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Riccio v. Riccio

February 27, 2007

MARTIN L. RICCIO, PLAINTIFF-RESPONDENT,
v.
REGINA A. RICCIO, DEFENDANT-APPELLANT.



On appeal From the Superior Court, Chancery Division, Family Part, Mercer County, FM-11-772-04B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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