RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0757-15T1
MYEONG H. CHOI,
Plaintiff-Appellant,
v.
JAMES JIN CHOI,
Defendant-Respondent.
______________________________________________
Submitted March 28, 2017 – Decided May 12, 2017
Before Judges Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FM-02-0874-15.
Kimm Law Firm, attorneys for appellant
(Michael S. Kimm and Adam Garcia, on the
briefs).
Joonil Kim Lee, attorney for respondent.
PER CURIAM
Plaintiff Myeong H. Choi appeals from an order entered on
September 4, 2015 in an action for divorce. The order denies
plaintiff's motion to enforce an order entered on March 25,
2015. For reasons that follow, we reverse and remand.
A discussion of the pertinent procedural history provides
essential background. Plaintiff filed her complaint in October
2014 and eighteen days later filed a motion for pendente lite
relief. Defendant filed an answer and counterclaim on October
31, 2014. The judge denied the plaintiff's motion without
prejudice in December 2014 and a subsequent motion for
reconsideration in January 2015.
Plaintiff sought leave to appeal on February 17, 2015,
which we denied on April 9, 2015, following a remand for and
receipt of the judge's statement of reasons. On March 25, 2015,
following a case management conference, the judge issued the
order plaintiff sought to enforce.
The single paragraph of the March 25 order, entered by the
same judge with the parties' consent, provides:
[T]he Parties' respective pleadings are
dismissed; Parties are to attend mediation
to binding arbitration with [a designated
retired judge]. Defendant shall be
responsible for all costs of mediation and
arbitration, subject to final allocation.
[(Emphasis added).]
The matter proceeded before the arbitrator, who entered a
case management order on June 17, 2015, that includes a
provision requiring "each party to deposit $5000 to be applied
toward Arbitrator hearing fees." The provision sparked
plaintiff's motion to enforce the provision of the judge's March
2 A-0757-15T1
25, 2015 order requiring defendant to pay all costs subject to
final allocation.
On September 4, 2015, the judge entered the order denying
enforcement of his March 25, 2015 order. The judge provided
this brief statement of reasons: "[m]atter has been dismissed
by [o]rder of March 25, 2015. Application must be made to the
arbitrator."1
Plaintiff filed her notice of appeal from the September 4
order denying enforcement and the requisite supporting case
information statement, on October 16, 2015. Before the notice
of appeal was filed, the arbitrator withdrew. He memorialized
and explained his withdrawal in an order dated September 14,
2015.2
In part most pertinent here, the arbitrator stated:
Withdrawal of Arbitrator. Since neither party
has the financial ability to pay Arbitrator's
fees, I hereby withdraw as Arbitrator. If the
parties cannot agree upon the selection of a
replacement Arbitrator and pay his or her
fees, this matter should be restored by the
Court to the divorce FM calendar of the Bergen
1 This statement quoted is inconsistent with the statement the
judge made on March 25, 2015, indicating that the parties could
return to court to enforce the March 25 order.
2 Although not mentioned in the notice of appeal, the case
information statement advises that the arbitrator withdrew "due
to the parties' financial inability to pay Arbitrator's Fees."
"Exhibit D" of the case information statement is the
arbitrator's order of September 14, 2015.
3 A-0757-15T1
County Chancery Division Family Part. Copies
of the Arbitrator's Case Management Orders are
attached hereto.
It is not clear whether the parties brought the September
14 order to the attention of the Family Part, but nothing in the
papers submitted on appeal suggests that the order was brought
to the attention of the judge.
The posture of this case requires a remand to permit the
judge to reinstate the parties' pleadings, consider the
arbitrator's order and decision of September 14, 2015, and take
appropriate action in light of the arbitrator's withdrawal. At
present, the parties have been left without a forum for
litigating their divorce in the first instance, which this court
cannot provide.
Reversed and remanded.
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