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Curran v. Curran

Superior Court of New Jersey, Appellate Division

February 8, 2018

ROBERT J. CURRAN, Plaintiff-Appellant,
v.
DEBRA CURRAN, Defendant-Respondent.

          Submitted December 20, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1321-13.

          August J. Landi, attorney for appellant.

          Timothy F. McGoughran, attorney for respondent.

          Before Judges Alvarez, Currier, and Geiger.

          OPINION

          CURRIER, J.A.D.

         In this 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.

         After Robert Curran filed for divorce from his wife of twenty years, defendant Debra Curran, [1] 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 vacated.[2]

         Paragraph 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.

         The 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."

         After 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.

         In an 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 unenforceable.

         The 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 ...

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