Opinion
25099/05.
Decided September 8, 2008.
Irene Brunstein, Esq. Attorney for Plaintff, New York 11694.
Franklyn H. Snitow, Esq. Daniel I. Kaminetsky, Esq. Sintow Kanfer Holtzer Millus, LLP Attorneys for Defendant New York, New York 10022.
In this divorce action, defendant Hadassah Berg moves for an order: (1) pursuant to CPLR 7510, confirming an arbitration award dated January 14, 2008 (the Award), and (2) amending the judgment of divorce, dated March 5, 2007, to incorporate the terms of the Award. Plaintiff Joseph Berg moves for an order, pursuant to CPLR 7511(a)(1), vacating the Award on the grounds of misconduct, fraud and corruption of the arbitrators.
Facts and Procedural Background
The parties were married in June 1996 and have two twin children, born in May 2001. On July 14, 2004, the parties entered into a written agreement pursuant to which they agreed to arbitrate their marital dispute before a Beth Din (the Arbitration Agreement). More specifically, the agreement provides that the parties will "submit to binding arbitration all the controversies [claims and counterclaims] . . . including but not limited to Exhibit A' annexed hereto." Pursuant to Exhibit A, the parties agreed to arbitrate the issues of custody, parenting time, child support, property distribution, decision making for the children, divorce, Kesuva (marital portion) and other issues related to the marriage and the children. Thereafter, the parties appeared before the chosen arbitrators on July 14, 2004, August 24, 2004, December 24, 2004, November 6, 2005 and March 5, 2006.
As is also relevant herein, on August 15, 2005, plaintiff commenced the instant action and thereafter moved for various forms of pendente lite relief. By order dated November 16, 2005, a Judge of this court directed "[a]rbitration to continue solely as to financial requests," appointed a forensic expert for custody and visitation, awarded temporary physical custody to the wife and granted the husband visitation. On December 18, 2006, the parties executed a Stipulation of Settlement Regarding Permanent Custody and Parenting Time (the Stipulation). Thereafter, an inquest was held and a judgment of divorce was granted; the judgment incorporated, but did merge, the Stipulation. The judgment also recited, as is pertinent to the issues now before the court, that the parties signed an arbitration agreement:
"wherein they agreed to arbitrate all property and financial issues incident to the marriage, including but not limited to child support, maintenance and equitable distribution, before an arbitration panel who have not yet issued a final award . . . [and] upon the confirmation of the arbitration panel's award, either party may submit an amended judgment for this Court's signature incorporating the terms of the award."
On January 6, 2008, the Beth Din issued its Award. Pursuant thereto, plaintiff was directed to pay $1,250 per month in child support and all expenses for the children's education, including summer camp. As is also relevant herein, the Award states, in a footnote, that "[i]n establishing the amount which the husband is required to pay the wife on account of child support, the Rabbinical court took into consideration [the Child Support Standards Act, Domestic Relations Law § 240]" (the CSSA). The Award also distributed the parties' former marital residence, with plaintiff receiving 28% and defendant receiving 72% of its value, after crediting defendant with $115,000 for her initial contribution; directed the parties to reach an agreement whereby one party would purchase the other's interest in the home within 90 days; awarded the wife $27,500 in past expenses and $36,000 in legal expenses; and obligated the husband to pay "all of the legal expenses that the wife will incur, when he is the plaintiff."
The Parties' Contentions
In support of her motion, defendant argues that this court should issue a judgment confirming the Award and sign an amended judgment of divorce incorporating its terms.
In opposition to defendant's motion and in support of his motion seeking to vacate the Award, plaintiff argues that the Award is tainted with fraud, corruption and misconduct. Most significantly, plaintiff alleges that during the divorce action, defendant sent a Flatbush "activist" to the home of the previously assigned judge in an effort to influence the court. Plaintiff further argues that the Arbitration Agreement was the product of threats and duress in that a Rabbi summoned him to appear before a Beth Din over which he presided, which violates religious law; that he was given only one week to prepare for the first session; and that the Rabbi approached the proceedings with a predetermined opinion with regard to the outcome, which is also alleged to violate religious law. Additionally, plaintiff alleges that the Rabbi threatened to issue a Siruv, or a finding of contempt, if plaintiff refused to appear for arbitration. In view of his position as a Rabbi and a teacher in a religious school, plaintiff consented to participate in the Beth Din, since a finding of contempt would be detrimental to his career and reputation. Plaintiff also argues that inasmuch as the Rabbi participated in settlement negotiations between the parties prior to summoning him to the Beth Din, his conduct is particularly inappropriate. Plaintiff claims that he repeatedly asked the Rabbi to step down as a arbitrator because of these improprieties.In addition, plaintiff complains that during the arbitration proceedings, the arbitrators received evidence without foundation; heard testimony that was hearsay; held proceedings without him being present; refused to allow him to cross examine to impeach defendant; engaged in ex parte communications; and refused to require defendant to produce evidence to support her allegations, notwithstanding demands by plaintiff. More particularly, plaintiff alleges that the arbitrators listened to an audiotape behind closed doors and then improperly told him that they would release the tape of him which reflects inappropriate conduct towards his daughters if he sought custody. In addition, defendant called the police on September 13, 2004 to complain that plaintiff was attempting to break into the former marital residence and to kidnap the children, allegedly in an effort to deny him of visitation with his daughters. Plaintiff further avers that defendant then obtained an order of protection from Family Court in reliance upon this incident, which order prevented him and his brother from seeing the children for over one year. Defendant also asserts that the children's social worker, a Rabbi, defendant's advocate and advisor before the Beth Din, and the arbitrators' forensic evaluator all accepted defendant's untrue portrayal of him as dysfunctional and unable to care for his daughters, which allegations this court's evaluator found to be without basis.
Plaintiff thus concludes that because the arbitrators relied upon the evidence and falsehoods advanced by defendant, he was obligated to pay all of plaintiff's legal fees, to reimburse her for the mortgage and other expenses and he was awarded only 28% of the value of the former marital residence. Plaintiff also argues that the arbitrators' decision to order him to pay his wife's legal fees "is essentially an attempt at closing off the Court system to [him] and crippling [him] financially, making it impossible for [him] to ever seek judicial remedies for wrongs done, a finding particularly repulsive to our judicial system." Defendant opines that the "arbitrators' financial award represents a demonic shift in assets, is unjust and without authority in law or fact" and that the conduct of the proceedings was so prejudicial to him, had such proceedings taken place in this court, a mistrial would have been declared. Plaintiff also argues that the award of child support should not be confirmed, since it is not in compliance with the CSSA.
In opposition to plaintiff's motion and in further support of her own motion, defendant argues that plaintiff's claims of fraud, misconduct and improper procedures are conclusory and lacking in merit. She further asserts that since the vast majority of his allegations pertain to custody and visitation, issues that were resolved by the Stipulation and were not resolved by the arbitrators, his arguments are irrelevant to the issues now before the court. Defendant further avers that since plaintiff cannot establish that the award of child support was tainted by fraud, misconduct or improper conduct, the award must be confirmed.
Judicial Challenge of an Arbitration Award
As a threshold issue, the court notes that it is well established that the court can enforce an agreement in which parties agree to refer a divorce matter to a Beth Din ( see e.g. Avitzur v Avitzur, 58 NY2d 108, cert denied 464 US 817 [the court could enforce that portion of a "Ketubah," a document entered into as part of a religious marriage ceremony, in which the parties agreed to refer the matter of a religious divorce to a nonjudicial, religious forum, a Beth Din]; Hirsch v Hirsch, 37 NY2d 312 [an agreement to refer a matter concerning marriage to arbitration suffers no inherent invalidity]; Rakoszynski v Rakoszynski, 174 Misc 2d 509, 515 [parties may elect to arbitrate their differences in a religious tribunal]). Accordingly, the Court of Appeals has affirmed an arbitration award rendered in an arbitration proceeding in which "the parties undertook to fulfill the judgment to be granted by the Beth Din either by judgment or by settlement according to Jewish law, as the said judges will see fit'" ( Meisels v Uhr, 79 NY2d 526, 532, motion denied 79 NY2d 1036; accord Kingsbridge Center of Israel v Turk, 98 AD2d 664, 666).
Further, it is well settled that "this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties" ( Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95; accord 166 Mamaroneck Ave. v 151 East Post Rd., 78 NY2d 88, 93 [arbitration is a favored method of dispute resolution in New York]). Hence, "[j]udicial review of an arbitrator's award is extremely limited' ( Pearlman v Pearlman, 169 AD2d 825, 826), and a reviewing court may not second-guess the fact-findings of the arbitrator" ( Matter of Liberty Mut. Ins. Co. v Sedgewick , 43 AD3d 1062, 1063).
It is equally well established, however, that "[a] party who participates in an arbitration may apply to set aside an award, and the court may grant such an application, when it finds that the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award'" ( Matter of Campbell v New York City Tr. Auth. , 32 AD3d 350 , 352, citing CPLR 7511[b][1][i]). The burden of proof that an award has been imperfectly rendered or is the result of fraud, or is subject to vacatur on any other ground enumerated within CPLR 7511(b), rests upon the party moving to vacate ( see e.g. Boggin v Wilson , 14 AD3d 523 , 524). As is also relevant to the instant dispute, "the burden of proving misconduct . . . must be met by clear and convincing proof'" ( Cox v Mitchell, 188 AD2d 915, 917, quoting Matter of Reale [Healy NY Corp.], 54 AD2d 1039, 1040; accord Disston Co. v Aktiebolag, 176 AD2d 679, lv denied 79 NY2d 757 [it is the burden of the party seeking to avoid an arbitration award to demonstrate by clear and convincing proof that the arbitrator abused his discretion in such a manner as to constitute misconduct sufficient to vacate or modify an arbitration award]).
As is relevant herein, CPLR 7511(b)(1) provides that:
"1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:
"(i) corruption, fraud or misconduct in procuring the award; or
"(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or
"(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
"(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection."
Pursuant to CPLR 7511(c), an arbitration award my be modified if:
"1. there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or
"2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
"3. the award is imperfect in a matter of form, not affecting the merits of the controversy."
Pursuant to CPLR 7511(d), "the court may order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator appointed in accordance with this article."
In addition, "unless the agreement provides to the contrary, an arbitrator is not bound by principles of substantive law or by rules of evidence but "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be"'"( Brown Williamson Tobacco v Chesley , 7 AD3d 368 , 372, quoting Azrielant v Azrielant, 301 AD2d 269, 275, lv denied 99 NY2d 509, quoting Matter of Silverman [Benmor Coats], 61 NY2d 299, 308; accord Mikel v Scharf, 105 Misc 2d 548, [1980], affd 85 AD2d 604 [errors of fact or law by arbitrators does not suffice to vacate an arbitral award]).
"In reviewing an arbitrator's award, a court will not set it aside for errors of law or fact unless the award is so irrational as to require vacatur ( see, Matter of Empire Mut. Ins. Co. v Jones, 151 AD2d 754). Short of complete irrationality, arbitrators may do justice and fashion the remedy to fit the facts before them, subject of course to the interdictions of public policy as set forth in the Constitution, statutes and decisional law ( see, Board of Educ. v Yonkers Fedn. of Teachers, 46 NY2d 727; Matter of Fallek v City School Dist. of the City of Poughkeepsie, 145 AD2d 482)."
( Panton v Allstate Ins. Co., 173 AD2d 831). Further, "an arbitrator is not required to justify his or her award. It must merely appear that there exists a rational basis for the award" ( Howard v Cigna Ins. Co., 193 AD2d 745, 746).
Plaintiff's Claim that He was Coerced into Signing the Arbitration Agreement
As a threshold issue, the court rejects plaintiff's contention that he was coerced into signing the Arbitration Agreement. In the first instance, in a decision dated November 16, 2005, by the prior assigned justice, the parties where directed to arbitrate the financial issues raised by their divorce action. That decision constitutes law of the case and the issue of the validity of the Arbitration Agreement will not be addressed again herein, since" "law of the case is a rule of practice, an articulation of sound policy, that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned"'" ( Abbas v Cole , 44 AD3d 31 , 37, quoting Thomas v Dietrick, 284 AD2d 325, quoting Martin v City of Cohoes, 37 NY2d 162, 165).
Moreover, even if this court were to review the issue, it would arrive at the same conclusion. In this regard, as is relevant to the husband's claims of coercion occurring prior to the execution of the Arbitration Agreement, it must be recognized that a party waives a claim that a matter is not arbitrable by failing to timely apply for a stay of arbitration and by participating in the arbitration ( see CPLR 7503[b]; Nelson v Queens Surface, 283 AD2d 577, 578). Further, the court may not properly address a claim of fraud in the inducement, since the claim is a matter for the arbitrator under a broad arbitration clause like that at issue herein ( see e.g. Iron Workers Local Union No. 361 v TPK Constr. Co., 232 AD2d 322, citing Matter of Infosafe Sys. [International Dev. Partners], 228 AD2d 272). Herein, plaintiff participated in the arbitration proceedings without seeking a stay from the court, so that he is now precluded from arguing that the Arbitration Agreement was not valid and binding.
CPLR 7503(b) provides, in pertinent part, that an arbitration proceeding may be stayed: "[A] party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with . . ."
In so holding, the court also notes that the husband was represented by counsel throughout the proceedings, substituting counsel on approximately twelve occasions. In addition, the court rejects the husband's assertion that he was not given enough time to prepare for arbitration as specious, since the wife annexes a summons dated January 15, 2004 in which he requested that she appear before a Beth Din. Accordingly, the husband was clearly preparing to arbitrate the parties' marital dispute at least four months before he appeared before the Beth Din convened at the wife's request. The court also notes that the "[t]he threat' of a siruv, which entails a type of ostracism from the religious community, and which is prescribed as an enforcement mechanism by the religious law to which the petitioner freely adheres, cannot be deemed duress'" ( Greenberg v Greenberg, 238 AD2d 420, 421, citing Lieberman v Lieberman, 149 Misc 2d 983, 987).
Independent Investigation
It is well settled that arbitrators "may not base their award on the strength of independent investigation unless so authorized by the parties'" ( Fritz v Fritz, 186 AD2d 625, 626, quoting Matter of Goldfinger v Lisker, 68 NY2d 225, 231, remittitur amended 69 NY2d [1987], motion denied 69 NY2d 1036; Berizzi Co. v Krausz, 239 NY 315, 318). Further, an award will not be vitiated where an independent investigation is alleged to have occurred where the aid rendered concerns matters of trifling importance or of are such a nature as to preclude reasonable contest ( see e.g. Snaider v Mano Hoffner Fur, 269 AppDiv 271, 274, affd 295 NY 846).
Herein, although the husband disagrees with the arbitrators allocation of marital assets and expenses, he points to no evidence that the arbitrators obtained through their own independent investigation. Accordingly, the court finds that the Award was not predicated upon evidence that was collected by the arbitrators and acted upon without the knowledge of those affected and without the opportunity to refute it ( see e.g. Jelenevsky v Leonakis, 234 AD2d 548).
Ex Parte Communications
It is also well settled that private communications between an arbitrator and a party-litigant may constitute misconduct for purposes of CPLR 7511(b)(1)(i) ( see e.g. Matter of Hausknecht v Comprehensive Med. Care , 24 AD3d 778 , citing Goldfinger, 68 NY2d 225; accord Matter of Star Boxing v Daimlerchrysler Motors , 40 AD3d 1106 [the direct ex parte communication between the petitioner's representative and the arbitrator were clear violations of 13 NYCRR 300.12(i) and constituted misconduct]).
Like the husband's assertion that the arbitrators engaged in independent investigations, however, his claim that the arbitrators had ex parte communications also must fail in that the claim not supported by anything in the record and is hence predicated upon nothing more than speculation by plainitff ( see Matter of Sobel v Charles Schwab Co. , 37 AD3d 877 ).
Alleged Conflict of Interest of Defendant's Chosen Rabbi
"Arbitrators, though their office is not one established by law, are expected to faithfully and fairly' hear and decide the respective claims of the parties by whose consent they are chosen" ( Siegel v Lewis, 40 NY2d 687, 689, reh denied 41 NY2d 901). "As a general proposition, parties to an arbitration contract are completely free to agree upon the identity of the arbitrators,' and New York courts have therefore regularly refused to disqualify arbitrators on grounds of conflict of interest or partiality. . .'" ( Yonkers Constr. Co. v Port Auth. Trans-Hudson, 87 NY2d 927, 929, reh denied 88 NY2d 875, citing Matter of Astoria Med. Group [Health Ins. Plan], 11 NY2d 128, 133, 136).
Moreover, in discussing a tripartite arbitration panel, it has been recognized that:
"The terms of CPLR 7511(b)(1)(ii), which specify that the partiality' of an arbitrator appointed as a neutral' may be a basis for vacatur, imply that the partiality' of a party-designated member of an arbitral board may not be the basis for vacatur. This provision conforms with the law as it evolved under the Civil Practice Act, pursuant to which an arbitrator was not subject to disqualification solely because of a relationship to his nominator or to the subject matter of the controversy' ( Matter of Astoria Med. Group [Health Ins. Plan] , supra, at 137; see also, Matter of Lipschutz [Gutwirth], 304 NY 58; Matter of American Eagle Fire Ins. Co. [New Jersey Ins. Co.], 240 NY 398). The law recognizes the practical reality that, in a standard tripartite arbitration each party's arbitrator "is not individually expected to be neutral"' ( Matter of Astoria Med. Group [Health Ins. Plan], supra, at 134; quoting 2d Preliminary Report of Advisory Comm on Practice and Procedure [1958 NY Legis Doc, No. 13], at 146; see also, Matter of Siegel [Lewis], 40 NY2d 687; Matter of State Wide Ins. Co. v Klein, 106 AD2d 390; cf., Matter of Excelsior 57th Corp. [Kern], 218 AD2d 528)."
( Meehan v Nassau Community College, 243 AD2d 12, 17-18, appeal denied Nassau Community College v Meehan, 92 NY2d 814).
Hence, it is clear that a party-designated arbitrator who serves on a tripartite panel of arbitrators cannot be disqualified, as a matter of law, because of partiality ( see e.g. State Wide Ins. Co. v Klein, 106 AD2d 390). It has therefore been held that:
"[S]trange as it may seem to those steeped in the proscriptions of legal and judicial ethics, a fully known relationship between an arbitrator and a party, including one as close as employer and employee ( Matter of Astoria Med. Group [Health Ins. Plan of Greater NY], supra, p 136) or attorney and client ( Matter of Karpinecz [Marshall], 14 AD2d 569), will not in and of itself disqualify the designee. Of course, if there has been a failure to disclose such an existing or past financial, business, family or social relationship between the arbitrator and a party as is likely to affect the arbitrator's impartiality, the situation would be different. The consensual basis for the choice then would be lacking. However, assent by a party to the choice of an arbitrator in the face of that party's knowledge of a relationship between the other side and the arbitrator is a waiver of his right to object. And, [since] waiver is a matter of intention . . . the touchstone . . . is the knowledge, actual or constructive, in the complaining party of the tainted relationship or interest of the arbitrator' ( Matter of Milliken Woolens [Weber Knit Sportswear], 11 AD2d 166, 168-169, affd 9 NY2d 878; see, also, Domke, Commercial Arbitration, § 21.04)."
( Siegel, 40 NY2d at 690).
The burden of proving, by clear and convincing evidence, that any impropriety on the part of the arbitrator prejudiced his or her rights or the integrity of the arbitration process, is on the party seeking vacatur ( see e.g. Matter of Mounier v American Tr. Ins. Co , 36 AD3d 617 , 618; Infosafe Sys. v International Dev. Partners, 228 AD2d 272, 272-273; Disston Co., 176 AD2d 679). Further, it has been held that a party waives the right to object to a determination on the ground of partiality of an arbitrator by participating in the arbitration without objection after observing the conduct they believe revealed such partiality ( see e.g. Reilly v Progressive Ins. Co. , 5 AD3d 776 , 777, citing Goldfinger, 68 NY2d 225; Matter of Stevens Co. [Rytex Corp.], 34 NY2d 123; Matter of Kornit [Plainview-Old Bethpage Cent. School Dist.], 49 NY2d 842; Matter of City School Dist. of Oswego, 100 AD2d 13, clarified, remittitur amended 101 AD2d 1027; accord Squire v Henschel , 2 AD3d 737 [although petitioner admittedly was not aware of the arbitrator's alleged bias prior to the hearing, she waived this claim by continuing to participate in the proceeding]; Arner v Liberty Mut. Ins. Co., 233 AD2d 321 [appellant waived any claims related to the alleged bias of an arbitrator by proceeding with the arbitration after learning of the prior relationship between the claimant's counsel and one of the arbitrators]; Namdar v Mirzoeff, 161 AD2d 348, 349, lv denied 77 NY2d 802 [1991)], rearg denied 77 NY2d 902, cert denied Mirzoeff v Namdar, 501 US 1251 [respondent waived claims relating to the arbitrators' alleged prejudice where the alleged prejudice was known to him before completion of the arbitration proceeding, but was not raised until well after the arbitration award was rendered]).
Herein, the parties agreed to arbitrate before a tripartite panel, i.e., defendant selected a Rabbi, plaintiff selected another Rabbi, and those two Rabbis selected a third Rabbi, "the impartial Rabbi". Accordingly, as the above discussion of controlling law makes clear, any alleged bias or impartiality on the part of defendant's chosen Rabbi cannot serve as a basis to set aside the Award. In the alternative, although plaintiff complains that defendant's Rabbi should not have presided over the arbitration proceeding after engaging in settlement negotiations with the parties and that he objected to the Rabbi's continuing participation in the proceedings, it is beyond dispute that plaintiff continued to participate in the arbitration with knowledge of this alleged conflict of interest, so that he will be deemed to have waived any objection by his continued participation in the hearings. Hence, the husband fails to met his burden of demonstrating, by clear and convincing evidence, actual bias on the part of defendant's chosen Rabbi, since the husband's "subjective belief that the arbitrator's rulings favored [the wife] does not create an actual or perceived conflict of interest between the arbitrator and [the wife] that prejudiced [his] rights" ( Barnes v Washington Mut. Bank , 40 AD3d 357 , lv denied, motion dismissed 9 NY3d 815, cert denied 128 S Ct 2479, citing Artists Craftsmen Bldrs. v Schapiro, 232 AD2d 265), and because his claim is premised upon nothing more than his apparent dissatisfaction with the Award rendered ( see e.g. Baines v Shapiro, 250 AD2d 355, 355-356).
Additionally, although the husband argues that defendant's Rabbi improperly compelled him to appear before a Beth Din over which he presided over, and that he had a predetermined belief as to what the outcome of the arbitration should be, both in violation of Jewish law, the court cannot rule upon these issues:
"Consistent with First Amendment principles, civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct . . . while interfering with the free exercise of the opposing faction's beliefs' ( First Presbyt. Church of Schenectady v United Presbyt. Church in United States of Am., 62 NY2d 110, 116, cert denied 469 US 1037; see also Lightman v Flaum, 97 NY2d 128, 137, cert denied 535 US 1096; Commack Self-Serv. Kosher Meats, Inc. v Weiss, 294 F3d 415). To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place [the court] in the inappropriate role of deciding whether religious law has been violated' ( Lightman v Flaum, supra at 137)."
( Sieger v Sieger, 297 AD2d 33, 36-37 [ 2002], lv denied 99 NY2d 651). Accordingly, this court cannot address the husband's claims that the arbitrators failed to comply with Jewish law in conducting the proceedings and in rendering their Award.
Discovery
The husband's assertion that the arbitrators improperly determined the financial issues raised by the parties' divorce without ordering discovery and/or considering financial documents is also without merit. In so holding, the court notes that it is well settled that a party's right to discovery in an arbitration proceeding is limited. In this regard, it has been held that:
"Procedural matters regarding pleadings, disclosure and the manner in which the hearing is conducted are generally left to the discretion of the arbitrator ( see Matter of Thompson [S.L.T. Ready-Mix, Div. of Torrington Indus.], 245 AD2d 911, 913; see also Siu Chuen Chan v Continental Broker-Dealer Corp. , 1 AD3d 297, 297). Falling within the parameters of this discretion in the current matter are the errors . . . [in] the manner in which a disclosure dispute was handled and the refusal to permit certain rebuttal evidence."
( Matter of Sobel v Charles Schwab Co. , 37 AD3d 877 , 878). Further:
"It is firmly established that [u]nder the CPLR, arbiters do not have the power to direct the parties to engage in disclosure proceedings' ( De Sapio v Kohlmeyer, 35 NY2d 402, 406; see, Sherrill v Grayco Bldrs., 64 NY2d 261, 273-274; Matter of North Am. Foreign Trading Corp. v Rosen, 58 AD2d 527), and it was instead incumbent upon the petitioner to seek an order directing disclosure in the Supreme Court based upon a showing of extraordinary circumstances ( see, CPLR 3102 [c]; see, e.g., Hendler Murray v Lambert, 147 AD2d 442; Matter of Civil Serv. Empls. Assn. v Ontario County Health Facility, 103 AD2d 1000; Matter of Moock v Emanuel, 99 AD2d 81003; Matter of Katz v State of NY Dept. of Correctional Servs., 64 AD2d 900)."
( Goldsborough v New York State Dept. of Correctional Servs., 217 AD2d 546, 547, appeal dismissed 86 NY2d 83; accord Kahn v New York Times Co., 122 AD2d 655, 663 [arbitrators do not have the power to direct that parties engage in disclosure proceedings, and only under exceptional circumstances will a court order disclosure in arbitration]; State Farm Mut. Auto. Ins. Co. v Wernick, 90 AD2d 519 [where a dispute has been submitted to arbitration, a party may obtain disclosure only by court order]; cf. Platzer v Merrill Lynch, Pierce, Fenner Smith, 2003 NY Misc LEXIS 2001 [2003] [the arbitration rules of the New York Stock Exchange provide for discovery that might not otherwise be available from the court]).
Hence, the above cases compel the conclusion that the arbitrators did not have the authority to order discovery, even if demanded by the husband. In this regard, it must also be noted that the husband failed to seek discovery from the court prior to or during the arbitration proceeding, and this court will not order such relief at this stage of the proceeding, after the arbitration proceeding is complete and a decision has been rendered ( see generally Nemo Tile Co. v 260 Park Ave. S., 17 Misc 3d 1130A [2007])
General Obligations of the Arbitrators
"Unless the parties have waived their rights, arbitrators are required to take an oath, hold hearings on notice to the parties, decide the matter only on the evidence submitted at the hearing and, if more than one arbitrator has been selected, all must attend the hearing" ( Penn Cent. v Consolidated Rail, 56 NY2d 120, 127, citing CPLR 7506).
Herein, plaintiff was aware of all of the evidence upon which the Arbitration Award was predicated. In this regard, although plaintiff contends that he was not aware of the tape recording allegedly relied upon by defendant in an effort to establish that his behavior towards his daughters was sexually inappropriate and that the tape was heard out of his presence, the detail in which he discusses the incident clearly establishes that he was made aware of its content. Defendant further avers that plaintiff was granted numerous adjournments by the arbitrators, so that he was also given ample opportunity to refute any evidence presented. Further, as was also discussed above, the husband waived his objections to the arbitration proceedings by continuing to appear at and participate in the hearings ( see generally Squire, 2 AD3d 737 [petitioner waived her right to object to the arbitration award on the ground that the arbitrator did not take the oath required under CPLR 7506(a) by participating in the arbitration proceeding without demanding that the arbitrator take the oath]).
In so holding, the court also notes that the vast majority of plaintiff's complaints with regard to the arbitrators and the proceedings before them pertain to custody and visitation. Since these issues were not resolved by arbitration, but were determined in accordance with the Stipulation entered into in the instant action, these claims do not support plaintiff's contention that the Award must be set aside. It is well settled that disputes concerning child custody and visitation are not subject to arbitration "as the court role as parens patrie must not be usurped" ( Hirsch v. Hirsch, 4 AD3d [2nd Dept., 2007] citing Glauber v. Glauber, 192 AD3d 194, 98 [2 Dept., 1993]). Further, although plaintiff complains that the Award must be set aside because the wife attempted to influence the opinion of the prior judge, that Judge recused himself thereafter and accordingly did not make any determinations regarding the substantive matters at issue herein, nor did he otherwise influence or rule upon the arbitrators' conduct or Award.
Attorneys' Fees
It is well settled that "[t]he Supreme Court is vested with the discretion to make an award of an attorney's fee, having consideration for the respective financial circumstances of the parties, together with all the circumstances of the case" ( Diblasi v DiBlasi, 48 AD3d 403, 405, lv denied ___NY3d ___ [2008], citing DeCabrera v Cabrera-Rosete, 70 NY2d 879). It has been stated that "[a]n appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" ( id., quoting Grumet v Grumet , 37 AD3d 534 , 536, lv denied 9 NY3d 818). In making such an award, the court may also consider whether either party was responsible for prolonging the litigation by engaging in obstructionist tactics or dilatory conduct which, by necessity, increased the legal fees sought by the party applying for an attorney's fee award ( see Curatola v Curatola , 43 AD3d 974 , 975; Suydam v Suydam, 203 AD2d 806, 811, lv dismissed 84 NY2d 923; Vicinanzo Vicinanzo, 193 AD2d 962, 966).
Further, as noted above, a court may not substitute its judgment for that of the arbitrator either with respect to the interpretation of facts or the application of remedies ( Kern v Krackow, 309 AD2d 650). Similarly, a court is bound by an arbitrator's factual findings and judgment concerning remedies, and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one ( see e.g. Azrielant, 301 AD2d at 275).
Herein, the arbitrators had the authority to make an award of attorneys' fees in the instant matrimonial dispute, so that an award of fees cannot be found to be contrary to law or public policy. Further, in rendering their Award, it must be presumed that the arbitrators considered the relevant factors and reached a reasoned decision. Accordingly, the award will not be vacated. Implicit in this holding is the court's rejection of plaintiff's assertion that the arbitrators' direction that he pay all attorneys' fees incurred in the future in cases in which he is the plaintiff is against public policy by foreclosing his access to the courts. In this regard, plaintiff voluntarily agreed to arbitrate his marital dispute before a Beth Din. As discussed above, it is well settled that the court can enforce an agreement in which parties agree to arbitrate issues raised by a divorce ( see generally Meisels, 79 NY2d 526 ; Avitzur, 58 NY2d 108; Hirsch, 37 NY2d 312; Rakoszynski, 174 Misc 2d 509). Accordingly, inasmuch as plaintiff is contractually obligated to arbitrate his marital dispute, he cannot succeed on his claim that this award of attorneys' fees limits his access to the courts.
Child Support
The Parties' Contentions
Plaintiff further contends that the award of child support ordered by the Beth Din must be vacated on the ground that it is not in accordance with the CSSA. More specifically, he avers that the arbitrators directed him to $1,250 per month in child support, which exceeds the statutory requirement of 25% of the parties' combined child support obligation. In addition, the arbitrators directed him to pay 100% of the children's educational and summer camp expenses, without directing defendant to pay her share, as is also required by the CSSA. Plaintiff thus concludes that since he earns only $30,000 per year, as substantiated by a copy of his 2007 income tax return, and he was ordered to pay child support of approximately $27,000 per year, or almost all of his earnings, the award of child support must be vacated.
In opposition, the wife contends that the Beth Din's award of child support should not be disturbed by this court, since plaintiff can demonstrate no misconduct, fraud or corruption on the part of the arbitrators in arriving at his support obligation. She further argues that the support requirements imposed upon plaintiff recognize that he earns approximately $45,000 and that she earns approximately $20,000, so that the parties' respective contribution to child support is in compliance with the mandate of the CSSA.
The Law
It is now well settled that "[a]lthough the issue of child support is subject to arbitration, an award may be vacated on public policy grounds if it fails to comply with the [CSSA] and is not in the best interests of the children" ( Hirsch v Hirsch , 4 AD3d 451, 452-453 , citing Hampton v Hampton, 261 AD2d 362; accord Friedman v Friedman , 34 AD3d 418 [the level of child support may be prospectively determined by an arbitration subject to vacatur on public policy grounds if it violates the CSSA]; Frieden v Frieden , 22 AD3d 634 , appeal denied 6 NY3d 712 [child support issues may be subject to arbitration, since such arbitration does not violate the objectives of the CSSA because an arbitration award is subject to vacatur if it fails to comply with the CSSA and is not in the best interest of the child]).
The amount of a parent's child support obligation must be determinated in accordance with DRL § 240(1-b):
"[T]he CSSA was intended to replace the prior discretionary system with one affording greater uniformity, predictability and equity in fixing child support awards.' ( Matter of Cassano v Cassano, 85 NY2d 649, 652 [citing Bill Jacket materials].) The Court of Appeals has held that CSSA requires the trial court to follow a three-step method for determining the basic child support obligation: (1) calculation of combined parental income; (2) multiplication of the combined parental income, up to $80,000, by the specified child support percentage, and allocation between the parents on a pro rata basis, unless application of the percentage is deemed unjust or inappropriate' on consideration of the factors set forth in paragraph (f), as articulated in a written order (Domestic Relations Law § 240[1-b][g]); and (3) for the amount of combined parental income over $ 80,000, application either of the child support percentage or of the paragraph (f)' factors, and articulation of the reasons for the method used (whether the percentage or the factors) ( Bast v Rossoff, 91 NY2d 723, 726-727; Matter of Cassano v Cassano, supra, 85 NY2d 649, 652-655)."
( Mars v Mars, 286 AD2d 201, 203-204). Stated differently, the court must explain its application of the precisely articulated, three-step method for determining child support pursuant to the CSSA, so that it is possible to determine from the decision the manner in which the court calculated the child support obligation or the parties' pro rata shares of both the basic child support obligation and the add-on expenses ( see e.g. Sirgant v Sirgant , 35 AD3d 437 ; Tozer v Tozer, 286 AD2d 384, 385; Hartnett v Hartnett, 281 AD2d 900, 901).
Arbitration panels should be aware of the child support worksheet when calculating support ( see Domestic Relations Law 240 see also Matter of Cassano, 85 NY2d649, 652 (1995)]) as well as the need to provide litigants with copies of a child support chart which acknowledgment of receipt is required where parties are pro se ( see generally Farca v. Farca, 271 A.D.2. 482 [" . . .the stipulation did not state the amount of child support the defendant would have been obligated to pay pursuant to the Child support Standards Act, nor was the defendant, who appeared in the divorce action pro se, shown a copy of the Child Support Chart, based upon the guidelines. Accordingly, the stipulation did not comply with the Domestic Relations Law 240 (1-b) (h) and (i)"].
The following web addresses can be utilized:
https://newyorkchildsupport.com/pdfs/CSSA%202008.pdf (NYS child support chart) http://nycourts.gov/litigants/divorce/forms_instructions/ud-8.pdf (NYS child support worksheet)
Further, if the court deviates from awarding child support as calculated pursuant to the CSSA, it "must articulate its reason or reasons for [its actions], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage" ( Wienands v Hedlund, 305 AD2d 692, 693, citing Wagner v Dunetz, 299 AD2d 347, 350-351). Similarly, the court must articulate and set forth the reasons why it applied the statutory percentage to the amount of combined parental income exceeding $80,000, in the event that it chooses to do so ( see e.g. Barbanes v Smith , 27 AD3d 404 ; Gilbert v Gilbert , 32 AD3d 414 ). Further, although the court has discretion to award educational expenses, in so doing, it "must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice" ( see e.g. Miller v Miller, 299 AD2d 463, 465). In like fashion, "Domestic Relations Law § 240(1-b)(h) provides that a validly-executed support agreement which deviates from the basic child support obligation set forth in the Child Support Standards Act must specify, inter alia, the amount that the basic child support obligation would have been under the CSSA and the reason or reasons that the agreement does not provide for payment of that amount," or the provisions of the agreement will be vacated ( see e.g. Anderson v Anderson , 50 AD3d 610; accord Jefferson v Jefferson , 21 AD3d 879 , 881).
It must also be noted that these requirements of specificity are further strengthened by the Uniform Court Rules, since 22 NYCRR 202.50 provides, in pertinent part, that "[t]he paragraphs contained in Appendix B of this Part, modified or deleted as may be necessary to conform to the law and facts in a particular action, shall be used in the preparation of FINDINGS OF FACT AND CONCLUSIONS OF LAW' [and] JUDGMENT.'" The forms set out in Appendix B require that the amount of child support that the parties are ordered to pay is set out in detail and that any deviation from the basic support obligation is specified, with the reasons for the deviation enunciated.
Discussion
The court recognizes that the DRL does not specifically make the requirements of § 240(1-b) applicable to arbitration awards. Case law, however, clearly establishes that an award of child support will be vacated if it is not in compliance with the CSSA. Hence, the wife's contention that the award of child support can only be set if the court finds that the award was the result of fraud, corruption or misconduct is contrary to controlling law.
Herein, although the Award recites that the arbitrators "took into consideration the guidelines," the decision fails to discuss any factors considered or relied upon or to articulate any rationale for the determination of the parties' respective child support obligations. Moreover, the husband makes a prima facie showing that the child support award is not in compliance with the CSSA. More specifically, in attaching a copy of his 2007 income tax return, plaintiff represents that his earnings during that year approximated $30,000; neither the Award nor the papers now before the court present any evidence to establish the wife's earnings. Assuming that plaintiff earned $30,000 in 2007 and defendant earned $20,000, the court calculates defendant's basic child support obligation to be approximately $6,700 per year, or approximately $560 per month, which is far less than the support ordered by the arbitrators. Further, the husband was also directed to pay 100% of the cost of the children's school and summer camp, so that his total support obligation is approximately equal to 100% of his reported income.
Minus FICA, medicare and New York City and Yonkers local taxes, in accordance with the CSSA.
If the arbitrators chose to impute additional income they must articulate the basis and amount to be imputed so the court can ascertain of the panels determination is in compliance with CSSA or a deviation thereof ( see Genender v Genender ,40 AD3d 994, 836 NYS2d 291 [2 Dept., 2007] ["[i]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential"; see also Ivani v Ivani, 303 AD2d 639, 757 NYS2d 89 [2 Dept 2003] "This is particularly true where, . . ., the record supports a finding that . . . reported income on . . .[the] tax return is suspect"]).
In addition, the court notes that although the amended judgment of divorce proposed by the wife refers to the CSSA in an apparent attempt to comply with the statute, the statement made therein cannot withstand scrutiny. In the first instance, the judgment recites that the husband represented that his annual income for 2007 was $45,000; plaintiff's 2007 income tax return indicates that his earnings during that year were approximately $30,000. Moreover, the judgment recognizes that even assuming that plaintiff earned $45,000 and defendant earned $20,000, defendant's child support obligation would be $6,300, so that the child support obligation ordered by the arbitrators deviates from the provisions of the CSSA. Neither the judgment nor the Award, however, sets forth the facts, circumstances or rationale to justify such an award.
Accordingly, the Award, to the extent that it orders defendant to pay child support, cannot be confirmed ( cf. Shapiro v Sanders , 50 AD3d 429 [the wife's application to vacate an arbitration award was properly denied where the wife failed to show that award did not comply with the CSSA or was not otherwise in the best interests of the children]; see generally Gottesman v Gottesman, 290 AD2d 201, 202). Hence, the award of child support ordered in the Award is vacated and the issue is remanded to the arbitrators to render a decision in accordance with the above discussion of applicable law ( see CPLR 7511[d]).
Conclusion
The Award is vacated to the extent of remanding the issue of the amount of child support payable by the husband to the arbitrators to render a decision in accordance with the above decision. The motion to confirm the remainder of the Award is granted in its entirety. That branch of the wife's motion seeking to amend the judgment of divorce is granted except as it relates to child support . The wife's motion to amend the judgment as it relates to child support is denied with leave to renew after the arbitrators render a decision on the issue of child support. All other relief requested is denied.
This shall constitute the decision and order of the court.