Barnett v. Barnett
| Decision Date | 28 April 2022 |
| Docket Number | 354668 |
| Parties | ANNETTE MARIE BARNETT, Plaintiff-Appellant, v. GEORGE HENRY THOMAS BARNETT, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2018-003920-DM
Before: Letica, P.J., and Redford and Rick, JJ.
The parties agreed to submit their divorce action to arbitration. After the arbitrator issued an award, plaintiff moved to vacate the award on multiple grounds. The trial court denied plaintiff's motion and later entered a judgment of divorce, consistent with the arbitrator's decision. Plaintiff, proceeding in propria persona, appeals as of right. We affirm.
The parties were married in 1995 and plaintiff filed a complaint for divorce in 2018. The only child of the marriage was 17 years old when plaintiff initiated this action. On the date scheduled for trial, the parties agreed to instead refer the matter to binding arbitration, pursuant to the domestic relations arbitration act ("DRAA"), MCL 600.5070 et seq., and MCR 3.602, to resolve the following issues: (1) the breakdown of the marriage, (2) spousal support, (3) property division, (4) "child support/care/medical," and (5) attorney fees, costs, and expenses.
The arbitrator issued a written decision resolving the disputed issues. Because the minor child had reached the age of majority, no custody award was entered. Defendant was ordered to pay continued child support to plaintiff until the child's expected graduation from high school. Given the length of the marriage, the parties' income disparity the parties' health, and other relevant factors, the arbitrator awarded plaintiff permanent spousal support of $2 500 a month, effective upon the sale of the marital home, until the death of either party or until plaintiff remarried.
The arbitrator determined that the parties would bear their own attorney and expert fees, and that the marital home would be sold and the proceeds divided equally, subject to an offset for plaintiff's share of defendant's business interests. Defendant's 401(k) account, with a value of $84, 000, was divided equally. The contents of the marital home were awarded to plaintiff except for small items discussed below. Plaintiff's credit union account, valued at approximately $100, 000, was divided equally. The arbitrator awarded the entirety of a Bank of America account, containing approximately $180, 000 that plaintiff had received from a personal injury lawsuit, to plaintiff. Plaintiff was held responsible for approximately $40, 000 in unsecured debt, and defendant, who owed approximately twice that amount, was held solely responsible for his debt.
A principal issue was the valuation and distribution of defendant's interests in two businesses. The trial court appointed an expert, John Alfonsi, to conduct a forensic investigation of defendant's businesses to determine if defendant was hiding assets. The arbitrator addressed defendant's business interests as follows:
5. Both parties had Defendant's business interests evaluated and were of similar value. The median of both appraisals is $370, 000.00. The court also appointed John Alfonsi to determine if the Defendant secreted any assets and ordered Plaintiff to pay his fees in the event none were found. This document was reviewed by this arbitrator and this arbitrator found no definitive proof or conclusion of fraud or hidden assets. As such, Plaintiff shall be responsible for Mr. Alfonsi's fees and this arbitrator shall use the median of both parties' business evaluations which was, as aforesaid, $370, 000.00. Accordingly, Defendant is awarded any and all interests in his businesses, Statewide Grinding & International Abrasives. Defendant is awarded all assets of said businesses free and clear of any claim of the Plaintiff and assumes any debts or obligations of same, including MESC and business liabilities, and shall hold Plaintiff harmless from same. For Plaintiff's share of the businesses, Defendant shall pay to her $185, 000.00. This amount shall come from his share of the marital home sale. If the home proceeds exceed $370, 000.00, Plaintiff shall be awarded same free and clear of any claim of the Defendant. However, if Defendant's 50% share of the home proceeds are less than $185, 000, he shall pay to Plaintiff the difference within 60 days of the home sale closing.
Before a judgment of divorce was entered, plaintiff moved to vacate the arbitration award under MCL 600.5081(2), on the grounds that (1) the arbitrator refused to hear material evidence, (2) Alfonsi's forensic evaluation report was not made available to the parties until shortly before the arbitration hearing and the arbitrator denied plaintiff's request to adjourn the hearing, (3) the arbitrator denied plaintiff's request to adjourn the hearing to consider 2019 accounting records for defendant's two businesses, which had been valued only on the basis of records from 2017 and 2018, and (4) the arbitrator refused to consider that the parties' 19-year-old child was disabled and cared for by plaintiff, and likely would need an adult's care for the remainder of his life.
In response, defendant argued that there were no grounds to vacate the award. Defendant asserted that Alfonsi found no evidence of hiding or disposing of assets, and although the parties did not receive Alfonsi's report until the day of the arbitration hearing, the attorneys were in contact with Alfonsi on a regular basis before the hearing. After hearing arguments regarding a minor accounting issue addressed by Alfonsi, the arbitrator concluded that the issue was not significant and that Alfonsi did not find any evidence of fraud regarding the assets. For that reason, the arbitrator proceeded with the arbitration. Defendant also asserted that plaintiff was not entitled to vacate the arbitration award based on the absence of the 2019 corporate records given that the experts completed their assessments using information previously available, and that plaintiff's request to consider the 2019 records was just a ploy to extend and delay the arbitration process. As for spousal support, defendant denied that the arbitrator refused to hear evidence on that subject and argued that the issue was thoroughly discussed and the guidelines were reviewed. With regard to the parties' son, defendant argued that there was no law that would allow for the continuing care of an adult child or to award additional money for spousal support on this basis.
Following a hearing, the trial court found no grounds to vacate the arbitrator's decision and denied plaintiff's motion. The parties then agreed to the terms of a divorce judgment consistent with the arbitrator's decision. This appeal followed.[1]
Preliminarily, we note that plaintiff's pro se brief lists 11 issues in her Statement of Questions Presented, but the body of her brief does not separately address these 11 stated issues. Rather, her arguments are scattered throughout her brief, making it difficult to identify and associate her arguments with each stated issue. We have focused our analysis on the various issues listed in plaintiff's Statement of Questions Presented and have endeavored to discern plaintiff's specific arguments associated with each issue.[2]
Plaintiff first argues that she did not voluntarily agree to arbitration, was never informed how the process worked, and did not understand that the arbitrator's decision would be final, subject to only limited grounds for correcting or modifying the arbitrator's award. Plaintiff did not challenge the validity of the arbitration agreement at any time before the arbitration award was issued, and did not contest the validity of the arbitration agreement on these or any other grounds in her motion to vacate the arbitration award. Accordingly, this issue is unpreserved, Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227; 964 N.W.2d 809 (2020), and our review is for plain error affecting plaintiffs substantial rights, Demski v Petlick, 309 Mich.App. 404, 426-427; 873 N.W.2d 596 (2015). The record does not support this claim of error.
The parties entered into a written agreement pursuant to MCL 600.5071 of the DRAA, which permits parties to a divorce action to "stipulate to binding arbitration" by signing an agreement that specifically provides for an award with respect to specified issues. Under MCL 600.5072(1), a party may not be ordered to participate in binding arbitration unless the party acknowledges, in writing or on the record, that the party was informed of and understands various rights, requirements, and conditions of binding arbitration.
Because arbitration proceedings are not as formal as a trial, the parties' agreement determines the issues to be addressed at the arbitration hearing. As explained in Miller v Miller, 474 Mich. 27, 32-35; 707 N.W.2d 341 (2005):
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