DAVID ANDERSON v. KAREN ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2175-02T52175-02T5

DAVID ANDERSON,

Plaintiff-Respondent,

v.

KAREN ANDERSON,

Defendant-Appellant.

________________________________________________________________

 
Calendared for May 23, 2006 - Telephonically

argued May 22, 2006 - Decided June 13, 2006

Before Judges Lefelt, R. B.

Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division,

Family Part, Monmouth County,

Docket No. FM-13-444-00A.

Brian D. Winters argued the cause

for appellant (Keith, Winters &

Wenning, attorneys; Mr. Winters,

on the brief).

Craig S. Laughlin argued the cause

for respondent (Sawyer, Gale, Laughlin

& Schneider, attorneys; Mr. Laughlin,

on the brief).

PER CURIAM

Defendant Karen Anderson appeals from Judge McGann's confirmation of a binding arbitration award, which resolved all of the economic issues in defendant's acrimonious divorce from her former husband, plaintiff David Anderson. Defendant argues that the award should be vacated because of "equity" and "blatant and egregious errors of law." We reject this argument and affirm.

We can summarize the facts as follows. The divorce ended a thirty-one year marriage that produced four children. Two of the children were unemancipated at the time of the divorce and living with plaintiff in the marital home, which was then valued at approximately $700,000.

Plaintiff graduated from the University of Tampa in 1971 and is employed as a manufacturer's representative, selling fluorescent ballasts and neon transformers, and has a commission based salary, earning approximately $61,000 in 1999 and $60,000 in 2001.

Defendant graduated from the College of DuPage, and was licensed as a registered nurse. In September 1987, one of defendant's silicone breast implants ruptured causing an infection and drainage of free silicone. Shortly thereafter, defendant experienced the onset of several health problems. She has since been diagnosed with inflammatory systemic connective tissue disease, silicosis, Lupus, Crohn's disease, Sjorgen's disease, and temporomandibular joint syndrome. Defendant also suffers from chronic anxiety and depression. She takes several prescription medications and has undergone numerous surgeries and dental treatments. Ultimately, defendant became unable to work and she currently receives $613 per month from social security disability and reportedly receives $667 per month from a trust fund established for defendant by her family.

In 1999, plaintiff sued defendant for divorce alleging extreme cruelty. Defendant counterclaimed, also alleging extreme cruelty and claiming a marital tort under Tevis v. Tevis, 79 N.J. 422, 434 (1979), but did not demand a jury trial. See Brennan v. Orban, 145 N.J. 282, 287, 301-02 (1996). Basically, plaintiff asserted defendant was a drunk and as a result of her drinking she had injured herself, was blaming others, and was destroying the family. In the counterclaim, defendant asserted plaintiff had physically and emotionally abused her throughout the marriage. Both parties had obtained temporary restraining orders against each other and the police had responded to several calls of domestic disputes during the final years of the marriage.

After nearly two years of contentious litigation, the parties, both represented by counsel, agreed to submit all of the economic issues pending before the court to binding, non appealable arbitration and to leave only the divorce cause of action for resolution by the court. The parties' agreement stated that the arbitration award would not be subject to appeal under the arbitration statute, the Alternative Dispute Resolution Act, or common law. Furthermore, the agreement did not require the arbitrators to apply New Jersey law in resolving the economic disputes.

The parties mutually selected two attorney-arbitrators, both experienced in family law, who conducted seven days of testimony. The arbitrators thereafter issued an award "in accordance with the statutory and case law of the State of New Jersey." In relevant part, the award: (1) granted the parties joint legal custody with parenting time specified for defendant, and ordered the parties to "engage in therapeutic intervention"; (2) recognized that defendant warranted permanent alimony, but deferred the award, requiring plaintiff to pay for defendant's medical insurance and prescription medications; (3) permitted plaintiff to remain in the marital home with the children until the youngest graduates high school, at which time the house will be sold and the profits distributed; (4) directed that alimony be reassessed after the sale of the marital home; (5) directed no child support to be paid by either party, but ordered the children's social security benefits paid to plaintiff; and (6) found insufficient evidence to support defendant's Tevis claim.

The agreement submitting the case to arbitration permitted the parties to challenge the award only through a request for reconsideration by the arbitrators. Both parties took advantage of this avenue and moved for reconsideration, which the arbitrators denied. Plaintiff then moved for confirmation of the award, which was granted by Judge McGann. Subsequently, Judge McGann conducted a hearing upon the complaint and counterclaim for divorce. Because defendant did not appear, the court dismissed her answer and counterclaim, and granted plaintiff a final judgment of divorce, which incorporated the arbitration decision and award. Defendant appealed, claiming the award must be vacated because the arbitrators committed egregious errors of law and violated the public policy of our State when they did not award defendant alimony or equitable distribution of the marital home, resulting in a severe decline in defendant's quality of life, while plaintiff's remains basically as it was in the marriage. Defendant also contends the arbitrators "punted" on her Tevis claim and failed to make a decision.

It is hard for us to ignore defendant's knowing and intentional submission of the economic issues to binding arbitration, utilizing language that, if enforced, would preclude this appeal. In any event, our review of the award is limited and, barring corruption, fraud, undue means or a violation of the State's public policy, it cannot be set aside. In re Arbitration Between: Trentina Printing, Inc. v. Fitzpatric & Assocs., Inc., 135 N.J. 349, 358 (1994). Here, defendant's allegations fail to meet these standards.

Our review of the award in view of the record and the parties' arguments leads us to conclude that the arbitrators carefully balanced the parties' conflicting interests. The award protects and provides for the needs of the children, and is not vulnerable on any public policy basis. Id. at 364-65 (citing Faherty v. Faherty, 97 N.J. 99 (1984)).

Although defendant argues vigorously that the award "blatantly and egregiously" failed to award defendant permanent alimony, the record indicates the arbitrators considered the relevant statutory factors, N.J.S.A. 2A:34-23(b)(1) to (13), and noted the difficulty in addressing alimony in this case. The arbitrators specifically recognized the "cash flow concerns of the parties, and in particular [plaintiff's] current income." Indeed, it appears the arbitrators found that, without the sale of the house, plaintiff could not cover the expenses imposed for defendant's prescription medications and ordered the parties to obtain a $40,000 home equity line of credit, which plaintiff alone would be responsible to repay.

Equitable distribution of the home was deferred to ensure that the lives of the unemancipated children would not be severely disrupted. During this period, and using the house as collateral, the arbitrators also directed plaintiff to obtain a second home equity loan, of $50,000, to pay for expected college expenses "and other costs as determined within" the award. Plaintiff was directed to pay all minimum monthly payments and seventy percent of the balance when the home was sold. Plaintiff was also "fully responsible for the costs of all repairs or capital improvements made to the home." The deferred equitable distribution was therefore an integral part of the arbitrators' decision that, in our opinion, substantially and fairly balanced the important interests of all family members.

Furthermore, defendant never requested a jury trial and, in lieu thereof, submitted her Tevis claim to arbitration. The arbitrators neither "punted" the issue, nor did they "so imperfectly execute[] their powers that a mutual, final and definite award upon the subject matter submitted was not made." See N.J.S.A. 2A:24-8(d). Instead, the arbitrators found the evidence presented did "not establish[] that [plaintiff's] behavior has risen to the level of tortious conduct." Thus, they simply found defendant's evidence insufficient to grant an award.

We understand that defendant is quite unhappy with the decision; however, she agreed to binding, non-appealable arbitration to resolve these difficult issues. Defendant has asserted no basis to upset this award, which we find to be in the best interests of the children, see Orban, supra, 145 N.J. at 301, relatively well balanced, carefully considered, and obviously not based upon "fraud, corruption, or similar wrongdoing." See Trentina, supra, 135 N.J. at 358. Nor does the evidence indicate the decision was a "clear mistake of law" or a violation of the State's public policy. See id. at 364-65. Accordingly, we are constrained to affirm Judge McGann's order confirming and incorporating the arbitration award into the final judgment of divorce.

Affirmed.

 

We were advised at oral argument that the house has been listed for sale.

(continued)

(continued)

8

A-2175-02T5

June 13, 2006