DAWN M. BAESZLER VS. WILLIAM J. BAESZLER (FM-13-0473-08, MONMOUTH COUNTY AND STATEWIDE)

D
                                NOT FOR PUBLICATION WITHOUT THE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-4669-18

DAWN M. BAESZLER,

         Plaintiff-Respondent/
         Cross-Appellant,

v.

WILLIAM J. BAESZLER,

     Defendant-Appellant/
     Cross-Respondent.
________________________

                   Argued May 3, 2021 – Decided July 6, 2021

                   Before Judges Hoffman and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FM-13-0473-08.

                   Michael Gunteski argued the cause for appellant/cross-
                   respondent (Senoff & Enis, attorneys; Michael J.
                   Gunteski, on the briefs).

                   Dawn M. Baeszler, respondent/cross-appellant, argued
                   the cause pro se.

PER CURIAM
      These cross-appeals follow nearly a decade of post-judgment divorce

litigation between plaintiff Dawn B. Baeszler and defendant William J. Baeszler.

On appeal, defendant challenges three Family Part orders: an October 20, 2017 order

denying his motion to reopen a June 9, 2017 arbitration award (the Award); a June

29, 2018 order denying reconsideration; and a June 24, 2019 order denying his

motion to modify his child support obligations. Plaintiff cross-appeals, challenging

the Family Part orders entered on June 24, 25, and 26, 2019 denying various requests

for relief made by plaintiff in multiple motions, including her own motion to vacate

the Award.

      Based upon our review of the record and the applicable law, we discern no

basis to disturb any of the challenged decisions, with one exception. Because

defendant presented a material change of circumstances, we vacate the portion of

the June 24, 2019 order that denied defendant's motion to modify his child support

obligations and remand that issue to the trial court for further proceedings. We

affirm the balance of the orders under review.

                                         I.

      The parties married in September 1994. Two children were born of the

marriage, a daughter born in 1999 and a son born in 2003. In August 2008, the




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parties divorced upon the entry of a Dual Judgment of Divorce incorporating the

parties' Memorandum of Understanding dated August 7, 2008.

      Shortly thereafter, the parties engaged in litigation regarding their daughter's

education expenses. On July 30, 2010, the trial court found defendant in contempt

of court for failing to comply with orders to – among other things – pay fifty percent

of the daughter's tuition and related expenses. Because of defendant's refusal to

cooperate, on August 14, 2015, the court awarded plaintiff sole custody of both

children.

      Also on August 14, 2015, the trial court found defendant in contempt for

failing to provide discovery. Discovery ultimately revealed defendant's Fidelity

Profit Sharing Plan and Money Purchase Plan accounts (the Fidelity accounts),

represented by defendant as having a value of $360,000 when plaintiff filed her

divorce complaint, had an the actual value of $450,000 at that time. Therefore,

plaintiff's fifty percent share of the Fidelity accounts was understated by $45,000.

Accordingly, the court granted plaintiff’s request to receive an additional $45,000

from the Fidelity accounts.

      The parties continued to contest numerous outstanding post-judgment issues

regarding, among other things, child support and the distribution of retirement assets.

For example, on March 29, 2016, the trial court awarded plaintiff "forty percent


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(40%) of the Keogh Money Purchase Plan contributions of [d]efendant . . . or the

taxable sum of $146,152, which contributions were erroneously and inequitably

excluded from (d)efendant's available income for support purposes in the 2008

divorce judgment." The court had preserved the order pending a plenary hearing to

allow defendant to produce an expert report on the matter, but he never did; in

addition, defendant failed to appear at the plenary hearing.

      On January 22, 2017, the parties agreed to retain Matthew Abatemarco (the

Arbitrator) to arbitrate outstanding post-judgment issues and entered a consent order

to arbitrate on February 2, 2017. The Arbitrator had previously conducted an

unsuccessful mediation between the parties.

      At the conclusion of arbitration proceedings, on June 8, 2017, the Arbitrator

issued the Award that is the primary focus of this appeal. Central to the appeal and

cross-appeal, the Award obligated defendant to pay $3,442 per month in child

support, sixty percent of the tuition and related expenses for the parties' son, and the

additional $45,000 for plaintiff's half of the Fidelity accounts.

      On August 8, 2017, defendant moved "to reopen arbitration award with

regards to counsel fees." Plaintiff filed a cross-motion requesting "the court to deem

the Arbitration Award moot and to allow plaintiff to make a motion to tell her side




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                                           4
of this litigation."1 Notwithstanding these pending motions, on September 22, 2017,

the parties submitted to the trial court and the court signed a Consent Order to

Confirm Arbitration Award, wherein they confirmed they "voluntarily desire[] to

confirm the Amended Arbitration Award" and agreed to "fully and promptly comply

with the provisions of said order."

      On April 11, 2018, the court granted plaintiff's request to send their son to

boarding school in Pennsylvania. In response, defendant moved to modify his child

support obligation, arguing that their son living away from home for the school year

was a material change in circumstances. The court denied the motion on June 24,

2019, finding the "Arbitration Award so ingrains child support with other payments

and expenses that to disturb that figure would disrupt many other aspects of the

award." The same day, the court denied plaintiff's motions for various modifications

of the Arbitration Award and on June 25, 2019, the court specifically denied

plaintiff's motion to modify the Award to receive $146,152 of defendant's Keogh

Money Purchase Plan, finding plaintiff had the opportunity to object to the denial of

the relief at arbitration and failed to do so. Plaintiff again moved to vacate the

Award, arguing the arbitrator inappropriately acted as both mediator and arbitrator


1
    The trial court denied both motions on October 20, 2017. Defendant filed a
motion for reconsideration, which the court denied on December 22, 2017.


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                                         5
and made various errors in calculating her relief. The court denied the motion on

June 26, 2019, finding no errors warranting reconsideration because plaintiff

provided no newly discovered information and the denial of any relief was justified

by the Arbitrator.

      On appeal, defendant challenges multiple orders regarding the Award,

asserting the following arguments:

             POINT I

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT/APPELLANT'S NOTICE OF MOTION
             TO VACATE THE $45,000 AWARD AND NOTICE
             OF MOTION TO REOPEN COUNSEL FEES AS A
             RESULT    OF    PLAINTIFF'S  MATERIAL
             MISREPRESENTATION OF FACTS TO THE
             ARBITRATOR.

             POINT II

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT/APPELLANT'S NOTICE OF MOTION
             TO VACATE THE $45,000 AWARD WITHOUT
             SPECIFICALLY         ADDRESSING    THE
             DEFENDANT/APPELLANT'S REQUEST IN ITS
             OCTOBER 20, [2017] ORDER.

             POINT III

             THE TRIAL COURT ERRED IN DENYING THE
             DEFENDANT/APPELLANT'S NOTICE OF MOTION
             FOR RECONSIDERATION OF THE OCTOBER 20,
             [2017] ORDER BY FAILING TO CONSIDER


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                                        6
      [PLAINTIFF'S] MISREPRESENTATION  AND
      FRAUD UPON THE COURT AND ARBITRATOR.

      POINT IV

      THE OCTOBER 20, [2017] AND JUNE 29, 2018
      ORDERS WERE AGAINST THE WEIGHT OF THE
      EVIDENCE.

      POINT V

      THE TRIAL COURT ERRED IN DENYING
      DEFENDANT/APPELLANT'S NOTICE OF MOTION
      TO VACATE THE $45,000 AWARD AND RE-OPEN
      ARBITRATION REGARDING COUNSEL FEES
      WITHOUT HOLDING A PLENARY HEARING TO
      ADDRESS THE MATERIAL ISSUES OF FACTS.

      POINT VI

      THE TRIAL COURT ERRED IN FAILING TO
      MODIFY CHILD SUPPORT IN THE COURT'S JUNE
      24, 2019 ORDER.

On her cross-appeal, plaintiff argues:

      POINT I

      THE TRIAL COURT ERRED FOR FAILURE TO
      ENFORCE DISCOVERY OR FACT FIND WHEN
      CONCLUDING THAT THERE WAS NO MERIT FOR
      A RECONSIDERATION TO VACATE THE
      AWARD.

      POINT II

      THE TRIAL COURT ERRED FOR FAILURE TO
      ANSWER COMPLAINTS THAT THE ARBITRATOR

                                                 A-4669-18
                                   7
             EXCEEDED HIS POWERS AS ACTING AS BOTH
             MEDIATOR AND ARBITRATOR WITHOUT
             SIGNING WAIVERS OR DISCLOSURES.

             POINT III

             THE TRIAL COURT ERRED WHEN STATING
             THAT THERE WERE NO ERRORS IN THE
             ARBITRATION REPORT.

             POINT IV

             THE TRIAL COURT ERRED BY DENYING MY
             MOTION TO VACATE THE ARBITRATION
             AWARD.

             POINT V

             THE TRIAL COURT ERRED IN DENYING MY
             MOTION ON A HEARING ON THE $146,500.

                                         II.

      We review the trial court's denial of motions to vacate an arbitration award de

novo. Manger v. Manger, 

417 N.J. Super. 370

, 376 (App. Div. 2010) (citation

omitted). But, "there is a strong preference for judicial confirmation of arbitration

awards," Middletown Tp. PBA Loc. 124 v. Township of Middletown, 

193 N.J. 1

, 10

(2007), and we give such awards "considerable deference," Borough of E.

Rutherford v. E. Rutherford PBA Local 275, 

213 N.J. 190

, 201 (2013).

      "[I]n the absence of an express designation in an agreement, the [Revised

Uniform Arbitration Act (the Act), N.J.S.A. 2A:23B-1 to -32] governs the

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arbitration." Manger, 417 N.J. Super at 375. The Act states a court may vacate an

arbitration award only upon proof:

             (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) an arbitrator exceeded the arbitrator's powers . . . .

             [N.J.S.A. 2A:23B-23.]

A party seeking to vacate an arbitration award bears the burden of demonstrating

"fraud, corruption, or similar wrongdoing on the part of the arbitrator." Tretina v.

Fitzpatrick & Assocs., 

135 N.J. 349

, 358 (1994) (internal quotation marks and

citations omitted).

      We review the trial court's denial of motions for reconsideration under an

abuse of discretion standard. Cypress Point Condominium Ass'n v. Adria Towers,

L.L.C., 

441 N.J. Super. 369

, 372 (App. Div. 2015) (citing Cummings v. Bahr, 

295

N.J. Super. 374

, 389 (App. Div. 1996)). The court should only grant a motion for

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reconsideration when: 1) "the Court has expressed its decision based upon a palpably

incorrect or irrational basis"; 2) "it is obvious that the Court either did not consider,

or failed to appreciate the significance of probative, competent evidence"; or 3) "if

a litigant wishes to bring new or additional information to the Court's attention which

it could not have provided on the first application . . . ." Cummings, 

295 N.J. Super.

at 384

 (quoting D'Atria v. D'Atria, 

242 N.J. Super. 392

, 401 (Ch. Div. 1990)).

Further, the "litigant must initially demonstrate that the [c]ourt acted in an arbitrary,

capricious, or unreasonable manner, before the Court should engage in the actual

reconsideration process." 

Ibid.

                                          III.

      First, defendant contends the trial court erroneously denied his motion to

vacate the grant of $45,000 to plaintiff in the Award and to reopen arbitration to

obtain counsel fees by: 1) relying on plaintiff's fraudulent misrepresentations;

2) failing to conduct a plenary hearing; and 3) failing to make findings of fact

and conclusions of law.

      As a preliminary matter, we agree the trial court failed to provide any

reasoning for denying defendant's motion to vacate the order awarding plaintiff

$45,000.    See R. 1:7-4(a) (requiring courts to "find the facts and state its

conclusions of law . . . on every motion decided by a written order that is


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appealable as of right."). Nevertheless, the issues presented on appeal of the

denial of the motion to vacate are questions of law, which we decide de novo.

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 

140 N.J. 366

, 378 (1995).

Rather than remand for the trial court to provide the findings and conclusions

supporting its disposition of the motion, we address the challenged orders

without the benefit of the trial court's reasoning. See Do-Wop Corp. v. City of

Rahway, 

168 N.J. 191

, 199 (2001) ("[A]ppeals are taken from orders and

judgments and not from opinions, oral decisions, informal written decisions, or

reasons given for the ultimate conclusion.").

      We now address the substance of defendant's arguments.          Prior to

arbitration, plaintiff moved to increase her fifty-percent share of the marital

portion of the Fidelity accounts by $45,000, certifying that defendant

underrepresented the value of the accounts by approximately $90,000. The trial

court granted plaintiff's motion, and the arbitrator incorporated the $45,000

adjustment into the Award. Defendant contends plaintiff fraudulently omitted

evidence demonstrating the Fidelity accounts depreciated in value due to market

instability between the date of divorce and date of valuation.

      Based upon our review, defendant provided no material challenge to

plaintiff's certification or evidence of plaintiff's fraud. Nor do we find any


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genuine issue of material fact that warranted a plenary hearing. See Harrington

v. Harrington, 

281 N.J. Super. 39

, 47 (App. Div. 1995), (requiring a hearing

when the parties filed contradictory certifications disputing whether the parties

reached an agreement); Conforti v. Guliadis, 

128 N.J. 318

, 322-23 (1992)

(requiring a hearing when equity may mandate modification or reformation of a

marital settlement agreement).

      We find no reason to disturb the $45,000 award and therefore affirm the

October 20, 2017 order denying defendant's motion to vacate the Award and the

June 29, 2018 order denying his motion for reconsideration.

                                        IV.

      Next, defendant contends the trial court erred in denying his request to modify

his child support obligations because the parties' son now lives at boarding school

during the school year, presenting a change in circumstances warranting review and

possible modification of his obligations. We agree.

      "[C]hild support [is] always subject to modification for changed

circumstances . . . ." Faherty v. Faherty, 

97 N.J. 99

, 222 (1984). A party seeking

modification of his or her child support obligation must demonstrate a change in

circumstances warranting modification. Lepis v. Lepis, 

83 N.J. 139

, 157 (1980).

When reviewing decisions denying requests to modify child support, we examine


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whether, given the facts, the trial judge abused her discretion. Larbig v. Larbig, 

384

N.J. Super. 17

, 21 (App. Div. 2006); Loro v. Del Colliano, 

354 N.J. Super. 212

, 220

(App. Div. 2002). "If consistent with the law, such an award will not be disturbed

unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to

other evidence, or the result of whim or caprice." Foust v. Glaser, 

340 N.J. Super.

312

, 315-16 (App. Div. 2001) (internal citations and quotation marks omitted).

      It is well-settled that a child living at college, rather than at home, is a change

in circumstance warranting review of the payor's child support obligation. Jacoby

v. Jacoby, 

427 N.J. Super. 109

, 118 (App. Div. 2012). Logically, a child living at a

boarding school, rather than at home, constitutes also a material change in

circumstance. Because each case must turn on its own facts, courts faced with the

question of setting child support for children living away from home must assess all

applicable facts and circumstances, weighing the factors in N.J.S.A. 2A:34-23a. 

Id.

at 113

. These factors include, among other things, the needs of the child, standard

of living and earning ability of the parents, legal responsibilities of the parents, and

any other relevant factors. N.J.S.A. 2A:34-23a.

      Here, the trial court simply found the "Arbitration Award so ingrains child

support with other payments and expenses that to disturb that figure would disrupt

many other aspects of the award." This is insufficient. The subject change in


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                                         13
circumstances warrants review of the parties' submissions and, subject to the trial

court's discretion, a plenary hearing. See Lepis, 

83 N.J. at 159

 ("A plenary hearing

must be conducted on a motion to modify support when there are genuine issues of

material fact"). The trial court must state its reasons on the record to support its

decision to grant or deny the defendant's motion to modify child support. See

Schwarz v. Schwarz, 

328 N.J. Super. 275

, 282 (App. Div. 2000). We vacate this

portion of the June 24, 2019 order and remand to the trial court for such review.

                                         V.

      On her cross-appeal, plaintiff presents several arguments in support of

vacating the Award in its entirety. These arguments lack merit.

      Primarily, plaintiff contends the trial court erred in denying her motion for

reconsideration, arguing the Arbitrator violated the consent agreement and made

many mistakes in the Award; however, plaintiff offers no evidence implicating the

arbitrator in fraud, corruption, or similar wrongdoing. See Tretina, 

135 N.J. at 358

(A party seeking to vacate an arbitration award bears the burden of demonstrating

"fraud, corruption, or similar wrongdoing on the part of the arbitrator."); N.J.S.A.

2A:23B-23.

      Plaintiff also contends the Arbitrator improperly acted as both mediator and

arbitrator. Because "dual roles are to be avoided[,]" an arbitrator who undertakes


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                                        14
mediation between parties during the midst of the arbitration must have their mutual

permission to do so. Minkowitz v. Israeli, 

433 N.J. Super. 111

, 147-48 (App. Div.

2013). Here, as confirmed by plaintiff's own certification, the Arbitrator served as

mediator and arbitrator on two distinct, separate occasions with the parties' express

consent. Therefore, we find no reason to disturb the Award and affirm the relevant

portions of the June 24, 25, and 26, 2019 orders.

      To the extent we did not specifically address either parties' remaining

arguments, they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Affirmed in part, vacated in part, and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.




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