MARIEL MIRALLES FERRER VS. JOSEPH DURKIN(FM-04-1464-13, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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