivera-Soto abstained from voting in this case because he believed the Court, as temporarily constituted with an Appellate Division Judge selected unilaterally by the Chief Justice, was unconstitutional and its acts were ultra vires. Justice Rivera-Soto reiterated his position from Henry v. New Jersey Department of Human Services, arguing that the temporary assignment of a judge to the Supreme Court, when not necessary to meet a quorum or due to a Justice's long-term unavailability from illness/accident, is unconstitutional, especially when it arises from a "political stalemate." He rejected the idea that stare decisis compels adherence to a mistaken path, citing Pinto v. Spectrum, Chems. & Lab. Prods. and Chief Justice Vanderbilt's dissent in Fox v. Snow. He also distinguished his abstention from Justice Blackmun's dissents in death penalty cases, emphasizing that he participates fully in arguments and explains his views, but the vote is a uniquely personal decision immune from other justices' views. He cited his consistent abstention on recall of judges over 70 as an example of adhering to clear constitutional mandates over arbitrary court-made rules.
Analysis:
This case clarifies the New Jersey Supreme Court's Fawzy requirements for judicial review of child custody arbitration awards, particularly under the APDRA. It emphasizes that while a record is essential for "harm" review, a verbatim transcript is not always mandatory if the arbitrator's detailed findings and evidence create an equally robust record. This prevents automatic remands based solely on the absence of a transcript, promoting efficiency in dispute resolution while upholding the court's parens patriae duty. It also reinforces the high bar for proving "harm" sufficient to trigger substantive judicial intervention beyond the agreed-upon arbitration process, distinguishing mere disagreement with parenting style from actual threats to a child's well-being.
