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Henry Manger v. Lorraine Manger

December 27, 2010

HENRY MANGER, PLAINTIFF-RESPONDENT,
v.
LORRAINE MANGER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-902-07.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted: December 8, 2010

Before Judges Cuff, Sapp-Peterson, and Fasciale.

The opinion of the court was delivered by CUFF, P.J.A.D.

Defendant Lorraine Manger appeals from an order confirming an arbitration award and denying her motion to vacate the same award. We affirm.

Plaintiff Henry Manger and defendant married in 1964. Plaintiff filed a complaint for divorce on January 12, 2007. Two issues dominated the matrimonial litigation: the value of a beauty salon owned and operated by the parties and the distribution of the asset. On May 20, 2008, Judge Ramsay entered a Judgment of Divorce (JOD) and referred the financial issues to binding arbitration. The JOD provided that "[a]ll prior Orders entered by [the] Court shall remain in full force and effect until a final determination is made by the Arbitrator." Among the prior orders entered in this matter was a March 13, 2007 case management order that required completion of all business appraisals by May 31, 2007.

Defendant's initially retained attorney withdrew as counsel, and by order dated January 31, 2008, Judge Ramsay granted a motion to substitute counsel, but denied defendant's request to re-open discovery. At a March 6, 2008 intensive settlement conference, defendant's newly substituted counsel sought to obtain a report on the value of the business, but Judge Ramsay ruled that discovery would not re-open. The parties agreed to arbitrate the financial issues following this failed settlement conference.

Judge Ramsay appointed an arbitrator on October 16, 2008. After a January 8, 2009 settlement conference that resolved some, but not all, issues, the arbitrator established the date and time of the arbitration hearing, barred introduction of expert reports, and established the schedule for exchange of evidence and exhibits. Specifically, the arbitrator directed that the documents each side intended to introduce at the hearing "must be exchanged with opposing counsel in advance of the hearing." The arbitrator also directed defendant's attorney to submit a memorandum in support of admission of another attorney pro hac vice. In her January 12, 2009 letter setting forth these terms, the arbitrator cited the terms of the March 13, 2007 case management order, Judge Ramsay's March 31, 2008 order declining to re-open discovery, and both parties' failure to submit an expert report during the Superior Court proceedings. The arbitrator denied the pro hac vice request in correspondence dated March 4, 2009.

At the arbitration hearing, the parties submitted only the issues of the equitable distribution of the business, defendant's request for alimony, and each party's request for counsel fees and costs. At the hearing, the arbitrator excluded from evidence plaintiff's banking statements from 2005-2007 because these statements had not been provided in discovery or pursuant to the arbitrator's January 8, 2009 directive. On the second day of the hearing, the arbitrator denied defense counsel's application to be released as counsel of record; defendant's attorney had cited defendant's loss of confidence in him.

In the award, the arbitrator found the hair salon was subject to equitable distribution, rejected liquidation of the business, and awarded the business to plaintiff. The arbitrator also awarded defendant $650 weekly as equitable distribution of her share of the business. This sum is payable to defendant "for so long as [plaintiff] continues to own and operate the entity." The arbitrator did not award alimony to defendant because the parties' income, earned and unearned, was in relative parity.*fn1

Defendant moved to vacate the arbitration award. Judge Ramsay denied the motion and confirmed the award in a January 11, 2010 order. The judge found the arbitrator's decision in support of her award demonstrated that both parties had ample opportunity to submit relevant proofs and that defendant failed to establish misconduct. Notably, Judge Ramsay commented that "[b]efore the parties agreed to submit this matter to arbitration, this Court had scheduled a firm trial date in this matter." At that time, neither party had sought a valuation of the business and discovery had closed. Moreover, the judge observed that the discussion of the award and the award itself reflected the extent of the marital estate revealed to her during the pendente lite proceeding. Judge Ramsay specifically noted that "[b]oth parties have limited financial means. Thus, the expense of [an expert to value the business] may well have been prohibitive."

On appeal, defendant argues that Judge Ramsay erred when she confirmed the arbitration award because the arbitrator committed misconduct when she refused to allow expert testimony, admit certain evidence, and admit her choice of co-counsel on a pro hac ...


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