Vyletel-Rivard v. Rivard
| Decision Date | 15 October 2009 |
| Docket Number | Docket No. 285210. |
| Citation | 777 N.W.2d 722,286 Mich. App. 13 |
| Parties | VYLETEL-RIVARD v. RIVARD. |
| Court | Court of Appeal of Michigan — District of US |
Tucker Tobin, P.C. (by Margaret M. Tobin), Detroit, for plaintiff.
Ihrie O'Brien (by Deborah F. O'Brien, Saint Clair Shores, and Dawn M. Prokopec) for defendant.
Before: SAWYER, P.J., and MARK J. CAVANAGH and HOEKSTRA, JJ.
Defendant appeals as of right with regard to a judgment of divorce. Specifically, defendant challenges the trial court's April 4, 2008, order denying his motion to vacate the arbitration award as to tort damages. Because we conclude that defendant's motion to vacate was not timely filed, we affirm.
The parties, married in 1988 and the parents of two minor children, separated in November 2005. Plaintiff filed a complaint for divorce the following month. Pursuant to the domestic relations arbitration act (DRAA), MCL 600.5070 et seq., the parties entered into a domestic relations arbitration agreement, whereby they submitted the issues of property and debt division, child support, parenting time, spousal support, costs and fees, and "[o]ther contested domestic relations matters" to arbitration. Plaintiff claimed that defendant, by drinking excessively, engaging in numerous affairs, and infecting her with the human papillomavirus (HPV), caused the breakdown of the marriage. In addition to requesting an award of permanent or long-term spousal support, plaintiff asked for an award of alimony in gross for her contraction of HPV.
The arbitrator issued his award on November 13, 2007. Pertinent to the present appeal, plaintiff was awarded spousal support in the amount of $3,200 a month for seven years. She was also awarded $210,000 as alimony in gross for her "personal injury claim" of contracting HPV. Defendant was to pay the $210,000 in monthly installments of $2,500 over seven years.
On November 22, 2007, plaintiff filed a request for clarifications. Likewise, on November 27, 2007, defendant filed a motion to correct errors or omissions. Defendant argued, in part, that the arbitrator exceeded the scope of his authority when he awarded plaintiff $210,000 for her tort claim because, although the parties had agreed to allow the arbitrator to decide "[o]ther contested domestic relations matters," plaintiff had not pleaded a tort claim nor had she requested personal injury damages in her complaint. On December 7, 2007, the arbitrator responded by letter to plaintiff's clarification requests and defendant's motion to correct errors or omissions. The arbitrator clarified portions of the arbitration award, acknowledged certain errors, and revised the award.1 The arbitrator also rejected defendant's claim that he exceeded his authority by awarding $210,000 to plaintiff for her contraction of HPV, finding that defendant had notice of plaintiff's personal injury claim and that the parties tried the claim without objection.
On December 18, 2007, defendant filed a motion to correct errors or omissions in the award dated December 7, 2007. Defendant complained that the arbitrator, in finding that he had notice of plaintiff's personal injury claim, ignored significant aspects of the case's history, such as the fact that plaintiff, during her testimony, acknowledged that she chose not to pursue a tort action against defendant and the fact that plaintiff did not make a specific request for tort damages until after the close of proofs. In her response, plaintiff claimed that, pursuant to the DRAA, defendant did not have any authority to file his second motion to correct errors or omissions.
Written correspondence continued between the parties and the arbitrator until the end of March 2008. From a review of the correspondence, it does not appear that the arbitrator addressed defendant's argument that he had ignored significant aspects of the case when he found that defendant had notice of plaintiff's personal injury claim. Nor does it appear that the arbitrator ever directly addressed plaintiff's claim that defendant did not have any authority to file his second motion to correct errors or omissions. Two other issues had become the focus of the parties and the arbitrator. The first issue, raised in defendant's second motion to correct errors or omissions, was whether defendant's interest in Detroit Name Plate Etching (DNPE) should be reduced by $80,000, the amount defendant borrowed to cover the deficiency that resulted from the sale of the marital home.2 The second issue was whether defendant could be required to purchase life insurance to secure his spousal and child support obligations.3 The arbitrator issued his last dispositive ruling on these two issues on March 24, 2008, when he ordered plaintiff to revise the proposed judgment of divorce that she had filed in the trial court and had moved the trial court to enter. Three days later, on March 27, 2008, plaintiff submitted to defendant a revised proposed judgment of divorce.
On March 28, 2008, defendant, pursuant to MCL 600.5081(2)(c), filed a motion to vacate "the arbitration awards" of November 13, 2007, and December 7, 2007, as to tort damages. Defendant argued that the arbitrator exceeded his powers when he awarded plaintiff $210,000 for her contraction of HPV because the parties' arbitration agreement did not authorize the arbitrator to decide a personal injury claim, nor could the personal injury claim be categorized as a "contested domestic relations matter []" because the claim was not pleaded in the complaint. In response, plaintiff argued that defendant's motion to vacate should be denied as untimely because, contrary to the applicable court rule, it was not filed within 21 days of the December 7, 2007, award. In the alternative, plaintiff argued that defendant consented to the arbitration of her personal injury claim when he presented evidence regarding the contraction of HPV and asserted the defenses of "contribution [sic] negligence, and causation." Plaintiff claimed that because defendant expressly consented to the arbitration of the claim, defendant could not argue that plaintiff failed to adequately plead the claim or that the arbitrator exceeded his authority in deciding the claim. Defendant asserted that his motion to vacate was timely because it was filed within 21 days of the arbitrator's final modification of the arbitration award. He argued that an arbitration award is not final until the arbitrator has addressed all issues, and there is no authority to suggest that a party to arbitration is required to file piecemeal motions to vacate.
The trial court denied defendant's motion to vacate because it concluded that the motion was not timely filed. It stated that the applicable court rule, MCR 3.602(J), provides that a motion to vacate must be filed within 21 days after the date of the arbitration award, and because the court rule did not refer to the "final award," it reasoned that for purposes of MCR 3.602(J), the date of the arbitration award was December 7, 2007. The trial court also addressed the substantive merits of the motion to vacate. It concluded that defendant impliedly consented to the arbitration of the personal injury claim because the claim was tried and briefed at arbitration and defendant made no objection until after the award was issued. A judgment of divorce was entered.
On appeal, defendant argues that the trial court erred when it concluded that his motion to vacate was not timely filed. Defendant also asserts that, because plaintiff did not plead a tort claim in the complaint and because he did not impliedly consent to the arbitration of a tort claim, the arbitrator exceeded his authority when he awarded plaintiff $210,000 for her contraction of HPV.
We review de novo a trial court's ruling on a motion to vacate or modify an arbitration award. Washington v. Washington, 283 Mich.App. 667, 671, 770 N.W.2d 908 (2009). We also review de novo the interpretation of court rules and statutes. Tinman v. Blue Cross & Blue Shield of Michigan, 264 Mich.App. 546, 555, 692 N.W.2d 58 (2004).
We first address defendant's argument that the trial court erred by concluding that his motion to vacate was not timely filed. Defendant moved to vacate the arbitration award pursuant to MCL 600.5081(2)(c). MCL 600.5081(2) provides:
If a party applies under this section, the court shall vacate an award under any of the following circumstances:
(a) The award was procured by corruption, fraud, or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party's rights.
(c) The arbitrator exceeded his or her powers.
(d) The arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear evidence material to the controversy, or otherwise conducted the hearing to prejudice substantially a party's rights.
MCL 600.5081 does not contain a time requirement for when a motion to vacate on the basis that the arbitrator exceeded his or her powers must be filed.4
MCR 3.602(J)(3) currently provides that The current subsection (J)(3) was added to MCR 3.602 in October 2007, effective January 1, 2008. See 480 Mich. cxlv-cxlvi (2007). Before the October 2007 amendment, MCR 3.602(J)(2) provided that "[a]n application to vacate an award must be made within 21 days after delivery of a copy of the award to the applicant. . . ." There was no reference in MCR 3.602 to domestic relations arbitration cases, and the court rule expressly applied to "statutory arbitration under MCL 600.5001-600.5035," MCR 3.602(A)....
To continue reading
Request your trial
-
Thomas M. Cooley Law Sch. v. Doe
...MCR 2.307(A)(2). 78.MCR 2.310(B)(2). 79.MCR 2.310(D)(2). 80.MCR 2.306(A)(1); MCR 2.307(A)(1). 81.MCR 2.306(A)(1) (emphasis added). 82.Id. 83.Vyletel–Rivard v. Rivard, 286 Mich.App. 13, 25, 777 N.W.2d 722 (2009). 84.MCR 2.310(D)(1). 85.MCR ...
-
Endoscopy Corp. of Am. v. Kenaan
... ... that regard. A statute is ambiguous when it is equally ... susceptible to more than one meaning. Vyletel-Rivard v ... Rivard , 286 Mich.App. 13, 22; 777 N.W.2d 722 (2009). The ... ambiguity affects whether any breach of contract is an ... ...
-
Cavill v. State
...apply to the interpretation of court rules." Vyletel-Rivard v Rivard, 286 Mich.App. 13, 21; 777 N.W.2d 722 (2009) (citation omitted).[3] In Rivard, this Court Court rules are to be interpreted to give effect to the intent of the Supreme Court, the drafter of the rules. The starting point is......
-
Spitza v. Spitza (In re Spitza Testamentary Tr.)
...that the claim has been disallowed." MCR 5.101(C)(1) and (2). MCR 5.101(C) uses the mandatory term "must." See Vyletel-Rivard v. Rivard, 286 Mich.App. 13, 25; 777 N.W.2d 722 (2009) ("The term 'must' indicates that something is mandatory."). Petitioner was a cotrustee of the trust when she c......