ILAN LEVINSON VS. HAGIT LEVINSON (FM-02-1299-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5560-18T1
ILAN LEVINSON,
Plaintiff-Respondent,
v.
HAGIT LEVINSON,
Defendant-Appellant.
_______________________
Submitted June 24, 2020 – Decided November 9, 2020
Before Judges Accurso and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1299-14.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
Steven S. Genkin, attorney for respondent.
PER CURIAM
Defendant Hagit Levinson appeals from an August 17, 2018 final
judgment of divorce and order of the Family Part incorporating a May 14, 2018
arbitration decision, as well as seven subsequent orders denying various post-
judgment applications. We affirm all orders under appeal.
I.
The following facts are derived from the record. Defendant and plaintiff
Ilan Levinson were married in 2001. Three children were born during the
marriage. In 2013, plaintiff filed a complaint for divorce.
Following discovery and an unsuccessful attempt at mediation, the parties
executed a consent order and amended agreement to participate in binding
arbitration on all financial issues pertaining to their marriage. The parties agreed
that the arbitration would be conducted pursuant to the New Jersey Alternative
Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30.
On May 14, 2018, the arbitrator issued a final arbitration decision. Among
many other issues, the arbitrator decided that the marital home would be sold
and the proceeds of the sale and the contents of the home distributed to the
parties. Defendant moved to vacate or modify the arbitration decision, arguing
it was procured by fraud and that the arbitrator exceeded his authority and
refused to consider relevant evidence. Plaintiff cross-moved to confirm the
decision.
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On August 17, 2018, the trial court entered a judgment of divorce and
order incorporating the final arbitration decision. In its oral opinion, the court
rejected defendant's arguments, finding the arbitrator reached his decision after
reviewing ample evidence submitted by both parties and determining which of
the expert opinions in the record was most credible. In reaching its decision,
the trial court applied provisions of the Uniform Arbitration Act (UAA),
N.J.S.A. 2A:23B-1 to -31, establishing the grounds on which the court may
vacate or modify an arbitration decision, rather than the corollary provisions of
the APDRA, which were applicable to the parties' motions.
Defendant thereafter filed an application to, in effect, vacate the
arbitration decision and have the matter returned to the Family Part for
resolution. She argued one of the experts on which the arbitrator relied was not
a certified public accountant in New Jersey, which, she alleged, was unknown
to her during the arbitration proceedings. In addition, defendant sought to: (1)
submit as evidence copies of approximately 5000 checks from plaintiff's
business; (2) subpoena an expert for cross-examination; (3) compel plaintiff to
pay $700 a week for domestic help; and (4) compel plaintiff to pay defendant
$25,000 for a vehicle she possessed.
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Plaintiff cross-moved to enforce the August 17, 2018 order. Specifically,
he sought an order appointing an attorney-in-fact to facilitate the sale of the
marital home because defendant had been intentionally interfering with the sale.
In addition, plaintiff argued defendant should pay half the cost to maintain the
home until the sale, as well as his counsel fees and costs. Plaintiff also sought
resolution of ownership of the vehicle that was the subject of defendant's motion.
On November 9, 2018, the trial court entered an order denying defendant's
motion to vacate the arbitration decision, concluding she had "recycled the same
submission" that she filed with the court in support of her initial motion. As had
been the case with the original motion, the trial court referred to the UAA, rather
than the APDRA, when determining that no grounds existed to vacate the
arbitration decision. In addition, the court denied defendant's motion to compel
plaintiff to contribute to the cost of domestic assistance at the marital home.
The trial court granted plaintiff's cross-motion in part. Finding defendant
had intentionally interfered with the sale of the marital home, the court ordered
her to vacate the home within thirty days and follow the recommendations of an
appointed real estate broker with respect to the sale of the home. The court
denied plaintiff's request to have defendant be responsible for fifty percent of
the carrying costs of the marital home until its sale. The court also denied
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plaintiff's request to appoint an attorney-in-fact to facilitate the sale, but allowed
him to renew the motion if defendant failed to cooperate. The court directed
that ownership of the vehicle be transferred from plaintiff to defendant within
thirty days, at which point defendant was to assume responsibility for insuring
the vehicle. Finally, the court awarded plaintiff $3641 in attorney's fees because
defendant's motion was baseless and her failure to comply with the August 17,
2018 order was intentional.
Defendant thereafter again moved for reconsideration and plaintiff again
cross-moved to enforce the August 17, 2018 order. On January 10, 2019, the
trial court ordered: (1) an accounting of plaintiff's support payments since entry
of the August 17, 2018 order; (2) plaintiff to maintain the children on his
medical, dental, and vision insurance policy; (3) defendant to reimburse plaintiff
twenty-five percent of the cost of the children's policy and unreimbursed
medical expenses; (4) defendant to produce a copy of her active life insurance
policy; (5) defendant to pay a penalty of $100 per day if she failed to vacate the
marital home within sixty days; and (6) that in the event defendant failed to
cooperate with the sale of the home an attorney-in-fact would be appointed to
facilitate the sale on defendant's behalf.
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On January 22, 2019, the trial court appointed Robert Landel, Esq., as the
attorney-in-fact to execute any and all documents on behalf of defendant
necessary for the sale of the marital home. The court also authorized Landel to
apportion or sell the home's furnishings and directed that his fees be paid out of
defendant's share of the proceeds of the sale of the home.
Plaintiff thereafter moved again to enforce the August 17, 2018 order. At
the time plaintiff's motion was heard, the marital home was subject to a contract
of sale with a closing date in eighteen days. According to plaintiff, although
defendant had purchased a new residence, she had not yet vacated the marital
home. Plaintiff also sought an order dividing the personal property in the home,
some of which, he argued, defendant had taken to her new home. Finally,
plaintiff sought modification of the August 17, 2018 order with respect to the
signatories on college savings accounts for the children.
On April 12, 2019, the trial court entered an order directing: (1) the parties
to vacate the marital home by April 14, 2019; (2) Landel to divide the personal
property in the marital home among the parties; (3) credits and adjustments to
the parties' debts to one another be made at the time of closing of the sale of the
marital home and satisfied from the proceeds of the closing; (4) defendant to
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transfer one of the college savings accounts to plaintiff; (5) defendant to pay
plaintiff $2,965.50 in attorney's fees.
On June 10, 2019, the trial court entered an order directing $4,826.55 be
taken from defendant's share of the proceeds from the sale of the marital home
to pay the arbitrator.
On June 11, 2019, the trial court entered an order directing $25,993.07 be
taken from defendant's share of the proceeds of the sale of the marital home to
pay the neutral forensic accountant used in the arbitration.
Also on June 11, 2019, the trial court entered an order finding defendant
in violation of litigant's rights for failure to comply with the court's April 12,
2019 order. The court directed defendant to transfer the two remaining college
savings accounts to plaintiff and awarded plaintiff $2500 in attorney's fees. In
addition, the court allocated among the parties the remaining amount of the
proceeds from the sale of the marital home.
This appeal followed. 1 Defendant appeals each of the orders detailed
above and raises the following argument for our consideration:
THE FAMILY COURT APPLIED THE WRONG
LEGAL STANDARD IN DENYING DEFENDANT'S
MOTION TO VACATE OR MODIFY THE
1
Plaintiff argues defendant's appeal was untimely filed. On September 30,
2019, this court granted defendant's motion to file her appeal as if within time.
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ARBITRATION DECISION, AND IN GRANTING
PLAINTIFF'S MOTION TO CONFIRM THE
DECISION IN ITS ENTIRETY, WARRANTING
REMAND BACK TO THE FAMILY COURT WITH
DIRECTION THAT THE COURT APPLY THE
STANDARD OF JUDICIAL REVIEW SET FORTH
BY THE [APDRA].
II.
"[T]he scope of review of an arbitration award is narrow." Fawzy v.
Fawzy, 199 N.J. 456, 470 (2009). "Arbitration can attain its goal of providing
final, speedy and inexpensive settlement of disputes only if judicial interference
with the process is minimized; it is, after all, meant to be a substitute for and not
a springboard for litigation." Id. at 468 (citation omitted). Thus, "arbitration
should spell litigation's conclusion, rather than its beginning . . . ." Borough of
E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013)
(citation omitted).
Moreover, "[t]he public policy of this State favors arbitration as a means
of settling disputes that otherwise would be litigated in a court." Badiali v. N.J.
Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015). This "strong public policy" also
favors "using arbitration in family litigation . . . ." Minkowitz v. Israeli, 433
N.J. Super. 111, 131-32 (App. Div. 2013). Accordingly, "courts grant
arbitration awards considerable deference." E. Rutherford PBA Local, 213 N.J.
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at 201. Because the trial court's decision to affirm or vacate an arbitration award
is a decision of law, our review is de novo. Minkowitz, 433 N.J. Super. at 136;
see also Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010).
"When parties to a matrimonial proceeding agree to arbitrate disputed
issues, they may designate whether the proceeding will be submitted pursuant
to the [APDRA], or the [UAA]." Manger, 417 N.J. Super. at 374. Notably, the
"parties must expressly elect to be governed by APDRA." Id. at 375 (citing
Weinstock v. Weinstock, 377 N.J. Super. 182, 188 (App. Div. 2005) ("[APDRA]
is a voluntary procedure for alternative dispute resolution, which becomes
operable upon voluntary agreement by the parties.")). Thus, "in the absence of
an express designation in an agreement, the [UAA] governs the arbitration."
Ibid. It is undisputed that the parties agreed to arbitrate the economic aspects of
their divorce pursuant to the APDRA.
Under the APDRA, the trial court may vacate, modify, or correct a final
arbitration decision for limited reasons. According to N.J.S.A. 2A:23A-13, a
provision of the APDRA:
(b) In considering an application for vacation,
modification or correction, a decision of the umpire on
the facts shall be final if there is substantial evidence to
support that decision; provided, however, that when the
application to the court is to vacate the award pursuant
to paragraph (1), (2), (3), or (4) of subsection c., the
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court shall make an independent determination of any
facts relevant thereto de novo, upon such record as may
exist or as it may determine in a summary expedited
proceeding . . . .
(c) The award shall be vacated on the application of
a party who . . . participated in the alternative resolution
proceeding . . . if the court finds that the rights of that
party were prejudiced by:
(1) Corruption, fraud or misconduct in procuring the
award;
(2) Partiality of an umpire appointed as a neutral;
(3) In making the award, the umpire's exceeding
their power or so imperfectly executing that power that
a final and definite award was not made;
(4) Failure to follow the procedures set forth in this
act, unless the party applying to vacate the award
continued with the proceeding with notice of the defect
and without objection; or
(5) The umpire's committing prejudicial error by
erroneously applying law to the issues and facts
presented for alternative resolution.
....
(e) The court shall modify the award if:
(1) There was a miscalculation of figures or a
mistake in the description of any person, thing or
property referred to in the award;
(2) The umpire has made an award based on a matter
not submitted to them and the award may be corrected
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without affecting the merits of the decision upon the
issues submitted;
(3) The award is imperfect in a matter of form, not
affecting the merits of the controversy; or
(4) The rights of the party applying for the
modification were prejudiced by the umpire
erroneously applying law to the issues and facts
presented for alternative resolution.
Under the APDRA, there is no appellate review of the trial court's decision to
confirm, modify, or correct an arbitration award. N.J.S.A. 2A:23A-18(b).
Accordingly, as long as the trial court provides a rational explanation for its
decision, we must dismiss the appeal "regardless of whether we may think the
trial judge exercises that jurisdiction imperfectly." Fort Lee Surgery Ctr., Inc.
v. Proformance Ins. Co., 412 N.J. Super. 99, 104 (App. Div. 2010).
Our Supreme Court has recognized "rare circumstances" based on public
policy may warrant appellate review of a trial court decision under the APDRA.
Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower, LP, 154 N.J. 141, 152 (1998).
For example, a decision confirming, modifying, or vacating an arbitration award
that shows clear bias on the part of the trial court "require[s] appellate court
review." Ibid.Similarly, we have determined that when a trial judge misapplies or
ignores the standards of review established under N.J.S.A. 2A:23A-13 and fails
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to rule on a party's specific claims, appellate court review may be granted.
Morel v. State Farm. Ins. Co., 396 N.J. Super. 472, 475-76 (App. Div. 2007).
This is precisely the case here. The trial court on two occasions applied the
standard for reviewing an arbitration decision set forth in the UAA, not the
APDRA. Appellate review is warranted.
Under N.J.S.A. 2A:23B-23, a provision of the UAA,
a. Upon the filing of a summary action with the
court by a party to an arbitration proceeding, the court
shall vacate an award in the arbitration proceeding if:
(1) the award was procured by corruption, fraud, or
other undue means;
(2) the court finds evident partiality by an arbitrator,
corruption by an arbitrator, or misconduct by an
arbitrator prejudicing the rights of a party to the
arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon
showing of sufficient cause for postponement, refused
to consider evidence material to the controversy, or
otherwise conducted the hearing contrary to section 15
of this act, so as to substantially prejudice the rights of
a party to the arbitration proceeding;
(4) the arbitrator exceeded the arbitrator's powers;
(5) there was no agreement to arbitrate . . . .;
(6) the arbitration was conducted without proper
notice of the initiation of the an arbitration . . . .
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The court may modify an arbitration award under the UAA pursuant to N.J.S.A.
2A:23B-24. That statute provides:
[T]he court shall modify or correct the award if:
(1) there was an evident mathematical
miscalculation or an evident mistake in the description
of a person, thing, or property referred to in the award;
(2) the arbitrator made an award on a claim not
submitted to the arbitrator . . . .;
(3) the award is imperfect in a matter of form not
affecting the merits of the decision on the claims
submitted.
[N.J.S.A. 2A:23B-24.]
A comparison of the provisions of the UAA relied on by the trial court to
the corresponding provisions of the APDRA that it should have applied to
defendant's motions reveals that the two sets of statutes are substantive
equivalents. Thus, in the present context, the trial court's mistaken application
of the UAA resulted in no meaningful harm to defendant.
Moreover, having conducted a de novo review of the record, we conclude
that under the APDRA, no basis exists to disturb the trial court's decisions. At
base, defendant's claims amount to little more than her disagreement with the
well-supported factual determinations of the arbitrator and his reasoned
resolution of the parties' claims.
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To the extent we have not specifically addressed defendant's remaining
contentions, we find they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). 2
Affirmed.
2
Defendant's case information statement identifies the January 10, 2019 and
June 10, 2019 orders described above, as well as a June 6, 2014 order, as being
appealed. Because she makes no substantive arguments with respect to these
orders we consider her appeal from these orders waived. "[A]n issue not briefed
is deemed waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2019); Telebright Corp. v. Dir., Div. of Taxation, 424 N.J. Super. 384,
393 (App. Div. 2012) (deeming a contention waived when the party failed to
include any arguments supporting the contention in its brief).
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