SARAH B. BISER v. RICHARD L. LEVINE

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE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-0724-16T2

SARAH B. BISER,

        Plaintiff-Respondent,

v.

RICHARD L. LEVINE,

     Defendant-Appellant.
_____________________________

              Argued May 8, 2018 – Decided May 29, 2018

              Before Judges Reisner, Hoffman and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FM-20-0350-98.

              Jennifer L. Young argued the cause for
              appellant (Dughi, Hewit & Domalewski, PC,
              attorneys; Jennifer L. Young, on the briefs).

              Sarah B. Biser, respondent, argued the cause
              pro se.

PER CURIAM

        In this post-judgment matrimonial case, defendant Richard L.

Levine appeals from a July 12, 2016 order, requiring him to pay

plaintiff Sarah B. Biser $119,712, as defendant's share of the
first three years of their oldest daughter's graduate school

expenses, and requiring defendant to pay $39,459.50 toward the

cost of the fourth year; a September 27, 2016 order, denying

defendant's motion for reconsideration; and a February 7, 2017

judgment in favor of plaintiff for $119,712.    With one exception,

set forth below, we affirm the orders and judgment on appeal,

substantially for the reasons set forth in the trial judge's cogent

statements of reasons.

     The arbitration award, on which the July 12, 2016 order was

based, set forth only certain specific categories of educational

expenses that defendant was required to pay.        The trial court

erred in requiring defendant to pay for items not set forth in the

arbitration award.   Therefore, the July 12, 2016 order and the

February 7, 2017 judgment are modified to disallow those items.

We remand to the trial court for the sole purpose of amending the

July 12, 2016 order and the February 7, 2017 judgment to delete

the specific expenses disallowed in this opinion.

                              I

     This appeal is the latest chapter in the parties' seemingly

endless post-judgment matrimonial litigation.   The history is set

forth in the trial judge's written statements of reasons, and in

our opinion deciding a prior appeal.   See Biser v. Levine, No. A-



                                  2                         A-0724-16T2
3318-13 (App. Div. Feb. 8, 2016), certif. denied, 
227 N.J. 120

(2016). A brief summary will suffice for purposes of this opinion.

     The    parties   engaged      in    prolonged    arbitration       of   certain

financial issues relating to their divorce, including traditional

arbitration    before    a   first      arbitrator,   followed     by    appellate

arbitration before a second arbitrator.               The first arbitrator's

award required each party to pay fifty percent of "the expenses

directly related to college and graduate school" for their three

children.     Erring on the side of specificity, in light of the

parties'     seemingly      unlimited     ability     to   litigate      over     any

ambiguity,     the    arbitration        order   defined     "college        related

expenses" and "graduate school expenses" as "tuition, room and

board, books, lab fees and one-round trip to the location of the

college each semester."

     The arbitration award also specified that defendant's fifty

percent would be equal to "the aggregate amount of the respective

institution's published website numbers for tuition, room and

board, books, lab fees and one-round trip to the location of the

institution    (if    out     of   town),     without      any   requirement        of

verification by [plaintiff] or the child involved." (emphasis

added).      Finally, the award allowed either party to make an

application to the Superior Court if either believed the other was



                                          3                                  A-0724-16T2
"abusing the procedure or if the reliance on the website numbers

create[d] some unanticipated problem . . . ."

      The    appellate    arbitrator       affirmed   the    award    with    one

modification not pertinent here.             The trial court set aside the

awards, concluding that the arbitrators "exceeded their authority

and violated public policy" when they required defendant to pay

for an emancipated child's graduate school expenses.                 On appeal,

we reversed that decision, holding that the arbitrators did not

exceed their authority, and the awards would not be set aside

based on an asserted mistake of law or as contrary to public

policy.     Biser, slip op. at 13-21.       We remanded to the trial court,

for the limited purpose of entering an order confirming the

arbitration awards and vacating a counsel fee award.                 Id. at 30.

      In the next round of litigation, which gave rise to this

appeal, the parties disagreed over how to calculate defendant's

share of the daughter's expenses for the first three years of

graduate school.1       Plaintiff claimed that the cost was $119,712.

Included in this amount were: tuition, library and technology

fees,     books   and    supplies,     instruments,         room   and    board,

transportation, medical and dental out of pocket expenses, major




1
    By this time, the case had been assigned to another trial judge.


                                       4                                 A-0724-16T2
medical insurance,2 miscellaneous, and estimated loan fees.      For

the fourth year, the parties disagreed as to those same items,

plus expenses for residency applications and travel.3

      Defendant contended that plaintiff's calculation included

amounts not required by the arbitration award,       and that the

daughter was not actually incurring certain of the allowable costs

listed on the school's website, such as room and board.        In a

brief filed with the trial court on June 23, 2016, defendant

contended that the total amount he owed was $97,746.      However,

despite admitting he owed that amount, defendant, a senior partner

in a major law firm, failed to pay, claiming he could not afford

it.

      The trial court ordered defendant to pay $119,712 within

twenty-one days.    The court also ordered that defendant pay

$39,459.50 for the daughter's final year of medical school.      The

court reasoned that the arbitration award specifically did not

require plaintiff to verify that she had paid her share of the

expenses or to verify the daughter's actual expenses.    The court



2
   While the estimated cost of attendance did not list a specific
amount for major medical insurance, on the "Account Summary by
Term" page, there is a cost of $2309 per semester for United
Healthcare for a total of $4618 per year.
3
    The residency-related expenses were only included in the
estimated cost of attendance for the fourth year of medical school.

                                5                           A-0724-16T2
also rejected defendant's contentions that the website estimates

were high, because "the attempt to litigate every line item [was]

precisely what the arbitrator sought to avoid by specifically

requiring use of the website numbers."    Finally, the trial court

rejected defendant's argument that he could not pay plaintiff a

lump sum, because defendant did not submit any documentation

demonstrating his inability to pay.

     Defendant filed a motion for reconsideration.    In his reply

to plaintiff's opposition to the reconsideration motion, defendant

submitted a case information statement (CIS).      The trial court

denied the reconsideration motion, reasoning that "[t]he majority

of the evidence provided to the [c]ourt was available when the

underlying motion was decided," and the CIS could have been

submitted with the original motion.      The court also noted that

"both the arbitrator and appellate arbitrator predicted the very

argument raised now by [d]efendant and, therefore, made it clear

that 'verification' of the web site expenses would not be a

precedent to payment."

                              II

     On this appeal, defendant raises the following arguments:

          I. THE TRIAL COURT ERRED IN EXPANDING THE
          PLAIN LANGUAGE OF THE FINAL ARBITRATION AWARD
          TO GRANT MS. BISER REIMBURSEMENT OF EXPENSES
          NOT PROVIDED FOR IN THE FINAL ARBITRATION
          AWARD

                                6                          A-0724-16T2
           II. THE TRIAL COURT ABUSED ITS DISCRETION BY
           DENYING MR. LEVINE'S RIGHT TO INVOKE PARAGRAPH
           15 OF THE FINAL ARBITRATION AWARD AND NOT
           REQUIRE MS. BISER TO PROVIDE PROOF OF
           DANIELLE'S MEDICAL SCHOOL EXPENSES

           III. THE TRIAL COURT ERRED BY REQUIRING A LUMP
           SUM PAYMENT WITHOUT CONDUCTING A PLENARY
           HEARING TO DETERMINE MR. LEVINE'S ABILITY TO
           PAY AND WITHOUT CONSIDERING MR. LEVINE'S CASE
           INFORMATION STATEMENT

           IV. THIS MATTER MUST BE REMANDED TO A
           DIFFERENT TRIAL JUDGE GIVEN THE TRIAL JUDGE'S
           PARTIALITY AND PREMATURE FINDINGS OF FACT

      In the first point of his brief, defendant contends that the

following items – which plaintiff included in her calculation of

the educational expenses — are not included in the arbitration

award: "medical insurance, loan fees, medical and dental expenses,

unspecified   'fees,'   and   'miscellaneous      fees.'"      As   plaintiff

acknowledges,   defendant     is   also    challenging   a   separate     $1250

charge that only applies to the fourth year's expenses.             Defendant

argues that the trial court erred in including all of those items

in the judgment.4

      We agree with defendant that the trial court erred in awarding

plaintiff amounts that were not within the strict and specific

terms of the arbitration award.           As we recognized in our earlier

opinion, and as the trial court acknowledged, the arbitrators


4
    Objections not raised on this appeal are waived.

                                     7                                  A-0724-16T2
anticipated the need for specificity, knowing that these parties

would litigate over any possible ambiguity.                 Accordingly, the

arbitration award carefully delineated which specific items listed

on   the    school   website    were    included   in   defendant's    payment

obligation.

      The    arbitration   order       defined   that   obligation    as     fifty

percent of "the [educational] institution's published website

numbers for tuition, room and board, books, lab fees and one-round

trip to the location of the [institution] each semester."                       The

medical school's website lists the following expenses, not all of

which are included in the arbitration award: tuition, library and

technology fees, books and supplies, instruments, room and board,

transportation, medical-dental (out of pocket), major medical

insurance,     residency       application/travel,       miscellaneous,         and

estimated loan fees.       The medical-dental out of pocket expenses,

major medical insurance, residency applications and residency-

related travel,5 miscellaneous, and estimated loan fees are not

included in the arbitration award, and hence, defendant is not

required to pay those amounts.


5
   As previously noted, the $1250 in residency-related expenses
are only included in the fourth year expenses, not in the $119,712
that defendant was ordered to pay for the first three years'
expenses.



                                         8                                 A-0724-16T2
     Plaintiff contends that those items should be considered as

part of "tuition."   We disagree.       The arbitration award specified

exactly what the parties were required to pay and what their

obligations were.6    That clarity benefits both sides, and both

sides must live with it. Plaintiff does not have to provide

defendant with verification that she has paid her share of the

expenses, nor does she have to prove to defendant that the daughter

actually incurred the level of allowed expenses listed on the

school website.   On the other hand, defendant does not have to pay

expenses not specifically listed in the arbitration award, even

if those expenses are listed on the website.

     Accordingly, the July 12, 2016 order and the February 7, 2017

judgment must be amended to delete the amounts for medical-dental

out of pocket expenses, major medical insurance, miscellaneous,

and estimated loan fees. For the fourth-year expenses, as reflected

in the July 12, 2016 order, residency applications and residency-

related travel must also be deleted.        We remand for that limited

purpose.

     After reviewing the record in light of the applicable legal

standards, we conclude that defendant's remaining arguments are




6
    Notably, the award also provided that either parent could
voluntarily agree to pay for additional expenses.

                                    9                           A-0724-16T2
without sufficient merit to warrant discussion.       See R. 2:11-

3(e)(1)(E).   We add only these brief comments.

      Defendant did not file an application with the trial court

under paragraph fifteen of the arbitration award.     But, even if

he had, that paragraph does not entitle him to relitigate issues

already decided by the arbitrators and this court.   In particular,

defendant cannot relitigate his underlying obligation to pay for

his emancipated daughter's graduate school tuition, a subject

thoroughly addressed in our prior opinion.     See Biser, slip op.

at 13-21.

      The trial court was well within its discretion in requiring

defendant to make a lump sum payment, and in declining to consider

a CIS submitted for the first time on defendant's reconsideration

motion.   See Palombi v. Palombi, 
414 N.J. Super. 274, 288-89 (App.

Div. 2010).   There is no basis to disqualify the trial judge.

     Affirmed in part, modified and remanded in part.    We do not

retain jurisdiction.




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