ROBERT J. CURRAN, Plaintiff-Appellant,
DEBRA CURRAN, Defendant-Respondent.
Submitted December 20, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Monmouth County, Docket No. FM-13-1321-13.
J. Landi, attorney for appellant.
Timothy F. McGoughran, attorney for respondent.
Judges Alvarez, Currier, and Geiger.
matrimonial action, we consider the effect of an
unenforceable clause inserted by counsel into an agreement to
arbitrate entered pursuant to the New Jersey Arbitration Act
(Act), N.J.S.A. 2A:23B-1 to -32. Because we find that the
illegal clause does not affect or defeat the dominant purpose
of the agreement, the offending clause may be severed,
leaving the remainder of the agreement enforceable. As
plaintiff Robert Curran has not demonstrated any of the
limited grounds specified in the Act to either modify or
vacate the arbitration award, we affirm the trial court's
order confirming the award.
Robert Curran filed for divorce from his wife of twenty
years, defendant Debra Curran,  the parties, with counsel,
entered into a consent order referring issues incident to
their divorce to arbitration pursuant to the Act. In the
order, entitled "Referral to Binding Economic
Arbitration, " the parties acknowledged in paragraph 3
that "the [c]ourt is required to confirm and enforce the
[a]rbitration award unless good cause exists to set aside or
modify the Award under one of the following limited
grounds for a court vacating an Arbitration Award,
permitted by the New Jersey Arbitration Act." The
remainder of the paragraph quoted N.J.S.A. 2A:23B-23 and the
specific circumstances under which an award may be
3A was a handwritten provision inserted by Debra's
counsel. It read: "The parties reserve their rights to
appeal the arbitrator's award to the appellate division
as if the matter was determined by the trial court."
Both parties initialed the notation.
parties also signed a retainer agreement for the arbitrator
in which they agreed to be bound by the arbitrator's
decision, which was not appealable other than in accordance
with the provisions of the Act. The retainer further stated:
"The parties . . . represent that upon advice of counsel
they have been made fully aware that they gave up their right
of appeal by entering into binding arbitration." The
section entitled "Procedural Guidelines" provided
that "[t]he parties agree that the Final Award will be
the final and binding resolution of the disputes in their
matrimonial litigation. Judgment may be entered on the award
according to law. There shall be no appeal, except for
reasons set forth in N.J.S.A. . . . 2A;23B-24."
the arbitrator entered a preliminary arbitration award,
Robert requested reconsideration. In June 2015, the
arbitrator issued his findings of fact and conclusions of
law, and a final arbitration award was entered in July. In
October 2015, Robert filed a motion in the Law Division to
modify the arbitration award, asserting eight "mistakes
of law" by the arbitrator, including alimony and
equitable distribution issues. He cited to paragraph 3A as
his authority for the trial court's review. In response,
Debra filed a cross-motion to confirm the award.
oral decision following argument on November 13, 2015, the
trial judge referred to the Act and concluded that there was
no evidence presented to vacate the award under any of the
grounds listed under N.J.S.A. 2A:23B-23. He also noted that
there was no provision under the Act to permit a direct
appeal from an arbitrator's decision to the Appellate
Division. In addressing paragraph 3A, the judge stated:
"The parties are not permitted to create subject matter
jurisdiction by agreement which I think they tried to do
here. The authority of a court to hear and determine certain
classes of cases rests solely with the Constitution and the
Legislature." He concluded that paragraph 3A was
judge determined that:
the parties intended something more than just a review of the
grounds in [N.J.S.A. 2A:23B-28] and then passing this on to
the Appellate Division, I think there's room to find here
that the parties ...