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Ort v. Ort

April 28, 2009

AMELIA MANYA EMILY ORT, PLAINTIFF-RESPONDENT,
v.
ABRAHAM J. ORT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, No. FM-15-990-00N.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 17, 2009

Before Judges Wefing, Yannotti and LeWinn.

Defendant appeals from an amended final judgment of divorce entered by the trial court on November 7, 2007, as well as from certain pre-judgment orders entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married in February 1977. After twenty-three years of marriage and thirteen children, plaintiff filed her complaint seeking a divorce in February 2000. The subsequent proceedings have, unfortunately, been acrimonious and protracted.

An original judgment of divorce was entered in January 2003. Shortly before that judgment was entered, the parties, represented by counsel, executed a consent order under which they agreed to submit to binding arbitration all issues in connection with their divorce proceedings other than custody of the unemancipated children. This consent order provided for three arbitrators, Frank A. Louis, Esq., Joseph Gunteski, C.P.A., and a rabbi to be selected by the Rabbinical Council of America, both parties being members of the Orthodox Jewish faith. Rabbi Michael Broyde, a professor of law at Emory University Law School, was subsequently selected to fill this position. The order included the following language:

5. The parties agree that they shall be bound by the Arbitrator's (sic) decision, and said decision shall be incorporated into a Judgment and shall be specifically enforceable in the Superior Court, Chancery Division, Family Part of Ocean County.

6. The Arbitrator's (sic) decision shall be final and binding upon both parties and shall not be appealable, except in accordance with N.J.S.A. 2A:24-1 et seq. The parties upon the advice of counsel have been made fully aware that they are giving up their right to appeal by entering into Binding Arbitration, except in accordance with N.J.S.A. 2A:24-1 et seq.

The order conferred upon the arbitrators the authority to enforce orders previously entered by the trial court pendente lite "and to proceed with arbitration if either party fails to proceed in bad faith." The agreement was originally drafted to read that the rules of evidence would not be controlling; to this was added the handwritten phrase, "and religious law" so that the final language read, "The Rules of Evidence and religious law shall not be controlling . . . ." The order also provided that the arbitration would be concluded by March 1, 2003, a deadline that clearly had passed.

If the parties had intended, by agreeing to binding arbitration, to obviate the need for judicial involvement, that goal was clearly not met. When it became apparent that the March 1, 2003, deadline would not be met, defendant filed a motion with the trial court to terminate the arbitration proceedings. The trial court denied that motion, and defendant appealed. We affirmed the decision of the trial court. Ort v. Ort, No. A-3388-02 (App. Div. Dec. 16, 2003). Defendant sought certification, but the Supreme Court denied his petition. Ort v. Ort, 179 N.J. 311 (2004). The arbitration panel suspended its proceedings until defendant exhausted his appeal on the question of whether the arbitration should be terminated.

During the course of their marriage, the parties had created a charitable foundation, The Dove Foundation. After plaintiff filed her divorce complaint, defendant sought to remove her as a director, member and officer of the foundation. The trial court directed that this issue be addressed before the arbitration panel. Defendant appealed that order as well, and we affirmed the trial court. Ort v. Ort, No. A-6140-02 (App. Div. May 13, 2005).

Additionally, although unrelated to the arbitration proceedings, a controversy developed over defendant's delivery of birthday gifts and letters to the unemancipated children. Defendant also appealed the order entered in the trial court with regard to that issue, and this court affirmed. Ort v. Ort, No. A-3535-06 (App. Div. June 17, 2008).

The arbitration panel conducted its first hearing on April 20, 2004, addressed to the question of who should serve as custodian of the children's assets and investments. The panel issued Arbitration Order No. 8 on May 7, 2004, designating plaintiff as the sole custodian. Instead of complying with this order, defendant, through his attorney, communicated with the parties holding assets of the children and told ...


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