WILLIAM D JOHNSON V LILLIAN B JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM D. JOHNSON,
FOR PUBLICATION
June 7, 2007
9:00 a.m.
Plaintiff/Counter DefendantAppellant,
v
No. 261919
Wayne Circuit Court
LC No. 03-336703-DO
LILLIAN B. JOHNSON,
Defendant/Counter PlaintiffAppellee.
Official Reported Version
Before: Murray, P.J., and O'Connell and Fort Hood, JJ.
O'CONNELL, J. (concurring).
I concur with the lead opinion. I write separately to emphasize the restrictions that our
Legislature has placed on judges to protect litigants from confusion and protect the court system
from abuse. Even before the recent drafting of the domestic relations arbitration act (DRAA),
MCL 600.5070 et seq., judges had no authority to order a party to submit a domestic relations
matter to arbitration and, instead, the court could only mandate arbitration in accordance with an
express written stipulation of the parties. See Balabuch v Balabuch, 199 Mich App 661, 662;
502 NW2d 381 (1993); Marvin v Marvin, 203 Mich App 154, 156-157; 511 NW2d 708 (1993).
If the parties failed to put their agreement to arbitrate in writing, or failed to acknowledge their
intent that a circuit court may enforce the arbitrator's award, then the agreement would not fall
within the Michigan arbitration act, MCL 600.5001 et seq., and the agreement to arbitrate would
be revocable by the unilateral act of either party until the arbitrator issued a judgment. Wold
Architects & Engineers v Strat, 474 Mich 223, 234-237; 713 NW2d 750 (2006); cf. MCL
600.5001(1), MCL 600.5011.
Now MCL 600.5072(1) states, "The court shall not order a party to participate in
arbitration unless each party to the domestic relations matter acknowledges, in writing or on the
record, that he or she has been informed in plain language" of a litany of rights and conditions,
including the right to go to trial, the limited ability to appeal a decision, and the requirement that
the parties must have signed a written arbitration agreement spelling out the arbitrator's authority
and obligations. The parties concede that the trial court neglected to notify the litigants of the
nine distinct rights enumerated in MCL 600.5072(1), and neither side has presented any written
arbitration agreement spelling out the arbitrator's "powers and duties." MCL 600.5072(1)(e). In
fact, it was an unresolved dispute over the arbitrator's authority that led plaintiff to withdraw his
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consent to arbitrate on the record and within moments after the trial court accepted the
representations of the parties' attorneys that they would arbitrate certain property issues.1 The
trial court's failure to comply with the mandatory procedure outlined in the statute meant that it
unquestionably erred when it ordered the case to arbitration.
The dissent concludes that even if the trial court failed to comply with the DRAA, a
default can be entered because plaintiff disobeyed the court's order to participate in arbitration.
Under the peculiar facts of this case, I respectfully disagree. This was not a case in which a party
was required to forfeit money pending appeal, or even leave a cloud on a title to property until an
appellate court could sort out the trial court's mistake. In this case, plaintiff was ordered to forgo
recourse to our primary institution of justice, surrender his rights, and submit the substance of his
legal dispute to the discretion of an unknown, unelected, unappointed, and largely unaccountable
third party. Although our courts have always respected a party's consent or contractual freedom
to take a more streamlined approach to dispute resolution, they have never shirked their
constitutional duty by requiring litigation in an alternative, unofficial forum. Moreover, our laws
have always recognized that unwritten agreements to arbitrate are unilaterally revocable, so that
a party who feels delayed remorse over an oral acquiescence to submit to arbitration may always
safely retreat to the courts. Wold Architects, supra.
Domestic relations necessarily involve personal, rather than pecuniary, issues, so our
legal system has been especially slow to sanction extrajudicial resolution of any of these matters,
even when founded on the parties' mutual assent. Recently, the Legislature overcame this
persistent reluctance by instituting simple statutory safeguards, including informed, unequivocal,
and written assent to the arbitration process. MCL 600.5072(1). That assent to the waiver of
each right and the acknowledgment of the governing written instrument must be reflected on the
record. This was not done here. To ignore the mandatory nature of the statute leaves plaintiff,
and those like him, with an irremediable error. According to the dissent, plaintiff was required to
submit the matter to arbitration and prepare to file an appeal after the trial court confirmed the
arbitrator's judgment.2 After successfully appealing, he could, perhaps, return to court to get the
full and complete trial he should have received years earlier.3 Adopting the dissent's approach
1
Although another judge had provided some explanation about the arbitration process to plaintiff
in an earlier proceeding, it does not appear that he was even present when a later judge signed
the order requiring the parties to submit to arbitration.
2
I agree with the dissent that a party disobeys a court order at his or her peril, but I also note that
statutes are no less deserving of obedience. Moreover, a trial court generally has less draconian
measures available for enforcing its orders than default, and "a trial court abuses its discretion by
employing default as a sanction without determining, on the record, whether less drastic
alternative sanctions are appropriate." Gawlik v Rengachary, 270 Mich App 1, 9; 714 NW2d
386 (2006). In my opinion, the default entered in this case was not an appropriate sanction for
plaintiff's failure to adhere to the trial court's erroneous order, and the trial court's failure to
consider any other sanction on the record forecloses further consideration of the issue.
3
Divorce cases are not supposed to be resolved piecemeal, see Dobrzenski v Dobrzenski, 208
Mich App 514, 515-516; 528 NW2d 827 (1995), and MCR 3.211(B), and we generally oppose
(continued…)
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ignores plaintiff 's unilateral right to withdraw from arbitration, allows a court to sanction a party
by compounding the party's proceedings and litigation expenses, and fails to acknowledge any
restriction on the trial court's authority to mandate arbitration in a divorce case. This
complication of the process invites delay and other abuses of the system, and the trial court's
entanglement in this case exemplifies why courts should simply adhere to the plain and
unambiguous language in the statute.
Rather than encourage confusion, sloppiness, and abuse, we must enforce the statute as
written and place plaintiff in the position he would have been in if the error had not occurred:
before a trial court, prepared to adjudicate his legal rights. Our court rules reiterate these
principles. They require a court to excuse a party's failure to attend an alternative dispute
resolution hearing and refrain from entering a default order if the court finds that entering a
default order would cause manifest injustice. MCR 2.410(D)(3)(b)(i). In this case, it was
manifest injustice for the court to rule plaintiff in default for his failure to follow the statutorily
defective and otherwise infirm order, but the trial court did not consider any other sanction on
the record. Gawlik v Rengachary, 270 Mich App 1, 9; 714 NW2d 386 (2006). This error alone
requires reversal. Id. Although I agree with the dissenting opinion that the delay caused by
plaintiff 's indecisiveness or gamesmanship warrants some sanction, perhaps for defendant's
costs, default was not a self-evident resolution to this matter. Therefore, I concur with the lead
opinion's resolution of this case.
/s/ Peter D. O'Connell
(…continued)
splitting adjudicative responsibilities between a court and an arbitrator as the trial court did in
this case. See Fromm v MEEMIC Ins Co, 264 Mich App 302, 306-307; 690 NW2d 528 (2004).
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