PENNEE ANNE HIRN V JOHN B HIRN JR
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STATE OF MICHIGAN
COURT OF APPEALS
PENNEE ANN HIRN,
UNPUBLISHED
April 12, 2002
Plaintiff-Appellant,
v
No. 227224
Oakland Circuit Court
LC No. 98-603025-DM
JOHN B. HIRN, JR.,
Defendant-Appellee.
Before: Jansen, P.J., and Zahra and Meter, JJ.
PER CURIAM.
In this action for divorce, binding arbitration was ordered pursuant to the stipulation of
the parties. Plaintiff appeals by right from a judgment of divorce that confirmed the arbitration
award. We affirm.
I
The parties were married in May 1982 and plaintiff filed for divorce in February 1998.
Two children were born of the marriage. The order for binding arbitration (“arbitration
agreement”) specifically states that all issues raised by the pleadings would be placed in binding
arbitration. Five separate arbitration hearings were conducted between March 30, 1999 and
October 28, 1999. The arbitrator issued a three-page interim award on April 9, 1999, and an
eleven-page final award on December 9, 1999. The trial court incorporated the arbitration award
in the judgment of divorce entered on December 16, 1999.
The arbitrator awarded joint legal custody of the two children. Plaintiff was granted sole
physical custody and defendant was granted substantial parenting time. Defendant was ordered
to pay child support in the amount of $325 a week. In regard to the property distribution,
plaintiff was awarded the marital home, certain personal property, a 1989 Lincoln automobile
and Regents stock. The parties had accumulated a great deal of debt and plaintiff was ordered to
assume the debt obligations on credit cards issued by Comerica, Fleet Credit Card Services, First
Visa and Capital One. Defendant was awarded a cabin located in the upper peninsula (with a
$2,500 lien in plaintiff’s favor), a 1994 Ford pick-up truck, snowmobiles and a trailer that were
in his possession, his tools and other personal items. Defendant was also ordered to assume the
debt obligations on credit cards issued by Capital One Visa, Chase Manhattan Shell, Discover,
First Card, First Select, Providian and Sears.
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On appeal, plaintiff raises a myriad of issues attacking the arbitrator and the arbitration
award. Plaintiff argues that the arbitrator refused to allow witnesses to be called and thus, failed
to address certain material issues. Plaintiff also contends that the trial court erred in denying her
request for a court reporter to be present at the hearings at her expense. Plaintiff further attacks
some of the arbitrator’s rulings, including his decision to not award alimony and the decision to
not require defendant to pay for plaintiff’s attorney fees.
1
II
Procedurally, we note that plaintiff has failed to properly preserve and present the issues
argued by her counsel during oral argument and subsequently adopted by our dissenting
colleague. Plaintiff’s pro per brief on appeal approaches incomprehensibility and is strewn with
errors, most notably the haphazard offering of many repeated yet undeveloped allegations of
error within each question presented on appeal. This “shotgun” approach to litigation constitutes
a valid ground for dismissal. Taylor v Milton, 353 Mich 421, 423-424; 92 NW2d 57 (1958).
Compounding this error, none of the factual allegations asserted by plaintiff contain
citations to the record, in violation of MCR 7.212(C)(7), leaving it for this Court to scour the
record to find support for the factual bases of her allegations.2 A party may not merely announce
its position and leave it to this Court to discover and rationalize the basis for the claim. Eldred v
Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001); In re Webb H Coe Marital & Residuary
Trusts, 233 Mich App 525, 537; 593 NW2d 190 (1999). Plaintiff further violated MCR
7.212(C)(7) by failing to include applicable standards of review and not specifying whether the
issues had been preserved. Notwithstanding these serious procedural defects, we address some
of the substantive aspects of plaintiff’s appeal since our dissenting colleague concludes the
award should be vacated.
III
By its own terms, the arbitration agreement was to be controlled by the uniform
arbitration act, MCL 600.5001 et seq. Because this case involves statutory arbitration, our
review is governed by MCR 3.602. See MCL 600.5021. MCR 3.602(J)(1) provides:
On application of a party, the court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue
1
Plaintiff alleges many times over that the arbitration award was procured by corruption or fraud
and that the arbitrator was biased against her. Plaintiff has failed to support these allegations
with any evidence and has failed to properly present and preserve these issues. We therefore
decline to consider them.
2
Although the arbitration hearings were not transcribed, it is apparent from the attachments to
the brief submitted by plaintiff that numerous pleadings and motions were filed and heard in the
circuit court. These circuit court proceedings are referenced by plaintiff in her appeal brief but
such references are without specific citation to the circuit court record.
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means;
(b) there was evident partiality by an arbitrator, appointed as a neutral, corruption
of an arbitrator, or misconduct prejudicing a party’s rights;
(c) the arbitrator exceeded his or her powers; or
(d) the arbitrator refused to postpone the hearing on a showing of sufficient cause,
refused to hear evidence material to the controversy, or otherwise conducted the
hearing to prejudice substantially a party’s rights.
When a party challenges an arbitration award entered pursuant to the arbitration statute, a
reviewing court has three options: (1) confirm the award, (2) vacate the award if obtained
through fraud, duress, or other undue means, or (3) modify the award or correct errors that are
apparent on the face of the award. Krist v Krist, 246 Mich App 59, 67; 631 NW2d 53 (2001).
When considering whether any error is apparent on the face of the award,
[t]he proper role of the Court . . . is to examine whether the arbitrators have
rendered an award which comports with the terms of the [arbitration agreement].
Furthermore, error, if any, must be . . . “so material or so substantial as to have
governed the award, and but for which the award would have been substantially
otherwise.” [Gordon Sel-Way, Inc, v Spence Bros, Inc, 438 Mich 488, 496-497;
475 NW2d 704 (1991), quoting DAIIE v Gavin, 416 Mich 407, 443- 331 NW2d
418 (1982)].
Thus, our inquiry on this point is two-fold: (1) we must examine whether the award comports
with the terms of the arbitration agreement; (2) if the award does not comport with the arbitration
agreement, we must then determine whether this error is so egregious as to govern the award
such that absent the error a substantially different result would have been likely. With these
considerations in mind, we review the substantive aspects of plaintiff’s appeal.
IV
We first address the argument found persuasive by the dissent - - that the face of the
award evidences reversible error by the arbitrator because at page 2 of the final arbitration award
the arbitrator states “[b]ecause this is arbitration and not litigation, the rules of evidence need not
be adhered to closely.” Plaintiff’s counsel argued at oral argument that reversible error is evident
on the face of the arbitration award because by failing to adhere closely to the rules of evidence
the arbitrator exceeded the authority granted him by the arbitration agreement, which expressly
mandates the use of the Michigan Rules of Evidence in the event evidence is taken during the
arbitration proceedings. We find no merit in this argument.
Simply put, even if we were to assume that the arbitrator exceeded his authority by
failing to closely adhere to the rules of evidence, plaintiff has utterly failed to demonstrate that
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she was prejudiced by the arbitrator’s conduct.3 Plaintiff offers no evidence or argument that the
arbitrator’s failure to closely adhere to the rules of evidence resulted in the omission or
admission of evidence without which a substantially different award would have been reached.
Gordon Sel-Way, supra.
Plaintiff only argues that she subpoenaed a number of witnesses but the arbitrator
declined to take testimony from them. The arbitrator’s award addressed this issue, stating:
Plaintiff has alleged that the arbitrator failed to allow her to present testimony . . .
However, as indicated above, five separate hearings have convened in this matter.
During each of the scheduled hearings, plaintiff and defendant were afforded
ample opportunity to present evidence and argument to the arbitrator . . . . The
arbitrator has considered the arguments, testimony, reams of documentary
evidence submitted by plaintiff, medical and psychological reports submitted by
plaintiff, transcripts of referee hearings submitted by plaintiff, . . .and other
relevant evidence . . . . The arbitrator is unaware of what additional evidence
could be provided that would change the basic facts . . . .
It is clear the arbitrator concluded that the additional evidence proffered by plaintiff would have
been cumulative. Nothing submitted by plaintiff on appeal suggests otherwise. Thus, we
conclude there is no+ reversible error evident on the face of the arbitration award either because
the arbitrator chose not to adhere closely to the Michigan Rules of Evidence or because the
arbitrator elected to bring the proceedings to a close after five hearings without taking additional
evidence from plaintiff’s subpoenaed witnesses.
We also conclude that the trial court committed no error by failing to award plaintiff
attorney fees. Attorney fees were precluded by the arbitration award and were not necessary to
preserve plaintiff’s ability to carry on her action. Kurz v Kurz, 178 Mich App 284, 297; 443
NW2d 782 (1989).
We also affirm the decision regarding alimony. Whether an alimony award is periodic or
in-gross is an inquiry subject to the intent test. Bonfiglio v Pring, 202 Mich App 61, 64-65; 507
3
We note the arbitrator did not indicate the Michigan Rules of Evidence did not govern the
method of presenting evidence in the arbitration hearings. Rather, the arbitrator noted that
because arbitration is less formal than litigation he did not adhere closely to the formalities of
these rules. A trial court’s evidentiary rulings are not disturbed on appeal absent an abuse of
discretion. Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 454; 633 NW2d 418 (2001).
Thus, in most cases whether evidentiary rules are strictly or liberally applied is generally left to
the discretion of the trial court. We see no reason to review evidentiary matters from arbitration
proceedings more closely than they are reviewed from the trial court. However, because plaintiff
has failed to demonstrate that a substantially different award would have entered had the
arbitrator strictly adhered to the rules of evidence, we need not decide whether the arbitrator
exceeded his authority by electing to loosen the formalities of the Michigan Rules of Evidence
during these arbitration proceedings.
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NW2d 759 (1993). Because the arbitrator made the decision regarding alimony, the arbitrator’s
intent controls. Id. at 65. The arbitrator here awarded alimony only as a guarantee that the
parties would continue to pay the joint debts they were awarded. Thus, if one of the parties
attempted to evade satisfaction of the debt, “any such obligation then due and owing . . . shall
become in the nature of alimony.” Otherwise, “neither party shall be entitled to alimony and
alimony shall be forever barred.” This language shows a clear intent to create non-modifiable
alimony-in-gross, insofar as one of the parties fails to honor his or her respective joint debts.
Pinka v Pinka, 206 Mich App 101, 103-104; 520 NW2d 371 (1994). Therefore, there was no
clear error in refusing to modify this award. Moore v Moore, 242 Mich App 652, 654; 619
NW2d 723 (2000).
Plaintiff also alleges error with respect to not having a court reporter transcribe the
proceedings. We note that a record is not normally taken during arbitration proceedings.
Further, neither the uniform arbitration act, the applicable court rule, MCR 3.602, nor the
arbitration agreement require that a record of the hearings was to be made in this case.
Therefore, we do not find error in the rulings of both the arbitrator and the trial court to deny
plaintiff’s request to have a court reporter at the hearings. Indeed, a binding arbitrator’s factual
findings are not subject to appellate review. Krist, supra. Further, plaintiff’s claims relating to
the arbitrator’s rulings, such as the award of alimony and attorney fees, and the distribution of
the property and liabilities, are not issues subject to appellate review. Gordon Sel-Way, supra at
497 (the courts will not review the merits of an arbitrator’s decision and may not substitute their
judgment for that of an arbitrator).
Affirmed.
/s/ Brian K. Zahra
/s/ Patrick M. Meter
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