NOT FOR PUBLICATION WITHOUT THE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-0762-15T3
AMOLA SHAH,
Plaintiff-Respondent,
v.
ATUL SHAH,
Defendant-Appellant.
_____________________________________
Submitted September 12, 2017 – Decided September 20, 2017
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-3134-01.
Atul Shah, appellant pro se.
Arons & Solomon, PA, attorneys for respondent
(Patricia L. Burris, on the brief).1
PER CURIAM
1
We granted Ms. Burris's written request to rely on her merits
brief in lieu of appearing for oral argument before us. We also
denied defendant's September 7, 2017 request to adjourn oral
argument in which he wrote "in the next [seven] days I will write
to you in more detail." Defendant did not appear for oral argument
before us on September 12, 2017.
Approximately fourteen years after agreeing to arbitration,
defendant appeals from a June 30, 2015 order (1) denying his motion
to appoint Paul Lomberg, Esq. as arbitrator, and (2) granting
plaintiff's cross-motion to terminate the parties' agreement to
arbitrate issues contained in the parties' Property Settlement
Agreement (PSA); and a September 18, 2015 order denying
reconsideration. We conclude the parties waived their right to
arbitrate and affirm.
The parties were married in June 1974, and divorced in
February 2003. In January 2003, they executed the PSA and agreed
to arbitrate seventeen issues. The parties paid an arbitrator,
Charles Abut, Esq., and agreed to arbitrate on March 6, 2003. The
arbitration did not occur.
In 2005, defendant wanted to arbitrate one of the seventeen
issues - moving back into the marital home. Mr. Abut declined to
arbitrate that issue in a piecemeal fashion, and requested the
parties arbitrate all the issues immediately. Despite that request,
the parties did not begin the arbitration. Mr. Abut returned the
retainer he had received due to "the extended dormancy of the
matter[.]" The parties' house sold in 2006, and they placed the
proceeds of the sale into the trust account of Dorgan & Dorgan, LLP
(Dorgan). Plaintiff relocated to Florida in 2006, and no
arbitration occurred.
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In 2008, approximately five years after they had agreed to
arbitrate the PSA issues, the parties decided to select a new
arbitrator. They interviewed several candidates, and after
completing those interviews, the parties selected Mr. Lomberg. They
took no further steps, however, to retain him.
In February 2009, defendant filed a motion to compel
arbitration, appoint a new arbitrator plus an accountant, and expand
the issues to arbitrate beyond those listed in the PSA. In April
2009, the judge (1) granted defendant's motion to compel
arbitration; (2) appointed Barry Kaufman, Esq. as a new arbitrator;
(3) required the parties to pay the arbitrator from the Dorgan
account; and (4) established a schedule for the submission of
documents.
According to plaintiff, after the judge compelled arbitration
in 2009, plaintiff wrote three letters to defendant's counsel
requesting that the parties retain Mr. Kaufman and start the
proceeding. She maintains that defendant ignored her letters.
Plaintiff then spoke directly to Mr. Kaufman about moving forward
with arbitration, and received a retainer agreement from him. The
parties did not sign the retainer agreement, and Mr. Kaufman wrote
to the judge advising that he would not conduct arbitration until
both parties signed the document.
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In April 2015, twelve years after the parties agreed to
arbitrate the disputed issues, defendant filed the motion to appoint
Mr. Lomberg as arbitrator. Plaintiff cross-moved to terminate the
parties' obligation to arbitrate; bar the parties from suing in
Superior Court regarding the seventeen issues; close the Dorgan
account; and require defendant to pay counsel fees.
In June 2015, the judge denied defendant's motion. The judge
granted plaintiff's motion in part and denied it in part. The
judge granted her request to terminate the parties' obligation to
arbitrate the seventeen issues in their PSA; and granted plaintiff's
request to close the Dorgan account. The judge denied plaintiff's
request to bar the parties from suing in Superior Court regarding
the seventeen issues; and denied plaintiff's request for counsel
fees.
In ruling on the motions, the judge explained that Iudici v.
Iudici, No. A-6033-09 (App. Div. October 12, 2012) constituted
persuasive authority. The judge stated that
the [o]rder requiring the parties to meet with
an arbitrator was . . . interlocutory, [it
was] meant to enforce the [PSA], and
thereafter the [c]ourt had the right to review
and reconsider it and particularly in view of
both parties['] disregard of the [o]rder[.]
The judge found that the parties were now in a much different
financial position based on the twelve-year delay. In July 2015,
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defendant filed a motion for reconsideration. Plaintiff cross-
moved for counsel fees. In September 2015, the judge denied both
motions.
On appeal, defendant primarily argues that the judge
improperly relied on the unpublished Iudici opinion; arbitration
is a favored remedy; the judge erred by concluding the parties
waived their right to arbitrate; and the doctrine of laches is
inapplicable.
As to defendant's point about Iudici, the law is settled.
Pursuant to Rule 1:36-3, a judge cannot cite to unpublished
decisions as binding precedent. "Although an unpublished opinion
does not have precedential authority, it may nevertheless
constitute secondary authority." Pressler & Verniero, Current
N.J. Court Rules, comment 2 on R. 1:36-3 (2017); see also Nat'l
Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. Super. 13,
18 (App. Div. 2005).
Here, the judge did not state that Iudici was binding, but
considered Iudici as persuasive secondary authority. Furthermore,
the judge did not solely rely on Iudici. The judge explained that
there was a substantial lapse in time – more than twelve years –
between the entry of the PSA and the motion before the court.
According to the judge, the parties were now in a different
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position than they had been in 2003, when they had entered the
PSA.
It is undisputed that "arbitration is a favored remedy."
Faherty v. Faherty, 97 N.J. 99, 105 (1984). There is no bar to
arbitration of family law matters in the Arbitration Act, N.J.S.A.
2A:23B-1 to -32, and the Supreme Court has approved arbitration
of alimony and child support issues. Fawzy v. Fawzy, 199 N.J.
456, 471 (2009). "[A]n agreement to arbitrate generally will be
valid under state law unless it violates public policy." Hojnowski
v. Vans Skate Park, 187 N.J. 323, 342 (2006). Specifically, "[a]n
agreement contained in a record to submit to arbitration any
existing or subsequent controversy arising between the parties to
the agreement is valid, enforceable, and irrevocable except upon
a ground that exists at law or in equity for the revocation of a
contract." N.J.S.A. 2A:23B-6(a). Such equitable principles apply
here.
"Waiver is the voluntary and intentional relinquishment of a
known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003). "The
intent to waive need not be stated expressly, provided the
circumstances clearly show that the party knew of the right and
then abandoned it, either by design or indifference." Ibid. Here,
the parties waived their right to arbitrate. After the judge
ordered arbitration in 2009, six years after the parties had agreed
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to arbitrate the PSA issues, and appointed Mr. Kaufman as the
arbitrator, the parties again failed to move forward with
arbitration. Plaintiff stated that she spoke directly to Mr.
Kaufman about moving forward with arbitration in 2009, and received
a retainer agreement from him, but neither she nor defendant signed
the retainer agreement.
Defendant admits that he was unhappy with Mr. Kaufman's fee
and wanted to find another arbitrator. Defendant claims it took
several years to agree on fees and which arbitrator to use. He
admits that he petitioned the court in 2015, "three, [or] four
years" after the parties agreed to use Mr. Lomberg.
The parties were essentially inactive in moving the
arbitration forward for six years after the 2009 order compelling
arbitration. More than fourteen years have passed since the
parties signed the PSA agreement, and there is currently a lack
of funds in the Dorgan account to arbitrate the disputed issues.
The parties clearly waived their right to arbitrate due to their
substantial delay. Therefore, the judge did not err in terminating
the parties' obligation to arbitrate.
Defendant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add the following brief remarks.
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Laches is "invoked to deny a party enforcement of a known
right when the party engages in an inexcusable and unexplained
delay in exercising that right to the prejudice of the other
party." Knorr, supra, 178 N.J. at 180-81. It "may only be
enforced when the delaying party had sufficient opportunity to
assert the right in the proper forum and the prejudiced party
acted in good faith believing that the right had been abandoned."
Id. at 181. Here, the judge did not refer to laches. Moreover,
laches does not apply. There is no credible evidence that
plaintiff acted in good faith believing that defendant abandoned
his right to enforce arbitration. We conclude under the facts of
this case that the parties knew of their initial right to arbitrate
and subsequently abandoned that right by their conduct spanning
more than a decade, which resulted in substantially delaying
resolution of the issues in the PSA.
Affirmed.
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