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Cardano v. Cardano


June 17, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0407-05.

Per curiam.


Submitted April 23, 2008

Before Judges Sapp-Peterson and Messano.

On September 14, 2004, after eleven years of marriage, plaintiff Michael Cardano filed for divorce from defendant Catherine Cardano. During the ensuing two years, several pendente lite orders imposing financial obligations upon plaintiff were entered by a series of judges assigned to the case, and defendant moved on repeated occasions for enforcement of those orders. On August 3, 2006, the parties agreed by consent order to submit the issues of equitable distribution, alimony, child support, attorney and experts' fees, and pendente lite support issues to binding arbitration pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. On December 12, 2006, the arbitrator, Barry F. Croland, Esq., issued a sixty-four page decision and award addressing all the issues submitted. In a letter dated January 26, 2007, to the attorneys for the parties, Croland clarified his decision.

On February 23, 2007, plaintiff moved before Judge Honora O'Brien Kilgallen, to whom the case was now assigned and who had entered the most recent enforcement orders, to modify the arbitration award; defendant cross-moved to confirm the award. On March 16, 2007, the parties appeared before Judge Kilgallen for argument, and she referred the matter back to Croland for further clarification based upon the issues raised. On March 29, 2007, Croland filed a seventeen page response with the court in which he addressed the issues raised by plaintiff's motion.

On April 5, 2007, plaintiff moved to recuse Judge Kilgallen ostensibly arguing that an inherent conflict of interest existed since she served both as the trial judge and "in an [a]ppellate capacity" under the APDRA. On May 24, 2007, Judge Kilgallen heard oral arguments and denied the motion to recuse her, denied the motion to modify the arbitration award, and confirmed the award. On May 31, 2007, the parties again appeared before the judge who took testimony regarding the cause of action for divorce and the parties' consensual agreement regarding custody and parenting time. She orally entered a judgment of divorce, subsequently executing a written judgment of divorce and entering an order confirming the terms of the arbitration award, from which plaintiff now appeals.

After plaintiff filed his appeal, on October 2, 2007, defendant moved to dismiss pursuant to Rule 2:8-1 based upon lack of jurisdiction and procedural deficiencies. On November 9, 2007, we denied in part and granted in part defendant's motion, striking points five through eight of plaintiff's brief as presenting issues that were unappealable under the terms of the parties arbitration agreement and the APDRA.*fn1 On January 31, 2008, we denied plaintiff's motion to reinstate points five through eight of his brief finding it both untimely and unpersuasive.

Thus, plaintiff's arguments as raised in the remaining points of his brief are: 1) Judge Kilgallen erred by not granting his recusal motion; 2) the judge "refused to serve in the appellate role mandated by the APDRA," thus denying plaintiff "safeguards accorded by the APDRA"; 3) the judge's "conclusions of law are unsupported by the competent, relevant reasonably credible findings of fact of the arbitration award"; and 4) the judge improperly concluded "that the arbitration award was non-modifiable per se," thus denying plaintiff "the appellate review protection of the APDRA."

We first note that appellate review of an order confirming an arbitration award entered under the APDRA is appropriate only in certain "rare circumstances." Mt. Hope Development Associates v. Mt. Hope Waterpower Project, 154 N.J. 141, 153 (1998); see N.J.S.A. 2A:23-18(b) (providing that once the Superior Court issues its decision with respect to the arbitrator's award, the order is final and there "shall be no further appeal or review of the judgment or decree"). These limited circumstances must be "grounded in public policy" and include awards dealing with child support, attorney's fees, and bias of the trial court, as well as those circumstances where we must exercise "supervisory function over the courts." Mt. Hope, supra, 154 N.J. at 152; Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 476 (App. Div. 2007).

Plaintiff first argues that this case presents one such "rare circumstance" requiring appellate review because Judge Kilgallen was obligated to review the arbitration award within the APDRA framework, and based upon her prior conduct during the litigation, she was unable to do so in an impartial manner. However, we conclude that the contention that Judge Kilgallen should have recused herself is of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only these comments.

Plaintiff argues, as he did below, that the judge should have recused herself because 1) on a prior occasion, during enforcement proceedings, she ordered him to empty his pockets and display how much money he had in an effort to satisfy the pendente lite support order; and 2) she commented that plaintiff's arguments regarding modification of the arbitration award deserved "short shrift."

In denying the motion, Judge Kilgallen cited our decision in Panitch v. Panitch, 339 N.J. Super. 63 (App. Div. 2001). There, we said, "It is improper for a judge to withdraw from a case upon a mere suggestion that [s]he is disqualified 'unless the alleged cause of recusal is known by h[er] to exist or is shown to be true in fact.'" Panitch, supra, 339 N.J. Super. at 66 (quoting Hundred East Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986)). A motion for recusal is, in the first instance, addressed to the trial judge's sound discretion, ibid., subject to our review to insure the judge's impartiality over the proceedings. Panitch, supra, 339 N.J. Super. at 67.

We find no basis to conclude that Judge Kilgallen was biased against plaintiff based upon her efforts to insure enforcement of her prior orders, including having plaintiff "empty his pockets" during one of the proceedings. Even if we viewed her request as inappropriate, we have noted, even "inappropriate comments do not, by themselves, necessarily equate to bias." Id. at 68.

We also find no basis for the judge's recusal because she expressed a preliminary view that plaintiff's motion for modification deserved "short shrift." "A judicial statement of opinion in the course of the proceedings in the case at bar . . . will not require disqualification." State v. Marshall, 148 N.J. 89, 278 (1997), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1(d) (2008). Here, the judge was in the process of considering the relative merits of the application when she expressed an opinion, something she was ultimately required to do in order to decide plaintiff's application.

Plaintiff next argues that Judge Kilgallen "refused to serve in the appellate role mandated by APDRA." We have noted that a trial court's complete failure to apply the statutory standards set forth in N.J.S.A. 2A:23A-13 provides a limited basis for appellate review of an APDRA decision. Morel, supra, 396 N.J. Super. at 476. However, in this case, it is clear that the judge applied the APDRA's statutory criteria in deciding plaintiff's motion and defendant's cross-motion.

"In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision." N.J.S.A. 2A:23A-13(b). Only if the application is based upon one of the statutory grounds set forth in N.J.S.A. 2A:23A-13(c)(1) through (c)(4) that permit the judge to vacate the award may the judge "make an independent determination of any facts relevant thereto de novo." N.J.S.A. 2A:23A-13(b). Plaintiff's application was not made under any of those grounds, and Judge Kilgallen specifically found that Croland's award was founded upon substantial evidence and did not require modification. N.J.S.A. 2A:23A-13(e).

Lastly, plaintiff argues that the judge failed "to undertake the analysis required by the APDRA," thus leading to erroneous conclusions of law, and "us[ed] a priori reasoning [to] conclude the arbitration award was non-modifiable per se." We conclude both arguments are of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(1)(E). As we noted above, the judge found that Croland's award was supported by substantial evidence, she considered whether modification was warranted, and she rejected that option. We find no basis to disturb these conclusions, and, given the limited nature of our review in light of our holding in Morel, these contentions do not present any "rare circumstances" requiring our intercession.


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