February 27, 2007
MARTIN L. RICCIO, PLAINTIFF-RESPONDENT,
REGINA A. RICCIO, DEFENDANT-APPELLANT.
On appeal From the Superior Court, Chancery Division, Family Part, Mercer County, FM-11-772-04B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 29, 2007
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
Defendant, Regina Riccio, appeals from a trial court order dated December 23, 2005, denying her motion to vacate, and granting plaintiff Martin Riccio's motion to confirm, an arbitration award that resolved the parties' financial issues in connection with their divorce. We affirm substantially for the reasons stated in the trial judge's comprehensive and cogent written opinion dated January 18, 2006.
The parties were married in 1998. They had no children. In 2004, plaintiff filed a divorce complaint. By consent order, the parties agreed to submit all of the financial issues to binding arbitration before a retired judge.
Shortly before the first arbitration hearing, defendant's counsel sought an adjournment. Although defendant now claims that she discovered that she had genital herpes and needed an adjournment because she was too ill and emotionally upset to proceed with the hearing, neither she nor her attorney documented that allegation at the time the adjournment was sought. The only record evidence concerning the reason for the request appears in a consent order prepared by defendant's counsel. The consent order recites that defendant had discovered on or about April 22, 2005, that she might have grounds to assert a marital tort against her husband, and that defendant had requested an adjournment "in order to file a motion for leave to amend her counterclaim to add a Tevis [c]ount."*fn1 In order to preserve defendant's claim and avoid adjourning the arbitration, the parties agreed in the consent order that she could assert the Tevis claim in a separate counterclaim in the divorce action.
The arbitration hearing commenced on April 27, 2005, although defendant did not testify until the second hearing date, held a month later. Neither at the arbitration, nor later before the trial judge, did defendant present any medical evidence that she had genital herpes. Nor did she present any legally competent evidence as to what, if any, impact it had on her ability to participate in the arbitration or to earn a living.
The arbitrator issued a written decision on June 1, 2005, awarding defendant the net sum of $20,000 in rehabilitative alimony, plus $100,000, representing one-third of the increase in value of the marital home accruing during the marriage, plus a Lincoln automobile. In his decision the arbitrator made findings of fact, including credibility determinations, to support the award. However, there is no dispute that the arbitration hearing was not recorded and, hence, neither the trial court nor we have a transcript to review. Moreover, the exhibits presented to the arbitrator were not marked in evidence. Further, although defendant claimed in the trial court and on appeal that the arbitrator refused to consider certain financial evidence she wished to introduce, such as canceled checks and bank records, defendant did not create or preserve any record of her alleged proffer of that evidence. Nor did she provide the trial court or this court with a transcript of a tape recording she alleges she asked the arbitrator to listen to. She did submit some additional evidence to the arbitrator after he rendered his award; he considered it and cogently explained why it did not change his decision.
Defendant raises the following issues on this appeal:
POINT I: THE TRIAL COURT ERRED IN FAILING TO VACATE THE ARBITRATION AWARD GIVEN THE ARBITRATOR'S REFUSAL TO POSTPONE THE MATTER UPON DEFENDANT'S SHOWING OF SUFFICIENT CAUSE FOR POSTPONEMENT.
A. The Trial Court Erred By Determining That Defendant Did Not Meet The Statutory Standard Requiring The Arbitration Award Be Vacated.
B. The Trial Court Erred In Its Application Of The Case Law To The Facts Of The Within Matter.
POINT II: THE TRIAL COURT ERRED IN FAILING TO VACATE THE ARBITRATION AWARD GIVEN THE ARBITRATOR'S REFUSAL TO CONSIDER EVIDENCE MATERIAL TO THE CONTROVERSY CAUSING SUBSTANTIAL PREJUDICE TO THE DEFENDANT.
A. The Trial Court Erred By Narrowly Reading Relevant New Jersey Case Law And By Considering Out Of State Case Law To Interpret The Statute.
B. The Trial Court Erred In Its Interpretation Of The Changes Made To Revised Statute, N.J.S.A. 2A:23B-23 From Prior Statute N.J.S.A. 2A:24-8.
POINT III: THE TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING PURSUANT TO RULE 4:67-5.
Having reviewed the record, we conclude that defendant's contentions are totally without merit and do not warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.
The trial judge did not err in failing to hold an evidentiary hearing on the parties' respective applications to vacate and confirm the arbitration award. None of defendant's contentions, with the inadequate supporting material she submitted to buttress those contentions, could possibly have warranted vacation of the arbitration award under N.J.S.A. 2A:23B-23. See Tretina Printing, Inc. v. Fitzpatrick & Assocs., 135 N.J. 349 (1994). Put another way, the documents submitted by the parties did not create a dispute of fact as to a material issue. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:67-5.
We find no merit in defendant's argument that the arbitration award should have been vacated because the arbitrator allegedly refused to "consider" evidence material to the controversy so as to substantially prejudice defendant's rights. N.J.S.A. 2A:23B-23(a)(3). This case in no way resembles Manchester Township Board of Education v. Thomas P. Carney, Inc., 199 N.J. Super. 266 (App. Div. 1985), on which defendant relies. In that case there was no dispute that the arbitrators had refused to permit one party to present testimony from its expert witnesses on the central issues in the case. Here, by contrast, even crediting defendant's allegations, the allegedly proffered evidence was not so critical that the arbitrator's refusal to consider it would have substantially prejudiced her right to present her case. We also agree with the trial judge that the Legislature's use of the term "consider" in N.J.S.A. 2A:23B-23(a)(3), was not intended to broaden the scope of review of an arbitrator's decision from that applicable to the earlier version of the statute, N.J.S.A. 2A:24-8, which referred to an arbitrator's refusal to "hear" evidence. In particular, it was not an invitation to trial courts to second-guess an arbitrator's evidentiary rulings.
On a related point, we conclude that absent extraordinary circumstances not present here, N.J.S.A. 2A:23B-23(a)(3) would not entitle defendant to a Superior Court trial for the purpose of determining what evidentiary rulings the arbitrator made at the arbitration. In this case, there are disputes as to what evidence defendant actually offered, and as to whether the arbitrator considered that evidence and found it unpersuasive or inadmissible, or whether he simply did not allow defendant to present the evidence to him at all. The arbitration was not conducted on the record and defendant failed to make a contemporaneous record on any of those issues. See Faherty v. Faherty, 97 N.J. 99, 112 (1984).
We agree with the trial judge that defendant was not entitled to a plenary trial to determine precisely what evidence the arbitrator either considered and found wanting or refused to consider at all. Arbitration is intended to avoid litigation, not to serve as a font of litigation. See Barcon Assocs. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981); Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 548-49 (1992) (Wilentz, C.J., concurring). Having failed to make a contemporaneous record concerning the arbitrator's alleged refusal to receive evidence, or to consider evidence, defendant was not thereafter entitled to a plenary trial on those issues. In Tretina, supra, 135 N.J. at 364, the Court observed that "asking an arbitrator to explain his or her reasoning works against the very goals of arbitration: finality and expedition." Holding a Superior Court trial to determine whether and why an arbitrator made certain evidentiary rulings is likewise inconsistent with those goals. See also N.J.S.A. 2A:23B-14(d) (stating that except for claims of corruption or partiality, arbitrator may not be called as a witness concerning any "decision, or ruling occurring during the arbitration.")