ELISABETA SOCIANU V CHRISTIAN SOCIANU
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STATE OF MICHIGAN
COURT OF APPEALS
ELISABETA SOCIANU,
UNPUBLISHED
January 19, 2006
Plaintiff-Appellee,
v
No. 256590
Macomb Circuit Court
LC No. 2002-007465-DO
CHRISTIAN SOCIANU,
Defendant-Appellant.
Before: Jansen, P.J., and Cavanagh and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right a consent judgment of divorce entered in accordance with
an arbitration award. We reverse.
Plaintiff filed for divorce in December 2002. In September 2003, trial was adjourned and
the matter was “scheduled for one-attorney mediation with Attorney Lori Henderson within
thirty days from the date of this order.” On November 3, 2003, an order was entered that
appointed Lori Henderson the “binding arbitrator with regard to the division of personal
property.” On November 20, 2003, a stipulated order to adjourn trial was entered which
indicated that the parties had agreed to arbitrate the matter. A trial date of January 30, 2004, was
scheduled. Arbitration hearings were conducted on November 11, 2003, and November 25,
2003. On January 20, 2004, a stipulated order to adjourn the trial “due to continued arbitration”
was entered. The order provided that the parties were in the middle of arbitration proceedings
and trial on January 30, 2004, would be untimely so trial was adjourned to a future date.
Another arbitration hearing was conducted on February 10, 2004.
On February 13, 2004, defendant moved for a trial date and to dismiss the arbitration.
Defendant argued that Henderson was appointed, by order, as arbitrator over the division of
personal property only and defendant requested that the court direct Henderson to issue an
arbitration award in conformity with that order. Defendant also requested that a trial date be set
for resolution of the remaining issues. At the hearing on the motion, the trial court held that,
apparently because the parties participated in the arbitration hearings, it was their intent to
arbitrate the entire matter, not just the personal property issues as ordered by the court. The
court further noted that the parties inadvertently failed to submit an order to the court regarding
arbitration that was previously signed and, thus, ordered that it be entered simultaneously with
the order denying defendant’s motion to dismiss. This previously signed order was the
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acknowledgement, mandated by MCL 600.5072, that the parties were informed regarding the
voluntary, binding, and general nature of arbitration. See MCL 600.5072.
On May 13, 2004, plaintiff moved for entry of a proposed consent judgment of divorce
which incorporated the April 5, 2004, arbitration report and award. Defendant filed a response in
opposition to the entry of consent judgment, arguing that there was no arbitration agreement
between the parties that submitted the entire marital estate to arbitration. Defendant admitted
that he agreed to arbitrate the issue of personal property distribution, but argued that the
arbitration opinion and award addressed issues outside the scope of the arbitrator’s authority,
specifically the parties’ real property and closely held corporation. At the hearing on the motion,
the trial court rejected defendant’s argument after finding, again, that the clear intent of the
parties was that the whole matter be resolved by arbitration. Therefore, the court granted the
motion for entry of the proposed consent judgment of divorce, and the judgment was entered.
This appeal followed.
Defendant argues that the consent judgment of divorce must be vacated because it is
predicated on an invalid arbitration award. We agree and conclude that the trial court abused its
discretion when it granted the motion for entry of the proposed consent judgment of divorce.
See Harvey v Harvey, 257 Mich App 278, 283; 668 NW2d 187 (2003).
The domestic relations arbitration act (DRAA), MCL 600.5070 et seq., is a specific and
comprehensive statutory scheme that provides for and governs arbitration in domestic relations
matters. Harvey, supra at 285. Specifically, MCL 600.5071 provides:
Parties to an action for divorce, annulment, separate maintenance, or child
support, custody, or parenting time, or to a postjudgment proceeding related to
such an action, may stipulate to binding arbitration by a signed agreement that
specifically provides for an award with respect to 1 or more of the following
issues:
(a)
Real and personal property.
(b)
Child custody.
(c)
Child support, subject to the restrictions and requirements in other law and
court rule as provided in this act.
(d)
Parenting time.
(e)
Spousal support.
(f)
Costs, expenses, and attorney fees.
(g)
Enforceability of prenuptial and postnuptial agreements.
(h)
Allocation of the parties’ responsibility for debt as between the parties.
(i)
Other contested domestic relations matters.
Defendant argued in the trial court, and does so on appeal, that the arbitration award addressed
issues outside the scope of the arbitrator’s authority.
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Pursuant to MCL 600.5074, the scope of the arbitration, and thereby the appointed
arbitrator’s authority, is derived from the arbitration agreement. Particularly, MCL 600.5074(1)
provides that “[a]n arbitrator appointed under this chapter shall hear and make an award on each
issue submitted for arbitration under the arbitration agreement subject to the provisions of the
agreement.” Accordingly, to determine whether the arbitrator exceeded her power, review of the
“signed agreement that specifically provides for an award with respect to 1 or more of the
following issues . . . ” is required. See MCL 600.5071. Therein lies the problem.
Defendant argues that there is no such arbitration agreement. In the alternative, he
argues, if the November 3, 2003, order entered by the trial court appointing the arbitrator “with
regard to the division of personal property” is considered an arbitration agreement, then the
arbitrator exceeded her authority by considering the division of any marital estate asset other
than personal property. Plaintiff, on the other hand, argues that the arbitration order limiting
arbitration to personal property was drafted in error because “both parties intended that the
arbitration was to include all of the marital property.” In the alternative, plaintiff argues,
defendant should be deemed to have waived his rights under the DRAA, i.e., “waived any rights
regarding exclusion from arbitration,” because he participated in the arbitration hearings. See
Staple v Staple, 241 Mich App 562, 568; 616 NW2d 219 (2000).
We agree with defendant. The parties did not execute a written arbitration agreement as
required by the DRAA, they merely obtained a court order referring the dispute to arbitration.
Judicial construction of statutory language that is clear and unambiguous is not permitted. Sun
Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Here, MCL 600.5071
clearly and unambiguously provides that a matter may be submitted to arbitration only by a
“signed agreement that specifically provides for an award with respect to 1 or more of the
following issues . . . .” And, MCL 600.5074(1) mandates that the arbitrator “hear and make an
award on each issue submitted for arbitration under the arbitration agreement subject to the
provisions of the agreement.” The legislative intent is clear—a written, signed agreement to
arbitrate particular issues of dispute must be entered into between the parties before binding
arbitration commences. Absent such agreement, the arbitrator is without authority to decide any
contested issue and cannot render a binding award. Because the parties did not enter into a
written arbitration agreement, the trial court abused its discretion in entering a consent judgment
of divorce predicated on the arbitrator’s “award.”
Further, plaintiff’s argument that these mandatory statutory requirements can be waived
is without merit. Plaintiff relies on Staple, supra, in support of her argument but that case is
wholly inapposite. There, the issue was whether a party to a divorce could voluntarily waive her
statutory right to petition for modification of an alimony provision contained in the divorce
judgment. See MCL 552.28. This court answered in the affirmative. Staple, supra at 569.
However, in the present case, whether a party can waive a statutory right is not at issue. The
issue here involves a statutory requirement, particularly that arbitration proceed in accordance
with the terms of a written, signed arbitration agreement. We also reject plaintiff’s attempt to
characterize the court’s order submitting the matter to arbitration as an “arbitration agreement.”
The order clearly is not such a contract.
In sum, the parties failed to execute a written arbitration agreement as required by MCL
600.5071, thus the arbitrator had no authority to issue an “award” on any of the contested issues
and the trial court abused its discretion when it entered the consent judgment of divorce that was
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predicated on the “arbitration award.” In light of our resolution of this dispositive issue in
defendant’s favor, we need not address his other issues on appeal.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
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