DONNA AZZOLINA VS. JOHN AZZOLINA (FM-13-1715-14, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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 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-4197-19
DONNA AZZOLINA,
Plaintiff-Appellant,
v.
JOHN AZZOLINA,
Defendant-Respondent.
_________________________
Argued July 27, 2021 – Decided August 24, 2021
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1715-14.
Michael Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael
Confusione, of counsel and on the briefs).
Gary E. Fox argued the cause for respondent (Fox &
Melofchik, LLC, attorneys; Gary E. Fox, on the brief).
PER CURIAM
In this matrimonial matter, plaintiff, Donna Azzolina, appeals from a July
20, 2020 Family Part order denying her motion to declare void a June 18, 2020
Appellate Award rendered by a private appellate arbitrator and denying her
request for a renewed equitable distribution assessment. We affirm.
I.
The following facts are derived from the record. The parties married in
1995. Both parties had been married before, divorced, and had children from
their prior relationships. They had one child together born in 1997. Prior to
their marriage, plaintiff worked as a bookkeeper, in sales, and in customer
relations. After the child's birth, plaintiff primarily raised the child while
defendant, John Azzolina, worked in the family business, which was comprised
of eight business entities, including a liquor store in Sea Girt.
On March 15, 2013, plaintiff filed a complaint for divorce, which was
dismissed or withdrawn. She filed another complaint for divorce on May 12,
2014. Following extensive motion practice, discovery, and court appearances,
the parties executed an arbitration agreement (the agreement) in August 2017 in
light of their concerns about potential issues under Sheridan v. Sheridan, 247
N.J. Super. 552, 563 (Ch. Div. 1990). The agreement provided that the parties
agreed to resolve their disputes pursuant to the New Jersey Alternate Procedure
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for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. Specifically,
the parties agreed to submit all of their issues to binding arbitration, including
the determination of alimony and equitable distribution. The agreement
provided for discovery, including depositions. They agreed the "umpire," 1 a
mutually selected retired Family Part judge, "has the jurisdiction after the
issuance of any Award in order to be able to reconsider the Award based upon
any factor set forth in R[ule] 4:49-2 or R[ule] 4:50-1 of the Rules of Court."
In addition, the parties agreed "to permit an appeal of the final Award to
a panel of one or more private Appellate Umpires to be agreed upon by the
parties or provided by a third[-]party, such as the American Arbitration
Association." Further, the parties agreed "that the standard of review shall be
that as applied by the Appellate Division of the Superior Court of New Jersey."
The agreement provided for a post-award review, modification, or correction of
the award if the initial arbitrator erred in applying the substantive law of the
State of New Jersey or miscalculated figures. The parties ultimately selected a
retired appellate judge of this State to serve as the appellate arbitrator in the
1
We refer to the umpire as the initial arbitrator in this decision.
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event of an appeal. The decision of the appellate arbitrator was "final and
binding."
On December 10, 2018, the initial arbitrator issued an amended decision
and award,2 which included an award of alimony to plaintiff. Of significance,
under prior law in December 2018, alimony was still deductible by the payor
spouse (here defendant) from his gross income by the federal government and
includible as income by the payee spouse (here plaintiff). However, the Tax
Cuts and Jobs Act of 2017 was enacted by Congress and became effective
January 1, 2019. Pub. L. No. 115-97, 131 Stat. 2054 (codified in various
sections of 26 U.S.C.A.) (the Act). The tax treatment of alimony was changed
by the Act—alimony would no longer be tax deductible to defendant or
includable as income to plaintiff, a salient factor in the initial arbitrator's
decision. See id. at § 11051, 131 Stat. 2054, 2089-90. Therefore, it was crucial
that the parties be divorced by December 31, 2018, otherwise the alimony
amount would have to be recalculated.
Consequently, the parties agreed to finalize the divorce on or before
December 31, 2018, preserve the right to file motions for reconsideration or
modification with the initial arbitrator, and file an appeal to the appellate
2
The initial award is not included in the appendices.
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arbitrator if warranted. A final judgment of divorce (FJOD) was entered on
December 20, 2018, by the presiding judge of the Family Part. The FJOD also
incorporated a simultaneously entered consent order confirming the December
10, 2018 "(Amended) Decision of Arbitrator"3 pursuant to R[ule] 5:3-8. In
addition, the consent order provided:
2. The time periods set forth in [p]aragraphs 27, 28, 29,
and 30 of the [agreement] to seek review, modification
or correction of the [a]ward by the [initial arbitrator] is
extended to February 1, 2019.
3. The time period set forth in [p]aragraph 32 of the
[a]greement to seek modification by the [c]ourt is
extended to commence on the date of any modification
or correction of the [a]ward by the [initial arbitrator].
4. The time period set forth in [p]aragraph 35 of the
[a]greement to appeal the [a]ward is extended to
commence running on the date of any final decision by
the [initial arbitrator] after review, modification or
correction of the [a]ward.
In connection with the entry of the FJOD, both parties were questioned
about the judgment and the incorporated Amended Decision of Arbitrator.
Under oath, both parties, represented by counsel, confirmed that: (1) they had
freely and knowingly entered into the arbitration agreement; (2) the December
10, 2018 Amended Decision of Arbitrator was being confirmed and incorporated
3
The record does not reflect why the initial arbitrator's decision was "amended."
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into the FJOD; and (3) the consent order allowed the parties to return to the
initial arbitrator and appellate arbitrator, if necessary.
In that regard, plaintiff testified:
[Plaintiff's Counsel]: And you signed a very
comprehensive arbitration agreement, correct?
[Plaintiff]: Yes. Yes.
[Plaintiff's Counsel]: And we hired [j]udge . . . , a
retired judge, to arbitrate the case?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And indeed, we did appear
many days. You were placed under oath as was Mr.
Azzolina as were other witnesses, correct?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: Testimony was given and
exhibits were provided, correct?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And after that, and during
those proceedings, I was present as your attorney?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And I argued on your behalf,
presented exhibits on your behalf, conducted
examination on your behalf, correct?
[Plaintiff]: Yes.
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[Plaintiff's Counsel]: And Mr. Fox did similar
services for John Azzolina, correct?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And then at the end of the
testimony after a period of time, [j]udge . . . issued what
he called his arbitration decision, correct?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And then he also provided us
with a document set forth as an arbitration award?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: Now, you understand when
you signed that agreement to go off to arbitration, that
that vested full authority in [j]udge . . . to make his
decision?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: And that his decision is now
about to be confirmed, and I explained to you what that
means, correct?
[Plaintiff]: Yes.
[Plaintiff's Counsel]: In a moment, if Her Honor, as
she most likely will, signs the consent order that Mr.
Fox and I have consented to, that order from [j]udge
. . . will now be a binding order of the [S]uperior
[C]ourt. You understand that?
[Plaintiff]: Yes.
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Based upon the testimony of both parties, the presiding judge found that
they entered into the arbitration agreement knowingly and voluntarily and
sought confirmation of the arbitration award. The presiding judge then entered
the FJOD, which incorporated the December 10, 2018 Amended Decision of
Arbitrator and executed the consent order. In doing so, the presiding judge
stated on the record that "the parties do in fact agree that they will go back to
[the initial arbitrator] and if necessary [the appellate arbitrator] in order to
review any issues that they may have with the arbitration award and that they've
agreed to extend time to do so in that consent order." No appeal was ever taken
from the FJOD or challenging the terms of the consent order.
On January 10, 2019, defendant filed a motion for reconsideration and for
modification with the initial arbitrator regarding equitable distribution of the
stock in Sea Girt Wine & Spirits and Highland Traders, alimony, and in a
subsequently filed amended motion, emancipation of the parties' child. Plaintiff
filed a cross-motion seeking to increase her equitable distribution award and
challenging defendant's right to challenge the amended decision of arbitrat or.
On December 4, 2019, the initial arbitrator issued an arbitration order
denying the parties' motion and cross-motion seeking modification of his
amended decision of arbitrator and granted defendant's motion for emancipation
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of the parties' child. In his decision, the initial arbitrator noted, "if either or both
parties are seeking to appeal this matter, and based upon the prior arrangement
reached in good faith by counsel and the spirit of same, the parties shall have an
additional [thirty] days from the date of this order (December 4, 2019) to file
any applicable appeals accordingly."
On January 2, 2020, defendant filed a notice of appeal to the appellate
arbitrator. Plaintiff opposed the procedure but nonetheless filed opposition and
presented oral argument before the appellate arbitrator. On June 18, 2020, the
appellate arbitrator issued an Appellate Award granting defendant's appeal, in
part, on the issue of equitable distribution. In her decision, the appellate
arbitrator reversed the award of stock to plaintiff as to Sea Girt Wine and Spirits,
Inc.
On July 24, 2020, plaintiff filed a notice of motion for relief pursuant to
N.J.S.A. 2A:23A-13 and Rule 5:3-8 before the Family Part motion judge seeking
to void the June 18, 2020 Appellate Award rendered by the appellate arbitrator
and affirm the FJOD, contending the private arbitrators lacked jurisdiction to
alter or amend the FJOD. Defendant opposed the motion. Both parties waived
oral argument.
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On July 20, 2020, the motion judge issued an order and comprehensive
written statement of reasons denying plaintiff's motion to void the June 18, 2020
Appellate Award rendered by the private appellate arbitrator. The motion judge
also granted plaintiff's request to affirm the existence of the FJOD and denied
her application challenging the authority of the private arbitrators to alter or
amend the FJOD. The motion judge specifically rejected plaintiff's argument
that the entry of the FJOD terminated the litigation, thereby depriving the
Appellate Arbitrator of jurisdiction to hear post-judgment disputes.
In his decision, the motion judge found:
First, in the [a]greement, the parties agreed that
"[n]either party shall have the right or power to expand,
narrow, amend or revoke this [a]greement without the
consent in writing of the other party." Although that
provision does not expressly direct that the parties may,
by consent, agree to expand, narrow, amend, or revoke
the [a]greement, such is a necessary, implicit corollary.
Indeed, such is referred to in [p]aragraph 29 as well,
which notes the limited jurisdiction of the arbitration,
"absent written consent of the parties to expand the
scope of the proceeding"—again an implicit indication
that the parties may, by consent, modify the arbitration.
Moreover, if the [a]greement were not subject to
consensual expansion, narrowing, amendment, or
revocation, the parties could have said such. Instead,
the foregoing language is merely a directive that any
endeavor to expand, narrow, amend, or revoke the
agreement must be consensual and bilateral—not
unilateral.
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The [a]greement also provided for a post-award review,
modification, or correction of the award by the selected
arbitrator, as well as submission to a selected appellate
umpire. Paragraph 35 provides that, "[i]f an appeal is
filed, the [a]ward shall not be deemed final for purposes
of confirmation pending the appeal," but that the
decision of the appellate umpire "shall be final and
binding."
Thereafter, the parties entered into the [c]onsent
[o]rder—signed by [p]residing [j]udge . . . and
incorporated into the FJOD. Importantly, the [c]onsent
[o]rder and FJOD were entered on the same day.
The [c]onsent [o]rder expands the time frames for post-
award review, modification, or correction of the
[a]ward, as well as expanding the time for an appeal to
the appellate umpire.
[Plaintiff] contends that the FJOD must be final and that
upon entry of the FJOD retired [j]udge . . . and retired
[j]udge . . . lack jurisdiction to arbitrate the
proceedings. That contention inherently requires
fixation on [p]aragraph 35 of the [a]greement.
N.J.S.A. 2A:23A-18 provides that "[u]pon the granting
of an order confirming, modifying or correcting an
award, a judgment or decree shall be entered by the
court in conformity therewith and be enforced as any
other judgment or decree. There shall be no further
appeal or review of the judgment or decree." That
provision, however, refers to review by the Appellate
Division—not an arbitration appellate umpire, such as
[r]etired [j]udge . . . .
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The motion judge concluded the consent order "was an amendment to the
[a]greement" and that "supplementary arbitration is not foreign . . . ." Further,
the motion judge highlighted that plaintiff's "post-FJOD conduct" undermined
her position regarding the finality of the FJOD, noting plaintiff filed a cross -
motion with the appellate arbitration. This appeal followed.
On appeal, plaintiff raises two points: (1) the motion judge erred in
denying her motion to declare void the private appellate arbitration decision
purporting to invalidate part of the FJOD; and (2) the motion judge erred in
denying her motion for alternative relief of a renewed equitable distribution
determination given the appellate arbitrator's decision removing a major asset
from the marital estate.
Based upon our careful review of the record, we disagree and affirm
substantially for the reasons expressed by the motion judge. We add the
following brief remarks.
II.
"The 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,
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131-32 (App. Div. 2013). However, "[a]rbitration 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." Fawzy v. Fawzy, 199 N.J 456, 468
(2009) (quoting Barcon Assocs. Inc. v. Tri-County Asphalt Corp., 86 N.J. 179,
187 (1981). To that end, "[a]rbitration 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) (alteration in original) (citing N.J. Tpk.
Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 292 (2007)).
Thus, "courts grant arbitration awards considerable deference," ibid., and
"when binding arbitration is contracted for by litigants, the judiciary's role to
determine the substantive matters subject to arbitration ends." Minkowitz, 433
N.J. Super. at 134.
From the judiciary's perspective, once parties contract
for binding arbitration, all that remains is the possible
need to: enforce orders or subpoena issued by the
arbitrator, which have been ignored, N.J.S.A. 2A:23B-
17(g); confirm the arbitration award, N.J.S.A. 2A:23B-
22; correct or modify an award, N.J.S.A. 2A:23B-24,
and in very limited circumstances, vacate an award[,]
N.J.S.A. 2A:23B-23. If not for this limitation on
judicial intervention of arbitration awards, "the purpose
of the arbitration contract . . . would be severely
undermined."
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[Ibid. (quoting Fawzy, 199 N.J. at 470).]
Here, the motion judge properly determined that the consent order
conferred post-judgment jurisdiction of the parties' future disputes upon the
initial arbitrator and appellate arbitrator, if warranted. Plaintiff waived her right
to contest the Appellate Award. We have previously explained that
[t]he principle of waiver is invoked to assure that a
party may not get two bites of the apple: if he chooses
to submit to the authority and jurisdiction of an
arbitrator, he [or she] may not disavow that forum upon
the return of an unfavorable award. That important
policy would be subverted if a party could enter a
nominal objection to the arbitrator's jurisdiction,
submit himself fully to the arbitration and still retain
the option to demand a new hearing if he does not like
the outcome of the arbitration. Reservation of an
objection to the arbitration surely is a relevant fact in
determining waiver. But that fact alone cannot be
dispositive.
[Highgate Dev. Corp. v. Kirsh, 224 N.J. Super. 328,
333 (App. Div. 1988).]
Our Court approved the Highgate approach in Wein, and provided further
guidance to trial courts deciding whether a party who has participated in an
arbitration has waived the right to later object to an arbitration award. Wein v.
Morris, 194 N.J. 364, 383 (2008). The Court explained that
the court should consider the totality of circumstances
to evaluate whether a party has waived the right to
object to arbitration after the matter has been ordered
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to arbitration and arbitration is held. Some of the
factors to be considered in determining the waiver issue
are whether the party sought to enjoin arbitration or
sought interlocutory review, whether the party
challenged the jurisdiction of the arbitrator in the
arbitration proceeding, and whether the party included
a claim or cross-claim in the arbitration proceeding that
was fully adjudicated.
[Id. at 383-84.]
In concluding that the defendants in Wein had waived their right to contest
the order compelling arbitration, the Court noted that
it would be a great waste of judicial resources to permit
defendants, after fully participating in the arbitration
proceeding, to essentially have a second run of the case
before a trial court. That would be contrary to a
primary objective of arbitration to achieve final
disposition, in a speedy, inexpensive, expeditious and
perhaps less formal manner.
[Id. at 384-85.]
Here, plaintiff never appealed the FJOD or consent order. Moreover, her
failure to do so is compelling, particularly in light of the fact that she filed a
cross-motion before the initial arbitrator post-judgment and filed opposition and
presented oral argument before the appellate arbitrator. The consequence of that
failure is that the parties have expended time and money arbitrating the case pre-
and post-judgment. Considering those circumstances, we have no difficulty
concluding that plaintiff waived her right to contest the consent order
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compelling post-judgment arbitration. And, our courts have long held that a
consent order is not appealable. Janicky v. Point Bay Fuel, Inc., 410 N.J. Super.
203, 207 (App. Div. 2009) (citing Winberry v. Salisbury, 5 N.J. 240, 255
(1950)). Equally unavailing is plaintiff's argument that the FJOD divested the
arbitrators of post-judgment motion jurisdiction—the record unequivocally
supports the conclusion that the parties knowingly, willingly, and voluntarily
agreed to this procedure as evidenced by the consent order incorporated into the
FJOD.
Affirmed.
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