JOHN DIMAGGIO v. DIANE F. DIMAGGIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN DIMAGGIO,

Plaintiff-Respondent,

v.

DIANE F. DIMAGGIO,

Defendant-Appellant.

________________________________

December 30, 2016

Argued May 31, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1145-05.

Noel S. Tonneman argued the cause for appellant (Tonneman Vuotto Enis & White, L.L.C., attorneys; Mr. Tonneman, of counsel and on the briefs).

John DiMaggio, respondent pro se.

The opinion of the court was delivered by

HIGBEE, J.A.D.

Defendant Diane F. DiMaggio appeals from a trial court's order confirming an arbitrator's award issued pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. The APDRA provides in pertinent part: "Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further appeal or review of the judgment or decree." N.J.S.A.23A-18(b) (emphasis added). Having carefully considered defendant's arguments in light of the record, we discern no reason for departing from the statutory prohibition of further appeals following a trial court's confirmation of an arbitration award. Accordingly, we dismiss the appeal.

The relevant facts are uncomplicated. John and Diane DiMaggio divorced in 2007 after twenty-four years of marriage. In accordance with the divorce judgment, John was to pay Diane equitable distribution in the amount of $1.4 million in $200,000 increments over the course of five years at an interest rate of six percent per year. The parties agreed to submit all post-judgment financial disputes to arbitration under the APDRA.

Two years later, as a result of his alleged poor financial situation, John applied for modification of the equitable distribution award. Initially, the arbitrator entered an order reducing and extending the regular payments. Diane filed a motion for reconsideration in 2011. As a result of that motion, the reduced payment plan was limited to two years, at the end of which John would be required to demonstrate the appropriateness of further extending the reduced payment plan. During this time period, Diane filed a motion to vacate the arbitrator's reduced award and enforce the original agreement. The motion was denied.

At the conclusion of the two years, the arbitrator conducted hearings to reevaluate the payment plan. John made an appearance telephonically over Diane's objections. After extensive discovery, the arbitrator ordered the extended payment plan to permanently replace the original judgment. The modified plan requires John to pay the same total amount to Diane but in $40,000 per year increments over the course of twenty-five years at a reduced interest rate of one percent per year. Diane again filed a motion to vacate the award and have the original payment plan reinstated.

The judge heard oral arguments on July 25, 2014. Diane's counsel argued that the arbitrator made improper findings of fact and conclusions of law in that he ignored evidence suggesting John had hidden his assets in various shell corporations and impermissibly shifted the burden of proof to Diane to show that John was able to meet the financial requirements of the originally proscribed payment plan. Moreover, Diane avers that the judge was biased in John's favor and unlawfully permitted John to testify via telephone. The court denied the motion and confirmed the arbitration award.

On appeal, Diane asserts that the trial court did not correctly apply the standards of review defined in N.J.S.A. 2A:23A-13(e). She further asserts that the court failed to "make an independent determination of any facts relevant thereto de novo" pursuant to the same statute. She contends that the judge adopted factual and legal conclusions from the court that ruled on Diane's previous motions. Finally, she asserts that public policy requires a reversal of the order on appeal.

Statutory bases for modifying an arbitration award are provided in N.J.S.A. 2A:23A-13. While most of the issues Diane raises on appeal stem from these provisions, we must first consider the scope of our jurisdiction in light of N.J.S.A. 2A:23A-18(b). Generally, an appeal of a trial court's confirmation of an arbitration decision is barred by N.J.S.A. 2A:23A-18(b). The legislative intent of the statute is made explicit by its unambiguous language: "[u]pon the granting of [a trial court] order confirming, modifying or correcting an [arbitration] award . . . [t]here shall be no further appeal or review of the judgment or decree." N.J.S.A. 2A:23A-18(b.

There are limited exceptions, however. For example, the Supreme Court recognized that APDRA's limitation on appellate review does not apply to child support issues. Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project L.P., 154 N.J. 141, 151-52 (1998). We have also held that an arbitrator's reward regarding attorney's fees is governed by the Rules of Professional Conduct and, therefore, lies "within the exclusive supervisory powers of the Court." Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 473 (App. Div. 2005).

The door has been opened for broader exceptions, as well. The Court recognized that "there may be other limited circumstances where public policy would require appellate court review." Mt. Hope, supra, 154 N.J. at 152. A decision confirming, modifying, or vacating an arbitration award that shows clear bias on the part of the trial court "should be subject to review beyond that which is provided for in N.J.S.A. 2A:23A-18." Ibid. Similarly, we determined that when a trial judge misapplies or ignores the standards of review established by N.J.S.A. 2A:23A-13 and fails to rule on a plaintiff's specific claims, appellate court review may be granted. Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475-76 (App. Div. 2007). We have found that "when the relief sought in arbitration is beyond the power of the [arbitrator] to award, the [trial court] action is in essence a de novo proceeding as to which a right of review exists in order for us to carry out our supervisory powers as traditionally exercised over Law Division orders." Open MRI & Imaging of Rochelle Park v. Mercury Ins. Grp., 421 N.J. Super. 160, 166 (App. Div. 2011).

However, so long as a trial court provides a rational explanation as to its decision regarding review of an arbitration award and "acted within APDRA's bounds[,] . . . we are bound by N.J.S.A. 2A:23A-18(b) to dismiss the appeal. . . . regardless of whether we may think the trial judge exercised that jurisdiction imperfectly. Any broader view of appellate jurisdiction would conflict with the Legislature's expressed desire in enacting APDRA to eliminate appellate court review in these matters." Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103-04 (App. Div. 2010).

The circumstances surrounding this appeal do not trigger any of the exceptions, either specific or broad, to N.J.S.A. 2A:23A-18(b) that would allow us to exercise jurisdiction over this matter. Despite Diane's contentions that the trial court misapplied N.J.S.A. 2A:23A-13 and erroneously adopted its factual findings and legal conclusions from a previous matter, there is nothing in the judge's opinion that suggests she did not conduct a thorough and well-reasoned analysis of the issues before the court. Even if we were to disagree with her conclusions, so long as she complied with the standards established by statutory law, we have no jurisdiction to overrule her decision.

Likewise, outside of Diane's contention to the contrary, there is nothing to indicate the trial court was biased in favor of one party. Allowing one of the parties to attend an arbitration hearing telephonically is neither indicative of bias nor does it give rise to a public policy concern. While Diane may not agree with the arbitrator's revised distribution plan or the court's order affirming that plan, neither of those decisions suggest bias. The total amount to which Diane is entitled has not changed.

Because the judge "decide[d] the case by applying the principles dictated by the Legislature," Morel, supra, 396 N.J. Super. at 476, and adhered to APDRA's parameters, we do not have appellate jurisdiction to review the decision of the trial court. Moreover, there is nothing in this appeal that moves us to establish yet another public policy exception to the unambiguous language of N.J.S.A. 2A:23A-18(b).

Dismissed.