Opinion
DOCKET NO. A-0491-14T3
03-15-2016
DONNA Y. IVERY-LITTLE, Plaintiff-Respondent, v. PAUL C. LITTLE, Defendant-Appellant.
Ronald J. Ricci argued the cause for appellant (Ricci, Fava & Bagley, attorneys; Mr. Ricci, of counsel; Marisa Dominguez, on the brief). April M. Gilmore argued the cause for respondent (The Epstein Law Firm, attorneys; Ms. Gilmore, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4347-12. Ronald J. Ricci argued the cause for appellant (Ricci, Fava & Bagley, attorneys; Mr. Ricci, of counsel; Marisa Dominguez, on the brief). April M. Gilmore argued the cause for respondent (The Epstein Law Firm, attorneys; Ms. Gilmore, of counsel and on the brief). PER CURIAM
Defendant Paul Little appeals from two orders, dated August 22, 2014, that denied his motion to vacate an arbitration award, granted plaintiff's motion to confirm the award, and reduced the award to a judgment of $125,000 plus interest. We affirm.
Following twenty-five years of marriage, plaintiff Donna Ivery-Little filed an action to divorce defendant. As part of her complaint, plaintiff asserted a Tevis claim, seeking damages for injuries allegedly sustained for spousal abuse and battered woman's syndrome. The Tevis claim was severed from the divorce action and was scheduled for trial in December 2013. Instead of proceeding to trial, the parties, each of whom was represented by counsel, agreed to submit the Tevis claim to binding arbitration before a retired judge. That agreement was memorialized in an order, which stated in total:
Tevis v. Tevis, 79 N.J. 422 (1979); see also Giovine v. Giovine, 284 N.J. Super. 3, 22 (App. Div. 1995) (recognizing that claims for battered woman's syndrome can also be filed as part of a divorce action).
At oral argument before us, counsel represented that all issues related to the dissolution of the parties' marriage were resolved and a final judgment of divorce had been entered before the Tevis claim came on for trial.
ORDERED, that the matter is hereby dismissed as the parties have agreed to submit to binding arbitration with a retired judge agreed on between the parties, which arbitration shall take place on or before February 15, 2013, the costs of which will be shared equally by the parties.
Thereafter, the parties selected a specific retired judge and an arbitration hearing was conducted on May 29, 2014. Both parties testified at the hearing and their counsel submitted written statements, as well as documents. Plaintiff's submissions to the arbitrator included a letter defendant had written to plaintiff after she had filed for divorce in 2010. That letter had been produced in August 2013, after the close of discovery in the action in the Law Division. Plaintiff's counsel also submitted a report prepared by a psychiatrist, which offered an opinion that plaintiff suffered from battered woman's syndrome.
Due to scheduling difficulties, plaintiff sought and obtained an order directing the arbitration to proceed on May 29, 2014.
Plaintiff apparently dismissed that action, but refiled for divorce in December 2011. --------
On June 27, 2014, the arbitrator issued a two-page written arbitration decision and awarded plaintiff $125,000 "for the physical and mental injuries sustained by her during her marriage to [defendant]." The award did not set forth any findings of fact or conclusions of law, but it did reference defendant's 2010 letter. Defendant requested reconsideration, but the arbitrator did not respond to that request.
Plaintiff then filed a motion in the Law Division to confirm the arbitration award, and defendant filed a cross-motion to vacate the award. Judge Thomas F. Brogan heard oral arguments and denied defendant's motion, granted plaintiff's motion to confirm the award, and reduced the award to a judgment of $125,000, plus pre-judgment interest of $5691.78. Those rulings were memorialized in two orders filed on August 22, 2014.
On this appeal, defendant makes two arguments: (1) the arbitration award is against public policy and should be vacated because without findings of fact and conclusions of law it cannot be determined if the award was procured by corruption, fraud or other undue means; and (2) the arbitrator's reliance on the letter, which was produced after the close of discovery in the Law Division action, constitutes undue means. We reject both these arguments.
Judicial review of an arbitration award is narrow. Fawzy v. Fawzy, 199 N.J. 456, 470 (2009). When, as here, the arbitration is controlled by statute, the statute defines and limits a court's review. Here, the New Jersey Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -32, governs. The Arbitration Act grants broad powers to arbitrators, N.J.S.A. 2A:23B-15, and "extends judicial support to the arbitration process subject only to limited review," Barcon Assocs. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981) (interpreting predecessor Arbitration Act, N.J.S.A. 2A:24-1 to -11). Generally, an arbitration award is presumed valid. 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). Because "the purpose of the arbitration contract . . . is to provide an effective, expedient and fair resolution of disputes," judicial review of arbitration awards is extremely limited. Fawzy, supra, 199 N.J. at 470.
Arbitration awards may only be vacated under the Arbitration Act if:
(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).]
First, defendant argues that the award should be vacated because the arbitrator failed to make any fact-findings or conclusions of law. Thus, defendant contends, public policy supports requiring such findings, and without such findings a reviewing court cannot determine whether the award was procured by corruption, fraud or undue means. That argument is inconsistent with the Arbitration Act and has previously been rejected by this court.
The scope of arbitration and the requirements of an arbitrator are controlled by contract. Minkowitz v. Israeli, 433 N.J. Super. 111, 132-33 (App. Div. 2013). If the arbitration agreement does not require the arbitrator to make specific factual findings or follow particular procedures, the arbitrator is free to make an award in a manner consistent with the Arbitration Act. N.J.S.A. 2A:23B-4. The Arbitration Act only requires the arbitrator to "make a record of an award." N.J.S.A. 2A:23B-19(a). Moreover, the arbitration award provides that an arbitrator may conduct an arbitration in any manner that the arbitrator considers appropriate, with the goal of disposing of the matter fairly and expeditiously. N.J.S.A. 2A:23B-15(a). Accordingly, we have previously explained:
[W]ithout an agreement to the contrary, the power of the arbitrator is simply to issue an award that resolves a dispute. If they have not agreed in advance, the parties cannot, for example, force an arbitrator to give reasons for an award or to write a decision explaining his or her view of the facts. Neither can they appeal from the award as they could if they had proceeded to litigate their matter in court. Rather, the rights of the parties following issuance of an award, in the absence of an agreement to the contrary, are entirely governed by statute.
[Kimm v. Blisset, LLC, 388 N.J. Super. 14, 26 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007).]
Here, the parties, represented by counsel, did not impose any procedural or substantive requirements on the arbitration process or direct the arbitrator to announce the award in any particular manner. Thus, the arbitrator was not required to make findings of fact and conclusions of law. Moreover, the public policy of New Jersey favors arbitration and it is not inconsistent with that policy to allow the arbitrator's broad scope because if parties want to have specific findings of facts and conclusions of law, they are free to contract to do so.
Next, defendant contends that the arbitrator's reliance on defendant's letter to plaintiff constituted undue means under N.J.S.A. 2A:23B-23(a)(1) because it was produced after the close of discovery in the Law Division action. This argument is also inconsistent with the Arbitration Act.
Arbitrators are not bound by the rules of evidence, and instead may determine the admissibility, relevance, materiality and weight of any evidence. N.J.S.A. 2A:23B-15(a). Additionally, an arbitrator may permit any discovery that he or she determines to be appropriate, taking into account the goal of making the proceeding fair, expeditious, and cost-effective. N.J.S.A. 2A:23B-17(c).
Defendant's argument relies on the close of discovery in the Law Division action. The parties agreed, however, to arbitrate the Tevis claim after the discovery end date had passed in the Law Division case. The arbitrator was not bound by the rules of discovery applicable in that court action. Plaintiff produced the letter to defendant in August 2013; the arbitration took place in May 2014. Plaintiff's counsel also made it clear that she was going to rely on that letter before the arbitrator when she submitted it as part of her arbitration statement. Under all these circumstances, the arbitrator had the authority to consider the letter.
Defendant also argues that it was improper for the arbitrator to consider the psychiatrist's report. As part of the Law Division action, the psychiatrist had stated that he did not believe he could testify due to a potential conflict of interest. Here again, however, there was no contractual limitation on the arbitrator concerning the admissibility of that report. Moreover, both parties made arguments on the admissibility of the psychiatrist report to the arbitrator. Thus, we find nothing that was inconsistent with the Arbitration Act.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION