Mediation/Arbitration

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In the recent unpublished (non-precedential) decision of Mathurin v. Matrhurin, the Appellate Division again confirmed that (1) agreements reached in mediation are not binding unless the terms are reduced to a  writing signed by the parties and, ostensibly, their attorneys if present, and (2) absent such a writing, the court cannot consider discussions, unsigned agreements or memoranda from mediation or other settlement negotiations because such writings/discussions are confidential by virtue of the Rules of Evidence that provide privilege to settlement negotiations.  It therefore follows that such confidential writings and/or oral communications cannot be relied upon to convince a court that an agreement was reached in mediation.

The post-divorce litigation in Mathurin arose when Plaintiff/ex-husband filed a motion to enforce the Marital Settlement Agreement (“MSA”) in order to compel Defendant/ex-wife to accept the offer for sale of the marital residence.  The parties agreed to sell the home within the MSA, but after they received this offer, Defendant proposed to buyout Plaintiff’s interest in the home for the same amount.  Plaintiff did not accept this alternative resolution.  Two other enforcement applications followed – one dismissed for procedural issues and the other denied without prejudice (meaning it can be refiled) pending the parties attending mediation because the MSA had a mediation clause that requires the parties to seek such intervention before filing an application with the Court.  The mediation session that followed gave rise to this appeal.

The mediator prepared and signed a Memorandum of Understanding (MOU) listing the terms reached in mediation and further stating the parties’ agreement that the MOU reflects an enforceable settlement reached between the parties.  Plaintiff reneged on the terms in the MOU because of credits sought by Defendant that he found objectionable, and he refused to sign a formal agreement that his attorney prepared incorporating the terms of the MOU.  Plaintiff fired his attorney and filed another motion to enforce the MSA.  Defendant filed a cross application to enforce the MOU to which she attached the MOU and signed certifications from herself and both parties’ counsel wherein those parties disclosed the contents of mediation. Ultimately, the trial court found that it cannot consider the MOU and/or the certifications because they are confidential settlement documents, and that the MOU was not binding.  The Appellate Division affirmed, finding that the MOU and certifications represent confidential settlement material and that the MOU is not binding because it was not signed by the parties or counsel.

The Appellate Division cited to a New Jersey Supreme Court case, Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 245 (2013), confirming that the all agreements reached in mediation must be reduced to a signed written agreement and that mediation discussions cannot be relied upon to prove an agreement was reached unless the parties waive the mediation privilege.  The Appellate Division differentiated this case from a 2017 decision, GMAC Mortg., LLC v. Willoughby, 230 N.J. 172 (2017), because in that case the writing was signed by the parties’ attorneys.  Although those cases are not family law matters, the same principals apply to all settlement discussions.

This issue here is one that attorneys and litigants face in mediation all to often – was an agreement reached just because there seemed to have been a meeting of the minds?  The simple answer is no.  Although we do not suggest, nor would we propose, rushing into signing an agreement, if a party in mediation wishes to make sure that the agreement reached in the session is binding, then the terms must be in writing and signed by both parties, as well as counsel if present.  This does not have to be formal – a piece of paper with handwritten terms will suffice – but there is no question that written terms and signatures are required.  At minimum, terms can be memorialized in an MOU but as we all now know, the MOU is not binding.  What may result then is a Harrington hearing, which you can read about in this post: https://njfamilylaw.foxrothschild.com/2014/03/articles/mediation-arbitration/harrington-is-still-alive/

Oftentimes in mediation, the mediator explains at the outset that nothing reached in their session will represent a final agreement unless the terms are reduced to writing and signed by those present (i.e.: parties/parties and counsel).  This is a common instruction, presumably in an effort to avoid a future Harrington situation, and one that I find beneficial so that everyone in the room is starting out on the same proverbial page.

The takeaway – it’s not over until it’s signed, sealed and delivered!

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

In a new, published (precedential) decision, J.G. v. J.H.,  Judge Koblitz, of the Appellate Division confirmed and explicitly held what we all should have known before:  No matter what type of case, the same rules apply with respect to discovery and investigation, and the trial court judge is under the same obligation to apply the legal standard resulting in a decision that is in the best interests of the child.

FD Docket versus FM Docket

It sounds obvious:  the welfare of all children should be determined using the same standards and practices.  Child custody and parenting time determinations are made under either one of two case or “docket” types.  The FM docket type refers to divorce cases; obviously, oftentimes a child custody decision is made incident to a divorce.

When a child custody or parenting time issue arises between unmarried parents (or, more uncommonly, married parents who have not yet filed for divorce), these are handled under the FD or “Non-Dissolution” (i.e. a marriage is not being “dissolved”) docket.  These types of cases are known as “summary proceedings,” meaning that they are to be handled much more quickly than divorce cases.  While divorce cases are automatically assigned timeframes for exchanging information and appointing experts if needed, this is not automatically done in FD cases and if you want discovery or experts, you have to request it.

As a result, in practice, many judges are tasked with and face the pressure to move FD cases along quickly.  Unfortunately, in the J.G. v. J.H. case, and perhaps in many others like it, this led to a very important decision about a child’s custody and welfare being made quickly without taking the proper steps to investigate the best interests of the child that would have occurred in due course in a divorce case.  In this important decision, the Appellate Division reminds us that bona fide disputes in child custody cases must not be treated differently just because they may arise in different case types.

The Facts of J.H. v. J.G.

In J.H. v. J.G., although there was no court order establishing same, the parties essentially shared joint legal custody of the minor child, with the mother designated the parent of primary residence and the father the parent of alternate residence with liberal parenting time.  When the mother began dating someone else, the father alleged that this new romantic partner posted a threat to the safety of the child, and came to court requesting sole custody.  The Court temporarily awarded the father sole custody.  When the mother challenged this, the Court entered a permanent change in the parenting schedule, making the father the parent of primary residence and significantly reducing the mother’s parenting time.  The judge made each of these decisions without investigation, and gave the parties no opportunity to resolve their differences amicably.  The judge did not allow for discovery (even though the mother’s attorney requested it), did not allow the mother’s attorney to meaningfully participate in the proceedings; nor did the judge conduct a hearing despite the the fact that the parties’ claims were completely contradictory.

Requirements for ALL Custody Disputes

Thus, the Appellate Division affirmed that the following requirements must be adhered to in ALL custody disputes, no matter the docket type:

Pre-Hearing Requirements

  • Pursuant to Rules 1:40-5 and 5:8-1, parties must attend Custody and Parenting Time Mediation prior to a trial.
  • If parties are unable to resolve the issues in mediation, they must submit a Custody and Parenting Time Plan to the Court, pursuant to Rule 5:8-5(a) and the case Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).
  • Where there is “conflicting information regarding which parent can serve the long term best interest of the child,” but there is no issue as to the psychological fitness of either parent, the Luedtke case requires that a Social Investigation Report should be completed.
  • In FD cases, if a party requests that the matter be placed on the “complex” case management track, the court can in its discretion grant this request under Major v. Maguire, 224 N.J. 1, 24 (2016), a case on which I have written in the past.  Absent a clear reason to deny such a request, it should be granted.
  • Pursuant to Rule 5:8-1, an investigative report should have been prepared by court staff before any custody determination is made.

Required Plenary Hearing

In all contested custody matters, a thorough plenary hearing is required where parents make materially conflicting representations of fact, pursuant to K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014) and many other cases.  The plenary hearing must afford both parties the opportunity to present witnesses and to cross-examine the other party’s witnesses, and parties and counsel must have a meaningful opportunity to participate.

Requisite Fact-Findings and Reasons for Award

Judges must explicitly make findings of fact and apply those facts to the custody factors set forth in N.J.S.A. 9:2-4(c), which are:

  • the parents’ ability to agree, communicate and cooperate in matters relating to the child;
  • the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  • the interaction and relationship of the child with its parents and siblings;
  • the history of domestic violence, if any;
  • the safety of the child and the safety of either parent from physical abuse by the other parent;
  • the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  • the needs of the child;
  • the stability of the home environment offered;
  • the quality and continuity of the child’s education;
  • the fitness of the parents;
  • the geographical proximity of the parents’ homes;
  • the extent and quality of the time spent with the child prior to or subsequent to the separation;
  • the parents’ employment responsibilities;
  • the age and number of the children; and
  • a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

Without specifically addressing each and every one of the above factors after listening to the facts presented by both parties and assessing credibility, a court cannot make a determination as to what is in the child’s best interests.

Of course, ALL children and parents deserve this type of extensive inquiry into their welfare and the parent-child relationship – but thankfully this case makes it official and provides additional precedent for overruling or remanding trial court decisions made in haste, without the requisite inquiry.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Last week, I blogged about whether you should settle your retirement alimony case and the ingredients that might go into that decision. To be honest, this “why you should or should not settle” question is only the beginning of what you might be facing when you decide it is time to retire and terminate your alimony obligations. There is, of course, also the “where/when/how” of all of it. And that’s quite a nebulous concept if you’re only now beginning to think about your “whys” and whether or not you should even broach the topic. Below, I’ll give you a run-down of the possible scenarios that will at least address the “wheres” and “whens” of your journey.

In my experience, there are several possible ways in which alimony cases resolve: (1) Immediate settlement; (2) settlement following a motion; and (3) a full Court hearing wherein a judge makes a decision as to your continued alimony obligation. Examining each scenario will allow you to put the concept of “settlement” into the context of your particular situation.

(1)         Immediate Settlement: This is the path of least conflict and resistance if your spouse accepts your offer with an eye toward a termination of support. This will, more often than not, begin with a “feeler” letter to your former spouse. The letter may indicate that you are retiring, the date of your proposed retirement, provide some detail as to your financial circumstances, and ask if a termination of alimony would even be considered. Sometimes, the former spouses may negotiate directly with one another, with guidance from an experienced matrimonial attorney throughout.

If successful, this is the most cost-effective and low conflict resolution. The specifics of any settlement would be memorialized in an Agreement and simply filed with the Court, at which point, it would become an enforceable document.

But don’t be mistaken. This path is not for everyone. If you went through a very high conflict divorce, or know you’re dealing with an unreasonable ex-spouse, you may want to skip this step entirely. In the alternative, you may write a letter and the concept of termination may be rejected immediately.

If settlement at this early stage is not successful for whatever reason, you may decide to pursue litigation. That would bring us to scenarios 2 & 3, described below.

(2)         Filing a Motion: To provide some background, when someone paying alimony experiences a change in circumstances (including retirement, other reduction in income, or they believe their spouse is cohabiting etc.), you file what is known as a “Motion”, which is a formal application to the Court. You would be required to submit your current Case Information Statement, Case Information Statement from the time of your divorce, tax returns and a narrative of events leading up to your motion and describing your circumstances along with the motion.

You further file a legal brief describing the case law, including Lepis v. Lepis, which is the seminal support modification case in the state of New Jersey. Under Lepis, an alimony payor is required to file a Motion and establish what is known as a prima facie change in circumstances. A prima facie showing is simply an initial showing (on its face) that demonstrates that circumstances have permanently and significantly changed such that alimony may ultimately be modified.

Several weeks later, you would proceed to Court. This is a formal court proceeding, with oral argument from counsel, but not testimony of the parties, no formal introduction of evidence, etc. In other words, it is not at the point where the Court would conduct a full trial yet based on what has been submitted.

The Court would then review everything and determine if you meet the burden of a prima facie showing. The Court will then move you past what we call “Lepis 1”, or the initial prima facie showing, and enter an order as to whether you should move to a “Lepis 2” analysis – i.e. whether the change is substantial, continuing and permanent. As part of this analysis, the Court may also consider whether there is sufficient reason to award counsel fees to either party in connection with the motion. Because a supported spouse’s financial circumstances may be more precarious than yours, the Court may be inclined to grant counsel fees to equalize the playing field or to provide her an advance for litigation.

During the discovery phase, you are permitted to do a full examination of the other party’s finances to try and substantiate your claim. This includes written discovery, depositions, subpoenas, etc.

Typically following or during discovery and related proceedings the matter may settle. The parties have exchanged the majority of their discovery and the payee spouse, at some point, realizes alimony will end and that some concessions will need to be made. At that point, the parties will come to the table, make a settlement offer which is negotiated or reach a resolution through mediation (sometimes the Court will order the parties to go to mediation).

(3)         Court Hearing:  The matter can sometimes move toward a more contentious conclusion via a court hearing. In that regard, if all possibilities for settlement are expended and the parties have passed the discovery phase, the matter proceeds to a hearing, and the Court will hear testimony, consider evidence and make a determination based on everything before it. It is akin to a trial.

Keep in mind that neither party is obligated to agree to an out of court settlement. But as you can see, settlement at the early stages of the games provides finality without having to subject yourself to the time and effort of full-blown litigation. You also would avoid the counsel fees that go in to the discovery and litigation phases. Of course, having counsel on your side with experience in retirement alimony case will help you reach a conclusion on your terms.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

When can a litigant appeal an arbitration award? In the recent decision of K.V.H. v. W.S.H., the New Jersey Appellate Division clarified the procedures by which a party, dissatisfied by the decisions rendered by an arbitrator, can challenge those awards.

In this matter, the defendant appealed from certain provisions of a series of arbitration awards which were incorporated into a dual final judgment of divorce.  After over two years of contentious divorce litigation, the parties entered into an arbitration agreement and mediation agreement to try to more efficiently resolve the issues in their divorce. The arbitration agreement specifically provided that it was governed by the New Jersey Arbitration Act, N.J.S.A. 2A23B-1 to -32.

The parties selected a retired Superior Court judge to serve in the dual role as mediator/arbitrator.  After resolving certain issues through mediation, the parties executed a binding mediation agreement and proceeded to arbitration. Two arbitration awards, addressing substantive issues and fees as well as a resolution of disposition of personal property, were memorialized in writing by the arbitrator.  One week following the last arbitration award, the parties appeared in Court to obtain a judgment of divorce.

At that appearance, the mediation agreement, both arbitration awards and the resolution of personal property, were all incorporated into the dual final judgment of divorce.  Both parties were questioned about the fairness of the agreements and their decision to proceed with a divorce on that day.

Specifically, the defendant was questioned about whether he freely and voluntarily entered into the arbitration agreement, whether he agreed to incorporate the mediation agreement, arbitration awards and resolution  (collectively referred to as the “agreements” during questioning) into the judgment of divorce, and whether he believed the agreements to be fair and equitable.  The defendant answered in the affirmative to all of those questions.

Further, the defendant was asked to confirm that he understood and was not waiving any rights and remedies under the New Jersey Arbitration Act.  The defendant likewise answered “yes”.

confirm arbitration agreement

The Court ultimately found the parties entered into the arbitration agreement freely and voluntarily, and entered a judgment of divorce incorporating the agreements. Importantly, at no point during this proceeding did either party raise any objection to the arbitration awards or ask the Court to vacate, modify or correct same.

Days later, the plaintiff filed a motion to enforce the fee award.  The defendant then filed his notice of appeal.  Subsequently, the defendant filed a notice of cross motion (to plaintiff’s motion) to vacate the fee award. The trial court refused to rule on the cross-motion because of the pending appeal, and entered an order directing enforcement of the fee award.

The Appellate Division dismissed the appeal for lack of jurisdiction pursuant to the New Jersey Arbitration Act.  Specifically, the Court found that the Act limits judicial review of arbitration awards to three distinct scenarios: confirmation, vacation and modification/correction.  Under the Act, there is no direct right to appeal, but a litigant can appeal the trial court’s order on a summary action to confirm, vacate or modify/correct. Accordingly, the trial court must review the arbitration award in a summary action to confirm, vacate or modify/correct and enter an order before a litigant can file an appeal.

The manner by which the defendant challenged the arbitration award in K.V.H. v. W.S.H. was procedurally deficient in several ways.  First, by incorporating the arbitration awards in an uncontested hearing, the Court took no testimony on the substance of the agreements. There was no summary action to confirm, vacate or modify/correct the agreements.  Though the parties agreed to “confirm” the awards and incorporate same into their judgment of divorce, no such order “confirming” the awards was entered by the Court.

Second, the defendant filed his appeal before filing a motion to vacate the award. Accordingly, at the time he filed his appeal, there was no trial court order from which he could appeal.  In so holding, the Court relied upon the plain language of the Act itself as well as the case of Hogoboom v. Hogoboom, which provides that parties are not “entitled to create an avenue of direct appeal to this court”.  Had he filed his cross-motion to vacate and appealed from a subsequent order, the end result in this matter may have been different.

On appeal, the defendant argued that all parties and the trial court understood he was agreeing to entry of a judgment of divorce with the express intention to immediately appeal the arbitration award.  The Appellate Division’s categorical rejection of this argument, and the lesson therefrom, is quite clear.   Strict construction of the Act is required.  Absent a trial court order which expressly confirms, vacates, modifies or correct an arbitration award, a party to an arbitration award has no direct right to appeal.

Arbitration can be an attractive option for litigants for a number of reasons, including the ability to select an arbitrator of your choosing and greater flexibility in controlling the calendar and timing of your case.  However, litigants who seek arbitration as a means of limiting judicial involvement with their case must accept the other side of the coin, and recognize that limited judicial review is one of the tradeoffs for taking your matter out of the court system. This case serves as a reminder for that concession.  That said, parties can also negotiate appellate arbitration if they want to preserve the right of appeal, albeit not to the Court.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

A judge’s favorite line when custody is an issue is some variation of the following: No one is better equipped to make decisions about your children than their two parents, and certainly not the judge who does not know your family from the next family in line.  They are not wrong, and they will do whatever they can to have parents even in the most acrimonious of cases resolve custody issues to avoid tens of thousands of dollars, and months upon months, on custody evaluations and a custody trial.  Of course this is not always possible, but the requirements for alternative dispute resolution start almost at day one after filing the divorce complaint.

Whether you are married and commencing the divorce process (dissolution docket), share a child in common but have never been married, or are simply seeking to enter a custody arrangement but not get divorced (non-dissolution docket), the Court Rules require that parents attend Custody and Parenting Time Mediation at the outset of litigation.  This is a free session held at the courthouse, without attorneys present, during which a courthouse mediator assists parents in reaching an agreed upon custody arrangement and parenting time schedule.  If successful, the mediator will draft an order for review.  Even when the court is not involved, counsel will often attempt to resolve custody and parenting time issues prior to finances. This prioritization is designed to ensure that your children are not stuck wondering which parent they will be with at what time, and the parents are not incentivized to get a child on his/her side.  The schedule also helps the parents understand what free time they have and/or how they may be able to manage their work schedule.

The agreement, order or judgment fixing custody and parenting time is generally the most important document entered in your matter – it provides guidelines to live by for years until the emancipation of your children, absent any substantial change in circumstances along the way.  Given its importance, the agreement, order or judgment should hit all the points that are essential to you… this can save you future head and heartaches for having to return to court or other forms of dispute resolution over aspects that may be missed.   They say that when an agreement is reached, each party will be a little happy and a little sad – that’s the nature of compromise – but the feeling you want to avoid is “oops… forgot about that” (especially when you do not have a co-parent who will readily amend the agreement)!

When our clients are preparing to resolve custody, whether in private or court ordered mediation, we prepare them with a Custody and Parenting Time Plan – essentially their wish lists.  This plan is designed to remind clients what they want to address, rather than have a cookie cutter agreement or order prepared.  Some courts require the submission of this plan prior to the mandatory mediation session, but not all do.

Whether you are attempting to resolve these issues in the above-described mediation session, or simply with your co-parent via discussion, with attorneys, in private mediation, etc., or even as part of a global divorce resolution, here is a checklist that we recommend you review before creating your wish list:

  • Legal custody with time periods for joint decisions. Legal custody is decision making authority about your child(ren)’s education, health, safety and general welfare.  In most cases, this is a joint decision making authority.  Consider including the requirement to discuss such issues with each other and even a time period by which the parents have to advise each other of new developments, and when responses are due for certain requests, i.e.: making a medical appointment or enrollment in a desired activity.  The sharing of such expenses are generally dealt with in the final divorce agreement or judgment.  Always consider adding into the agreement requirements for mutual respect, cooperation with facilitating the schedule and the child(ren)’s love for the other parent, and restraints on involving your child(ren) in the litigation.
  • Commencement date for the parenting time schedule selected. Here, consider being clear as to the commencement date depending on the case.  If the schedule is, for example, alternating weekends and then each parent has two days during the week, consider not just adding the date of the first weekend.  This can lead to confusion as to when the weekdays start if the agreement is reached mid-week.  If you are silent on when the schedule commences, then the default will be the date of the agreement.
  • Location for pick up and drop off. This will also help define who does the driving – an important issue in recent a blog post by Sandra C. Fava, Esq., just last week.  More and more we are seeing and creating schedules with pick up and drop off at the child’s school, camp and/or extracurricular activity.  This will not always be the case as some alternating weekend schedules end on Sunday instead of Monday, some parents do not have any weeknight overnights, etc.  This leads to the next point…
  • …Alternate location when the initial location is not available. For example, if pick up is at school, camp and/or extracurricular activity, build in the location for when such events are not in session.
  • Time for pick up and drop off… In some cases, consider being specific on what time the other parent is expected to arrive and/or drop off your child(ren). You can even build in a provision about being late if you are dealing with a co-parent who often is, such as a required text message when either parent is going to be more than X minutes late.
  • …You guessed it – add in the alternate time if the event is not in session (i.e.: pick up after school or 3 p.m. when school is not in session). Seems simple but the alternates are easy to forget and can lead to stressful situations!
  • Driving to activities and appointments. Consider including a provision indicating that the parent exercising parenting time is required to drive the child(ren) to/from any and all activities and appointments held during such time.  It doesn’t hurt to consider including that each parent can attend such appointments and activities regardless of the parenting time schedule.  This may differ in certain circumstances and acrimony level.  You can even build in who sits on home/away bleachers.
  • Right of first refusal, meaning when the parent scheduled to exercise parenting time is not available for a defined period (i.e.: certain number of hours or overnight), then the other parent has the “first right” to have that time with their child. A third party cannot be contacted to “babysit” unless the other parent does not elect to use such right to the time.  Here, consider building in time periods required for the parent to offer this right, and the other parent to respond.
  • Holiday schedule. Sometimes this schedule will be an addendum added at a later date if you cannot agree at the time that you agree upon the regular schedule.  However, if you can make the first agreement all-inclusive, you will not have to revisit the issue.  You want to include the location and times for pick up and drop off here, as well.
  • Defined amount of vacation parenting time. The amount of time usually depends upon the child(ren)’s age(s), but also consider including whether the weeks can be consecutive.  Other options include adding a time period under which you have to provide notice to the other parent of your desired weeks for vacation time, priority on who selects the time first each year, language regarding taking the children out of the state or country, passport-related cooperation, and even whether vacation has to even include one parent traveling for it to actually be considered vacation parenting time.
  • Alternate arrangements when the schedule results in one parent having three consecutive weekends. Typically, holiday and vacation parenting time will trump regular parenting time, but it is something to discuss if it is what you want.  If it’s on your wish list, include a provision indicating that neither parent shall have three consecutive weekends and, if the holiday/vacation time would result in such a schedule, then the first or last weekend of the block will be switched so that each parent has two weekends in a row.  This avoids having to “re-alternate” weekends thereafter.
  • Amount of contact that each parent has with the child(ren) when the other parent is exercising parenting time (i.e.: telephone, Skype, FaceTime, etc.). Depending upon your child(ren)’s age, this may just be reasonable time as desired.   However, if you are concerned about having your time usurped by the other parent continually contacting your child(ren) during your time, you may want to include a once or twice per day allotment.  If your child is too young to use the device alone and you need to coordinate the contact, then you should consider building in a time, such as morning and evening if that works for everyone’s schedule… Again, build in what happens when the agreed upon time is unavailable on a given day.
  • Radius clause. This can be a tricky one. Custody and parenting time in New Jersey is always modifiable because it is based upon the best interests of your children and that may differ over time with a substantial change in circumstances.   Often, these schedules are reached when everyone is still local to each other or even under the same roof, but that may not always be the case.  It’s important to consider how moving a certain distance away from the other parent may impact your child(ren)’s best interests. In other words, how far is too far?  That’s a personal question, considering many factors, including the age of the child(ren) and frequency of parenting time transfers.  For example, if you share equal parenting time with pick up and drop off at school, then what is the maximum commute your child(ren) should have on a school day?  How will this impact activities after school or even a job?

In the recent unpublished decision of B.G. v. E.G., the Appellate Division vacated a provision within the trial court’s Order requiring the parents to live within fifteen miles of each other.  The case was unique case in that one parent was designated as the parent of primary residence (“PPR”) for two children and the other parent was designated as PPR for their third child.

The radius clause was entered following a divorce trial during which a custody expert testified that the parties should live within thirty minutes of each other because “it would be ‘optimal if the children did not change their friends, their locations, their habits.’”  Pursuant to the decision, the court also considered their children’s testimony,  daily exposure to both parents and extensive time the parents spent with their children.  In vacating the radius clause, the Appellate Division opined that the geographic location was not supported by substantial credible evidence.  Specifically, it was based only on the expert’s subjective opinion – no testimony was offered about geographic location, there was no finding that such limitation was in the children’s best interests, and other methods of maintaining contact were not explored.  Notably, the Appellate Division specifically opined that a radius clause did not restrict the objecting parent’s “right to travel” by way of a constitutional law argument.  Given that the objecting parent did not present other constitutional arguments, the Appellate Division did not further delve into the constitutionality of the radius clause.

Thus, the decision infers that although the radius clause here was not supported by enough evidence presented at trial, a radius clause in another matter can be upheld as constitutionally valid if the constitutional argument presented is a restriction on the right to travel.  However, perhaps another constitutional argument may prevail.  I would not be surprised if this issue arises again with more and more shared parenting time arrangements that require a closer geographic proximity… keep an eye out!

So, what is the takeaway?  Keep this checklist for your wish list… from decision making authority to the location that works best for the schedule, there is a lot to think about.  It is natural to forget a few things when you are in a mediation session, having a conversation or even preparing for litigation.  Make your wish list.  Save your wish list.  Craft your wish list to fit your family if the cookie cutter case is not for you.  After all, you are creating this guideline to save yourself time, money and stress in the future… why not ask for what you want?

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

There is an old adage in litigation “know your judge.”  Essentially what that means is that you should find out as much as you can about the judge you are appearing in front of both so you can try to understand what the outcome might be but more importantly, so that you can may a presentation to the judge that she/he will respond positively to.  Some judges will let you go on an one.  Some judges have little patience and you have to get to the point.  With some judges, it seems like the last person to speak wins so you want to make sure you get the last word in.  Others sit there stone faced and say nothing at all.  Some are very interactive with settlement and others are not.  Some have substantial family law experience and others do not.  Some do little to settle and push cases to be tried and others don’t really want or believe that any cases should be tried.  To the extent possible, knowing your judge is an arrow in a lawyer’s quiver that helps them best represent their client.

Does the same thing apply to mediators?  The answer is yes and more importantly, in most cases, unlike the judge who gets assigned to a case, it is the lawyers that have to select and agree upon a mediator.  Of course, you want to select a mediator who you think will most favorably view your case, all things considered.  We had a recent matter where opposing counsel rejected upwards of 20 mediators that we suggested, many retired judges, and would only agree to one or two people that she suggested.  Our guess is that the lawyer perceived that all of the mediators who she had issues with also had issues with her.  That happens.

But aside from selecting a mediator that you think would be substantively/legally helpful, serious thought should go into selecting a mediator whose style and personality would be appealing to your client as well as the other party, to assist the parties to move toward settlement.  I recently had a situation where we selected a second mediator after the matter made little to no progress with the first mediator.  The first mediator was grandfatherly, soft spoken, knowledgeable, impeccably credentialed and had substantial gravitas.  The soft touch was appealing to one of the parties but totally ineffective with the other.  The second mediator had similar if not greater credentials and gravitas in some ways (but not in others), but was much more direct and blunt – and jumped right into the deep water as opposed to letting the process go on hours or multiple sessions.  The party that gelled with the soft spoken mediator was totally turned off by the direct approach and the other party more receptive.  Perhaps with these too, given their very different personalities, there would be no one mediator who checked all of the boxes and could reach both of them.

The point is that you have to know your client and know your mediator and try to agree on one that will be helpful substantively and also be able to develop a relationship of trust with both parties so as to be able to facilitate resolution, if one is possible.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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In 2015, I wrote a post on this blog with the same title because seemingly, this issue has been resolved for some time.  All too often, parties would agree to mediate their disputes but would try to reserve a right to appeal, as of right, to the Appellate Division, as if the matter was tried by the family court.  Since the Hogoboom case in 2007, lawyers have should have known that this was a no-no.  In fact, in Hogoboom, the Appellate Division specifically held that:

“…Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. [They] can be corrected or modified only for very specifically defined mistakes as set forth in [N.J.S.A. 2A:24-9]. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award. For those who think the parties are entitled to a greater share of justice, and that such justice exists only in the care of the court, I would hold that the parties are free to expand the scope of judicial review by providing for such expansion in their contract; that they may, for example, specifically provide that the arbitrators shall render their decision only in conformance with New Jersey law, and that such awards may be reversed either for mere errors of New Jersey law, substantial errors, or gross errors of New Jersey law and define therein what they mean by that.” … Here, the parties afforded themselves an expanded scope of review, as they were, by contract and by statute, permitted to do. The parties were not, however, entitled to create an avenue of direct appeal to this court. .. It is settled that consent of the parties does not create appellate jurisdiction.  … In our judgment, the parties must seek initial review of these awards in the trial court. The trial court is charged with employing the standard of review the parties contractually agreed upon in determining whether these awards, or either of them, should be vacated or modified. …

That seems clear enough, yet today, there was a reported (precedential) decision in Curran v. Curran that addressed this issue again.  In Curran, the parties agreed to arbitrate and entered into arbitration agreement which contained the very limited right to vacate an arbitration award per the New Jersey Arbitration Act.  However, the wife’s attorney wrote in the following sentence, “The parties reserve their rights to appeal the arbitrator’s award to the appellate division as if the matter was determined by the trial court.”  I guess they forgot about Hogoboom. If that was not bad enough, the parties signed the arbitrator’s retainer acknowledging that they were bound by the decision, except for the limited reasons under the act, and further, that they gave up their right of appeal.

After the arbitration, the husband filed a motion in court to vacate the award.  In refusing to vacate the award, the trial judge found the hand written addition preserving the right to appeal was unenforceable stating:

… that there was no provision under the Act to permit a direct appeal from an arbitrator’s decision to the Appellate Division. In addressing paragraph 3A, the judge stated: “The parties are not permitted to create subject matter jurisdiction by agreement which I think they tried to do here. The authority of a court to hear and determine certain classes of cases rests solely with the Constitution and the Legislature.” He concluded that paragraph 3A was unenforceable.

The trial judge did give a greater analysis of the matter than just permitted under the Act finding that that is what the parties had bargained for, and acted as “an Appellate Division of the arbitrator”  The Husband appealed asserting for the first time that the hand written addition preserving the right to appeal was illegal and voided the entire arbitration agreement and subsequent proceedings.

The Appellate Division disagreed and held that the unenforceable provision could be severed from the agreement.  The court held:

The primary purpose of the agreement was the resolution of the issues incident to the parties’ divorce through binding arbitration pursuant to the Act. This is evident from the contractual language stating: “The Parties having determined

that such issues be referred to binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq. . . . The parties shall attend binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq.” The parties attached an inclusive list to the agreement of all of the issues they intended the arbitrator to consider and resolve. The purpose of the agreement was for a final resolution of those issues. The arbitration agreement noted in multiple provisions that it was binding and not appealable, other than the limited grounds specified under the Act to modify or vacate an award.

Paragraph 3A did not defeat the parties’ intent to have their matrimonial litigation determined and considered by an arbitrator in an expeditious and comprehensive manner. After reviewing the parties’ submissions, the arbitrator rendered a preliminary award. Oral argument was heard on Robert’s application for reconsideration of the award. The arbitrator subsequently issued comprehensive findings of fact and conclusions of law, and a detailed final award. …

Severance of paragraph 3A does not defeat the primary purpose of the agreement. To the contrary, a revocation of the final award would only serve to frustrate the parties’ intent of reaching a final resolution to their matrimonial litigation and defeat the purpose of the arbitration agreement. The agreement is valid and enforceable.

As I noted in 2015, you can arbitrate and preserve a right of appeal.  Just like you can agree to arbitrate the initial determination of the issues, you can also agree to an appellate arbitration, as well.  I have had matters where our initial arbitration agreement called for the use of a panel of two retired appellate division judges (didn’t have to be – could have been anyone we agreed to be the appellate arbitrators), who would then decide the matter as if they were sitting as a regular appellate panel.  While in that case, you essentially lose the chance to appeal to the Supreme Court, you still have a body to review the matter if you think that the arbitrator got it wrong in the first case. The take away, however, is that your arbitration agreement must clearly spell out the scope of review and who will review the matter – taking into consideration what the court system can and cannot do with regard to an arbitration award.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Ah, the 80s and MTV when bands still made music videos and we still cared to watch them.  Many of you may remember the video for the INXS song “Mediate” at the back end of the video for “Need You Tonight”, with the band holding a different sign for each word of the song until they all walk away from the camera during the sax solo.  Paying homage to a classic Bob Dylan song, Mediate is really one of the best videos from that time period with memorably cryptic lyrics that strangely came to mind while I was recently completing a weeks-long family law mediation course.

While some of the lyrics make absolutely no sense to this blogger, certain others work when talking about the benefits, harms, highs and lows of the mediation process.  For instance…

  • Mediate – Yes, mediate.  I have written many times about how mediation is not only a beneficial way in which to resolve your case without great expense and acrimony, but it also allows your matter to be privately and confidentially addressed through the use of a “neutral” whose entire role is to settle your case.  Mediation can occur either prior to or after commencing formal litigation, and in the course of litigation is a required part of the process because, ultimately, settling your case is almost always the best option.
  • Alleviate/Liberate – Resolving your case through mediation will not only ideally save you on further time and expense embroiled in your divorce matter, but it will also help alleviate emotional struggles that accompany the process.  Moving on with your life and into the post-divorce stage can only help your heart, mind and overall health (in addition to your financial well-being).
  • Try Not to Hate/Don’t Suffocate on Your Own Hate – So often, parties are blinded by hatred for the other party that it even colors the mediation process and any productivity realized therefrom.  Oftentimes, for worse, even the attorneys involved develop a dislike for the other lawyer or party that impacts negatively upon negotiations.  Going into mediation free of that mindset will aid your case in moving forward to a resolution.
  • Appreciate/Deliberate – Appreciate the mediation process and the mediator’s role in trying to reach a resolution.  So often parties (especially when accompanied by legal counsel), head into mediation with their feet dug as deeply as possible in the sand in an effort to get the other party to simply give in.  Such a strategy oftentimes fails, although one spouse usually believes that he or she will capitulate to the demands of the other simply to get a deal done.
  • Fabricate – A fundamental part of a productive mediation or settlement process is the provision of full and complete disclosure of all financials (income, assets and liabilities).  Concealing, misrepresenting, or lying about what exists can only lead to problems in the future should the other party learn the truth – especially when such disclosures are oftentimes made to the other party or the court under oath in the form of a signed Case Information Statement.
  • Guilt Debate – Oftentimes, the mediation process is colored by one party’s guilt for something he or she may have done.  Whether one spouse engaged in adultery, wrongfully spent down assets, or something worse, negotiations are sensitive to all facts and circumstances present in the parties’ lives.  Each party has to knowingly and voluntarily agree to the terms of settlement, and agreeing to terms that may not otherwise be deemed “fair and equitable” because of something that may have occurred during the marriage can potentially prove to a be a long-term mistake.
  • The Youth Irate – Resolving your case, whether in mediation or otherwise, not only acts to your benefit in allowing you to move on with your life, but also it allows your children to transition to a life without a divorce matter consuming their everyday existence.  No matter how hard parents may try (or not try) to avoid involving the children in the divorce matter, they oftentimes know what is going on, or simply feel the cloud of conflict hanging in the air.  While most parents say that the children are the highest priority in a case, oftentimes their own actions undermine what may be a very genuine sentiment.
  • Atomic Fate – A.K.A., “Trial”.  Not every case can settle in mediation or otherwise.  Sometimes, a case simply needs to go to trial so that a judge can make the final decisions on issues despite knowing very little about your life.  Whether it is a desire to be proven right, a preference for airing dirty laundry, or a fear of agreeing to something that may very well impact your life for decades to come, a resolution may not be possible.

On the heels of my last blog post regarding settlement, and many other posts on this blog about mediation and the settlement process, the above should not only be used as a reminder of a great 80s song, but also about how only you and your spouse can control how a case resolves.  Mediation is a great tool by which to achieve that goal, and hopefully give you What You Need….

 

Arbitration – essentially, a private trial in which the parties hire a fact-finder who serves in lieu of a judge – has become an increasingly common means of resolving family law disputes.  Although an arbitration may be conducted with all the formalities of a trial, usually parties can agree to dispense with certain formalities, some of which can be costly for the parties.  Arbitration takes a trial out of the sometimes messy court system, usually guarantees a decision will be made in a timely manner, and ensures that the trial does not become a matter of public record.  In family law matters where the issues can be sensitive and the testimony potentially embarrassing to the parties, this may be preferred by the parties.

Another advantage to arbitration is that the litigants are not beholden to the deadlines of the Court system.  They can move on with their lives and even get divorced, while agreeing to defer certain issues to arbitration on a more relaxed timelines.  But sometimes this can backfire.

In a recent unpublished (non-precedential) decision, Shah v. Shah, the Appellate Division addressed the question:  “What happens to an agreement to arbitrate when nobody arbitrates?”

The answer given by the Appellate Division is an interesting one, especially in light of the facts of the Shah case.  In a nutshell, here they are:

  • The Shahs entered into an agreement resolving at least some of their issues in January 2003.  As to those issues that were not resolved (and there were a whopping seventeen of them), they agreed that they would proceed to arbitration.  They agreed on an arbitrator, paid his retainer, and set a date for arbitration.  However, the arbitration did not go forward and after several years passed, Arbitrator # 1 returned the retainer.
  • In 2008, the parties mutually agreed upon a new arbitrator, Arbitrator # 2.  However, neither of them took any steps to retain him.
  • In 2009, Mr. Shah filed a motion to compel the arbitration, expand the scope of the arbitration beyond the seventeen issues identified in the parties’ agreement, and appoint a new arbitrator.  The Court granted Mr. Shah’s motion and appointed Arbitrator # 3.  The Court also entered a discovery schedule, and entered an order directing the parties as to the manner in which Arbitrator # 3’s retainer would be paid.  Despite Mrs. Shah’s apparent attempts to move forward with Arbitrator # 3, Mr. Shah did nothing.  Eventually, Arbitrator # 3 wrote to the Court to, understandably, advise that he would not arbitrate until his retainer agreement was signed.  Neither party signed it.
  • In 2015 (now twelve years after the parties agreed to arbitrate), Mr. Shah once again asked the Court to compel the arbitration, this time asking that Arbitrator # 2 be appointed.  Mrs. Shah cross-moved.  Among other things, she asked the Court to terminate the parties’ obligation to arbitrate.  The Court granted Mrs. Shah’s request, reasoning that – twelve years later – the parties were in very different financial circumstances and could not be made to arbitrate at this point.  The Court also opined that the parties had waived their rights to arbitrate.
  • Mr. Shah moved for reconsideration of the Court’s Order, which the Court denied.

That brings us to Mr. Shah’s appeal.  In pertinent part, Mr. Shah argued that the decision of the lower court should be reversed because the judge incorrectly concluded that the parties had waived their rights to arbitrate due, essentially, to the passage of time.

The Appellate Division agreed with the judge below and concluded that the parties had waived their rights to arbitrate.  This is an interesting conclusion in light of the definition of a waiver:

Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. [internal citations omitted].

Indeed, under the facts of the Shah case, there was no question that the parties had unduly delayed in proceeding to arbitration.  Mr. Shah apparently admitted to the Court that he was unhappy with Arbitrator # 3’s fee and therefore did nothing to move forward with the court-appointed arbitrator he had asked for in the first place.

At the same time, there were efforts over the years to move forward with the arbitration.  The major consideration the Appellate Division seems to have made was the amount of time that had passed, regardless of the fact that the parties had – at various points over that time period – made efforts to move forward with the arbitration.  One can imagine that this could be a closer call under even a slightly different set of facts.  For example, what if the facts were identical, but had occurred over the course of five years instead of twelve?

What is clear is that at some point, if parties do not arbitrate then the right to do so is waived, even if the parties have an agreement in place to proceed to arbitration, and one of them wants to enforce it.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

As a matrimonial litigant, you never want to feel that your lawyer does not know how best to take you through the divorce or post-divorce process.  After spending substantial sums of money on an advocate to aid you through a difficult and emotional process, let’s just say that “the blind leading the blind” is not the vibe that you want to be left walking away with.

Unfortunately, however, it happens way too often and I cannot tell you how many times I have had consults with potential clients during which I am told about how disappointed he or she was with prior counsel.  I have had several recent cases where I am left baffled and scratching my head at the inability of a matter to move forward to a trial or settlement – not because of difficult parties or issues of complicated substance, but, rather, a lawyer on the other side who simply does not seem to know what he or she is doing.

The experiences to which I allude are all the more reason to heed the following points when selecting your divorce lawyer:

  • Does the lawyer practice exclusively in the area of matrimonial law? You want a lawyer who knows the law, right?  You also want a lawyer who knows how the law has been applied, how it fits to the facts of your case, and how and when it may be changing.  While no lawyer is going to concede to you that he or she does not know the law, or that acting on your behalf will be a new experience, always do your due diligence before meeting with the attorney to see what you are really dealing with.  Aside from discussing with your referral source, perhaps review the attorney’s online profile to see what articles he or she has written, or what presentations he or she has given on family law topics.
  • Is your lawyer familiar with the judges, lawyers, mediators and experts who may be involved in your matter? This point coincides with the first point.  A lawyer who is well versed in or only practices in the area of family law will more likely be familiar with the people you will come across in the course of your matter.  Knowing how your spouse’s lawyer operates, knowing which mediator may be good or bad for your case, and knowing which expert can best address your financial or custodial needs is of great importance in properly presenting and proceeding in your case.
  • Do you feel comfortable in communicating with your advocate about the law and the facts of your case? You are going to get to know your lawyer very well.  You want to be able to confide in that person all of the good and the bad that may have happened during your marriage, as well as anything that may impact upon your divorce proceeding.  Providing your lawyer with such information and allowing him or her to best address such issues is one of the reasons why you retained that lawyer in the first place.
  • Do you strategize with your lawyer in a way that addresses many different potential approaches while also taking litigation costs into consideration? There are many, many…many different types of divorce lawyers.  There are lawyers who prefer the path of least resistance to get you to a resolution, lawyers who are always aggressive, and so many others in between.  The lawyer you retain should fit your goals and motivations of what you want or believe your divorce matter should be.
  • Is your lawyer responsive to your needs? Responsiveness is one of the issues that I hear about most often from clients who have had prior counsel.  You want to ensure that your attorney gets back to you in a reasonable time to address any issues that you may have.

These are just a few of the critical points that you should consider in retaining matrimonial counsel.  Every lawyer is different, as is every client.  Finding the right match for you is not a decision to be taken lightly, and should be based on a consideration of several factors.  Your attorney is someone who you are going to confide in more than most other people in your life, including, on occasion, your family and friends.  Trust and comfort in your lawyer’s ability to advocate on your behalf is a critical, if not the most critical decision that you may make during the entire divorce process.