Opinion
DOCKET NO. A-4803-13T1
04-19-2016
BECKY SUE SIRIGOTIS, Plaintiff-Respondent/Cross-Appellant, v. GEORGE D. SIRIGOTIS, Defendant-Appellant/Cross-Respondent.
Joseph M. Freda argued the cause for appellant/cross-respondent (Wilentz, Goldman & Spitzer, attorneys; Corinne L. McCann, on the briefs). Margaret Dee Hellring argued the cause for respondent/cross-appellant (Hellring Lindeman Goldstein & Siegal LLP, attorneys; Ms. Hellring, of counsel and on the brief; Corinne B. Maloney, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-470-11. Joseph M. Freda argued the cause for appellant/cross-respondent (Wilentz, Goldman & Spitzer, attorneys; Corinne L. McCann, on the briefs). Margaret Dee Hellring argued the cause for respondent/cross-appellant (Hellring Lindeman Goldstein & Siegal LLP, attorneys; Ms. Hellring, of counsel and on the brief; Corinne B. Maloney, on the briefs). PER CURIAM
Plaintiff Becky Sue Sirigotis and defendant George D. Sirigotis each appeal from the Family Part's May 5, 2014 order concerning the award of the arbitrator they chose to determine their various open marital issues. Specifically, plaintiff challenges the court's ruling that the arbitrator was authorized to address whether plaintiff could maintain the marital standard of living under Crews v. Crews, 164 N.J. 11 (2000). Defendant challenges the court's decision that the arbitrator's Crews finding had to be vacated and remanded because plaintiff did not have a fair opportunity to present her proofs on that issue. Both parties appeal the court's denial of counsel fees. Because we agree the arbitrator had the authority to address the Crews issue, but find plaintiff had the opportunity to present proof on that issue, we reverse the vacating of the Crews finding, and remand for the court to confirm the arbitrator's award and reconsider defendant's request for counsel fees.
I.
The following facts are drawn from the record and the Family Part's Statement of Reasons for its May 5, 2014 order.
The parties were married in May 1981. Plaintiff filed a divorce complaint in October 2010. The parties resolved the bulk of the issues by agreement, and agreed to submit the remaining unresolved issues to "final and binding" arbitration before a former judge (the arbitrator). The parties signed an Agreement to Provide Arbitration Services (the arbitration agreement). The arbitration agreement stated: "The parties will provide the Arbitrator with a list of open issues which the parties agree the Arbitrator will arbitrate and will also provide the Arbitrator with the pending draft Matrimonial Settlement Agreement [MSA]."
The parties then entered into a partial MSA. The parties agreed that defendant would pay plaintiff permanent alimony of $250,000 per year, based on defendant's average annual gross earned income of $800,000, and plaintiff's imputed annual gross earned income of $40,000. The partial MSA also listed several "unresolved" issues regarding alimony, including: (1) plaintiff's "REQUEST FOR ADDITIONAL ALIMONY FOR HUSBAND'S INCOME IN EXCESS OF $800,000," and (2) plaintiff's request for "INCLUSION OF LANGUAGE PURSUANT TO CREWS V. CREWS." Specifically, plaintiff sought to include language that "SHE 'REPRESENTS THAT SHE WILL NOT BE ABLE TO MAINTAIN THE MARITAL STANDARD OF LIVING BASED ON THE SUPPORT AND ASSETS SHE IS RECEIVING AS SET FORTH IN THIS AGREEMENT, BUT ACCEPTS THIS AGREEMENT AS FAIR AND REASONABLE NEVERTHELESS."
Before the arbitrator, defendant objected to plaintiff's requests. He argued that, "according to Crews v. Crews, 164 N.J. 11 (2000), once the court makes a finding that her lifestyle is met with the alimony award, her income from employment, and unearned income from assets, there is no need to address the impact of future [income]." He added that "[t]he $250,000 alimony award meets her needs and any request for additional alimony should be denied under Crews," because she "will be able to meet and exceed the marital lifestyle as set forth in Crews." Defendant's May 10, 2013 submission to the arbitrator reiterated that the $250,000 annual alimony "far exceeds [plaintiff's] marital lifestyle." Plaintiff's May 10, 2013 submission sought additional alimony because "alimony of $250,000 per year will not meet [her] needs or the marital lifestyle."
According to plaintiff, at the May 23, 2013 arbitration meeting, the arbitrator stated he would not be including her requested Crews language, or any finding regarding Crews, because the issue of the determination of the marital lifestyle was not "before him." The arbitrator stated: "All Crews is out." As a result, plaintiff's July 12, 2013 submission stated that her proposed language "regarding Crews will come out."
Nonetheless, in her July 12, 2013 submission, plaintiff again argued for the additional alimony on the grounds that the $250,000 in base alimony "meets neither her needs nor the marital lifestyle." She asked the arbitrator to order that defendant in the future would have to pay as additional alimony 25% of all his gross earned income between $800,000 or $850,000 and $1,000,000; 15% of his income between $1,000,000; and $1,500,000, and 10% of his income above $1,500,000.
Defendant's July 12, 2013 submission again argued that "[n]o additional alimony shall be paid to [plaintiff] as she without question will be able to meet and exceed the marital lifestyle as set forth in Crews[.]" Moreover, defendant asked the arbitrator to insert a proposed Paragraph C, that read:
It is specifically agreed between Husband and Wife that after considering the equitable distribution of assets and the support provisions contained herein, as well as their respective abilities and obligations to provide for their own support, that both parties can maintain a lifestyle reasonably comparable to that enjoyed during the marriage.
In his July 26, 2013 letter, the arbitrator addressed the remaining unresolved issues. The arbitrator refused to grant plaintiff's request for additional alimony if defendant's income increased over $800,000. The arbitrator ruled that it would not be proper for him to "address future events," and that such a request "will have to abide a future application as either party may deem appropriate." Plaintiff has not challenged that ruling.
The arbitrator's letter also granted defendant's request to include Paragraph C. Subsequently, plaintiff objected on several grounds, including that the parties had not "specifically agreed" that they could maintain the marital lifestyle. Defendant asked the arbitrator to find plaintiff would be able to maintain the marital standard of living using the annual $250,000 permanent alimony, her $40,000 imputed income, and the assets received through equitable distribution.
On September 26, 2013, the arbitrator held his final meeting with the parties. The arbitrator heard extensive argument on the Crews issue. He agreed with plaintiff that Paragraph C improperly stated that the parties had agreed. However, the arbitrator concluded that it was within his authority to decide the issue of whether plaintiff could maintain the marital standard of living.
The arbitrator gave several reasons for this conclusion. First, defendant's objection to plaintiff's proposed language raised that issue and required a ruling. Second, if the parties had remained before the Family Part they would expect the court to make a finding on that issue, and the parties had granted the arbitrator the same powers as a Family Part judge. Third, a ruling on the Crews issue was necessary to avoid sowing the seeds of future litigation. Fourth, if the partial MSA was ambiguous, he had the authority to resolve the ambiguity.
Accordingly, the arbitrator considered the issue and found plaintiff could maintain the marital lifestyle. The proposed dual final judgment of divorce (JOD) contained the arbitrator's Crews finding: "The alimony award of $250,000, Wife's imputed income of $40,000, and the equitable distribution of assets shall enable Wife to maintain the marital standard of living."
Plaintiff then moved in the Family Part to vacate or correct the arbitrator's Crews finding, and to confirm the remainder of the proposed JOD. After hearing oral argument, the court issued its May 5, 2014 order rejecting plaintiff's argument that the Crews issue had not been submitted to the arbitrator for decision.
In its Statement of Reasons, the court stressed that plaintiff had repeatedly requested that the arbitrator find defendant would have to pay additional alimony if his income increased in future years. "In order to include plaintiff's proposed provisions in the arbitration decision, the arbitrator would necessarily need to make a determination that the plaintiff was unable to maintain the marital standard of living, based upon the base alimony to be paid pursuant to the partial MSA." Thus, the court ruled that "plaintiff's proposed findings regarding additional alimony to be paid by the defendant placed the Crews marital standard of living at issue during the arbitration." The court added that, at a minimum, there was an ambiguity as to whether the Crews issue was to be decided by the arbitrator, and that the arbitrator could resolve that ambiguity.
Nonetheless, the court vacated the arbitrator's Crews finding, and remanded for further proceedings. The court denied both parties' requests for counsel fees. Both parties appeal.
II.
"The public policy of this State favors arbitration as a means of settling disputes that otherwise would be litigated in a court." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015). This strong public policy favors "using arbitration in family litigation." Minkowitz v. Israeli, 433 N.J. Super. 111, 132 (App. Div. 2013) (citing Faherty v. Faherty, 97 N.J. 99 (1984)). "'Arbitration can attain its goal of providing final, speedy and inexpensive settlement of disputes only if judicial interference with the process is minimized; it is, after all, meant to be a substitute for and not a springboard for litigation.'" Fawzy v. Fawzy, 199 N.J. 456, 468 (2009) (citation omitted).
Thus, "courts grant arbitration awards considerable deference." Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013). "'[T]o ensure finality, as well as to secure arbitration's speedy and inexpensive nature, there exists a strong preference for judicial confirmation of arbitration awards.'" Ibid. (citation omitted). "[B]ecause of the strong judicial presumption in favor of the validity of an arbitral award, the party seeking to vacate it bears a heavy burden." Del Piano v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 372 N.J. Super. 503, 510 (App. Div. 2004), certif. granted, 183 N.J. 218, appeal dismissed, 195 N.J. 512 (2005).
The Family Part's "scope of review of an arbitration award is narrow." Fawzy, supra, 199 N.J. at 470. "[T]he matter is subject to review under the narrow provisions of New Jersey's version of the Uniform Arbitration Act ["UAA"], N.J.S.A. 2A:23B-1 to -32." Id. at 462. "'As the [Family Part's] decision to vacate an arbitration award is a decision of law, this court reviews the denial of a motion to vacate an arbitration award de novo.'" Minkowitz, supra, 433 N.J. Super. at 136 (citation omitted). We must hew to that standard of review.
III.
Plaintiff contends the Family Part should have granted her motion to vacate or correct the arbitrator's finding on the Crews issue as it had not properly been submitted to him for decision. Her motion relied on two provisions of the UAA. First, a court may vacate an award if "an arbitrator exceeded the arbitrator's powers." N.J.S.A. 2A:23B-23(a)(4). Second, a court may modify or correct an award if "the arbitrator made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted." N.J.S.A. 2A:23-24(a)(2).
These UAA provisions are essentially identical to language in the earlier Arbitration Act, N.J.S.A. 2A:24-1 to -11, which still governs collective bargaining agreements, N.J.S.A. 2A:24-1.1. See Kimm v. Blisset, LLC, 388 N.J. Super. 14, 28 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007). That act provided a court could vacate awards "[w]here the arbitrators exceeded . . . their powers," N.J.S.A. 2A:24-8(d), and could modify awards "[w]here the arbitrators awarded upon a matter not submitted to them unless it affects the merit of the decision upon the matter submitted," N.J.S.A. 2A:24-9(b). Thus, the case law under the earlier act is pertinent, though the acts' provisions differ in other respects. See Kimm, supra, 388 N.J. Super. at 31.
Arbitration is "'a creature of contract.'" Fawzy, supra, 199 N.J. at 469 (citation omitted). "'[O]nly those issues may be arbitrated which the parties have agreed shall be.'" Ibid. (citation omitted). Thus, an arbitrator exceeds his authority by "'decid[ing] a matter not even submitted to'" the arbitrator by the parties. Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994) (citation omitted).
Plaintiff argues that "where only one of the parties believes that the arbitrator was empowered to act, in the absence of evidence of an actual agreement, there is no agreement and therefore the arbitrator has no authority to act at all." Kimm, supra, 388 N.J. Super. at 25. Here, however, there was evidence of an actual agreement to submit the Crews issue to the arbitrator.
The parties' arbitration agreement provided the arbitrator with the power to resolve the open issues in the partial MSA. Two of those unresolved issues implicated Crews. First, as the arbitrator found, plaintiff's request to include Crews language, and defendant's objection, explicitly required the arbitrator to decide whether plaintiff could represent that she would not be able to maintain the marital standard of living. Second, as the Family Part ruled, plaintiff's request for additional alimony if defendant's income increased implicitly required the arbitrator to determine whether plaintiff was unable to maintain the marital standard of living under the current alimony award, as that is the precondition for such an award of additional alimony. Crews, supra, 164 N.J. at 25. Resolving those issues required the arbitrator to consider the Crews issue, which also served the goals of Crews by ensuring that the marital standard of living is determined as part of the divorce proceeding, so as to avoid sowing the seeds of unnecessary future litigation.
In Crews, our Supreme Court recognized that "[t]he standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living" is a factor that must be considered in determining an alimony award. N.J.S.A. 2A:34-23(b)(4); see also Crews, supra, 164 N.J. at 26. Indeed, "the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews, supra, 164 N.J. at 16. "The importance of establishing the standard of living experienced during the marriage cannot be overstated. It serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when 'changed circumstances' are asserted." Ibid.
Our Supreme Court in Crews stressed that it is "critical" and "essential" to "[i]dentify[] the marital standard of living at the time of the original divorce decree," "regardless of whether the original support award was entered as part of a consensual agreement or of a contested divorce." Id. at 25. Failure to do so disadvantages courts considering subsequent requests for modification of alimony. Id. at 25-27. Thus, the Court in Crews required "that the record addresses that critical issue at the time of entry of the divorce decree in all cases," id. at 33, "when the information necessary to such determinations was fresh and could be presented readily," Weishaus v. Weishaus, 180 N.J. 131, 142 (2004).
"A trial court may forego the findings when the parties freely decide to avoid the issue as part of their mutually agreed-upon settlement, having been advised of the potential problems that might ensue as a result of their decision." Weishaus, supra, 180 N.J. at 144. No such agreement was reached here, as shown by plaintiff's presentation of the two Crews-related issues.
Plaintiff effectively raised the Crews issue by requesting the arbitrator prospectively order additional alimony if defendant's income improved after divorce. Normally, "[a] motion to modify alimony may not be used to enable a dependent spouse to share in the post-divorce good fortune of the supporting spouse." Crews, supra, 164 N.J. at 29. However, if "the supported spouse can[not] maintain a lifestyle that is reasonably comparable to the standard of living enjoyed during the marriage" at the time of divorce, "a modification to the support award is appropriate and warranted" "if a supporting spouse's later financial condition substantially improves." Id. at 16, 33. Here, plaintiff was asking the arbitrator to provide for such a modification in advance. Accordingly, it was unambiguously within the arbitrator's authority to decide the Crews issue.
Moreover, the parties' arbitration agreement provided that "[a]t all times the Arbitrator shall determine whether an issue or dispute is within the scope of his jurisdiction as outlined in the original open issues or as modified." Thus, the parties "clearly and unmistakably" agreed the arbitrator could determine arbitrability if the "open issues" in the partial MSA were ambiguous. AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 656 (1986); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research, Inc., 42 7 N.J. Super. 45, 59 (App. Div.), certif. denied, 212 N.J. 460 (2012); see also Amalgamated Transit Union, Local 880 v. N.J. Transit Bus Operations, Inc., 200 N.J. 105, 115 (2009) ("That determination is a function for the court, not the arbitrator, 'absent clear expression in the contract to the contrary.'") (citation omitted).
The UAA provides "[t]he court shall decide whether . . . a controversy is subject to an agreement to arbitrate," N.J.S.A. 2A:23B-6(b), but permits the parties to alter that allocation, N.J.S.A. 2A:23B-4.
Because "the parties submitted that matter to arbitration," we "must defer to an arbitrator's arbitrability decision." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 985, 993 (1995). In any event, even if we ignore the parties' agreement and review the arbitrability issue "independently," ibid., we agree with the Family Part that the Crews issue was submitted to arbitration by plaintiff's requests for Crews language and for additional alimony.
Plaintiff stresses that, even if her request for Crews language raised the Crews issue, the arbitrator made a preliminary finding that "[a]ll Crews is out," causing plaintiff to reply that her proposed language "regarding Crews will come out." However, as the Family Part ruled, "[t]hat the arbitrator initially declined to address Crews does not change the fact that the Crews 'marital standard of living' was squarely 'at issue,' by virtue of plaintiff's proposal for incremental increases in alimony[.]"
As the Family Part also ruled, "[e]ven though the arbitrator declined to include plaintiff's proposed incremental alimony language in his July 26, 2013 ruling, . . . the conclusion is inescapable that plaintiff had asked the arbitrator to make a Crews finding (in her favor)." Therefore, we affirm the Family Part's ruling that the arbitrator had the authority to decide whether plaintiff could maintain a lifestyle reasonably comparable to the marital standard of living.
IV.
Despite upholding the arbitrator's authority to decide the Crews issue, the Family Part vacated the arbitrator's Crews finding because the court was "not satisfied that plaintiff was given a full and fair opportunity to present all of her proofs on the Crews issue during the arbitration hearing." However, a court may vacate an arbitrator's award only if permitted by "the narrow provisions of" the UAA. Fawzy, supra, 199 N.J. at 462.
To justify vacating the arbitrator's Crews finding, the Family Part relied on provisions of the UAA not raised in plaintiff's motion to vacate or correct. The court cited N.J.S.A. 2A:23B-23(a)(3), but plaintiff cannot show that the "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 [N.J.S.A. 2A:23B-15], so as to substantially prejudice the rights of a party to the arbitration proceeding." N.J.S.A. 2A:23B-23(a)(3). The court also cited N.J.S.A. 2A:23B-15(d), but the arbitrator did not deny plaintiff "a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing." Ibid.
Indeed, the parties chose not to present witness testimony.
To the contrary, plaintiff freely submitted evidence and argument to the arbitrator during seven meetings, numerous conference calls, and through her seven written submissions, which were often voluminous and attached dozens of exhibits. For example, to show additional alimony was required, plaintiff's May 10, 2013 submission "evidenced at length" that her initial Case Information Statement (CIS) showed her "marital lifestyle" needs, that defendant was misrepresenting her CIS, and that the parties' substantial charitable contributions showed that $250,000 annual alimony would not allow her to maintain the marital standard of living. Similarly, her July 12, 2013 submission argued she could not maintain the marital standard of living, and attached her updated CIS to show "her projected expenses in accordance with the parties' marital lifestyle." The arbitrator carefully reviewed plaintiff's initial CIS and her updated CIS in finding she could maintain the marital lifestyle. See Weishaus, supra, 180 N.J. at 142 (Crews "looked to the CIS to capture the necessary information" to establish the marital standard of living).
Among the exhibits plaintiff presented to the arbitrator were the parties' federal income tax returns from 2006-11, defendant's W-2s and year-end paystubs from 2007-12, bank account statements, and asset valuations. Plaintiff presented other exhibits with her written submissions which have not been included in the appellate appendices.
Plaintiff again emphasizes that during the May 23, 2013 conference call, the arbitrator said he would not include her proposed Crews language because the issue of the determination of the marital lifestyle was not "before him." However, the Crews issue was re-raised by defendant in his July 12, 2013 submission, and the arbitrator could exercise his "broad authority" to re-address this issue in his July 26, 2013 ruling. Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010). "An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding." N.J.S.A. 2A:23B-15(a).
On appeal, plaintiff argues for the first time that the arbitrator could not change his July 26, 2013 ruling. However, the UAA "now empowers the arbitrator to modify or correct his or her award" under certain circumstances. Kimm, supra, 388 N.J. Super. at 30 (citing N.J.S.A. 2A:23B-20, -24). In any event, plaintiff's August 26, 2013 submission asked the arbitrator to change the July 26 ruling, arguing it improperly incorporated defendant's proposed Paragraph C, stating that the parties agreed they could maintain the marital lifestyle. "[I]f a party has 'invited' the error, [s]he is barred from raising an objection for the first time on appeal." State v. A.R., 213 N.J. 542, 561 (2013).
Moreover, in an August 29, 2013 conference call, the arbitrator invited further submissions on the Crews issue. Thereafter, plaintiff made two submissions before the parties' final meeting with the arbitrator on September 26, 2013. Thus, she "had ample opportunity to fashion her evidence well before the [final] hearing." Manger, supra, 417 N.J. Super. at 377.
In the parties' final meeting with the arbitrator, plaintiff's counsel suggested for the first time that "we might have conducted our side of the arbitration very differently with different proofs, with testimony, with all sorts of things that might have come in if that had been an issue that was before you." She continued: "We would have made maybe very different presentation and brought in different exhibits and maybe [plaintiff] would have chosen to testify, I don't know[.]"
However, plaintiff never fleshed out those vague and uncertain assertions. In her two lengthy certifications to the Family Part, plaintiff simply claimed she "would have submitted voluminous evidence" and "copious evidence and information regarding that issue." Given plaintiff's vague and unsupported allegations, there was no basis to find that any error was "clearly capable of producing an unjust result." R. 2:10-2. Therefore, any error must be "deemed harmless and disregarded." Toto v. Ensuar, 196 N.J. 134, 144 (2008).
The Family Part noted that "there was considerable disagreement and uncertainty" before the arbitrator squarely addressed the Crews issue in his September 26, 2013 opinion. However, that disagreement and uncertainty did not prevent plaintiff from arguing and presenting evidence, both before and after the May 23, 2013 conference call, that she would not be able to maintain the marital lifestyle.
The Family Part also faulted the arbitrator for addressing the Crews issue "in summary fashion without making detailed findings regarding the marital standard of living." However, Crews only requires a court to find "the standard of living established in the marriage," and "whether the support authorized will enable each party to live a lifestyle 'reasonably comparable' to the marital standard of living." Crews, supra, 164 N.J. at 26 (quoting N.J.S.A. 2A:34-23(b)(4)); see also Weishaus, supra, 180 N.J. at 141.
Our Supreme Court has not required arbitrators to make detailed findings of fact on alimony. "[B]ecause alimony and child support are always subject to modification for changed circumstances, we suggest, but do not mandate, that the arbitrator in all future domestic dispute arbitrations make reasonably detailed findings of fact upon which she or he bases the arbitration award." Faherty, supra, 97 N.J. at 111; see also Lopresti v. Lopresti, 347 N.J. Super. 144, 147 (Ch. Div. 2001).
Indeed, parties cannot "force an arbitrator to give reasons for an award or to write a decision explaining his or her view of the facts," unless their arbitration agreement so provides. Kimm, supra, 388 N.J. Super. at 26. There is no such provision here. Moreover, both parties' proposed Crews language, and their advocacy, addressed only whether plaintiff could maintain the marital standard of living. The arbitrator clearly made that finding.
Cf. Fawzy, supra, 199 N.J. at 480 (providing, "in respect of child-custody and parenting-time issues only," that "the arbitrator shall state in writing or otherwise record his or her findings of fact and conclusions of law").
The Family Part cited the rule requiring courts to "find the facts and state its conclusions of law." R. 1:7-4(a). However, the Family Part could not impose on the arbitrator the rules applicable to courts. See R. 1:1-1. "A significant advantage of arbitration" is that it is "'conducted in a less formal atmosphere . . . than a trial.'" Minkowitz, supra, 433 N.J. Super. at 132 (quoting Fawzy, supra, 199 N.J. at 472). --------
Additionally, for a court to ask "an arbitrator to explain his or her reasoning works against the very goals of arbitration: finality and expedition." Tretina, supra, 135 N.J. at 364. "Moreover, requiring an arbitrator to justify a decision reflects a lack of faith in the arbitration process and is inconsistent with our commitment to maintaining arbitration as an alternative to litigation in the courts." Ibid. Similarly, remanding for "further explanation threaten[s] the reliability of arbitration awards." Ibid.
On appeal, plaintiff for the first time invokes N.J.S.A. 2A:23B-23(a)(1), which allows awards to be vacated for undue means. She mistakenly argues a court can vacate an award for an error of law under the "formulation" quoted in Minkowitz, supra, 433 N.J. Super. at 150-51 (quoting Tretina, supra, 135 N.J. at 357). However, Tretina was simply describing the plurality opinion in Perini. Tretina, supra, 135 N.J. at 357 (quoting Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 494 (1992)). Tretina then held that "the correct standard of review is not that adopted by [the Perini plurality], but rather the standard set forth in the Chief Justice's opinion concurring in the judgment in Perini." Id. at 358. Under that standard, a court may not reverse an arbitrator "for mere errors of New Jersey law" unless the parties' agreement expressly "expand[ed] the scope of judicial review." Ibid. (quoting Perini, supra, 129 N.J. at 549 (Wilentz, C.J., concurring)). Where, as here, the parties have not so agreed, "the appropriate judicial scope of review does not encompass errors of law or facts." Empire Fire & Marine Ins. Co. v. GSA Ins. Co., 354 N.J. Super. 415, 421 (App. Div. 2002). "Thus, even assuming [the arbitrator] made a mistake of law," it "would provide no basis to overturn or modify his award." Cap City Prods. Co., Inc. v. Louriero, 332 N.J. Super. 499, 504 (App. Div. 2000). In any event, plaintiff fails to show an error of law, undue means, or plain error.
The UAA "precludes judicial interference with an arbitrator's award except in extremely limited circumstances." Malik v. Ruttenberg, 398 N.J. Super. 489, 495 (App. Div. 2008). As none of the narrow statutory grounds for vacating an arbitrator's award apply here, the Family Part erred in vacating the arbitrator's ruling and remanding for further proceedings. See N.J.S.A. 2A:23B-23(a), (c). We reverse that portion of the court's order, and remand for the court to confirm the award.
V.
Both plaintiff and defendant appeal the Family Part's denial of their requests for counsel fees. "The award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court." Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). "An appellate court will disturb a trial court's determination on counsel fees only on the 'rarest occasions, and then only because of a clear abuse of discretion.'" J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We find no clear abuse of discretion in the Family Part's denial of plaintiff's request for counsel fees.
However, our ruling in this opinion may affect the calculus regarding defendant's request. Under Rule 5:3-5(c), the Family Part examined "the results obtained." It found that "[n]either party can be said to be the prevailing party on the motion and cross-motion." However, we have ruled the court erred in granting plaintiff's motion to vacate. Because the results obtained is "a relevant factor in the counsel-fee calculus, we reverse the denial of counsel fees [to defendant] and remand that issue for further consideration." See Caplan v. Caplan, 364 N.J. Super. 68, 91 (App. Div. 2003), aff'd, 182 N.J. 250 (2005). We intimate no view as to whether an award of counsel fees to defendant is appropriate, but leave that issue to the Family Part's sound discretion based on the consideration of all relevant factors.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION