The issue before the New Jersey … lawyer

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neither [569 A.2d 774] Appellate Division opinion discussed the applicability of the amendment to this case…32
The issue before the New Jersey Supreme Court
in Innes was whether the trial court may consider
the ex-husband’s pension benefits when determining
whether his alimony payments should be modified. The
New Jersey Supreme Court held that it may not.33 The
Court states that its disposition of the issue was governed
by the recent amendment to the equitable distribution
statute, pre-existing law and the specific language of
the parties’ agreement. Therefore, the Innes Supreme
Court applied the recent amendment to the statute that
occurred after the trial level disposition of the postjudgment motion to the parties in that case.

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Therefore, litigants who have appealed a final judgment of divorce and are at some stage of the appellate
process (whether before the Appellate Division, Supreme
Court or trial court after remand) are still in the pipeline.
In the Appellate Division decision Johnson v. Johnson,34 the court concluded that the holding in Fawzy35
had to be given pipeline retroactive effect. The parties
in Johnson were married on Oct. 26, 1994. They were
divorced on Aug. 16, 2005. The final judgment of divorce
incorporated an agreement executed on May 24, 2005. In
2007, the parties were experiencing issues regarding the
amount of time each parent would spend with the children. As a result, the parties agreed to binding arbitration
to “resolve pending differences and parenting time scheduling issues.” A referral to arbitration was granted by a
family part judge on Oct. 31, 2007, which incorporated
the previously executed arbitration agreement.
In the arbitration agreement, the parties agreed to
have Mark White, Ph.D. serve as the arbitrator subject
to the New Jersey Alternative Procedures for Dispute
Resolution Act (APDRA).36 White delivered his findings
and final decision on April 11, 2008. The husband filed
a motion for reconsideration on May 16, 2008, in which
he requested that White reconsider the entire decision
or clarify the husband’s vacation time with the children.
White issued his response on May 22, 2008. Unhappy
with that response, the husband then sent correspondence to the wife and White regarding removal of White
from the matter in light of the Appellate Division’s June
16, 2008, decision in Fawzy v. Fawzy.37

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The husband filed a motion to confirm White’s decision, and the wife filed a cross-motion opposing confirmation and requesting modification of custody and visitation. The motions were argued on Sept. 26, 2008. The
wife asserted Fawzy invalidated final binding arbitration
awards dealing with custody and parenting time issues
because the ADPRA does not require full plenary review
of the best interest of the children but rather provides
for only limited review in accordance with issues identified in N.J.S.A. 2A:23A-13. The husband, on the other
hand, argued that Fawzy was inapplicable because it
pertained to arbitration under the Arbitration Act38
yet arbitration in Johnson was conducted under the
APDRA. The family part judge delivered an oral decision
on Sept. 29, 2008, in which he confirmed White’s decision. The wife appealed.
After appellate briefs were filed in Johnson, the
Supreme Court decided Fawzy.39 The wife asserted that
the trial judge erred in confirming White’s decision in
light of the holding in Fawzy. She argued that the arbitrator made no fact findings or legal conclusions that would
enable the judge in his parens patriae role, to determine
the best interests of the children. Thus, the wife argued
that it was not an “appropriate and credible record from
which to conclude that the arbitrator’s recommendation
was in the best interests of the minor children.”40 The
wife pointed out that there was no formal record of the
proceeding from which the judge can conduct a de novo
review. She contended the judge was required to conduct
a plenary hearing to determine whether the award was
in the children’s best interest, as required by Fawzy, and
that the judge erred in affirming the arbitration award.41
The wife also raised other issues regarding bias and
related claims.
The preliminary question entertained by the Appellate Division in Johnson was whether the more restrictive requirements detailed in Fawzy (e.g., permitting an
arbitration award to be overturned upon a showing of
harm to the child, requiring that a record of all documentary evidence be kept, requiring that all testimony be
recorded verbatim and requiring that the arbitrator state
in writing or otherwise record his or her findings of fact
and conclusions of law with a focus on the best-interest
standard) were applicable to the Johnsons. The Appellate
Division in Johnson acknowledged that the Fawzy requirements stated a new rule of law as neither the APDRA nor
the Uniform Arbitration Act (UAA) required a record
to be made of the proceedings. In determining whether