Opinion
DOCKET NO. A-5588-12T1
08-24-2015
STUART MEISSNER, Plaintiff-Appellant, v. STACEY COHEN-MEISSNER, Defendant-Respondent.
Stuart Meissner, appellant, argued the cause pro se. Stacey Cohen-Meissner, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2556-11. Stuart Meissner, appellant, argued the cause pro se. Stacey Cohen-Meissner, respondent, argued the cause pro se. PER CURIAM
In this divorce case, plaintiff Stuart Meissner appeals from two orders entered by the Family Part on June 21, 2013, enforcing certain specific sections of an arbitration decision which had been previously confirmed by the court. These orders denied in part and granted in part certain motions filed by the parties challenging aspects of the arbitration award, which had been confirmed by the court and incorporated in the Dual Final Judgment of Divorce (DFJOD) entered that same day.
Plaintiff appeals these two orders claiming the trial court erred in "Confirming All But One of the Former Arbitrator's Post-Confirmation Amendments to the Arbitration Award." Defendant argues the trial judge's decision properly corrected "evident mistakes." She also argues plaintiff did not raise any basis to modify or vacate an arbitration award under the criteria established in the Arbitration Act, N.J.S.A. 2A:23B-1 to -32. We discern no legal basis to interfere with or set aside the Family Part's decision, and affirm.
Both parties were represented by counsel before the Family Part for a substantial period of time. However, they have proceeded entirely pro se in this appeal. Their briefs are not in compliance with the rules of appellate practice with respect to the presentation of legal arguments and organization of the materials contained in the appendices. See R. 2:6-2; R. 2:6-4. Plaintiff's brief in particular is nearly incomprehensible. As a direct consequence of the material deficiencies we encountered, we were required to expend an inordinate amount of time and effort to decipher the essential legal issues involved in this appeal. As our colleagues eloquently noted thirty-eight years ago in Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J. Super. 504 (App. Div. 1977), this is not only "an imposition on this court, such deficiencies are patently unfair to other litigants whose equally legitimate demands on the court's time are presented in a manner conforming in all respects to the requirements of the rules." Id. 508.
The parties were married in 1998 and had two children, a girl, now age fourteen, and a boy, now age twelve. The complaint seeking the dissolution of the marriage was filed on April 28, 2011. Plaintiff is an attorney licensed to practice law in the State of New York. He is not admitted to practice law in this State. Defendant Stacey Cohen-Meissner has a doctorate degree in psychology. On May 15, 2012, the parties entered into a consent order agreeing to "binding, appealable arbitration of all issues pertaining to the dissolution of their marriage by one (1) arbitrator." They selected as an arbitrator a retired Superior Court judge with relevant experience from having served in the Family Part as a judge and practiced matrimonial law as an attorney.
The consent order contained the following description of the issues to be arbitrated and the authority of the court to enforce the arbitrator's award:
IT IS FURTHER ORDERED that the decision of the arbitrator shall be determined in accordance with the laws of the State of New Jersey, and the decisions of the arbitrator shall be incorporated in a Final Order, as appropriate, and shall be enforced by the Court on application without limitation on the Court's remedies. The arbitrator's final award and any interim decision shall be treated as if a Final Judgment or Court Order, and may be incorporated in same, and all rights that attach to a Final Judgment or Order, including but not limited to the rights of limited appeal and enforcement, shall attach to said decision; and
IT IS FURTHER ORDERED that, in addition, the Court shall have leave to assess sanctions, counsel fees and other relief to litigants for failure to comply with the arbitrator's
decision and in order to obtain compliance with any decision of the arbitrator; and
IT IS FURTHER ORDERED that the legal principles of R. 4:50-1 and general principles pertaining to modification of Judgments or Orders will be fully applicable to the arbitrator's decision once incorporated into a Judgment or Order; and
. . . .
IT IS FURTHER ORDERED that the terms of all pendente lite orders heretofore entered shall remain in full force and effect pending further Order of the Court or decision of the arbitrator[.]
The arbitrator conducted hearings over a period of three and one-half days. On November 26, 2012, the arbitrator issued an "Arbitration Order," which was quickly amended and reissued on December 5, 2012. The final arbitration order was not issued until January 3, 2013, due to a typographical error that had gone unnoticed. Although the "Arbitration Order" contains a preamble describing "arbitration statements together with exhibits placed into evidence and other written documents submitted on behalf of each party," there is no verbatim record of the arbitration or the hearings. However, the arbitrator submitted a written decision describing the factual findings he had made based on the evidence presented by the parties and the legal conclusions he had reached with respect to child support, alimony under the criteria set out in N.J.S.A. 2A:34-23, custody and parenting time of the two minor children, equitable distribution, and an award of counsel fees.
Before the final arbitration order was issued on January 3, 2013, plaintiff filed a motion on December 11, 2012, to confirm the arbitration award and submit the matter before the Family Part as an uncontested divorce. Defendant filed a cross-motion on December 21, 2012, seeking to vacate and/or modify portions of the arbitration award. In a certification submitted by the attorney representing defendant, counsel alleged a number of typographical errors, the most glaring being the cessation of plaintiff's alimony obligation to defendant "upon the remarriage of either party," as opposed to the statutorily established standard based on the remarriage of the supported spouse, who in this case was defendant.
Defendant's motion came before the trial court on January 25, 2013. Defense counsel explained to the court she was compelled to bypass the arbitrator and seek relief directly from the court because of the speed in which plaintiff had sought confirmation of the arbitrator's award. At the conclusion of the hearing, the court denied plaintiff's application to set the matter down as an uncontested divorce. The judge noted the parties had neither reached an agreement on a final parenting plan, nor resolved many other issues subject to the arbitration agreement.
The Family Part thus entered an order confirming the arbitration award with the following three exceptions and remanded for the arbitrator to decide: (1) the amount of child support compensation for work-related child care; (2) allocation of Schedule A and B expenses; and (3) "termination events" for alimony. Despite the court's order directing the parties to return to the arbitrator to address these three issues, plaintiff refused. Instead, the record shows the parties communicated with the arbitrator via a series of emails. Matters became more chaotic when the parties began interacting directly with the arbitrator via email after both sides decided to represent themselves.
On March 21, 2013, the arbitrator issued a written decision amending the arbitration award to include, as part of plaintiff's child support obligation, the cost for defendant's work-related child care. This meant plaintiff's weekly child support obligation was $273, "retroactive to November 30, 2012[.]" The arbitrator further amended the original award by also ordering the parties "to exchange a true copy . . . of their respective Federal and State income tax returns on an annual basis through any period in which alimony and child support or either shall be paid." Finally, the arbitrator amended the arbitration award to state that plaintiff's alimony obligation would terminate only upon the remarriage of defendant, the supported spouse. The parties thereafter entered into a "voluntary parenting plan," which the Family Part incorporated into the DFJOD dated June 21, 2013.
The parties appeared before the Family Part on June 21, 2013, represented by counsel. After a highly contentious oral argument in which the trial judge admonished plaintiff several times for his arrogance and disrespectful demeanor to the court, the trial judge sua sponte ordered the parties to exchange tax returns. The court entered two separate orders also dated June 21, 2013, that are the subject of this appeal. In the interest of clarity we will describe with particularity what each order provided.
We will first describe the relief the court granted and denied to defendant in the first order. The court granted defendant's motion to confirm the arbitrator's award directing plaintiff to pay for one-half of the cost for the children's extracurricular activities retroactive to November 26, 2012. The court also ordered plaintiff to assume this financial support obligation prospectively, and fixed the amount of child support arrears in the category of "extracurricular activities" at $1,550.32. The court denied, however, defendant's motion seeking "to hold plaintiff in violation of litigant's rights for failing and refusing to honor his obligations to provide for one-half of the children's extracurricular activities and camp expenses and sanctioning [plaintiff] $100 per day for each day of non-compliance." The court also denied defendant's motion to compel plaintiff to fund a trust in the amount of $10,000 to ensure he pay his share of the cost for the children's extracurricular activities. The remainder of defendant's requests for relief were either found by the court to be moot or were withdrawn by defendant.
We now address plaintiff's affirmative request for relief. The court denied plaintiff's motion seeking enforcement of the part of the arbitrator's decision that plaintiff alleged required defendant to return to plaintiff "the Acura MDX vehicle." The trial judge immediately corrected plaintiff's counsel's misrepresentation in one material respect:
THE COURT: I just don't see in the arbitration award where it says she has to return it. I just see that she has to pay it.
[DEFENDANT'S COUNSEL]: Correct.
THE COURT: Until it's up.
[PLAINTIFF'S COUNSEL]: Your Honor, --
THE COURT: Why should she have to return it?
[PLAINTIFF'S COUNSEL]: Your Honor, because she's getting ticket, after ticket, after ticket on the car. He's been told by his insurance -- his insurance is going to drop him because of this. She's been driving on a suspended license.
THE COURT: Where's the tickets?
[PLAINTIFF'S COUNSEL]: The tickets are -- they're all here. It's in -- to really, -- she's not paying on time.
THE COURT: There was an at fault accident in June 19th, 2012 that was prior to [sic] the arbitration on 10/7/11. I saw that.
After some additional discussion about the nature of defendant's alleged motor vehicle infractions, the trial judge noted that plaintiff had obtained a copy of defendant's official driver record abstract using her social security number and driver's license information. The court also noted the impropriety by plaintiff's counsel to have included this type of confidential information as part of a motion. Ultimately, the court found plaintiff's motion "meritless" in this regard. There was no evidence defendant's driver's license had been suspended for anything other than a "Parking Offense Adjudication Act, which she restored." The trial judge noted the arbitrator directed only for defendant to pay the vehicle's lease payments, which was due to expire in December 2013.
The court also denied the other two items of equitable distribution which plaintiff claimed had been ordered by the arbitrator. The court granted plaintiff's motion to compel defendant to pay $100 per day the children did not attend Hebrew school while under her care and granted plaintiff's motion to "order the [d]efendant to cease and desist from deleting any and all texts from the [p]laintiff to either child . . . with the exception of circumstances when the content of the text messages is inappropriate[.]"
The second order for which plaintiff seeks appellate review contains mostly what can fairly be characterized as case management matters, permitting the parties to obtain the DFJOD. The court also denied plaintiff's application to allocate child support and alimony support in a disproportionate manner to favor him for income tax purposes. The last item of relief ordered by the court was by consent, a rare event in this particularly acrimonious case. Defendant agreed to obtain life insurance in the amount of $150,000, listing the children as beneficiaries and plaintiff as the custodian.
Against this record, plaintiff now argues the trial court erred in confirming the arbitration award. In Fawzy v. Fawzy, 199 N.J. 456, 471, 477 (2009), the Court recognized the right of those involved in a marital dispute to avail themselves of the alternative forum of arbitration in order to resolve the issues that arose from the dissolution of the marriage, including issues concerning child custody and parenting time. Relying on Faherty v. Faherty, 97 N.J. 99, 109-10 (1984), the Court in Fawzy held "the review of an arbitration award is to take place within the confines of the Arbitration Act, unless there is a claim of adverse impact or harm to the child." Fawzy, supra, 199 N.J. at 478.
A court is authorized to vacate or modify an arbitration award under the Arbitration Act only if it falls within one of the following categories:
(1) the award was procured by corruption, fraud, or other undue means;
(2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
(4) an arbitrator exceeded the arbitrator's powers;
(5) there was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the
objection pursuant to subsection c. of section 15 of this act not later than the beginning of the arbitration hearing; or
(6) the arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act so as to substantially prejudice the rights of a party to the arbitration proceeding.
[N.J.S.A. 2A:23B-23(a)(1)-(6).]
The record presented to us in this appeal does not support plaintiff's argument that the trial court overlooked evidence that provided grounds to vacate or modify the arbitration award. We also reject the argument based on Kimm v Blisset, LLC, 388 N.J. Super. 14, 26-31 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007), that the arbitrator did not have the authority to address the three items the trial court directed him to address after he had issued his final award. The trial judge did not confirm or vacate the award at the time he directed the arbitrator to address these three items. Under N.J.S.A. 2A:23B-20(a), both defendant and the trial court had the authority to direct the arbitrator to correct the glaring legal mistake concerning the termination of alimony, as well as the issue dealing with plaintiff's obligation to pay defendant's work-related child support expenses.
N.J.S.A. 2A:23B-20(a) provides:
On application to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
(1) upon a ground stated in paragraph (1) or (3) of subsection a. of section 24 of this act;
(2) if the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or
(3) to clarify the award.
Finally, we emphasize that arbitration proceedings dealing with issues arising from the dissolution of a marital relationship where the welfare of children are at stake is always subject to the Court's parens patriae supervision. Fawzy, supra, 199 N.J. at 475-76. The trial court retained the authority to relax the twenty-day limitation for correction of an arbitration award in order to ensure each parent was paying their fair share of their support obligation. The remaining arguments raised by plaintiff do not have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION