Phia Vue, petitioner, Respondent, vs. Maixee Vue, f/k/a Maixee Xiong, Appellant.

Phia Vue, petitioner, Respondent, vs. Maixee Vue, f/k/a Maixee Xiong, Appellant. A05-728, Court of Appeals Unpublished, February 7, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-728

 

Phia Vue, petitioner,

Respondent,

 

vs.

 

Maixee Vue, f/k/a Maixee Xiong,

Appellant.

 

Filed ­­­February 7, 2006

Affirmed; motion granted

Dietzen, Judge

 

Hennepin County District Court

File No. DC 277010

 

Kevin F. Fitzgerald, 250 Prairie Center Drive, Suite 200, Eden Prairie, MN 55344 (for respondent)

 

Mark D. Luther, Bremer Bank Building, 8800 Highway 7, Suite 408, St. Louis Park, MN 55426 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court's denial of her motion to vacate its order confirming the arbitration award, which determined the issues in this marriage dissolution proceeding according to Hmong culture and tradition, arguing that: (1) allowing the Hmong panel of elders to make determinations according to Hmong culture and tradition violates public policy; (2) her procedural and substantive rights under the arbitration agreement were violated; and (3) the Hmong panel exhibited "evident partiality" against her.  Because the district court properly applied the law, and did not err in refusing to vacate the arbitration award, we affirm.

FACTS

 

Appellant Maixee Xiong and respondent Phia Vue were legally married in 1999 and have one child.  Appellant is employed by General Mills, Inc., and respondent is employed by Zomax, Inc. 

In 2002, marriage dissolution proceedings were commenced between the parties.  Subsequently, the parties executed a partial marital termination agreement, which, inter alia, identified the marital estate of the parties and stipulated to dissolve the marriage.  They made a preliminary division of some of their assets, such as their automobiles and retirement accounts, and agreed to arbitrate an equitable allocation of marital property, custody of the child, and child support.  The partial agreement was approved by the district court. 

Because both parties are of Hmong ancestry, they agreed to have their marital disputes resolved according to Hmong culture and traditions by a panel of seven elders selected by the Hmong 18 Council Mediation Center (Hmong panel).  In August 2003, the parties, represented by counsel, signed an agreement to arbitrate the unresolved issues, which was approved by the district court.  The arbitration agreement provided that the Hmong panel decision was reviewable by a motion to vacate based on five specific grounds listed in the agreement, which incorporated the grounds expressed in Minn. Stat. § 572.19, subd. 1 (2004).

The parties presented their claims to the Hmong panel over the course of the next year.  According to appellant, hearings took place on October 25, 2003, November 8, 2003, December 6, 2003, December 20, 2003, January 17, 2004, March 13, 2004, and July 24, 2004.  Appellant asserts that there were only five arbitrators present at the July 24, 2004 hearing.  Respondent asserts that certain property claims were settled by oral agreement during these sessions, although no record of the sessions was furnished to this court.

In December 2003, the Hmong panel prepared, and the parties signed, an initial settlement memorandum which resolved some issues of child custody and property distribution.  In March 2004, the council executed its final settlement memorandum which incorporated the language of the initial settlement memorandum; and made additional determinations regarding property division (including the parties' checking and savings accounts, cars, and homestead), child custody (including that during holidays, school breaks, day care), and which parent could claim tax exemptions for the child.  The final settlement memorandum did not explicitly address all of the issues raised by the parties.

In October 2004, following written submissions of the parties, the Hmong panel reformatted its final settlement memorandum into an arbitration award that was signed by the arbitration chair and incorporated the March 2004 settlement memorandum.  The award made explicit certain matters that were implicit from the settlement memorandum; for example, each party was awarded their own retirement accounts.  In December 2004, the referee recommended findings of fact, conclusions of law, order for judgment, and decree (judgment and decree), which adopted the arbitration award.  The district court adopted the recommendations of the referee, thereby approving the arbitration award determined by the Hmong panel.

Appellant moved to vacate the arbitration award and judgment and decree, arguing that the award was incomplete and that there was "evident partiality" by the arbitrators against her.  Following a hearing, the district court referee recommended, and the court approved, an order denying appellant's motion to vacate the arbitration award.  This appeal follows. 

D E C I S I O N

I.

Appellant raises five issues on appeal.  First, appellant contends that the arbitration agreement is void because it violates public policy.  Appellant argues that to allow the Hmong panel to make a determination based on Hmong culture and tradition, regardless of Minnesota law, statutes, or procedure, is against public policy.  The question of whether an arbitration agreement violates public policy is a legal issue, and therefore, we need not show deference to the district court's conclusion.  See City of Brooklyn Ctr. Law Enforcement Labor Servs., Inc., 635 N.W.2d 236, 241 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

Arbitration is a proceeding favored in the law.  Ehlert v. W. Nat'l Mut. Ins. Co., 296 Minn. 195, 199, 207 N.W.2d 334, 336 (1973).  It is settled law that

an arbitrator, in the absence of any agreement limiting his authority, is the final judge of both law and fact, including the interpretation of the terms of any contract, and his award will not be reviewed or set aside for mistake of either law of fact in the absence of fraud, mistake in applying his own theory, misconduct, or other disregard of duty.

 

Cournoyer v. Am. Television & Radio Co., 249 Minn. 577, 580, 83 N.W.2d 409, 411 (1957) (footnotes omitted). But "[i]n limited circumstances, a ‘public policy exception' may provide a basis for courts to vacate an arbitration award."  City of Minneapolis v. Police Officers' Fed'n, 566 N.W.2d 83, 89 (Minn. App. 1997) (citations omitted).  The public policy doctrine  

derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public's interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements.

 

United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 42, 108 S. Ct. 364, 373 (1987).

Here, we discern no public policy that prohibits the parties from agreeing to have their legal issues decided by an arbitration panel according to Hmong culture and tradition.  Here, appellant failed to raise this issue before the district court, and appellant has presented no evidence as to why the agreement violates public policy.  Both parties were represented by legal counsel when the agreement was executed and approved by the district court.  Consequently, we find no basis to void the arbitration agreement. 

II.

Appellant contends that her procedural rights were violated in three ways by the district court's refusal to vacate the arbitration award.  We observe that arbitration decisions are subject to limited review, and the reviewing court should exercise "[e]very reasonable presumption" in favor of the arbitration award's finality and validity.  Office of State Auditor v. Minn. Ass'n of Prof'l Employees, 504 N.W.2d 751, 754 (Minn. 1993).  The party seeking to vacate the award "has the burden of proving the invalidity of the arbitration award."  Nat'l Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn. 1984).

It is well established that an arbitration award "will be vacated only upon proof of one or more of the grounds stated in Minn. Stat. § 572.19 . . . and not because the court disagrees with the decision on the merits." AFSCME Council 96 v. Arrowhead Reg'l Corr. Bd., 356 N.W.2d 295, 299300 (Minn. 1984) (footnote omitted).  Both the arbitration agreement and Minn. Stat. § 572.19, subd. 1 (2004) provide the following grounds for vacating the arbitration award:

(1) The award was procured by corruption, fraud or other undue means;

(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;

(3) The arbitrators exceeded their powers;

(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 572.12, as to prejudice substantially the rights of a party; or

(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under section 572.09 and the party did not participate in the arbitration hearing without raising the objection[.]

 

The applicable standard of review derives from the grounds upon which a party seeks to vacate the award.  Koranda v. Austin Mut. Ins. Co., 397 N.W.2d 357, 360 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).

Initially, appellant contends that she was not afforded a complete hearing.  A court must vacate an award where the arbitrator "so conducted the hearing, contrary to the provisions of section 572.12, as to prejudice substantially the rights of a party."  Minn. Stat. § 572.19, subd. 1(4) (2004).  "Whether challenged conduct constitutes prejudicial misconduct is reviewed de novo."  Volkmann v. Volkmann, 688 N.W.2d 347, 349 (Minn. App. 2004).   But this argument was not raised by appellant in her motion to vacate the award to the district court.  This court generally will not consider matters not argued and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Even if we considered appellant's claim, it has no merit.  Minn. Stat. § 572.12(b) (2004) provides that "[t]he parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing."  The arbitration agreement provides:  "The parties agree that their rights to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing may be modified and even nullified by Hmong traditions and the accepted practices of the Hmong 18 Council Mediation Center."  Consequently, appellant's right to a complete hearing was expressly limited by the agreement, which is valid and enforceable absent grounds for revocation of the contract.  Minn. Stat. § 572.08 (2004); Peggy Rose Revocable Trust v. Eppich, 640 N.W.2d 601, 606 (Minn. 2002).

Arbitration, by its very nature, frequently and necessarily entails that the parties forfeit certain rights normally afforded to them in state court.  As Learned Hand wrote:

Arbitration may or may not be a desirable substitute for trials in courts; as to that the parties must decide in each instance. But when they have adopted it, they must be content with its informalities; they may not hedge it about with those procedural limitations which it is precisely its purpose to avoid. They must content themselves with looser approximations to the enforcement of their rights than those that the law accords them, when they resort to its machinery.

 

Am. Almond Prods. Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 451 (2d Cir. 1944).

Here, the record indicates that there were at least six hearings, totaling roughly 57 hours, from October 2003 to July 2003.  Appellant fails to demonstrate how the hearings were incomplete or how she was substantially prejudiced by the way the hearings were conducted.  See Minn. Stat. § 572.19, subd. 1(4).  And appellant fails to show that the proceedings were conducted in a manner inconsistent with the traditions and practices of the Hmong community.  On this record, we cannot say that the hearings were incomplete or that appellant was prejudiced.

Appellant next argues that the district court improperly refused to vacate the arbitration award because there were only five (rather than the full seven) arbitrators present at a July 2004 hearing.  Although appellant presented no evidence to support her assertion to the district court, respondent has acknowledged that at times there were less than seven arbitrators present at least at one of the hearings. 

Both Minn. Stat. § 572.12(c) and the arbitration agreement provide that all the arbitrators shall conduct the hearing "but a majority may determine any question and render a final award.  If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy."  The district court determined that the failure of all seven arbitrators to attend all the meetings "may be a technical violation of the [arbitration agreement], [appellant] has not demonstrated any prejudice."

Both the statute and the arbitration agreement provide flexibility in the arbitration process.  Although the statute requires that all arbitrators shall "conduct" the hearings, which we interpret to manage or control the hearing, the statute is silent in terms of requiring that all arbitrators attend all portions of the hearings.  Because arbitration is intended to be an informal process, we conclude that the failure of an arbitrator to attend a hearing by itself is not sufficient to vacate an arbitration award absent a showing of prejudice.  And appellant offers no evidence that she was prejudiced by the absence of an arbitrator at one of the many hearings.  See Minn. Stat. § 572.19, subd. 1(4).  We conclude that appellant's argument has no merit.

Appellant next argues that the arbitration award was not signed by all of the arbitrators as required by the arbitration agreement.  Respondent counters that appellant never raised the signature issue before the district court and that issue is therefore waived.  Thiele, 425 N.W.2d at 582.  Respondent's argument has merit.

Nowhere in appellant's moving papers, or in the district court's order denying appellant's motion to vacate, is there any mention of the signature issue.  Appellant claims that the issue was brought before the district court referee, but as an appellant bears the burden of providing an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  On this record, appellant has failed to raise the signature issue before the district court, and we are not required to address the argument.  But even if we were to address the argument, it lacks merit.  Appellant has failed to show how she was prejudiced, particularly since all seven arbitrators signed the final settlement memorandum, which was in substance the same as the arbitration award.

III.

           

Appellant contends that her substantive rights were violated in two ways, i.e., that the Hmong panel failed to determine all the issues presented to it, and that its division of property was inequitable.  Specifically, appellant argues that the arbitration award did not address numerous issues, including the parties' gross or net incomes, valuation of respondent's Zomax stock, division of respondent's 401k and appellant's retirement account, ownership of the life insurance, a mechanism for resolving parenting time disputes, $2,000 to appellant for vehicle division, when the parties were to begin alternating parenting time during holidays, and when appellant could begin claiming child dependency tax deductions. 

But the statute and the arbitration agreement enumerate only five grounds to vacate an award.  Appellant has failed to identify a ground to vacate that supports her argument.  Because appellant fails to identify a ground for vacation, the district court did not err in refusing to vacate the award.  See AFSCME Council 96, 356 N.W.2d at 299-300.

Respondent argues that if we reach the merits of appellant's claim, it is clear that the Hmong panel accepted the parties' preliminary division of assets, unless such assets were specifically mentioned in the award.  Respondent's argument has merit.  Here, the parties, through various agreements, both formal and informal, had preliminarily divided the marital estate.  The district court concluded that, to the extent that the arbitration agreement did not explicitly address certain properties of the marital estate, that the Hmong panel intended to deny appellant's request to change the parties' preliminary division of that property.[1]  The district court's conclusion is supported by the record.

Appellant further argues that the district court erred in denying her motion to vacate the award because the Hmong panel did not make an equitable distribution of the marital property.  But appellant fails to show how this is grounds for vacating the award.  Appellant's dissatisfaction alone is not grounds for vacating the arbitration award.  Therefore, her claim provides no cognizable basis for reviewing the district court's refusal to vacate the award.  See AFSCME Council 96, 356 N.W.2d at 299-300.

We have carefully considered all of appellant's other arguments.  On this record, we cannot conclude that the arbitration award was contrary to Hmong culture and tradition.  And appellant's dissatisfaction with specific aspects of the property division is not grounds for vacating the award. 

IV.

 

Appellant contends that the district court erred in refusing to vacate the arbitration award on the basis that "evident partiality" was expressed by the arbitrators against appellant.  "Whether challenged conduct constitutes ‘evident partiality' . . . is a legal question reviewed de novo."  Aaron v. Ill. Farmers Ins. Group, 590 N.W.2d 667, 669 (Minn. App. 1999) (reviewing a claim of partiality based on Minn. Stat. § 572.19, subd. 1(2) (1998)). 

"Evident partiality" is grounds for vacating the arbitration award under both the arbitration agreement and Minn. Stat. § 572.19, subd. 1(2) (2004).  Generally, "evident partiality" arises when a neutral arbitrator has contacts with a party or with another arbitrator that might create an impression of possible bias.  Aaron 590 N.W.2d at 669 (citations omitted); see, e.g., L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 377 (Minn. 1989) (impression of bias arising from one arbitrator's prior business relationship with one of the parties).  "Evident partiality" is not the same as actual bias because even the appearance of bias is unacceptable.  Pirsig v. Pleasant Mound Mut. Fire Ins. Co., 512 N.W.2d 342, 344 (Minn. App. 1994).  The burden of establishing facts that create a reasonable impression of partiality is on the party challenging the award.  Id. at 343.

Appellant argues that that the chairman of the Hmong panel, Xiong Her, exhibited "evident partiality" in a June 2004 letter to appellant's attorney which stated, inter alia, that, "We feel that at times [appellant] is unstable and is indecisive and we would like all of her decisions to be final.  We would like to resolve this matter in the most applicable and timely fashion."  Appellant, citing Pirsig, argues that the letter creates a reasonable impression that the Hmong panel was partial against her.  512 N.W.2d at 344.  But Pirsig is distinguishable.  Pirsig discusses evident partiality in terms of longstanding business relationships between arbitrators and parties.  See id.  Here, there is no allegation of any prior business dealings.  The Hmong chair simply expressed his belief that appellant needed to be more responsive so that the panel could complete its work.  We do not believe that attempting to expedite the conclusion of the proceeding constitutes "evident partiality."  Further, appellant fails to demonstrate any prejudice resulting from the letter.

Appellant next argues that the Hmong panel exhibited "evident partiality" in the arbitration agreement by determining that appellant failed to submit certain documents requested by the panel; and that the panel failed to provide to her documents submitted by respondent to the panel.  The arbitration award stated that "documents were requested from both parties on or about July 24, 2004.  Some documents were provided by [respondent], though not all, and [appellant] has not provided any documents to the arbitrators . . . ."  The district court concluded that by not doing so, appellant failed to substantiate her claims; and that she failed to show prejudice.  The district court also observed that appellant could have requested a hearing or a telephone conference to discuss access to the Hmong panel files. 

Here, the arbitration award simply states a fact, i.e., respondent provided some documents, but appellant failed to provide any documents.  It was appellant's responsibility to determine which documents she believed were necessary to present her case to the panel.  As to respondent's documents submitted to the panel, appellant failed to request a hearing to pursue the issue with the Hmong panel, and failed to show any prejudice in failing to receive copies of respondent's documents.  Consequently, we cannot say that the panel acted out of "evident partiality."  On this record, the district court did not err in denying appellant's motion to vacate the arbitration award.

V.

             Finally, appellant moves to strike a portion of respondent's brief in which respondent stated that appellant sought an order for protection against respondent in Wright County which was dismissed.  Appellant alleges this is not part of the record.  See Minn. R. Civ. App. P. 110.01 (stating that the record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings").  Because the order was not part of the district court file, we grant the motion to strike and did not consider the order in our deliberations.

            Affirmed; motion granted.

[1]In addition, the arbitration award expressly addresses some of the issues appellant claims were not covered by the award.  For example, the arbitration award indicates when appellant could begin claiming child dependency tax deductions.  The award stated: "[Appellant] shall have the right to claim the minor child, for tax purposes, during the even year, and [r]espondent shall have the right to claim the minor child, for tax purposes, during the odd year."  This clearly indicates that appellant can claim the tax deduction in even years, and respondent in odd years.  The agreement also expressly addressed the issues related to the division of the vehicles, and parenting time during the holidays. Finally, the award addresses child support, stating that "[c]hild support is reserved."