ZVI GUITMAN VS. GLORIA PLOSZAY (FM-02-1122-18, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any judge." 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-0327-20
ZVI GUITMAN, n/k/a HOWARD
ANTHONY,
Plaintiff-Respondent,
v.
GLORIA PLOSZAY,
Defendant-Appellant.
_____________________________
Submitted on May 5, 2021 – Decided June 28, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1122-18.
Gilberto M. Garcia, attorney for appellant.
Pashman Stein Walder Hayden, PC, attorneys for
respondent (Timothy P. Malone, on the brief).
PER CURIAM
In this matrimonial matter, defendant Gloria Ploszay appeals the Family
Court order affirming an arbitration award and incorporating it into an amended
dual judgment of divorce (AJOD). Ploszay argues that an ex parte email from
plaintiff Zvi Guitman's counsel to the arbitrator inappropriately influenced the
award's distribution of assets. She also argues that an interim consent order
prior to the AJOD freezing her bank account funds should have been vacated
upon entry of the AJOD. Having considered the contentions advanced on appeal
and applicable law, we affirm.
I
The parties, married in 2011, filed for divorce in 2017. Resolution of
financial issues was voluntarily referred to arbitration in a December 19, 2019
bifurcation order and dual judgment of divorce.
The arbitration hearing took place on February 4, 2020, without a court
reporter present to transcribe the proceeding as set forth in the arbitration
agreement. Due to the COVID-19 pandemic, subsequent testimony was taken
via Zoom. Again, no court reporter was present, nor was the hearing recorded.
After the arbitrator heard the parties' testimony but before he issued an
award, they entered into a March 4, 2020 consent order with the arbitrator
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freezing $621,000 in Ploszay’s bank account. The order provided that Ploszay’s
bank account "shall remain frozen until receipt of a future [c]ourt [o]rder."
After considering the parties' testimony and submissions, the arbitrator
issued an award dividing their assets, with sixty-five percent going to Guitman
and thirty-five percent to Ploszay.1 Both parties objected to the arbitration
award, including the need to address attorneys' fees and distribution of a
litigation fund. The arbitrator found no error in the award except for reducing
the amount Ploszay owed Guitman from $605,850 to $535,850.
Guitman moved before Judge Darren T. DiBiasi to confirm the arbitration
award and to authorize release of funds held in Ploszay's frozen bank account to
satisfy his share of the parties' assets. Ploszay cross-moved to vacate the
arbitration award but did not object to Guitman's request to release the funds
frozen in her account pursuant the consent order.
After argument, Judge DiBiasi rendered an oral decision. Recognizing
the "narrow" exceptions to vacate an arbitration award under the New Jersey
Arbitration Act, N.J.S.A. 2A:23B-1 to -32, the judge stated "[Ploszay] seems to
be arguing that the [c]ourt should vacate the arbitrator’s decision because of
1
The details of the award and the arbitrator's reasoning are not relevant to this
appeal and, thus, will not be discussed.
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evident partiality by the arbitrator, corruption by the arbitrator[,] or misconduct
on the arbitrator’s behalf." The judge noted that Ploszay contended
"[Guitman]’s counsel exchanged ex parte communications with the arbitrator
and that the arbitrator perhaps subsequently based his decision on these ex parte
communications."
The judge found Ploszay's contentions were "baseless" because she "failed
to identify coherently any specific instances of misconduct or partiality by the
arbitrator." He ruled:
There’s no evidence, really none[,] that these types of
communications impacted the final decision. And ex
parte communications between counsel and arbitrator,
even if they did occur in this case, . . . may perhaps
undermine the party’s confidence in the arbitration
process. But this factor alone does not justify vacating
an arbitrator’s award[,] particularly a well-reasoned
and thoughtful decision that was set forth by the
arbitrator.
The judge added that there were other "broad attack[s] on the impartiality of the
arbitrator[,]" but he did "not find any concrete examples of partiality." He
further found "the arbitrator provided a detailed and comprehensive
opinion[]"that was "well-reasoned[]"; "referenced both parties' submissions and
testimony"; and "applied the evidence to the relevant law." He issued the AJOD
incorporating the arbitration award. The same day, the judge also granted
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Guitman's motion for distribution of $535,850 to Guitman in accordance with
the AJOD.
II
Our review of a trial judge's order confirming an arbitration award is a
question of law, which is de novo. Manger v. Manger, 417 N.J. Super. 370, 376
(App. Div. 2010) (citation omitted). Based on our review of the record, there is
no merit to Ploszay's contention that the arbitration award should be vacated
because it "was procured by corruption, fraud, or other undue means" or there
was "partiality by an arbitrator . . . or misconduct by an arbitrator prejudicing
the rights of a party to the arbitration proceeding." N.J.S.A. 2A:23B -23(a)(1)
and (2).
We appreciate that an ex parte communication between one party's
counsel to the arbitrator could undermine confidence in the arbitrator's neutrality
and fairness in the proceeding. Ploszay, however, has made no showing that an
alleged ex parte communication here influenced the arbitration award or
deprived her of a fair resolution. See Remmey v. PaineWebber, Inc., 32 F.3d
143, 148 (4th Cir. 1994) ("It is well established that a mere appearance of bias
is insufficient to demonstrate evident partiality. Arbitrators are not held to the
ethical standards required of Article III judges . . . .") (quoting Peoples Sec. Life
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Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 146 (4th Cir.1993)). In
fact, there is no evidence that the arbitrator received the purported email.
Ploszay's reasoning that "[a]ll one needs to do is read the way the [a]rbitrator
refers to . . . [her] versus [Guitman] to conclude [that there was] partiality on
the part of the [a]rbitrator" is purely speculative. Ploszay never produced the
email to substantiate how it influenced the arbitrator's award to her detriment.
Indeed, the arbitration award's in-depth analysis of the evidence and the parties'
arguments indicated no hint that the arbitrator was impartial.
Ploszay also points out that the arbitrator violated the arbitration
agreement by failing to record the arbitration proceedings. While true, she has
made no showing that this failing prejudiced her before the arbitrator, the trial
judge, or this court.
Lastly, Ploszay contends that the consent order freezing the funds did not
survive the AJOD but "merged into" it, making it no longer in effect. In support,
she cites the holding in Bauza v. Bauza, 201 N.J. Super. 540, 542-43 (App. Div.
1985), and argues that "[o]rders do not survive the entry of a judgment of divorce
unless expressly preserved in it or reduced to judgment prior to entry of final
judgment." She points to the AJOD, where it states: "this [c]ourt . . . amends its
[j]udgment to confirm the . . . [a]rbitration decision . . . , which decision shall
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not merge with but shall survive this [a]mended [d]ual [j]udgment of [d]ivorce
and is made a part hereof . . ." and "all issues pleaded and not resolved in this
[j]udgment are deemed abandoned." Furthermore, Ploszay submits the
arbitration award concluded all issues prior to trial, including the consent order.
We are unpersuaded.
Ploszay's contention that the consent order does not survive the AJOD was
not raised before Judge DiBiasi, and therefore, it should not be considered
because it does not "go to the jurisdiction of the trial court or concern matters
of great public interest." Zaman v. Felton, 219 N.J. 199, 227 (2014) (quoting
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). However, for the
sake of completeness, we address the contention, finding it without merit.
Ploszay's reliance on Bauza is misplaced. The order there concerned a
pendente lite award of attorneys' fees, not the freezing of bank accounts pending
determination of parties' rights to those funds, which the consent order did in
this case. Bauza, 201 N.J. at 542-43. As evidenced by the provision to "remain
frozen until receipt of a future [c]ourt [o]rder[,]" the consent order ensured that
the disputed funds in Ploszay's account would not be depleted when the judge
eventually addressed the distribution of assets in the AJOD. It makes no sense
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to find the consent order unenforceable and not in effect when the assets
referenced in the order were subject to distribution as detailed in the AJOD.
Affirmed.
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