Kelm v. Kelm

• Decision Date: 15 December 1993
• Docket Number: No. 92-1523,92-1523
• Citation: 623 N.E.2d 39,68 Ohio St.3d 26
• Parties: , 62 USLW 2451, 38 A.L.R.5th 845 KELM, Appellee, v. KELM, Appellant.
• Court: Ohio Supreme Court

Page 26

68 Ohio St.3d 26

623 N.E.2d 39, 62 USLW 2451, 38 A.L.R.5th 845

KELM, Appellee, v. KELM, Appellant.

No. 92-1523.

Supreme Court of Ohio.

Submitted Sept. 21, 1993.

Decided Dec. 15, 1993.

SYLLABUS BY THE COURT

1. In a domestic relations case, matters of temporary or permanent spousal and/or child support may, by mutual consent of marriage partners, be made subject to an agreement to arbitrate.

2. R.C. Title 31 and Civ.R. 75, read in conjunction with R.C. Chapter 2711, allow a trial court to intervene and oversee that arbitration of matters of spousal and/or child support, whether of a temporary or permanent nature, is accomplished in an expeditious, efficient, and reasonable manner.

In 1982, prior to their marriage, appellee, Russell A. Kelm, and appellant, Amy K. Kelm, entered into an antenuptial agreement. The agreement contained an arbitration provision.

On January 22, 1990, appellee filed a complaint in the Court of Common Pleas, Division of Domestic Relations, Franklin County, seeking a divorce from appellant. Subsequently, appellee requested that the trial court stay proceedings and compel arbitration in accordance with the terms of the antenuptial agreement.

On August 29, 1990, the trial court determined that the arbitration clause contained in the antenuptial agreement was enforceable, and that all matters concerning spousal support, child support, and division of property be stayed pending a resolution of these matters by the arbitrators. Appellant did not appeal the trial court's holding but, instead, filed a motion for relief from judgment, which was granted by the trial court. On appeal, the Court of Appeals for Franklin County on March 26, 1992, reversed the trial court, finding that the August 29, 1990 decision of the trial court was a final appealable order and, consequently, appellant was precluded from raising issues by way of a Civ.R. 60(B) motion since such issues could have been presented upon appeal. Kelm v. Kelm (1992), 73 Ohio App.3d 395, 597 N.E.2d 535. The court of appeals also strongly endorsed the use of arbitration provisions in antenuptial agreements. Id., 73 Ohio App.3d at 402, 597 N.E.2d at 539. Appellant did not appeal, to this court, the March 26, 1992 decision of the court of appeals.

During the pendency of appellee's appeal in Kelm, supra, the trial court decided additional matters. On October 28, 1991, the trial court granted a request by appellant for attorney fees, ordering appellee to pay appellant $9,375. Further, on November 14, 1991, the trial court approved a referee's report denying a stay on all matters of a temporary nature.

Appellee then, on November 29, 1991, appealed the trial court's October 28, 1991 and November 14, 1991 decisions. In sustaining appellee's first assignment of error, the court of appeals, on June 4, 1992, stated that "[f]or the sake of clarification, and consistent with the earlier decision by this court in Kelm, supra, we reiterate that all matters concerning alimony and child support, whether of a temporary or permanent nature are subject to arbitration. The antenuptial agreement of the parties is, by its plain language, all inclusive and there is no compelling reason statutorily or by rule to distinguish issues of alimony or support as far as their duration." The court of appeals further held that attorney fees are a component of spousal support and, pursuant to the antenuptial agreement, the parties must arbitrate this matter.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Russell A. Kelm, pro se.

Abroms & Weisz, Hillard M. Abroms and Lora H. Cleary, Columbus, for appellant,

DOUGLAS, Justice.

While this case has, and continues to have, a long and convoluted history, the single question before this court is whether, in a domestic relations case, matters of temporary spousal and/or child support may, by agreement of marriage partners, be made subject to an agreement to arbitrate. For the reasons that follow, we answer this question in the affirmative.

Arbitration, as a method of alternative dispute resolution, has long been favored in the law. See Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 551 N.E.2d 186; and Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 22 OBR 95, 488 N.E.2d 872. Both parties agree with this proposition. Appellant argues, however, that regardless of the enforceability of an arbitration provision in an antenuptial agreement, the arbitration clause at issue, by its very terms, pertains only to matters of permanent spousal and/or child support and not matters of a temporary nature. Appellant also takes an alternate position urging that arbitration, even when there is an agreement to do so, does not serve the immediate needs of a spouse and children for support during the pendency of the divorce. Appellant further argues that taking away the power of the court, by arbitration agreement or otherwise, to determine and set temporary support, violates public policy since the court is deprived of its statutory jurisdiction and obligation to provide for the best interest of minor children involved in a divorce case.

Conversely, appellee contends that the arbitration provision was intended to cover, among other things, support matters of both a temporary and permanent nature. Appellee further disagrees with appellant's claim that temporary spousal and/or child support, if arbitrable, undermines a trial court's duty to provide for a spouse and minor children during the pendency of a domestic relations case. Appellee submits that arbitration can provide a quick and inexpensive resolution of matters in a matrimonial dispute and, if need be, a domestic relations court has the authority to supervise such proceedings.

Paragraph 10 of the parties' antenuptial agreement provides, in part, that:

"In the event of a dispute between the parties hereto over an arbitrable matter * * *, such dispute shall be resolved by arbitration to the extent permitted by law. A dispute over an arbitrable matter shall mean only (a) a dispute as to the alimony or child support provisions incident to a termination of their marriage, or (b) a dispute regarding the nature, extent and division of real or personal property acquired during their marriage. * * * " (Emphasis added.)

A portion of the parties' contentions focuses on an interpretation of the language "incident to a termination of their marriage," as used in the arbitration clause. Appellant asserts that this phrase only pertains to support matters which are of a permanent nature, while appellee argues that the phrase covers all matters of spousal and/or child support prior to and after a final decree of divorce.

We believe the court of appeals was correct in its determination of this issue, finding that the arbitration provision in the antenuptial agreement, by its plain language, affects temporary and permanent spousal and/or child support. The use of the words, "incident to," obviously encompasses not only those matters which are concomitant to a final decree of divorce but also matters which arise during the pendency of a matrimonial dispute.

It is clear that antenuptial agreements, when properly implemented, are enforceable in this state. Gross v. Gross (1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500. However, this court has not considered whether an agreement to arbitrate disputes in domestic relations matters, regarding spousal and/or child support, is enforceable. Other jurisdictions have confronted this or similar issues and have consistently approved of arbitration as a proper forum for determining matters of support. In general, these jurisdictions have concluded that arbitration is a viable means of resolving disputes incident to divorce or separation. See, e.g., Bandas v. Bandas (Va.App.1993), 430 S.E.2d 706; Faherty v. Faherty (1984), 97 N.J. 99, 477 A.2d 1257; Schneider v. Schneider (1966), 17 N.Y.2d 123, 269 N.Y.S.2d 107, 216 N.E.2d 318; and Hirsch v. Hirsch (1975), 37 N.Y.2d 312, 372 N.Y.S.2d 71, 333 N.E.2d 371. See, also, Spencer v. Spencer (D.C.1985), 494 A.2d 1279; Masters v. Masters (1986), 201 Conn. 50, 513 A.2d 104. Compare Crutchley v. Crutchley (1982), 306 N.C. 518, 293 S.E.2d 793.

This court has frequently recognized the validity and enforceability of agreements to arbitrate in many areas of the law. "Arbitration is favored because it provides the parties thereto with a relatively expeditious and economical means of resolving a dispute * * * [and] '...