Unenforceable Clause In Arbitration Agreement Does Not Void Agreement

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Arbitration (pd)One of my children's preschool teachers was fond of saying, "you get what you get and you don't get upset." (Not to my little angel, of course, but to other children.) In Curran v. Curran, the Appellate Division basically applied this admonition to the parties to an arbitration agreement, holding that they got what they intended out of the agreement, therefore they could not argue, after the fact, that an unenforceable provision in the agreement voided the entire agreement.

In Curran, plaintiff filed for divorce from defendant. With the advice of counsel, the parties entered into a consent order to refer all issues incident to their divorce to arbitration under the New Jersey Arbitration Act. In the consent order, the parties acknowledged that any arbitration award that was entered could only be set aside or modified by a court under the limited grounds set forth in the Arbitration Act — e.g., the award was procured by fraud, corruption, or undue means, the court found evidence of "evident partiality" by the arbitrator, the arbitrator exceeded his or her powers, etc.  But the parties also included a handwritten provision, which provided: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if the matter was determined by the trial court." This is the provision that would cause all of the problems.

After the arbitrator entered a preliminary award, plaintiff requested reconsideration. The arbitrator then issued a comprehensive award setting forth his findings of fact and conclusions of law. Plaintiff filed a motion in the Law Division for an order modifying the award, citing eight alleged "mistakes of law" made by the arbitrator. Plaintiff also argued that the intent of the handwritten provision was not to allow for direct appeal to the Appellate Division, but was instead was evidence that the parties intended a more searching review of the award that what would normally be allowed under the Arbitration Act. The trial court agreed, holding that the paragraph itself was unenforceable because it purported to "create subject matter jurisdiction by agreement." The trial court noted that "[t]he authority of a court to hear and determine certain classes of cases rests solely with the Constitution and the Legislature." But the trial court agreed with plaintiff that the handwritten provision demonstrated the parties' intent to provide for "a little more review" than what would normally be allowed under the Arbitration Act. Therefore, the trial court "in essence act[ed] as the Appellate Division of the arbitrator." It performed a comprehensive review of the arbitrator's decision and affirmed the award. 

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Divorce Equality Comes To New Jersey

by:  Peter J. Gallagher (@pjsgallagher)

When asked about same-sex marriage, the musician/politician/author Kinky Friedman is quoted as having said: “I support gay marriage. I believe they have a right to be as miserable as the rest of us.” In a recent decision, Groh v. Groh, a New Jersey trial court ruled that, if same-sex partners are "as miserable as the rest of us" (present company excluded, natch), they can now get a divorce for the same reason as "the rest of us" — irreconcilable differences. Interestingly, while Groh dealt with the often divisive issue of same-sex marriage (or, more accurately, divorce), it was a lesson in the much less divisive practice of statutory interpretation.  

In Groh, plaintiff and defendant entered into a civil union only to file competing claims to dissolve the civil union five years later on the no-fault grounds of irreconcilable differences. The parties entered into a written settlement agreement that resolved all of their differences, and “sought to conclude the proceedings via dual judgment of dissolution.” However, N.J.S.A. 2A:34-2.1, which sets forth the grounds upon which the dissolution of a civil union can be based, does not include irreconcilable differences. Accordingly, the court had to decide whether it could grant the dissolution on those grounds.

 

 

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