JULIANNE NATOLI v. FRANK J. NATOLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JULIANNE NATOLI, n/k/a

JULIANNE MILO,

Plaintiff-Respondent/

Cross-Appellant,

v.

FRANK J. NATOLI,

Defendant-Appellant/

Cross-Respondent.

__________________________________________________

November 19, 2015

Submitted November 4, 2015 Decided

Before Judges Fisher, Espinosa and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-323-09.

Alan E. Welch, attorney for appellant/cross-respondent.

Constance Kresge Stickle, attorney for respondent/cross-appellant.

PER CURIAM

The parties' appeal and cross-appeal of a post-judgment matrimonial order require our consideration of the scope of their arbitration agreement, as well as a provision relating to life insurance. We find no merit in the parties' arguments and affirm.

After nearly eleven years of cohabitation, the parties married in 1997; they had no children. Plaintiff Julianne Natoli (now Julianne Milo), filed a complaint for a divorce from defendant Frank J. Natoli in 2009, the year they separated. The parties eventually entered into a property settlement agreement (PSA) which was incorporated into a judgment of divorce entered on January 4, 2013. Two particular sections of the PSA are relevant to the issues the parties have raised in their appeal and cross-appeal.

In the first relevant section, the parties agreed to submit to binding arbitration any disputes regarding personal property that had not already been mutually distributed. Specifically, paragraph thirty-four acknowledged there had been "a minimal distribution of personal property between them since their separation in 2009." Paragraph thirty-five loosely describes plaintiff's contention that she had already provided defendant "with boxes of pictures, technical equipment, some clothing, some firearms, reloading equipment and other items" and that defendant "may have removed some property prior to their separation," but that issues regarding the contents of their Newton residence had not been settled. This same paragraph also acknowledged unresolved disputes regarding personal property located at their Blairstown property, and concludes

The parties shall submit all remaining [e]quitable [d]istribution items to binding arbitration pursuant to the [a]greement annexed hereto. A list of the distributed property shall be submitted by each party as a supplement to this [a]greement within ten (10) days. The arbitration shall be limited to these items and these issues.

A separate court order, also entered on January 4, 2013, further declares: that the arbitrator's eventual award "shall be final"; that the parties agreed to be "bound by the arbitrator's decision"; and that the parties waived their right to a judicial determination of their personal property disputes.

The parties presented to the arbitrator lists of property to be equitably distributed. The arbitrator concluded that the list of property referred to as Exhibit C "was not intended to be a part of this arbitration and will not be considered by this arbitrator." The arbitrator's decision was forwarded to the parties on August 27, 2013.

Instead of seeking relief regarding the absence of an award concerning Exhibit C, defendant moved on or about October 11, 2013, for enforcement of other aspects of the award. In response to the parties' many arguments, the trial judge entered three orders on November 22, 2013. By entering these orders, the judge effectively confirmed the arbitration award and, among other things, directed the timing of the performances required by the award. No appeal was filed by either party as to any aspect of the November 22, 2013 orders.

On January 31, 2014, defendant filed another motion to enforce the arbitration award and additionally sought the appointment of an appraiser to evaluate the property listed on Exhibit C. The denial of this latter request, memorialized in the judge's April 11, 2014 order, forms the basis for defendant's arguments in his appeal.

Defendant argues the judge erred either by failing to take appropriate steps necessary to equitably distribute the property listed on Exhibit C or by failing to order a resolution of those disputes in arbitration. We agree with the trial judge that defendant is mistaken in both respects for the following reasons.

The PSA and the companion January 4, 2013 arbitration order clearly declared that the parties had agreed to arbitrate extant personal property disputes and, therefore, waived any right to a judicial determination of those disputes. All that remained for the parties in this regard was their limited right to challenge whatever the arbitrator determined. Accordingly, defendant was not entitled to the court's adjudication of the Exhibit C disputes.

Instead, upon issuance of the arbitrator's decision, defendant was relegated to seeking a modification or vacation. He waived this right, however, by filing a motion on or about October 11, 2013, that sought enforcement of certain portions of the arbitration award without challenging the arbitrator's refusal to consider Exhibit C. Moreover, defendant's second post-arbitration motion on this precise point was not filed until January 31, 2014. Even if a waiver of the right to seek relief from the award had not occurred when defendant filed his October 2013 motion, his January 2014 application was time-barred because it was filed more than 120 days after issuance of the arbitration award. N.J.S.A. 2A:23B-23, 24. We, thus, find no merit in defendant's arguments regarding the arbitration award and the April 11, 2014 order in this regard. And, to the extent defendant claims there were other errors in the order under review, we find those arguments to have insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

The second relevant aspect of the PSA concerns the beneficiary designation of an insurance policy issued by Transamerica on defendant's life. In reference to this policy, the PSA contained defendant's agreement to retain plaintiff "as the primary beneficiary irrevocably provided that an alimony obligation exists." During the April 11, 2014 hearing, the parties quarreled about the correct wording of the beneficiary designation form.

We recognize that the PSA did not define defendant's obligation in this regard with crystal clarity. The PSA called for an "irrevocable" designation, but one that could later be revoked when the alimony obligation terminated. Toward the end of the argument heard on the motion's return date, the judge directed that defendant "immediately" sign a particular declaration form and the record on appeal includes that signed form, which declares plaintiff to be the sole beneficiary "irrevocably designated as long as an alimony obligation exists." This form comports with the stipulation contained in the PSA and would appear to be that which plaintiff urgently sought on the return date. Accordingly, we find no merit in this or any other argument plaintiff may have asserted by way of her cross-appeal that would warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.