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Doctoroff v. Doctoroff

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 20, 2007

ALEXANDER DOCTOROFF, PLAINTIFF-APPELLANT,
v.
ELLA DOCTOROFF, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Union County, FM-20-1001-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2007

Before Judges Coburn, Grall and Chambers.

In this divorce action, the parties agreed to submit certain issues to an arbitrator. The issue with which we are concerned is the amount of the limited duration alimony awarded to defendant by the arbitrator. Plaintiff, Alexander Doctoroff, challenged the award in court. Judge Cassidy rejected the challenge as unmeritorious and entered a final judgment of divorce on August 11, 2006, which, among other things, confirmed the arbitrator's limited duration alimony award.

The relevant portion of the arbitrator's award reads as follows:

However, I do find that the Wife is entitled to spousal support so that she may complete her residency. I also believe and find that because the Wife has been a dependent spouse, she is entitled to limited duration alimony.

I find that the Husband's current income is approximately $275,000 per year. I also find that the Wife's current income is approximately $50,000 per year. I also find that the parties' standard of living is reflected in the income they earned during the period between June 2002 through the end of 2003. That income ranges between $122,000 and $246,000 per year before consideration of tax consequences.

The parties' lifestyle was not extravagant during the marriage but was basically conventional and middle class.

I find that a reasonable budget consistent with the marital standard of living is $7,500 per month for the family. I allocate the $3,500 toward Schedule A, $1,000 toward Schedule B and $3,500 toward Schedule C expenses. Accordingly, I award the Wife limited duration alimony for twelve months at the rate of $4,000 per month. The term shall begin January 1, 2006 and shall be in effect until December 31, 2006. This will provide the Wife with an appropriate period of transition into her new employment. Thereafter, I impute to the Wife the sum of $110,000 per year annual income, taking judicial notice of the New Jersey Department of Labor and Workforce Development Statistics for a family practitioner (Occupational Code 29-1062). Since there will be continuing need for a transitional period, an award of limited duration alimony shall be made to the Wife in the amount of $2,000 per month, which shall be in effect from January 1, 2007 until January 31, 2008 or an additional thirteen months. Limited duration alimony shall cease after January 31, 2008. In addition, alimony shall cease upon the death of either party or the remarriage of the Wife. The impact of cohabitation shall be governed by the Gayette case. All alimony shall be taxable to Wife, tax deductible to Husband.

On appeal, plaintiff offers the following arguments:

POINT I

THE PURPOSE OF ANY FORM OF SUPPORT ALIMONY IS TO PROVIDE FOR AN ECONOMICALLY DEPENDENT SPOUSE IN ACCORDANCE WITH THE FORMER MARITAL LIFESTYLE. AN AWARD OF ALIMONY BEYOND ACTUAL ECONOMIC NEED IS AN EVIDENT MATHEMATICAL MISCALCULATION. MOREOVER, THE APPLICATION OF DISCRETIONARY FACTORS TO ENHANCE AN ALIMONY AWARD BEYOND ACTUAL NEED IS CLEARLY IMPERMISSIBLE.

POINT II

THE ARBITRATOR MADE AN EVIDENT MISTAKE IN DESCRIBING THE STARTING DATE FOR IMPUTING $110,000.00 ANNUAL INCOME TO DEFENDANT. THE CORRECT DATE FOR IMPUTING THAT $110,000 ANNUAL INCOME WAS JULY 1, 2006, NOT JANUARY 1, 2007 (Although not specifically argued before the trial court, this issue was implicitly raised since Plaintiff's legal arguments revolved around an inadvertent assumption that the arbitrator's imputing date was July 1, 2006 when defendant completed her residency -- not January 1, 2007 -- six months later.)

POINT III

EVIDENT MISCALCULATION OF FIGURES: JANUARY 1, 2006 THROUGH DECEMBER 31, 2006 BASED ON ONE-HALF DEFENDANT'S ANNUAL $49,565.00 RESIDENCY INCOME (January 1, 2006 through June 30, 2006) AND ONE-HALF DEFENDANT'S ANNUAL $54,000 FELLOWSHIP INCOME (July 1, 2006 through December 31, 2006).

POINT IV

EVIDENT MISCALCULATION OF FIGURES: JANUARY 1, 2006 THROUGH DECEMBER 31, 2006 BASED ON ONE-HALF DEFENDANT'S ANNUAL $49,565.00 RESIDENCY INCOME (January 1, 2006 through June 30, 2006) AND ONE-HALF DEFENDANT'S $110,000 IMPUTED INCOME SECURED THROUGH APPROPRIATE EMPLOYMENT.

POINT V

EVIDENT MISCALCULATION OF FIGURES: JANUARY 1, 2007 THROUGH JANUARY 31, 2008.

POINT VI

THE ARBITRATOR'S ATTEMPT TO INCLUDE SOME AMORPHOUS ASPECT OF EQUITABLE DISTRIBUTION AS JUSTIFICATION FOR THE ALIMONY AWARD IS NOT ONLY ILLEGAL, BUT AN EVIDENT MISTAKE IN DESCRIBING AN IMPERMISSIBLE FACTOR TO DETERMINE AN ALIMONY AWARD.

After carefully considering the arguments and briefs, we are satisfied that all of the plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Cassidy in her thorough and well-reasoned oral opinion of August 11, 2006.

However, we add the following comments. Generally, arbitration awards cannot be undone by a court absent "fraud, corruption, or similar wrongdoing on the part of the arbitrator[]." Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994) (citing Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 548-94 (1992)). No such wrongdoing has been alleged or even intimated in the instant case. Rather, plaintiff relies on N.J.S.A. 2A:23B- 24(a)(1), which empowers the judiciary to correct an arbitrator's award for "an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award." This subsection is concerned with correcting simple and obvious mistakes, such as incorrectly adding two numbers, or incorrectly describing an address of a property by reversing the numbers when it is otherwise perfectly clear what property is being referred to. See Tretina, supra, 135 N.J. at 359. The arbitrator's decision made no such technical errors. Plaintiff appears at times to be arguing that the arbitrator failed to follow the law. While that does not appear to be so, that issue is not reviewable by us under the statute. Id. at 358.

Affirmed.

20070920

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