King v. King

• Decision Date: 27 February 2020
• Docket Number: A20A0034
• Parties: KING v. KING.
• Court: Georgia Court of Appeals

354 Ga.App. 19
840 S.E.2d 108

KING
v.
KING.

A20A0034

Court of Appeals of Georgia.

February 27, 2020

840 S.E.2d 110

William V. Custer IV, Jennifer Burch Dempsey, Cary Ichter, Elizabeth Green Lindsey, Atlanta, for Appellant.

Randall Scott Berryman, James John McGinnis, Andrew Bain McClintock, Atlanta, for Appellee.

Barnes, Presiding Judge.

354 Ga.App. 19

This is a divorce action in which Debra Gray King (the "wife") and Daniel Rossen King (the "husband") agreed to arbitration. The superior court ultimately vacated the arbitration award based on, among other things, the arbitrator’s failure to comply with a provision of the parties’ arbitration agreement incorporated into a consent order that required the arbitrator to make written findings of fact and conclusions of law. Following the grant of her application for discretionary

840 S.E.2d 111

review, the wife appeals from the trial court’s order vacating rather than confirming the arbitration award. For the reasons set forth below, we affirm.

The record reflects that the parties married in July 1991 and have three adult children. In October 2016, the wife filed the present divorce action in the Superior Court of Fulton County. The parties subsequently agreed to mediation, and if mediation failed, to binding arbitration. The parties’ agreement specified the procedure that would be followed in the arbitration if the mediation was unsuccessful and the format of the award issued by the arbitrator, and the agreement was incorporated into a consent order entered by the superior court (the "Consent Order"). Among other things, the Consent Order required the arbitrator to address all issues not resolved in the mediation and stated:

Each party agrees that the arbitrator’s award is binding in all respects upon all Parties and shall be entered as a final judgment in the Superior Court of Fulton County, State of Georgia or any court of competent jurisdiction. As part of the Award, the arbitrator shall prepare Findings of Fact and Conclusions of Law to be submitted to the Court to be confirmed for signature and entry and which shall become the Final Judgment and Decree of Divorce once confirmed by the Court.¹

After mediation failed to resolve the parties’ dispute, the parties participated in arbitration that extended over several days. The

354 Ga.App. 20

arbitration was not transcribed. Following the arbitration, the arbitrator issued a written award that purported to "resolve[ ] all claims between the parties," including all issues regarding the division of marital property raised at the arbitration hearing (the "Arbitration Award" or "Award"). The Arbitration Award also stated that the parties had agreed to the manner in which their personal property would be divided and that a personal property settlement agreement signed by the parties was incorporated into the Award.

The wife filed a motion to confirm the Arbitration Award in the superior court under the Georgia Arbitration Code, OCGA § 9-9-1 et seq. (the "Arbitration Code"). The husband opposed the motion to confirm and filed a motion to clarify and modify the Arbitration Award, contending that the arbitrator’s authority was imperfectly executed because the Award was conclusory in nature and did not contain any findings of fact and conclusions of law as required by the Consent Order. The husband also filed a motion to vacate the Arbitration Award in which he asserted that the arbitrator had overstepped and imperfectly executed his authority by failing to make the required findings of fact and conclusions of law. The husband contended that the Arbitration Award was flawed in several other respects, including that some of the marital assets were omitted from the equitable division of property, that the arbitrator had not determined the marital or separate property status of certain realty purchased by the wife, and that the parties had never agreed to and signed a settlement agreement resolving their dispute over the division of their personal property.

On December 21, 2018, the superior court denied the wife’s motion to confirm the Arbitration Award, concluding that "the lack of completeness of the Arbitrator’s Award regarding among other things, findings of fact and conclusions of law, distribution of personal property and proceeds from sale of certain realty by [the wife]," established imperfect execution of the arbitrator’s authority (the "December 2018 Order"). The superior court remanded the case to the arbitrator so that all matters could be fully addressed and resolved.

Following remand to the arbitrator, a dispute arose over an alleged ex parte communication between the arbitrator and the wife’s counsel and over whether the arbitrator had

840 S.E.2d 112

a conflict of interest based on his prior engagements by the law firm of the wife’s counsel. The husband requested that the arbitrator recuse himself from further participation in the arbitration proceedings. In January 2019, the arbitrator voluntarily recused himself, denying that there was any meritorious ground for recusal but nevertheless concluding

354 Ga.App. 21

that he would recuse from the matter to avoid any appearance of impropriety and to ensure confidence in the outcome of the arbitration proceedings.

The wife then filed in the superior court a renewed motion to confirm the Arbitration Award, motion for reconsideration of the December 2018 Order, and motion for contempt against the husband. On May 29, 2019, the superior court denied the wife’s motions and reaffirmed its December 2018 Order, finding that the Arbitration Award "was imperfectly executed for the reasons set forth in [that] Order" (the "May 2019 Order"). The superior court reiterated that the Arbitration Award did not contain findings of fact and conclusions of law as required by the Consent Order and held that the deficiencies in the Award could not be remedied in light of the arbitrator’s recusal. Consequently, the trial court vacated the Arbitration Award and remanded the matter for arbitration before a replacement arbitrator, "with direction that all matters be fully addressed, including findings of fact and conclusions of law and disposition of all issues between the parties in this matter." The wife subsequently filed her application for discretionary review of the May 2019 Order, which this Court granted, resulting in the present appeal.

1. As a threshold matter, the husband argues that the wife’s appeal of the May 2019 Order should be dismissed for lack of jurisdiction. According to the husband, the superior court’s May 2019 Order was an interlocutory ruling because the court in substance merely declined to reconsider its December 2018 Order and remanded the matter for further arbitration proceedings before a final divorce decree could be entered. Consequently, the husband argues, the wife was required to follow this Court’s interlocutory appeal procedures set out in OCGA § 5-6-34 (b) to appeal from the May 2019 Order, including obtaining a certificate of immediate review from the trial court, which the wife failed to do, thereby necessitating dismissal of the appeal. See Mayor &c Aldermen of City of Savannah v. Norman J. Bass Constr. Co. , 264 Ga. 16, 17 (1), 441 S.E.2d 63 (1994) (order denying motion for reconsideration is an interlocutory order that "can be the subject of an application for interlocutory appeal if a certificate of immediate review is obtained from the trial court"). We are unpersuaded.

The May 2019 Order included the trial court’s decision to vacate the Arbitration Award. OCGA § 9-9-13 of the Arbitration Code addresses the vacatur of arbitration awards, and subsection (e) of that statute plainly and unambiguously provides that an order vacating such an award constitutes a final judgment for purposes of

354 Ga.App. 22

appellate review. See OCGA § 9-9-13 (e).² And, as we have explained, "the court’s judgment is deemed final for appeal purposes [under OCGA § 9-9-13 (e) ] even though it is undisputed the case must be returned to the arbitrator for rehearing." Amerispec Franchise v. Cross , 215 Ga. App. 669, 669, 452 S.E.2d 188 (1994). Thus, contrary to the husband’s argument, the May 2019 Order was not interlocutory.

Furthermore, given that the underlying subject matter of this case was divorce, the appropriate method for appeal from the May 2019 Order was an application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (2),³ which applies to appeals from judgments

840 S.E.2d 113

or orders in divorce cases, rather than a direct appeal pursuant to OCGA § 5-6-34 (a) (1),⁴ which applies to final judgments generally. See Walker v. Estate of Mays , 279 Ga. 652, 653 (1), 619 S.E.2d 679 (2005) ("Where both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-34 or § 5-6-35.") (citation and punctuation omitted); Self v. Bayneum ...