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Wertlake v. Wertlake

Decided: April 3, 1974.

ELIZABETH C. WERTLAKE, PLAINTIFF,
v.
PAUL T. WERTLAKE, DEFENDANT



Consodine, J.s.c.

Consodine

Defendant seeks by motion to vacate an alimony order of this court. Wife's cross-motion seeks increased child support and alimony. In answer thereto defendant asks arbitration pursuant to a provision of the property settlement agreement incorporated into the final judgment. This provision provides that any financial claim or dispute should be arbitrated under the rules of the American Arbitration Association.

The role of arbitration in a matrimonial action has never been considered before by the courts of this State.

"Arbitration" is the substitution by consent of the parties of another tribunal for the tribunal provided by ordinary process of law. Eastern Engineering Co. v. Ocean City, 11 N.J. Misc. 508, 167 A. 522 (Sup. Ct. 1933). Arbitration

is claimed to provide a summary and inexpensive method of settling disputes. Fagliarone v. Consolidated Film Industries, Inc., 20 N.J. Misc. 193, 26 A.2d 425 (Cir. Ct. 1942), aff'd 131 N.J.L. 315 (E. & A. 1944). Nothing could be more summary and inexpensive than our practice in matrimonial cases -- notice of motion and affidavits.

Although it was held in an old English case that the terms of separation between husband and wife could be arbitrated, Soilleux v. Herbst, 2 Bos. & Pul. 444 (1801), covenants to arbitrate were originally frowned upon. William C. Blanchard Co. v. Beach Concrete Co., 121 N.J. Super. 418 (Ch. Div. 1972), as attempts to oust the jurisdiction of the courts.

Generally today, however, settlement of controversies by arbitration is favored by the courts. Machine Printers Beneficial Ass'n v. Merrill Textile Print Works, 12 N.J. Super. 26 (App. Div. 1951).

The Arbitration Act of 1923, L. 1923, c. 134 (N.J.S.A. 2A:24-1 et seq.) provides a complete scheme covering the subject. Keppler v. Terhune, 88 N.J. Super. 455 (App. Div. 1965).

N.J.S.A. 2A:24-1 provides:

A provision in a written contract to settle by arbitration a controversy that may arise therefrom [submitted] pursuant to section 2A:24-2 of this title * * * shall be valid * * * except upon such grounds as exist at law or in equity for the revocation of a contract.

We pass over whether the controversy was submitted in accordance with N.J.S.A. 2A:24-2.

In Sommer v. Mackay, 10 N.J. Misc. 644, 160 A. 495 (Sup. Ct. 1932), it was held that our Arbitration Act, supra, did not infringe upon the jurisdiction of the Chancery Court over specific performance of contracts. However, it has long been recognized that the State has a special interest in matrimonial actions, as distinguished from its general interest in ...


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