Dick v. Dick

• Decision Date: 12 May 1995
• Docket Number: Docket Nos. 163351,164374 and 167468
• Citation: 534 N.W.2d 185,210 Mich.App. 576
• Parties: Leslie DICK, Plaintiff/Counter-Defendant-Appellant, v. Linda DICK, Defendant/Counter-Plaintiff-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 185

534 N.W.2d 185

210 Mich.App. 576

Leslie DICK, Plaintiff/Counter-Defendant-Appellant, v. Linda DICK, Defendant/Counter-Plaintiff-Appellee.

Docket Nos. 163351, 164374 and 167468.

Court of Appeals of Michigan.

Submitted Oct. 18, 1994, at Lansing.

Decided May 12, 1995, at 10:00 a.m.

Released for Publication July 12, 1995.

Abraham Selesny, Farmington, Judith A. Curtis, Grosse Point Park, of counsel, for plaintiff.

Williams, Schaefer, Ruby & Williams, P.C. by James P. Cunningham, Birmingham, for defendant.

Before NEFF, P.J., and MARILYN J. Kelly and JOSLYN, ^* JJ.

PER CURIAM.

Plaintiff, Leslie Dick, appeals from a judgment of divorce that disposed of the property and assets of the parties and awarded custody of their child to defendant, Linda Dick. On appeal as of right, plaintiff challenges the validity of the arbitration procedure to which he had agreed, as well as the substantive determinations of the arbitrator. He contests, in particular, the award of custody of the child to defendant. We affirm.

THE PROCEDURAL BACKGROUND

Plaintiff and defendant had been married approximately 2 1/2 years before plaintiff initiated divorce proceedings. They had one son.

After both sides filed their initial pleadings, they agreed to submit all issues, including the division of property and child custody and support, to binding arbitration. On March 30, 1990, the court entered an order providing for binding arbitration, naming an arbitrator, and setting forth the parties' agreed-upon conditions. Notable among them were the following:

B. The Arbitrator shall be considered, in all respects, to be a substitute for the Circuit Judge in this case and shall be accorded all of the powers, duties, rights and obligations of the Circuit Judge, including, but not necessarily limited to, the determination of all issues present in this divorce action, including all pre-judgment (discovery, etc.) and judgment matters involving the parties to this litigation and their minor child.

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IT IS FURTHER ORDERED that the decision of the Arbitrator, as incorporated in the Judgment of Divorce, shall be appealable to the Court of Appeals on the same basis and with the same legal effect as though the decision had been rendered by the Circuit Judge;

IT IS FURTHER ORDERED that any appeal of this matter to the Court of Appeals shall not be based on the procedure which the Arbitrator has deemed to be reasonable, as set forth above, but shall be based solely on the substantive decision of the Arbitrator; neither party having the right to a trial de novo in this matter, except as it may be based upon errors of substance (as opposed to procedure) committed by the Arbitrator which the Court of Appeals determines to necessitate such trial de novo.

More than two years later, the arbitrator issued his opinion. The length of the arbitration proceedings is directly related to the acrimonious approach of the parties, especially plaintiff. But for the vexatious litigation tactics employed by the parties throughout the proceedings, this matter could have been resolved in a more expeditious manner. At this point, the parties' divorce proceedings have lasted nearly twice as long as their marriage.

Ultimately, the arbitrator issued a comprehensive, detailed opinion. In determining custody, he made findings of fact regarding the "best interests of the child" factors set forth in M.C.L. § 722.23; M.S.A. § 25.312(3). The circuit court then entered a judgment of divorce that fully incorporated the arbitrator's conclusions.

THE APPELLATE ISSUES

On appeal, plaintiff first attacks the validity of the arbitration agreement. He asserts that it was void ab initio, because it was tantamount to the appointment of a private judge by the circuit court. Alternatively, he argues that, if deemed valid by our Court, the arbitration agreement is void because Michigan does not recognize binding arbitration in divorce agreements. He stresses that arbitration is not an acceptable procedure for resolving issues of child custody and support. He requests that we vacate the order of divorce and remand the entire case to the trial court for expedited reconsideration before a different circuit judge.

THE EFFECT OF A CONSENT ORDER FOR BINDING ARBITRATION

We agree with plaintiff's contention that the circuit court is without authority to appoint a private judge. Brockman v. Brockman, 113 Mich.App. 233, 238, 317 N.W.2d 327 (1982).

The parties' arbitration agreement variously characterizes the arbitrator as a "private judge." We find that the references are at most colloquial expressions describing the extent of the arbitrator's powers by analogy to judicial functions, and no more. The agreement does not purport to make of the arbitrator a judge "acting under the color of right as a duly appointed judge." Id. The parties sought permission from the circuit court to enter into binding arbitration. The circuit court ordered binding arbitration. Later, it incorporated the arbitrator's decision Because the parties invoked binding arbitration, we must consider whether that procedure may be used in divorce proceedings. Moreover, we must determine whether the binding arbitration agreement at issue here is valid.

in the order of divorce. We hold that the agreement was one for binding arbitration, not one void ab initio as appointing a private judge.

Both common law and statutory arbitration have well-established histories in Michigan. In recent years, practitioners have made widespread efforts, with some success, to add binding arbitration to the alternative-dispute-resolution methods available to resolve contested divorces. But no state appellate court has resolved the acceptability of binding arbitration in resolving divorce and, particularly, custody issues.

Authority to permit the use of binding arbitration may be found in MCR 3.216. Although the court rule concerns itself with mediation in domestic relations proceedings, it contains a fairly broad grant of authority regarding settlement procedures. It provides:

(A) Scope and Applicability of Rule. A court may submit any pending divorce, separate maintenance, or annulment proceeding, including postjudgment matters, to mediation under this rule for the purposes of attempting to settle contested issues. Nothing in this rule

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(3) prohibits the court from ordering, on stipulation of the parties, the use of modified mediation or other settlement procedures.

We emphasize that the rule primarily is concerned with mediation rather than binding arbitration. But it does authorize specifically the use of other unenumerated "settlement procedures" to resolve domestic disputes. Binding arbitration certainly qualifies as a settlement procedure.

Moreover, our Court has approved the use of binding mediation to resolve property distribution issues in divorce cases. Marvin v. Marvin, 203 Mich.App. 154, 157, 511 N.W.2d 708 (1993). In Marvin, our Court relied on MCR 3.211(H)(3), the provisions of which are comparable to those of the present MCR 3.216(A)(3) set out above. In Marvin, we also reiterated the recent ruling of our Court that

where the parties to a divorce action agree to submit certain issues to a third party and to accept the decision of the third party as binding, they are bound by the third party's decision absent a showing of such factors as duress or fraud. [Marvin, p. 157, 511 N.W.2d 708, citing Balabuch v. Balabuch, 199 Mich.App. 661, 662, 502 N.W.2d 381 (1993).]

Because authority exists in both court rule and case law for permitting parties to agree to "other settlement procedures," we hold that binding arbitration is appropriate to resolve property distribution issues.

CHILD SUPPORT

However, because child custody and support are not property issues, we must examine separately the legal validity of an agreement to submit them to binding arbitration.

The Child Custody Act, M.C.L. § 722.21 et seq.; M.S.A. § 25.312(1) et seq., grants circuit courts the power to enter a support order to which the parties have agreed. The amount may deviate from the recommendation under the child support formula, if the requirements of M.C.L. § 722.27(2); M.S.A. § 25.312(7)(2) are met. Subsection 2 permits deviation from the recommendation if application of the recommendation would be unjust and the court has explained the reasons in writing or on the record. M.C.L. § 722.27(2); M.S.A. § 25.312(7)(2). See also Balabuch, supra, p. 662, 502 N.W.2d 381.

This provision permits us to conclude that child support disputes also may be submitted to arbitration pursuant to the agreement of the parties. However, because the provision deals solely with the question of support, it is insufficient, standing alone, to permit us to analogize that child custody may also be submitted to arbitration.

CHILD CUSTODY

Further analysis is required to determine whether child custody may be submitted to binding arbitration, especially because it is a matter of first impression in the state.

In our analysis, we must balance: (1) case law that has led to the widely held belief that custody decisions are the exclusive province of the circuit court, (2) the requirements of the Child Custody Act, and (3) the effect of the Uniform Arbitration Act, M.C.L. § 600.5001 et seq.; M.S.A. § 27A.5001 et seq.

Thirty-six years ago, our Supreme Court examined the role of the friend of the court in custody issues. Campbell v. Evans, 358 Mich. 128, 99 N.W.2d 341 (1959). It concluded that the friend of the court could not decide custody and said:

The responsibility for the ultimate decision and the exercise of judicial discretion in reaching it still rests squarely upon the trial judge. These grave prerogatives he may never delegate to others. [Id., p. 131, 99 N.W.2d 341.]

The Court quoted with approval from an earlier opinion that also dealt with utilization of the friend of the court in a custody determination. There the Court said:

We believe that ...