Opinion
11-P-1347
05-11-2012
CAROLINA M. MARTIGNETTI v. RICHARD K. BENDETSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We are confronted with a seemingly expansive arbitration clause combined with a similarly broad provision allowing the parties to bring various types of claims in a court of competent jurisdiction. Because the parties to the agreement used their freedom of contract to allow a wide class of claims to be brought in court, we affirm the Probate and Family Court judge's denial of the motion to compel arbitration and dismiss complaint.
There is a threshold question, which we do not answer, whether the motion to compel arbitration properly could be brought in the Probate and Family Court. See Abraham-Copley Square Ltd. Partnership v. Badaoui, 72 Mass. App. Ct. 339, 342 & n.6 (2008) (explicit reference to Superior Court in G. L. c. 251, § 2A, reflects Legislature's intent to limit jurisdiction over requests for orders directing parties to proceed to arbitration exclusively to Superior Court). We address the husband's arguments.
Discussion. The facts are undisputed. Richard K. Bendetson (husband) and Carolina M. Martignetti (wife) were divorced on July 9, 2010. The divorce judgment incorporated a separation agreement that created a limited liability company (LLC) to hold certain of the husband's property assets and to distribute proceeds to the husband and to the wife. The husband and the wife have an equal ownership interest in the LLC, which was governed by an operating agreement. The pertinent section of the operating agreement states the following: 'Forum. Any dispute, claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration . . . . Notwithstanding the foregoing, to the extent any party is seeking an injunction, declaratory relief or other equitable remedy, including without limitation, a remedy for violations of good faith and fair dealing or fiduciary duty, such claim may be brought in a court of competent jurisdiction.'
A dispute arose about the husband's disbursements of cash to himself without an equal disbursement to the wife. The wife subsequently filed a complaint for civil contempt and the husband denied the allegation in his answer. The probate judge entered a partial judgment of contempt on issues not relevant to this appeal, but ordered an evidentiary hearing on the issue at bar. Prior to that hearing, the husband filed a motion to compel arbitration and to dismiss the complaint, which the judge denied. The husband now appeals.
Discussion. The ''gateway dispute about whether the parties are bound by a given arbitration clause' [is] an issue for judicial resolution.' Feeney v. Dell Inc., 454 Mass. 192, 198-199 (2009), quoting from In re Am. Exp. Merchs.' Litigation, 554 F.3d 300, 311 (2d Cir. 2009). We begin with the premise that 'there is a strong public policy favoring arbitration' in this Commonwealth. Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271, 278 (2009). Indeed, 'there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Massachusetts Hy. Dept. v. Perini Corp., 444 Mass. 366, 374 (2005), quoting from Local No. 1710, Intl. Assn. of Fire Fighters v. Chicopee, 430 Mass. 417, 421 (1999).
At the same time, '[w]e see no reason why parties to a separation agreement which anticipates that the marriage will be terminated by divorce may not agree to a permanent resolution of their mutual rights and obligations.' Knox v. Remick, 371 Mass. 433, 436 (1976). Additionally, ''[t]he general rule of our law is freedom of contract . . . .' That principle 'rests on the premise that it is in the public interest to accord individuals broad powers to order their affairs through legally enforceable agreements." Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., 422 Mass. 318, 320 (1996) (citation omitted).
A claim for civil contempt is equitable in nature. See, e.g., Katz v. Commonwealth, 379 Mass. 305, 310 (1979); Jones v. Manns, 33 Mass. App. Ct. 485, 489 (1992); O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 155 (2003). It is undisputed that the wife brought an action in equity against the husband.
Nothing in the operating agreement indicates that only certain types of equitable claims could be brought before the court. Nor does the operating agreement set forth any conditions that must be met before an equitable claim can be maintained. Instead, this broad provision simply states that '[n]otwithstanding the foregoing, to the extent any party is seeking an . . . equitable remedy . . . such claim may be brought in a court of competent jurisdiction.' The husband's assertion that the relief granted was restricted to an award of money is unavailing; the invocation of jurisdiction, not the judge's use of it, determines the equitable nature of the action.
The Probate and Family Court has 'jurisdiction to grant equitable relief in controversies over property between persons who have been divorced.' G. L. c. 215, § 6, as appearing in St. 1975, c. 400, § 55.
A plain reading of the operating agreement convinces us that the parties intended to preserve their ability to complain of contumacious behavior in court. The wife was not restricted to seek relief through arbitration in this particular instance. Our conclusion makes it unnecessary to address the wife's argument of waiver by the husband, notwithstanding that the record suggests a conscious delay in asserting the claim to arbitrate.
We deny the wife's request for appellate attorney's fees.
Order denying motion to compel arbitration and dismiss complaint affirmed.
By the Court (Cohen, Grainger & Milkey, JJ.),