April 28, 2009
AMELIA MANYA EMILY ORT, PLAINTIFF-RESPONDENT,
ABRAHAM J. ORT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, No. FM-15-990-00N.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 them the order was not effective and warned they could incur liability if they sought to comply with it.
Over a year later, in June 2005, defendant sought to remove Mr. Lewis as an arbitrator, contending he had exhibited bias against defendant and was unable to act as an impartial arbitrator. In support of his motion, defendant pointed to a letter dated August 16, 2004, in which Mr. Lewis had recommended that Arbitration Order No. 8 be confirmed and defendant be incarcerated until he complied with it. Defendant argued that Mr. Lewis's explanation, that the letter was a draft and was sent in error, was not credible. Defendant also complained that Mr. Lewis had improperly sought interim payment of fees for the arbitrators and that plaintiff, who had complied with these requests, had ingratiated herself with him.*fn1 The trial court denied defendant's motion.
Defendant renewed his motion the following year, in September 2006. This time he contended that he had learned that arbitrator Lewis had a relationship with plaintiff's counsel which disqualified him as an impartial arbitrator. The trial court again denied defendant's motion.
The order denying that motion is the first order defendant challenges on this appeal. We note first that we analyze this issue, and all of defendant's challenges, under N.J.S.A. 2A:24-1 to -11, the arbitration statute in effect at the time the parties executed their consent order, and not under the subsequently-enacted N.J.S.A. 2A:23B-1 to -32.
N.J.S.A. 2A:24-8(b) stated that an arbitration award could be vacated "[w]here there was either evident partiality or corruption in the arbitrator . . . ." Defendant contended below, and again on appeal, that arbitrator Lewis was biased in favor of plaintiff because he and plaintiff's counsel both served on the executive committee of a professional association as well as the editorial board of a legal periodical. In addition, they were both scheduled to speak at an upcoming program on matrimonial law.
We are satisfied the trial court correctly rejected defendant's argument. The cases upon which defendant relies, such as Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179 (1981), are distinguishable. The arbitrator in Barcon, whose impartiality was questioned, had a business relationship with one of the parties to the arbitration. Id. at 184-85. In Arista Mktg. Assocs., Inc. v. The Peer Group, Inc., 316 N.J. Super. 517, 532 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999), one of the arbitrators had, in fact, previously served as the attorney for one of the parties.
Defendant's contentions fall far short. Plaintiff's counsel and arbitrator Lewis both practice the same field of law in the same geographic area. We are not so far removed from the realities of the practice of law in a small state that it would seem surprising that their professional paths would cross. Nothing about those professional interactions in any way touches upon this dispute. The trial court correctly denied the motion to remove arbitrator Lewis.
The following year, defendant challenged Rabbi Broyde as an impartial arbitrator. He sent a letter to the rabbinical court in Baltimore in which he asserted that Rabbi Broyde was "legally and morally unqualified to act" as an impartial arbitrator. Although Rabbi Broyde asserted that he considered himself able to continue in an impartial manner despite defendant's charge against him, he was instructed by the rabbinical court to have no further involvement in the matter until defendant's allegations were resolved. He thus recused himself from the matter.
Both parties then filed cross-motions with the trial court, plaintiff seeking an order permitting the arbitration to continue with two arbitrators, Lewis and Gunteski, and defendant arguing that the panel had to be dissolved and the matter started anew, some five years after the parties signed the consent order for binding arbitration. The trial court refused to dissolve the panel and permitted the arbitration to continue before two arbitrators. That is the next order which is before us on appeal.
We are satisfied the trial court's conclusion was entirely correct. We affirm that trial court order for the reasons stated by the trial court in its statement of reasons dated May 18, 2007. We note in addition that defense counsel was unable, at oral argument, to articulate what it was about this unduly protracted arbitration proceeding, involving as it did only questions of support and equitable distribution, that required the unique perspective of an orthodox rabbi. Defendant has failed to show how the trial court's discretionary determination to let this arbitration proceed to its conclusion with two members, neither of whom was a rabbi, prejudiced him in any regard. The alternative, wiping out years of work and commencing anew at tremendous expense of time and resources, would be wholly unjustified in such a context.
The balance of defendant's arguments relate to the particulars of the arbitration award, including its decision to impute to him $50,000 in annual income and the manner in which it distributed marital assets. The trial court confirmed the award and made it a part of the amended judgment of divorce.
We decline to address those arguments. The parties agreed, when they executed the consent order in October 2002 to waive their right to appeal the arbitration award except as provided in the arbitration statute. N.J.S.A. 2A:24-8 restricts a party's right to appeal a final arbitration award to four grounds:
a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
Defendant's dissatisfaction with the award and his belief that it is in some manner unfair to him is not a sufficient basis to permit him, more than six years later, to circumvent the arbitration statute and his agreement to be bound by its terms.