JODI GIMBELMAN VS. STEVEN GIMBELMAN (FM-13-0798-12, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE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-1944-17T2
    JODI GIMBELMAN,
    Plaintiff-Appellant,
    v.
    STEVEN GIMBELMAN,
    Defendant-Respondent.
    ___________________________
    Submitted October 8, 2019 - Decided December 6, 2019
    Before Judges Accurso and Rose.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Monmouth County,
    Docket No. FM-13-0798-12.
    Keith Winters & Wenning, LLC, attorneys for
    appellant (Brian D. Winters, on the briefs).
    Megan Susan Murray, attorney for respondent (Megan
    Susan Murray and John Paul Paone, on the brief).
    PER CURIAM
    After having engaged in hotly-contested litigation for almost four years,
    including a bifurcated custody trial resulting in their having joint legal and
    physical custody of their ten-year-old daughter, the parties to this high-conflict
    divorce, plaintiff Jodi Gimbelman and defendant Steven Gimbelman, agreed to
    arbitrate all other claims arising out of the dissolution of their seven-year
    marriage. Specifically, the parties agreed an arbitrator would decide equitable
    distribution, alimony, child support, life insurance, medical and dental
    insurance, and all counsel fees from the commencement of the action to
    completion of arbitration.
    One of the most contentious issues involved valuation of defendant's
    interest in his family's business. Judge Thornton had already determined to
    enforce the parties' post-nuptial agreement establishing the value of
    defendant's interest as of the date of the marriage, valued in accordance with
    New York law. Specifically left open, however, was whether New York or
    New Jersey law would apply in valuing defendant's interest as of the date of
    the divorce complaint. The arbitration agreement did not include a choice of
    law provision. It provided only that the arbitrator should make his award "in
    accordance with applicable principles of substantive law in effect at the time"
    of decision and explain his reasons.
    A-1944-17T2
    2
    The parties' chosen arbitrator, a retired, long-time Family Part judge,
    entered his award in October 2016, almost five years after plaintiff filed her
    complaint for divorce. As relevant here, the arbitrator decided circumstances
    dictated that New York law should also apply to the valuation of defendant's
    interest in his family's business as of the date of the complaint,
    notwithstanding that the parties and the business had all moved to New Jersey
    by that time. He also decided plaintiff was not entitled to a share of certain tax
    overpayments nor any part of a $100,000 loan defendant made to a friend
    during the marriage, which was repaid during the pendency of the divorce.
    The arbitrator made defendant responsible for one hundred percent of the
    child's extra-curricular activities up to $5000.
    Following a partially successful motion for reconsideration, plaintiff
    appealed the arbitrator's decision to the parties' chosen appellate arbitrator, a
    family lawyer with over forty-five years' experience, as was her right under the
    parties' thirty-eight page, eighty-five paragraph arbitration agreement. The
    appellate arbitrator affirmed the award in almost all respects. He did,
    however, award plaintiff a portion of the tax overpayments and part of the
    repayment of the loan. The appellate arbitrator reversed the arbitrator's
    decision on extracurricular expenses for the parties' daughter. He determined
    A-1944-17T2
    3
    extracurricular activities should be undertaken only on consent of both parties
    or order of the court, and that the cost of such should be born two-thirds by
    defendant and one-third by plaintiff. The appellate arbitrator did not disturb
    the arbitrator's decision that plaintiff should be responsible for $100,000 of her
    outstanding fees. Plaintiff's motion for reconsideration was denied in its
    entirety.
    Judge Thornton affirmed the award and entered a final judgment of
    divorce. In a comprehensive and scholarly opinion explaining the very limited
    review of an arbitration award under New Jersey law, the judge addressed and
    rejected each of plaintiff's claims of error as to equitable distribution and
    extracurricular activities. She specifically rejected plaintiff's claims that the
    arbitration agreement required application of New Jersey law, that the
    arbitrators' decisions were in conflict with her order enforcing the parties' post -
    nuptial agreement, and that the appellate arbitrator's decision on
    extracurricular activities was in conflict with her custody order or contrary to
    the best interests of the child. The court declined both parties' request for
    counsel fees.
    Plaintiff appeals, raising the following issues:
    POINT I
    A-1944-17T2
    4
    STANDARD OF REVIEW IS DE NOVO.
    POINT II
    PLAINTIFF'S RIGHT TO ASK THIS COURT TO
    VACATE THE ARBITRATION AWARD
    PURSUANT TO THE NEW JERSEY
    ARBITRATION ACT IS NON-WAIVABLE.
    POINT III
    THIS COURT MUST REVERSE THE TRIAL
    COURT AND VACATE THE FINAL
    ABRITRATION AWARD BECAUSE IT WAS
    PROCURED THROUGH UNDUE MEANS AND
    THE ARBITRATOR EXCEEDED HIS AUTHORITY
    IN RENDERING THE AWARD.
    A. The parties in this matter agreed that the
    Arbitrators were required to make decisions in
    accordance with New Jersey Law, thus mandating the
    expanded judicial review and interpretation of "undue
    means" and "exceeding the Arbitrator's powers."
    B. The parties and the Trial Court failed to
    apply New Jersey substantive law in using "fair
    market value" to determine the marital increase in
    value of defendant's interest in his family business.
    C. The [post-nuptial agreement] does not
    address the methodology to be used in determining the
    [date of complaint] value and the choice of law
    provision in the [post-nuptial agreement] does not
    apply to this question.
    D. The Arbitrator failed to apply New Jersey's
    "fair value" standard when determining the [date of
    complaint] value.
    A-1944-17T2
    5
    POINT IV
    THE ARBITRATION AWARD RELATIVE TO THE
    MARITAL TAX OVERPAYMENT ISSUE SHOULD
    BE VACATED BECAUSE IT RESULTED FROM
    THE ARIBTRATOR HAVING EXCEEDED HIS
    POWERS BY FAILING TO APPLY NEW JERSEY
    LAW AS REQUIRED BY THE CONSENT ORDER
    FOR ARBITRATION.
    POINT V
    THE FINAL ARBITRATION AWARD MUST BE
    VACATED BECAUSE THE ARBITRATOR
    EXCEEDED HIS AUTHORITY BY IMPOSING
    CUSTODY-RELATED RESTRAINTS.
    POINT VI
    THE LIMITED MATTERS THAT HAD BEEN
    RESOLVED BY THE PROVISIONS THAT MUST
    BE VACATED IN ACCORDANCE HEREWITH
    SHOULD BE REFERRED TO A NEW
    ARBITRATOR, TO CONDUCT ARBITRATION
    PROCEEDINGS IN ACCORDANCE WITH THE
    CONSENT ORDER FOR ARBITRATION.
    We are convinced that none of these arguments is of sufficient merit to
    warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The parties have
    spent eight years and several million dollars litigating the dissolution of their
    seven-year marriage. As our Supreme Court has directed, "[w]hether the
    arbitrators are viewed as having acted with 'undue means' or having 'exceeded
    their powers,' the judicial inquiry must go beyond a search for mere mistakes
    A-1944-17T2
    6
    of law," lest arbitration "become another form of private, non-jury trial."
    Tretina Painting, Inc. v. Fitzpatrick & Assocs., 
    135 N.J. 349
    , 357 (1994)
    (quoting Perini Corp. v. Greate Bay Hotel & Casino, Inc., 
    129 N.J. 479
    , 494
    (1992)).
    Having reviewed the record and Judge Thornton's decision confirming
    the arbitration award under our de novo standard, see Minkowitz v. Israeli, 
    433 N.J. Super. 111
    , 136 (App. Div. 2013), and there being no "hint of misconduct
    by the arbitrator[s]" and "no statutory ground . . . for invalidating or modifying
    the award," 
    Tretina, 135 N.J. at 358
    , we have nothing to add to her analysis.
    Accordingly, we affirm the decision confirming the arbitration award for the
    reasons expressed by Judge Thornton in her opinion of November 8, 2017.
    Affirmed.
    A-1944-17T2
    7
    

Document Info

Docket Number: A-1944-17T2

Filed Date: 12/6/2019

Precedential Status: Non-Precedential

Modified Date: 12/6/2019