Harvey v. Harvey

• Decision Date: 24 June 2003
• Docket Number: Docket No. 244950.
• Citation: 668 N.W.2d 187,257 Mich. App. 278
• Parties: Sheila HARVEY, Plaintiff-Appellant, v. Harry Louis HARVEY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

668 N.W.2d 187

257 Mich. App. 278

Sheila HARVEY, Plaintiff-Appellant, v. Harry Louis HARVEY, Defendant-Appellee.

Docket No. 244950.

Court of Appeals of Michigan.

Submitted May 15, 2003, at Detroit.

Decided June 24, 2003, at 9:25 a.m.

Released for Publication August 20, 2003.

Judith A. Curtis, Grosse Pointe, for the plaintiff.

Timothy J. Doyle, Farmington, for the defendant.

Before: MURRAY, P.J., and NEFF and TALBOT, JJ.

NEFF, J.

Plaintiff Sheila Harvey appeals as of right an order granting defendant Harry L. Harvey sole legal and physical custody of the parties' two minor children following entry of the parties' consent judgment of divorce. We reverse and remand.

I

Plaintiff filed a complaint for divorce in February 2000. The issues of property settlement, child custody, child support, and parenting time were disputed. On the date scheduled for trial, April 23, 2001, the parties appeared and agreed on the record to binding arbitration regarding the marital property and to a friend of the court decision regarding parenting time. With respect to the latter issue, the parties stipulated that testimony would be taken before the friend of the court, and that the referee's decision would be binding. The trial court inquired whether there were issues regarding child support, custody, and spousal support that might also be appropriately resolved by a friend of the court referee. Counsel responded that issues of custody and parenting time were before the friend of court, and, depending on the outcome, there may be an issue regarding child support.¹ The court set a trial date of May 7, 2001, and indicated that the case would proceed to trial unless the court was presented an order in the interim that removed the other remaining issues from the court's consideration.²

On May 15, 2001, the trial court entered a consent order, approved by both parties' counsel, for (1) binding arbitration to settle all property matters,³ and (2) an evidentiary hearing and binding decision by the friend of the court referee regarding issues of custody, parenting time, and child support. The order expressly provided that the decision of the friend of the court referee "shall not be reviewable by the trial court."

On September 13, 2002, following an investigation by the friend of the court and a three-day evidentiary hearing, the friend of the court filed its findings and a proposed order awarding defendant sole legal and physical custody of the parties' two minor children. Plaintiff objected to the friend of the court's findings and the proposed order on procedural and substantive grounds, and alleged that she was denied the effective assistance of counsel. Plaintiff filed a motion in propria persona for an emergency stay of proceedings and denial of entry of the proposed order pending a new evidentiary hearing or review by this Court. On October 2, 2002, the court entered the child-custody and parenting-time order as proposed by the friend of the court. Plaintiff subsequently retained new counsel and filed a motion for a hearing de novo and to set aside the child-custody order. The trial court denied the motion on the basis of plaintiff's stipulation to a binding friend of the court decision and the related consent order.

II

Plaintiff argues that the trial court erred in denying her motion for review of the friend of the court's findings because the parties' agreement to be bound by the referee's decision did not meet the requirements for binding arbitration under the recently enacted statute governing domestic-relations arbitration, M.C.L. § 600.5070 et seq. Plaintiff contends that she is entitled either to the statutorily mandated review of binding arbitration awards in domestic-relations matters under M.C.L. § 600.5080 or, in the alternative, to review do novo of the friend of the court findings pursuant to M.C.L. § 552.507(5). We conclude that plaintiff is entitled to a hearing de novo of the child-custody findings and recommendation.

A

This Court reviews for clear legal error the trial court's choice, interpretation, or application of the existing law in child-custody matters. Foskett v. Foskett, 247 Mich.App. 1, 4-5, 634 N.W.2d 363 (2001). "To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." M.C.L. § 722.28. A trial court's decision whether to set aside a consent judgment is reviewed for an abuse of discretion. Vestevich v. West Bloomfield Twp., 245 Mich.App. 759, 763, 630 N.W.2d 646 (2001).

B

With the enactment of 2000 PA 419, effective March 28, 2001, domestic-relations arbitration is now governed by the specific statutory scheme set forth in M.C.L. § 600.5070 et seq. M.C.L. § 600.5070(1) provides:

This chapter provides for and governs arbitration in domestic relations matters. Arbitration proceedings under this chapter are also governed by court rule except to the extent those provisions are modified by the arbitration agreement or this chapter. This chapter controls if there is a conflict between this chapter and chapter 50.[⁴]

The act does not apply to arbitration in a domestic-relations matter if, before the effective date of the act, the court entered an arbitration order and all the parties executed the arbitration agreement. M.C.L. § 600.5070(2).

In this case, the court entered an order on May 15, 2001, which was approved by the parties' counsel and provided, in pertinent part:

7. Issue of custody, parenting time and child support shall be referred to the Oakland County Friend of Court for an Evidentiary Hearing in front of a Referee.

8. The decision of the Referee, after hearing, shall be binding on the parties and shall not be reviewable by the trial court. The Appellate rights to the Court of Appeals are again preserved.

Because the court's order was entered after the effective date of the domestic relations arbitration act, it did not fall within the exclusion of M.C.L. § 600.5070(2), and thus the act governs any agreement between the parties for arbitration.

C

Under the new arbitration scheme, parties to an action for divorce may stipulate to binding arbitration with respect to the issues of child custody and parenting time. M.C.L. § 600.5071. However, the act sets forth detailed mandatory requirements for binding domestic-relations arbitration, which in this case were not met: (1) information of rights and domestic violence exclusion and waiver, M.C.L. § 600.5072; (2) arbitrator qualifications and appointment, M.C.L. § 600.5073; (3) arbitrator's powers and duties, M.C.L. § 600.5074; (4) disqualification of arbitrator, M.C.L. § 600.5075; (5) meeting with arbitrator and order for material information, M.C.L. § 600.5076; (6) record of arbitration hearing, M.C.L. § 600.5077; (7) awards, errors, or omissions, M.C.L. § 600.5078; and (8) enforcement, filing, and sanctions, M.C.L. § 600.5079.

The consent order in this case directed that the issues of custody, parenting time, and child support be referred to the friend of the court for an evidentiary hearing before a referee and that the decision of the referee would be binding could not be reviewed by the circuit court. The dissent concludes that an agreement for a binding decision by a friend of the court referee does not fall within the statutory mandate of the domestic-relations arbitration act, noting that arbitration moves a dispute to a different forum, whereas a hearing and a binding decision before the friend of the court does not. We view this as a distinction without a difference.

With regard to the scope of the domestic relations arbitration act, the statute states that it provides for and governs arbitration in domestic-relations matters. M.C.L. § 600.5070(1). The act is comprehensive in nature. It 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. [M.C.L. § 600.5071.]

The act further provides in M.C.L. § 600.5072:

(1) 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 all of the following:

(a) Arbitration is voluntary.

(b) Arbitration is binding and the right of appeal is limited.

(c) Arbitration is not recommended for cases involving domestic violence.

(d) Arbitration may not be appropriate in all cases.

(e) The arbitrator's powers and duties are delineated in a written arbitration

agreement that all parties must sign before arbitration commences.

(f) During arbitration, the arbitrator has the power to decide each issue assigned to arbitration under the arbitration agreement. The court will, however, enforce the arbitrator's decisions on those issues.

(g) The party may consult with an attorney before entering into the arbitration process or may choose to be represented by an attorney throughout the entire process.

(h) If the party cannot afford an attorney, the party may wish to seek free legal services, which may or may not be available.

(i) A party to arbitration will be responsible, either

...