MARIEL MIRALLES FERRER VS. JOSEPH DURKIN(FM-04-1464-13, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2017
• Docket: A-4880-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4880-15T1 MARIEL MIRALLES FERRER,

Plaintiff-Respondent,

v.

JOSEPH DURKIN,

Defendant-Appellant. ______________________________

Argued May 24, 2017 – Decided June 26, 2017

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1464-13.

Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant Joseph Durkin appeals from aspects of a Family

Part order of June 3, 2016, entered on motions the parties filed

for confirmation, enforcement and clarification after mediation

and binding arbitration. Because we conclude the Family Part judge did not exceed his authority in resolving the disputes the

parties presented to him on the motions, we affirm.

This is defendant's second appeal from post-judgment orders

entered by the Family Part following the parties' divorce in

2014. We set forth the background of the parties' acrimonious

co-parenting relationship in our prior opinion and have no need

to repeat it here. See Ferrer v. Durkin, No. A-2122-15 (App.

Div. Apr. 10, 2017) (slip op. at 2-4).

The current dispute arises out of the parties' agreement to

mediate a host of economic issues remaining unresolved after

their divorce.1 Out of nineteen open issues, the parties agreed

on thirteen and further agreed to submit the six issues they

could not resolve to binding arbitration by the retired judge

who mediated their dispute.2 The "open" issues were counsel

1 The parties were apparently divorced with "both custody and all economic issues remaining unresolved" contrary to Rule 5:7-8, resulting in our piecemeal review of those issues. 2 Defendant has not included the parties' agreement with the arbitrator in his appendix and plaintiff is not participating in this appeal. Consequently, we cannot confirm the parties' compliance with the holding of Minkowitz v. Israeli, 433 N.J. Super. 111, 147-48 (App. Div. 2013), which prohibits, absent a contract to the contrary, a neutral who assumes the role of mediator from serving as an arbitrator in the matter. Because the issue has not been raised by the parties, we do not consider it in resolving the appeal.

2 A-4880-15T1 fees, family support credits from the time the parties remained

in the same home, plaintiff's responsibility for defendant's

credit card debt, the sharing of the expense of extra-curricular

activities for the children, expert fees and whether certain

trucks used in defendant's business were included in the

expert's valuation of the business.

The arbitrator sent a letter to plaintiff, who was then

self-represented, and defendant with his decision as to the

credit card debt, the family support credit, the sharing of

extra-curricular expenses, and fees for the mediation. He

closed his letter with the following.

I find all other issues to be resolved by the "Binding Agreement" [reached in mediation], no monies are owed for the trucks as I find them an integral part of the business.

All unreimbursed medical expenses (co- pays) are included in shared expenses as equal expenses. Premiums are not included for cost of coverage.

If there are any errors or omissions, please provide same to me and to each other by March 7, 2016.

The arbitrator wrote again on March 22, 2016, stating that

after the issuance of his decision, he had "received both

requests for reconsideration for issues [he had] previously

decided and for issues that were not previously raised by the

3 A-4880-15T1 parties." He then addressed the transfer of the deed to the

marital home as the parties had agreed in mediation and a time

for plaintiff to remove her belongings. He wrote that "[t]he

unreimbursed medical expenses will be shared 50/50 for the

children and no sharing for the medical premium for the

children." Stating that "[t]here will be no changes for the

credits," the arbitrator concluded that he had "ruled on all

issues that were left open from the mediation and despite

multiple submissions," found no basis to "reconsider" his

decision.

Defendant subsequently filed a motion seeking sixteen

separate items of relief, among them that "[p]laintiff shall

continue to be responsible for all costs associated with

securing the children's medical coverage." Although the motion

was styled as one seeking "confirmation of an arbitration award,

enforcement of a parties' mediated settlement, [and]

clarification of the parties' parenting plan," the proposed form

of order did not include any provision for confirming the

arbitration award or enforcing the mediated settlement.

Instead, defendant selected only certain provisions of the

mediation agreement and arbitration decision and reworded them

for inclusion in a court order.

4 A-4880-15T1 Plaintiff filed a cross-motion for various items of relief,

including resolution of the issue of payment of her expert fees,

which was submitted to the arbitrator but not included in his

decision, requiring defendant to pay half of the expenses for

the cell phones provided to the children, that the parties share

equally the cost of agreed extra-curricular activities and that

defendant be responsible for half of the children's health care

premiums.

After hearing oral argument, the judge entered a

comprehensive order addressing all seventeen of the items

presented to him for resolution, many of which the parties

resolved themselves on or before the return date of the motions.

The judge ordered plaintiff to sign the necessary documents

permitting defendant to refinance the marital home and the

parties to split the arbitrator's fees and the credit card debt

"as decided by [the arbitrator] in the binding arbitration

agreement." He also accepted defendant's calculation, based on

the parties' mediated agreement and the arbitration award, of

the $52,297.87 after credits, defendant was to pay plaintiff for

her share of defendant's business and the equity in the marital

home. The judge denied plaintiff's request that defendant share

in her expert fees, the issue submitted to the arbitrator but

not included in his decision. Because the issue was presented

5 A-4880-15T1 to the arbitrator and not included in the award, the judge

presumed it denied.

The judge ruled in plaintiff's favor on three issues: that

defendant pay half of the monthly cell phone costs for the

children, his share being $25 per month; that he be responsible

for half of the monthly costs of the health insurance premium

for the children, his share being $73.31 per month; and that the

parties share equally the costs of agreed extra-curricular

activities, with the proviso that "agreement cannot be

unreasonably withheld by either party."

The judge reasoned that the cell phone bills were not among

the issues discussed in mediation or presented to the

arbitrator. Finding cell phones for the children "an

appropriate expense" and a "safety" issue, the judge determined

it would be inequitable to allow defendant to avoid the costs

for the phones he used to contact the children and they used to

speak to him.

As to the costs of the health insurance premiums, the

parties have a fifty/fifty shared parenting schedule, embodied

in an April 2, 2015 parenting plan order and there is no child

support paid by either parent. Although plaintiff maintains the

children on her health insurance, the judge noted there is no

order compelling her to do so. The cost to her of the

6 A-4880-15T1 children's portion of the premium is approximately $146 per

month. The judge determined that "the circumstances are changed

based on reasonable considerations" and that defendant would be

responsible for fifty percent of the "monthly health insurance

premium costs for the children going forward" from the date of

the order.

Finally, as to the extra-curricular expenses, the judge

emphasized the parties' shared parenting relationship and the

need for them to work together and agree on matters such as

extra-curricular activities for their children. He determined

that allowing the parents to unilaterally choose extra-

curricular activities for which the other parent would be

financially responsible was contrary to their shared parenting

arrangement and would likely lead to more motions in this

already-contentious matter. He advised the parties that an

unwillingness to cooperate in agreeing on extra-curricular

activities for which both would share the costs, with the

understanding that neither could unreasonably withhold

agreement, would signal to the court that their shared parenting

arrangement should not continue.

Defendant appeals, contending "[t]he family judge erred in

disregarding the binding arbitration rulings made in the case

7 A-4880-15T1 and changing what the arbitrator had already decided" on these

three issues. We disagree.

Because the decision to affirm or vacate an arbitration

award is a decision of law, our review is de novo. Minkowitz v.

Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013). Having read

the transcript of the argument on the motions and the judge's

decision, we have no doubt the Family Part judge well-understood

the narrow scope of review of an arbitration award. See Fawzy

v. Fawzy, 199 N.J. 456, 470 (2009) (noting the scope of review

of an arbitration award is necessarily narrow in order that the

benefits of arbitration as an effective, expedient, and fair

means of dispute resolution be preserved). In addition to

confirming each of the arbitrator's decisions on the financial

issues presented for resolution, the judge refused plaintiff's

attempt to recover her expert fees, even though not specifically

addressed in the award. The judge's determination the claim

must be considered as having been denied by the arbitrator,

makes clear beyond doubt that he well understood the contours of

the Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, which

governed his review. See Tretina Printing, Inc. v. Fitzpatrick

& Assocs., Inc., 135 N.J. 349, 360 (1994) (addressing ambiguity

in an award under the former statute); cf. Bracken v. Princeton

Estates, Inc., 350 N.J. Super. 300, 311-13 (App. Div.) (finding

8 A-4880-15T1 substantial evidence in the record compelling conclusion

arbitrator considered and rejected claim although failing to

address it specifically in award), certif. denied, 174 N.J. 191

(2002).

The judge's treatment of the three issues defendant

complains of was in keeping with the court's standard of review

under the Uniform Arbitration Act. Defendant acknowledges that

the issue of the children's cell phones was not presented to the

arbitrator. Thus nothing prevented plaintiff from addressing

the issue with the court, as defendant was likewise permitted to

pursue a request that plaintiff contribute to the cost of

preparing the qualified domestic relations orders and issues

regarding the parties' parenting plan. Fawzy, supra, 199 N.J.

at 469.

As for the health insurance premiums, there is nothing in

writing in this record demonstrating the issue was ever properly

before the arbitrator. It is not listed among the six issues

referred to arbitration in the parties' Binding Agreement

reached in mediation. The issue preserved related to payment

for the children's extra-curricular activities, as confirmed by

defendant's counsel's January 27, 2016 letter to the arbitrator.

That point is reinforced by the wording of the arbitrator's

February 26, 2016 letter transmitting his award. After

9 A-4880-15T1 addressing the specific items of relief and stating his finding

that "all other issues [were] resolved by the Binding

Agreement," the arbitrator adds that "[a]ll unreimbursed medical

expenses (co-pays) are included in shared expenses as equal

expenses. Premiums are not included for cost of coverage."

A parent's marginal costs of adding a child to her health

insurance premium and unreimbursed health care expenses over

$250 per child are different in kind from the costs of extra-

curricular activities, as reflected in their exclusion from the

basic child support award. See Child Support Guidelines,

Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A

¶ 9b, c to Rule 5:6A (2017). N.J.S.A. 2A:23B-24a(2) expressly

permits a court to modify or correct an award if "the arbitrator

made an award on a claim not submitted to the arbitrator" so

long as "the award may be corrected without affecting the merits

of the decision upon the claims submitted."

Among the reasons an appointed arbitrator may not "first

assume the role of mediator then switch back to conduct final

arbitration hearings," is because of the potential for confusion

when one person both mediates and arbitrates the same type of

issues. Minkowitz, supra, 433 N.J. Super. at 145. That

potential, "even more problematic when arbitrating matrimonial

disputes between already suspicious adverse parties," id. at

10 A-4880-15T1 147, is exacerbated when one of the parties is self-represented

as plaintiff was at that point of the proceedings.

Because the record does not demonstrate that the claim as

to the defendant's contribution to the children's health

insurance premium was one preserved for arbitration following

mediation, and its resolution clearly did not affect the merits

of the arbitrator's decision on the claims that were reserved

for arbitration, we find no error in the judge's order requiring

defendant to contribute to that cost. See N.J.S.A. 2A:23B-

24a(2); Fawzy, supra, 199 N.J. at 469 (holding that only those

issues which the parties have agreed to arbitrate shall be

arbitrated).

Finally, we have no hesitation in concluding the judge

acted well within his authority in directing that the parties in

this shared parenting arrangement need to agree on the extra-

curricular activities for which each could hold the other

financially responsible, with the proviso that "agreement cannot

be unreasonably withheld by either party." As defendant notes,

the parties agreed to arbitrate their financial issues. It is

clear to us that in making this slight adjustment to the

arbitrator's award, the judge was not addressing their finances

but an issue more fundamental to the continued viability of

11 A-4880-15T1 their shared parenting arrangement, their willingness to put

aside their personal animosities for the good of their children.

In this highly-contentious matter in which two different

Family Part judges have already cautioned the parties that their

inability to agree on even mundane issues is putting their

shared parenting arrangement at risk, we do not conclude the

court erred in requiring them to agree on their children's

extra-curricular expenses, conditioned on agreement not being

unreasonably withheld. See Faherty v. Faherty, 97 N.J. 99, 109

(1984) (discussing the Family Part's non-delegable, special

supervisory function of child support). In sum, because we

conclude the judge acted well within the confines of the Uniform

Arbitration Act in entering the order of June 3, 2016, we

affirm.

Affirmed.

12 A-4880-15T1