Zelasko v. Zelasko - Decided by the Michigan Court of Appeals ( Unpublished Opinion ) PDF Print E-mail
Holding that nothing in the Domestic Relations Arbitration Act permits a trial court to appoint a substitute arbitrator absent agreement of the parties, the court reversed that portion of the trial court’s order appointing a substitute arbitrator. However, there was “no reason to disturb the previous interim orders, which were either not contested or were affirmed by the trial court,” and it affirmed that portion of the order.
The arbitrator (M) died without issuing the final award. Defendant (ex-husband) argued that the trial court erred when it appointed a substitute arbitrator where he objected to the appointment. The court agreed. He further argued that, “pursuant to MCL 600.5075(2), the whole process must begin again in front of the trial court and all of the arbitrator’s prior actions are void.” The court disagreed. The parties agreed to have M decide the issues of property division, child support, spousal support, parenting time, costs, expenses, and attorney fees. Only M “was authorized to decide the contested issues.” The “arbitration agreement did not provide for the appointment of a substitute arbitrator in the event” M died. Thus, the trial court altered their agreement when it appointed a substitute arbitrator and infringed “on the parties’ recognized freedom to contract for binding arbitration.” There “is no provision in the Domestic Relations Arbitration Act that deals with the death of an arbitrator.” Defendant compared this situation to MCL 600.5075, which deals with disqualification. However, in “a situation where an arbitrator has been found to be biased or partial, the validity of the entire proceeding becomes an issue and it makes sense to have a ‘do over.’” But in this case, there was never a finding that M “was biased or that the proceedings were unfair.” The parties’ arbitration contract portion as to the children – and only that portion – was legally impossible to complete, not because M was biased, but because M became unavailable. Since MCL 600.5075 did not apply, the court was “not bound by the statute’s requirement that, in the absence of an agreement for a new arbitrator, the matter ‘proceed as if arbitration had not been ordered.’” Instead, M’s interim orders that were already completed and confirmed were distinct and divisible. “The fact that he was rendered unable to decide all the issues does not impugn the issues already decided.”
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