Opinion
No. 346222
04-18-2019
SHERINA ANNE HYMAN, Plaintiff-Appellant, v. CHARLES ANTHONY HYMAN, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2017-854921-DM Before: MURRAY, C.J., and SAWYER and REDFORD, JJ. PER CURIAM.
Plaintiff appeals as of right from the trial court's entry of the judgment of divorce. We reverse and remand.
Plaintiff challenges the trial court's modification of the final arbitration award, arguing that the trial court erred by modifying the arbitration award after it denied defendant's untimely motion to vacate the arbitration award. Plaintiff also argues that the trial court erred by modifying the final arbitration award because it failed to comply with MCL 600.5080, and that the trial court's findings are against the great weight of the evidence.
We first address the obvious question—whether plaintiff waived all of the issues which she now appeals. A waiver is the intentional relinquishment or abandonment of a known right. Sweebe v Sweebe, 474 Mich 151, 156-157; 712 NW2d 708 (2006). "[A] waiver must be explicit, voluntary, and made in good faith." Patel v Patel, 324 Mich App 631, 634; 922 NW2d 647 (2018). Whether a waiver exists depends on whether "a reasonable person would have understood that he or she was waiving the interest in question." Id. Thus, "a waiver may be shown by express declarations or by declarations that manifest the parties' intent and purpose." Sweebe, 474 Mich at 157.
Plaintiff not only failed to take any action in response to the trial court's modification of the arbitration award, but she is the one who moved for entry of a judgment of divorce that reflected the trial court's modifications. At the hearing on the motion for entry of the judgment of divorce, plaintiff explicitly stated that she believed that the judgment of divorce with respect to parenting time was in the best interests of the minor children. Thus, plaintiff waived the issues on appeal because her representations at the motion hearing reflect her intentional relinquishment of a known right. See Patel, 324 Mich App at 634.
However, this "Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented." Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (citation omitted). For purposes of ensuring that clear Michigan law was followed by the trial court, we elect to overlook plaintiff's failure to preserve these issues below. See id.
Plaintiff first argues that the trial court erred when it modified the arbitration award regarding child support, custody, and parenting time because defendant did not file a timely motion to modify or correct the arbitration award.
"This Court reviews 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 NW2d 908 (2009). This Court's review of the legal issues is done "without extending any deference to the trial court," id., which includes review of the interpretation of court rules and statutes, Vyletel-Rivard v Rivard, 286 Mich App 13, 20; 777 NW2d 722 (2009).
Unpreserved issues are reviewed for plain error affecting substantial rights. Elahham v Al-Jabban, 319 Mich App 112, 121; 899 NW2d 768 (2017). " 'Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings.' " Id., quoting Duray Dev, LLC v Perrin, 288 Mich App 143, 150; 792 NW2d 749 (2010).
Domestic relations arbitration is governed by MCL 600.5070 through MCL 600.5082, and by MCR 3.602. Under MCR 3.602(J)(3), "[a] motion to vacate an award in a domestic relations case must be filed within 21 days after the date of the award." As the trial court recognized, defendant's motion to vacate the arbitration award was untimely because it was filed 84 days after the final arbitration award. The term "must" signals something mandatory. Vyletel-Rivard, 286 Mich App at 15, 25. Accordingly, the trial court was correct to deny defendant's untimely motion to vacate the arbitration award. See id. (upholding the trial court's denial of the defendant's motion to vacate the arbitration award because the parties entered into a domestic relations arbitration agreement and the defendant failed to file his motion within the 21-day period permitted by MCR 3.602(J)(2)).
However, the trial court erred by failing to confirm the arbitration award after it denied defendant's motion to vacate. This holds true because under MCR 3.602(J)(5), "[i]f the motion to vacate is denied and there is no motion to modify or correct the award pending, the court shall confirm the award." (Emphasis added.) Therefore, once it determined that defendant's motion was untimely, the trial court should have confirmed the arbitration award and gone no further.
The trial court could have also denied defendant's motion to vacate the award on the ground that defendant sought relief under MCL 691.1703, which is inapplicable because the parties stipulated to be governed by MCL 600.5070 through MCL 600.5082, and MCR 3.602.
We likewise agree that the trial court in part failed to comply with MCL 600.5080 by substituting its judgment for that of the arbitrator. Because plaintiff failed to preserve this issue for appellate review, this Court will review the issues for plain error affecting substantial rights. See Elahham, 319 Mich App at 121.
Even when parties submit to binding arbitration, they "cannot stipulate to circumvent the authority of the [trial] court in determining the custody of the children," which includes the children's best interests. Harvey v Harvey, 470 Mich 186, 194; 680 NW2d 835 (2004). However, a trial court's review of an arbitration award must be performed "in accordance with the requirements of other relevant statutes[.]" Id. at 193.
Judicial review of an arbitration award—particularly in cases concerning a domestic relations arbitration award—is extremely limited. Washington, 283 Mich App at 671. So limited is the trial court's review of an arbitration award that it is considered "one of the narrowest standards of judicial review in all of American jurisprudence." Id. at 671 n 4 (quotation marks and citations omitted). Thus, while MCL 600.5080 authorizes a trial court to modify or vacate an arbitration award that is not in the children's interests, Harvey, 470 Mich at 193, the trial court is not authorized to review the arbitrator's findings of fact, Washington, 283 Mich App at 675.
With respect to its decision to add a Monday night to defendant's overnights, the trial court failed to correctly apply the statutory standard of review as provided in MCL 600.5080, and engaged in "a fact-intensive review" of the arbitrator's "calculated values." See id. Under MCL 600.5080(1), the trial court "shall not vacate or modify an award concerning child support, custody, or parenting time unless the court finds that the award is adverse to the best interests of the child who is the subject of the award . . . ." (Emphasis added.) The trial court explicitly found that the arbitration award was in the children's best interests, but modified the arbitration award because it disagreed with the arbitrator's findings with respect to the factor regarding the parties' moral fitness. After reviewing the arbitrator's findings of fact, it modified the parenting-time schedule to "allow for the needed consistency during the school week while also allowing the children to have quality parenting time with [defendant]." Not once did the trial court state that it found the arbitration award to be adverse to the children's best interests, and the trial court is prohibited from engaging in a review of the arbitrator's factual findings and modifying the award without finding it adverse to the children's interests. See Washington, 283 Mich App at 675 (rejecting the defendant's attacks on the arbitrator's valuations, calculations, and factual findings in light of the limited standard of review in arbitration cases).
The trial court's modification of the arbitration award to include Monday overnights constituted error because the trial court lacked the authority to review the arbitrator's factual findings and alter the parenting-time schedule without finding the award adverse to the children's best interests.
The other aspect of the trial court's opinion simply clarified an ambiguity in the arbitrator's second arbitration award. That portion of the court's order is not affected by our opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ James Robert Redford