Crutchley v. Crutchley

• Decision Date: 03 August 1982
• Docket Number: No. 10PA82,10PA82
• Citation: Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (N.C. 1982)
• Parties: Jenne Eder CRUTCHLEY v. William F. CRUTCHLEY, Jr.
• Court: North Carolina Supreme Court

Page 793

293 S.E.2d 793

306 N.C. 518

Jenne Eder CRUTCHLEY v.William F. CRUTCHLEY, Jr.

No. 10PA82.

Supreme Court of North Carolina.

Aug. 3, 1982.

Haywood, Denny & Miller by George W. Miller, Jr., Durham, for plaintiff-appellant.

White, Hall, Mullen, Brumsey & Small by Gerald F. White and Jennette, Morrison & Austin by John S. Morrison, Elizabeth City, for defendant-appellee.

MEYER, Justice.

The issue before this Court is whether an arbitration award, made pursuant to court-ordered arbitration with consent of the parties, for alimony, custody, and child support in a divorce proceeding is binding and nonmodifiable.We hold that such an award is void ab initio as the trial court has no authority to order arbitration.

The record reveals that plaintiff and defendant were married on or about 5 September 1959.Three children were born of the marriage, Rebecca Jane on 3 August 1962, Anna Louise on 3 October 1967, and William Frederick III, on 8 July 1972.On 22 March 1976, Mrs. Crutchley filed suit for, inter alia, divorce from bed and board, alimony pendente lite, permanent alimony, custody of the three children and child support.In answer, the defendant denied plaintiff's alleged grounds for divorce from bed and board, and prayed for custody of the children and dismissal of plaintiff's action.

On 18 October 1976, District Court Judge Beaman filed a CONSENT ORDER appointing Dr. B. C. West, Jr. as arbitrator in the cause, to be "guided by the following procedure:"

(a)He shall review the pleadings appearing in this cause in order to familiarize himself with the contentions of the parties.

(b) The arbitrator's report in this case shall be final and binding on all parties.

(c) The arbitrator shall file his report in the office of the Clerk of Superior Court of Pasquotank County within a reasonable time after he has had opportunity to make a review and study of the matter.

(d) The arbitrator shall have full power and authority to require each of the parties to appear before him as he may deem advisable, to offer to him such evidence as he deems necessary, including documents, reports, checks, bookkeeping entries; income tax returns, and any and all other evidence that the parties desire to present to said arbitrator, and further including oral evidence that said parties desire to present to said arbitrator, it being the intent and purpose hereof that the said arbitrator shall have the opportunity to receive and consider, and the parties shall have the opportunity to present to the arbitrator, full and complete evidence pertaining to the case.The arbitrator shall interview any witnesses which the parties may bring before him and consider all other relevant evidence, and he shall have full subpoena power.

(e) The arbitrator is authorized and empowered to interview the parties, their witnesses, and review their documentary and oral evidence in conference, in an informal manner, open and formal hearing not being necessary.

2.It is the intent and purpose hereof that the said arbitrator is fully authorized and empowered to bring this controversy to a conclusion and, as aforesaid, his report shall constitute the final and binding decision with respect to this case.

3.After filing his report, the arbitrator shall suggest to the Court the amount of his compensation and a determination with respect to same shall be made by the Court.

On 1 December 1977, Dr. West entered an AWARD OF ARBITRATOR disposing of the issues of custody and visitation, child support, alimony, property distribution, and arbitrator's and attorney's fees.Pursuant to defendant's motion, on 1 December 1977, the district court confirmed the award and ordered the case removed from the docket "as having been settled by arbitration."

On 30 November 1978, plaintiff filed motions in the cause for modification of the judgment confirming the award to increase the amount of alimony and child support and to strike that portion of the award which conditioned payment of alimony upon the plaintiff's abstention from cohabitation.In reply, the defendant requested that plaintiff's motion be dismissed and that the arbitration award remain in its present status as the final and binding agreement between the parties.The motion was heard on 21 July 1980 by Judge Beaman.By order entered in open court on that date, and signed with consent of counsel out of term on 11 August 1980, he ruled that "(1)plaintiff's motion in the cause should be denied; (2) the arbitrator's award is binding, and (3) the remedy of motion in the cause is not available to the plaintiff."In view of the ruling, he"concluded that it was unnecessary to hear any evidence in support of said motions," and denied and dismissed plaintiff's motions.

The plaintiff excepted to the entry of the order and appealed to the Court of Appeals.That court ruled that the only question before it was the validity and effect of the portion of the arbitrator's award concerning support of the plaintiff-appellant.The court then held that the issue of spousal support is arbitrable; the arbitrator's award is binding; and the court cannot modify the award without the consent of the parties.

Plaintiff's petition for discretionary review by this Court was allowed on 14 January 1982.Plaintiff subsequently filed with this Court a motion to amend the assignment of error ¹ so that there can be no question that included within the scope of review to be undertaken by this Court is the question of the arbitrability of and subsequent modifications of awards for child support.That motion is hereby allowed.

The plaintiff contends that the trial court erred in ruling that the remedy of motion in the cause is not available to her.She argues that binding and nonmodifiable arbitration of domestic disputes is not available in the courts of this State and requests this Court to declare that such arbitration is against public policy.

The defendant argues that since the Legislature did not exclude domestic disputes from the Act which provides a comprehensive procedure for the arbitration of "any controversy," the arbitration statute may be utilized for the resolution of domestic disputes (the Uniform Arbitration Act, 1973 N.C.Sess.Laws, ch. 676); that contrary to being against the public policy of this State, arbitration provides highly desirable benefits; and that since parties can enter into a valid binding agreement with respect to alimony, not modifiable without the consent of both parties, it would be illogical to rule that they may not enter into a binding agreement to abide by the decision of the arbitrator here on the issue of alimony.

While we cannot agree with the plaintiff that arbitration of domestic disputes is against public policy, we do agree that binding arbitration is not available in this State by court order in a civil action for alimony, custody and child support.We hold that while in the absence of court proceedings, parties may settle their disputes by arbitration, once the issues are brought into court, the court may not delegate its duty to resolve those issues to arbitration.Further, while provisions of a valid arbitration award concerning alimony may by agreement be made binding on the parties and nonmodifiable by the courts, provisions of the award concerning custody and child support continue to be within the court's jurisdiction and are modifiable pursuant to G.S. § 50-13.7.

In 1973, the Legislature enacted the Uniform Arbitration Act. 1973 N.C.Sess.Laws, ch. 676.It provides that parties may agree in writing to submit to arbitration "any controversy" then existing between them or include in any written contract a provision for settlement by arbitration of "any controversy" arising between them relating to the contract or nonperformance thereof.Such agreement or provision is valid, enforceable and irrevocable except with the consent of the parties, without regard to the justiciable character of the controversy.G.S. § 1-567.2(1981 Cum.Supp.)The Act provides only two exceptions to which it will not apply: (1) any agreement or provision to arbitrate in which it is stipulated that it will not apply and (2) arbitration agreements between employers and employees or between their respective representatives, unless the agreement provides that it will apply.Since the Legislature did not exempt domestic relations disputes from coverage by the Act, we find no legislative expression therein that arbitration of such disputes is against public policy.

The advantages of arbitration of domestic disputes have been expounded by commentators.SeeHolman & Noland, Agreement and Arbitration: Relief to Over-Litigation in Domestic Relations Disputes in Washington, 12 WilliametteL.J. 527(1976);Spencer & Zammit, Mediation--Arbitration: A Proposal for Private Resolution of Disputes Between Divorced or Separated Parents, 1976 DukeL.J. 911;Comment, The Enforceability of Arbitration Clauses in North Carolina Separation Agreements, 15 Wake ForestL.Rev. 487(1979).Note, Family Law--Modifying Arbitrator's Awards--a Nod to "Judges of the Parties' Own Choosing,"4 CampbellL.Rev. 203(1981).Often mentioned as advantages are reduced court congestion, the opportunity for resolution of sensitive matters in a private and informal forum by self-chosen judges, speed, economy...