Vita S Shannon v. Aron L Ralston

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

VITA S. SHANNON, UNPUBLISHED
May 23, 2019
Plaintiff-Appellant,

v Nos. 339944, 343213, 343886,
344356, 344418, and 346344
Oakland Circuit Court
ARON L. RALSTON, LC No. 2017-852916-DC

Defendant-Appellee.

Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

These consolidated cases arise from a custody dispute. In Docket No. 339944, plaintiff
appeals by right a July 12, 2017 order entered by Oakland Circuit Judge Victoria Valentine,
which required plaintiff to pay the fees associated with an investigative guardian ad litem
(“GAL”).

In Docket No. 343213, plaintiff appeals by leave granted1 Judge Valentine’s February 14,
2018 opinion and order denying plaintiff’s motion to vacate an arbitration order that had denied
plaintiff’s motion for summary disposition on her request for a change of domicile.

In Docket 343886, plaintiff appeals by right Judge Valentine’s April 11, 2018 order
denying plaintiff’s motion for summary disposition, rejecting plaintiff’s assertion that the parties’
arbitration agreement failed to specify which issues were to be arbitrated.

In Docket No. 344356, plaintiff appeals by leave granted2 Judge Valentine’s November
21, 2017 order denying plaintiff’s motion to disqualify the arbitrator based on alleged ex parte

1
Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued June 28,
2018 (Docket No 343213).

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communications with defendant. In Docket No. 344418, plaintiff appeals by leave granted3
Judge Valentine’s December 21, 2017 order denying plaintiff’s motion for reconsideration of
that order. In her motion for reconsideration, plaintiff not only repeated the claim of
inappropriate ex parte communications, but also included a new allegation that the arbitrator
used a derogatory term that demonstrated a bias against women.

Finally, in Docket No. 346344, plaintiff appeals by leave granted4 Judge Valentine’s May
9, 2018 order denying plaintiff’s motion to disqualify the arbitrator based on the arbitrator’s
alleged financial interest in the case.

I. BASIC FACTS

The parties were never married, but they have a five-year-old daughter. At the time the
child was born, the parties lived in Colorado. When the child was approximately six months old,
the parties agreed to a Parenting Plan in the District Court for the County of Denver, Colorado.
The District Court also entered a related Order for Allocation of Parental Responsibilities. When
the parties entered into the parenting plan, plaintiff was anticipating a move to Michigan. The
parenting plan provided that, given the child’s young age, plaintiff would have primary custody
and defendant would have reasonable and liberal parenting time when he came to Michigan to
visit. The Plan also provided that in the event of a controversy, the parties would agree to use a
mediator and/or arbitrator to settle any disputes. Plaintiff and the child moved to Michigan in
May 2014.

Michigan courts did not get involved in the matter until May 2017. Plaintiff alleged that
the child made statements of sexual abuse against defendant in February 2017. Defendant’s
parenting time was limited during an investigation by Child Protective Services (“CPS”). On
May 3, 2017, plaintiff moved to register the Colorado Parenting Plan as a foreign judgment in
the Oakland County Circuit Court, Family Division and the Colorado Parenting Plan was
registered as a foreign judgment on May 9, 2017.

As will be discussed in greater detail below, the court appointed an investigative GAL to
help determine whether the child’s alleged statements could be substantiated. After resolution of
the matter, the parties, in accordance with their parenting plan, selected a mediator and arbitrator
to resolve parenting time issues, including plaintiff’s imminent move to California. Plaintiff
moved with the child to California without court permission or permission from defendant. She
continues to reside there with the child. The California courts have refused to take jurisdiction
over the custody dispute, instead deferring to Michigan to resolve the matter. This has created

2
Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued August 29,
2018 (Docket No 344356).
3
Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued August 29,
2018 (Docket No 344418).
4
Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued December
12, 2018 (Docket No 346344).

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rather an anomaly in which none of the parties reside in Michigan. Plaintiff lives in California
with the child and defendant continues to reside in Colorado.

II. THE GAL’S FEES

Plaintiff argues that the trial court abused its discretion when it ordered plaintiff to pay
the GAL’s fees. She maintains that she acted appropriately in pursuing the investigation, a fact
that was acknowledged by both the trial court and the GAL. We disagree. Plaintiff does not
have an appeal of right over the trial court’s order requiring her to pay the GAL’s fees. Even if
we treat this as an application for leave to appeal, plaintiff is not entitled to relief that was the
result of actions to which she not only consented, but requested.

Defendant filed his motion to enforce the parties’ Colorado parenting plan on May 31,
2017, after his parenting time was severely impacted by the allegations of abuse. In her
response, plaintiff stated that on February 22, 2017, the child told plaintiff that defendant
touched her inappropriately. Plaintiff filed a complaint with CPS on March 9, 2017, and
thereafter restricted defendant from having parenting time during naptime and overnights.
Plaintiff argued that enforcing the parenting plan was against the child’s best interest. Plaintiff
wrote that “[i]t’s hard to know what actually happened to [the child.] She [sic] too young to give
a complete and accurate statement about whether Father touched her inappropriately. In this
situation, Mother believes that it is in [the child’s] best interests for a therapist to determine
whether and when Father should have unsupervised parenting time.”

The parties gathered for a hearing on defendant’s motion on June 7, 2017. At that time,
defense counsel presented the court with the CPS report over plaintiff’s objection. CPS
concluded that there was no preponderance of the evidence that defendant sexually abused the
child. This was not enough for plaintiff’s attorney who stated that “there ought to be a therapist
appointed for this child” and “I suspect a GAL might be appropriate.” He added: “somehow
there was a failure to convince authorities either way. But the issues are still ripe for concern
and for consideration.” Plaintiff’s attorney indicated that plaintiff “reacted normally and said
wait a minute, I’m not going to just turn this child over willy-nilly.” The trial court agreed that
plaintiff “took the proper steps” and “there was a CPS investigation,” but the trial court did not
“know how I’m more qualified than CPS to determine whether or not the allegations have
merit.” Plaintiff’s attorney complained that the redacted CPS report was incomplete and that
defendant had “lawyered up,” hampering the investigation. The trial court queried: “How do I
resolve this issue of whether or not this really happened to this child, so that I don’t take the
father’s right to parenting time away from him?” Plaintiff’s attorney suggested that “you could
see the evidence of an investigation person, a GAL.” He added: “I would hear from a GAL. I
would appoint my representative. I wouldn’t be concerned about CPS, I wouldn’t be concerned
about Birmingham [Police]; I’d be more concerned what my person, a GAL, would tell me . . .”

Defense counsel strongly opposed appointing a GAL. The trial court nevertheless agreed
to placate plaintiff:

The Court: Okay. Here’s what we’re going to do. With regard to this matter,
there is an indication the child has been sexually abused, there’s been an objection
to the CPS report because of a – a hearsay objection and the fact that Mr. Potts

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 [plaintiff’s attorney] didn’t get a chance to look at it and to cross-examine
anybody with regard to it. Therefore, under section 722.1204[5], I am going to
allow the father to have the parenting time, not have the overnights and not have
the child during naptime. However, I’m also going to appoint a GAL, and the
GAL is going to determine whether there’s any merit with regard to this whatever.
If there’s no merit, then the mother will pay all the fees to fly the father back out
here, all the fees for additional parenting time, meaning every single thing they do
will be paid for by the mother, and the GAL will be paid for by the mother, okay?

Mr. Potts: Thank you.

* * *

The Court: Okay. With regard to my ruling under the emergency statute, where
I’m indicating that there’s been allegations, that the mother isn’t satisfied, my
ruling is that Abbie Shuman will be appointed with regard to the sexual abuse
issue, and that if it’s found that there is no basis for the allegations or for the
mother to hold up the – the parenting time, she will pay all the costs and fees
associated with makeup parenting time, including all of the meals, all the
activities, all of the airfare, as well as the GAL being appointed.

Mr. Potts: Thank you. [Emphasis added.]

The trial court’s handwritten order specifically provided:

It is ordered that Abbe [sic] Shuman P35503 is appointed GAL and shall
investigate the March 2017 allegations and make a parenting time
recommendation re: limitations or enforcement of CO Parenting Plan.

If the GAL does not find a basis for the allegations, the cost of the GAL, cost of
parenting time, including airfare, meals, hotel and activities and fees incurred to
make up parenting time are the sole responsibility of mom. [Emphasis added.]

Shuman’s June 28, 2017 report recommended that parenting time return to the previous
Colorado parenting plan, with no restrictions on overnights or naps. The report indicated that
Shuman had met with and interviewed both parents and also had numerous opportunities to
observe defendant interact with the child. Shuman had only glowing comments about
defendant’s interactions with the child. Shuman also had an opportunity to meet with the
Carehouse employees. Based on her investigation, Shuman concluded:

GAL spoke with Carehouse on June 12, 2017. Carehouse described their
interview with [the child]. She was very active, bouncing around the room with a
lot of energy. She did not volunteer nor confirm any kind of inappropriate

5
MCL 722.1204 allows for assertion of temporary emergency jurisdiction.

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 touching by the father. There was some possible indication that she might be
repeating something she had heard [This is the interpretation by this GAL of the
information that Carehouse shared]. GAL has reviewed the CPS investigation
which was not substantiated. Police reports do not indicate any pursuit of action
related to inappropriate behavior, touching, etc. by the father. [Bracketed portion
in original.]

* * *

GAL feels that both parents appear to have a good relationship with [the
child]. However, she is a very high energy 3 ½ year old child who is trying to
make sense of and adapt to the back and forth parenting time, in addition to all of
the other activity taking place in her life (e.g., therapy beginning and ending, day
care school ending, summer programs beginning, etc).

GAL is aware that father has some responses to [the child’s] actions that
would benefit from parenting classes or ‘parenting therapy’ as [the child] can test
her limits.

Recommendation: That the Parenting Time be returned to the previous
existing order; That there does not appear to be any basis for denying the father
overnights, nap time, etc. based on the information from investigations that have
been done to date by CPS, Care House, Police involvement.

That the child, . . ., be involved in therapy directed toward working on
child’s anxiety, possible insecurities as a result of the separation of the parents
and the back and forth parenting time which may be upsetting or, at a minimum,
confusing to the child, conflicting loyalties child feels about parents; That the
therapist should see [the child], but also involve mother and father in therapy;
Both parents have agreed that this is a good idea. Individual therapy in this
situation for mother and for father seems essential with releases to the ‘family’
therapist.

Further, that father be allowed Skype and phone access during the time
periods that he does not have in-person parenting time so that [the child] has
continuity with her father.

Further, GAL recommends that, in part, as a result of information gleaned
from the history of the relationship between mother and father, that Father submit
to several random substance abuse screens to be released to GAL.

As a result of Shuman’s report, defendant filed a renewed motion to enforce the parenting
time agreement. Shuman attended the July 12, 2017 hearing. She provided the following
observations at the court’s request:

Ms. Shuman: . . .The bottom line here is that I – I believe that I was tasked by the
Court to make a determination as to whether or not there may have been any kind
of criminal sexual conduct, sexual acting out. I could not find any evidence from

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 anybody that I talked to, nor was any other organization or agency going to
pursue that. I have come to the conclusion that no, there’s nothing there.

I don’t know how much further the Court wants me to go. I actually went
kind of beyond what the Court . . . ordered me to do; I always think that some
parenting classes and time and experience is good for people with children. I will
say that in my conversations with him, father had absolutely no issue when I said
you know, do a drug test, someone thinks there’s an issue, do a drug test. He said
fine, I don’t care, I’ll do that. And I think if it would make anybody happy here to
get that out of the way, he said he would do it; he had no qualms about that.

I know the Court read my report. I don’t want to just reiterate everything
that was in my report, but the bottom line is I did not find anything that could
indicate to me that there were allegations here.

I – I do want to say one other thing. I believe – and I’m not sure about this
suddenly – I believe that at the point that the Court appointed me to look into this,
I think there had already been a Care House interview at that point -

The Court: There was.

Ms. Shuman: -- and I believe that mother had already been given the
results of the Care House interview, which was that they were not going to move
forward on anything. They could not -- they did not have anything to
substantiate. CPS was not going to substantiate.

The trial court stood by its order that plaintiff pay all fees.

Plaintiff’s attorney persisted and asked the court to reconsider, arguing that “the issue,
Your Honor, is not the question of basis. It’s whether my client acted appropriately.” The trial
court disagreed:

The Court: The order specifically says basis, and Ms. Shuman, can you
clarify with regard to this matter, whether or not you think there was a basis for
the investigation based upon the criminal sexual conduct allegation?

Ms. Shuman: I’m not a mind reader. I don’t know what the mother
thought she knew. I don’t know what was going on. If the mother felt that she
needed to have a Care House interview, she could do that, and she did.

After – I – I think that what Mr. Greenwald [defendant’s attorney] is
saying is correct, and of course I’m happy to be on any case, but I think at the
point that the Care House interview and CPS said we don’t see anything here, I
don’t know – I think the mother had done whatever she had to do, and there was
not a reason to go forward with anymore action. That’s kind of the best answer I
can give.

Mr. Potts: That seems to be contradictory to the report.

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 The Court: Mr. Potts, with regard to this matter, if a mother ever feels that
their child is in danger, of course the appropriate step is to have it investigated. I
would never quibble with that. When the report came in when the investigation
was done, when it was not substantiated, I can see trying to work on something to
limit things. But to have a GAL come in, based upon her request to make sure
that this child was okay, and I don’t have a problem with it, but I don’t know why
the father would be punished with all these fees and costs if there was no basis for
the GAL to be put in place. [Emphasis added.]

The trial court concluded:

I’m satisfied. I’ve heard enough argument with regard to this.

[P]ursuant to my order, Mr. Potts, . . . if the GAL does not find that the
basis – a basis for the allegation, the costs of the GAL is to be covered, the cost of
the parenting time, including the -- the airfare, meals, hotel, and activities and fees
incurred to make up the parenting time are the sole responsibility of the mom.

Mr. Greenwald, this does not include the attorney fees, so those will not be
included. Thank you.

In its July 13, 2017 order restoring defendant’s parenting time under the parenting
agreement, the trial court noted: “It is further ordered that the GAL has determined that
[plaintiff’s] allegations were w/o basis and therefore she shall pay all the expenses of the
GAL . . .”

Plaintiff filed a motion for reconsideration on August 2, 2017. Plaintiff argued that there
was a basis for her allegations and that she acted appropriately. Plaintiff continued to argue that
“[t]he gravamen is why Mother acted the way she did. Father is focusing on the result of the
investigation. However, as it relates to the Court order, the result of the investigation is not what
determines whether Mother should have to pay for travel and GAL fees.”

The trial court disagreed and denied plaintiff’s motion for reconsideration, explaining:

the Court entered its July 12, 2017 Order, which found “that the GAL has
determined that Petitioner’s allegations were without basis and, therefore, she
shall pay all the expenses of the GAL, costs of parenting time, including airfare,
meals, hotel and activities and fees incurred to make up parenting time.”

Plaintiff Mother, however, now files this Motion for Reconsideration,
arguing the Court committed palpable error because the GAL’ s report found the
Plaintiff Mother “acted appropriately.” This same argument was repeatedly made
by Plaintiff Mother’s counsel at the July 12, 2017 hearing.

This issue, however, set forth in the Court’s Order and explained on the
record, is not whether the Plaintiff Mother acted appropriately. In fact, the Court
noted at the hearing that, while it is certainly appropriate for any mother to take
steps to investigate any danger to which she believes her child may be subjected,

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 the issue before the Court was whether there is a basis for the Plaintiff Mother’s
request for continued investigation of the unsubstantiated allegations of
inappropriate sexual conduct by the Defendant Father. This issue, in turn, relates
to who should bear those costs, including the costs of the GAL. Because the GAL
found there was no basis for the allegations, costs were appropriately ordered.
[Emphasis in original.]

Plaintiff does not have an appeal by right of this issue. MCR 7.203(a)(1) provides: “The
court has jurisdiction of an appeal of right filed by an aggrieved party from the following: (1) A
final judgment or final order of the circuit court, or court of claims, as defined in MCR
7.202(6) . . .” MCR 7.202(6) defines “final judgment” or “final order” as: “(a) In a civil case . . .
(iv) a postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405,
2.625 or other law or court rule.”

Here, the trial court did not award attorney fees. Instead, the trial court ordered that
plaintiff pay the fees associated with a GAL appointed pursuant to MCL 722.27(1)(d), which
provides:

(1) If a child custody dispute has been submitted to the circuit court as an original
action under this act or has arisen incidentally from another action in the circuit
court or an order or judgment of the circuit court, for the best interests of the child
the court may do 1 or more of the following:

* * *

(d) Utilize a guardian ad litem or the community resources in behavioral sciences
and other professions in the investigation and study of custody disputes and
consider their recommendations for the resolution of the disputes.

MCL 722.22(g) defines “Guardian ad litem” as “an individual whom the court appoints to assist
the court in determining the child’s best interests. A guardian ad litem does not need to be an
attorney.” (Emphasis added.)

The fact that Shuman was an attorney did not convert her services into one as a lawyer-
guardian ad litem (“L-GAL”), which is defined as “an attorney appointed under section [MCL
722.24.] A lawyer-guardian ad litem represents the child, and has the powers and duties, as set
forth in [MCL 722.24].” (Footnote omitted). MCL 722.24 provides, in relevant part:

(1) In all actions involving dispute of a minor child’s custody, the court shall
declare the child’s inherent rights and establish the rights and duties as to the
child’s custody, support, and parenting time in accordance with this act.

(2) If, at any time in the proceeding, the court determines that the child’s best
interests are inadequately represented, the court may appoint a lawyer-guardian ad
litem to represent the child. A lawyer-guardian ad litem represents the child and
has powers and duties in relation to that representation as set forth in section 17d
of chapter XIIA of 1939 PA 288, MCL 712A.17d. All provisions of section 17d

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 of chapter XIIA of 1939 PA 288, MCL 712A.17d, apply to a lawyer-guardian ad
litem appointed under this act.

MCL 712A.17d sets forth an L-GAL’s duties and powers. Just a cursory glance at section 17d
reveals that an L-GAL is meant to have an on-going and continuous interest in the matter, with
the focus being on the child’s best interests. The statute requires the L-GAL to attend all
hearings and monitor case plans and court orders. The trial court in this case specifically
appointed Shuman for the limited purpose of investigating plaintiff’s abuse allegations. Her
duties began and ended with her investigation. That she was coincidentally an attorney did not
alter her role in the case. Shuman’s fees were not attorney fees by any stretch of the imagination.
Consequently, plaintiff did not have an appeal as of right.

Even if we were to consider the merits of plaintiff’s claim, we find Gusmano v Gusmano,
unpublished per curiam opinion of the Court of Appeals, issued December 13, 2012 (Docket No.
307807) on point.6 The mother in Gusmano argued that the trial court erred in requiring her to
be solely responsible for the GAL’s fees. Gusmano, unpub op, p 2. This Court rejected the
mother’s argument, pointing to the fact that the mother “specifically requested the GAL be
appointed and the record indicates that she was aware that the appointment was made with the
understanding that she would pay for it.” Id. This was demonstrated when the mother failed to
correct opposing counsel’s statement that the mother would pay the GAL fees and when the trial
court added “[y]ou pay for it,” without any objection from the mother. Id. This Court concluded
that the mother “willingly went along with the arrangement to pay for the GAL” and that she
could not “take a position in the trial court and subsequently seek redress in an appellate court
that is based on a position contrary to that taken in the trial court.” Id. at p 3, quoting Holmes v
Holmes, 281 Mich App 575, 587-588, 760 NW2d 300 (2008). Here, just as in Gusmano,
plaintiff is precluded from challenging the trial court’s decision.

III. CHANGE IN DOMICILE

Plaintiff argues that the arbitrator acted outside the scope of his authority under MCL
600.5081(2) in finding that plaintiff needed court approval to move. She further argues that the
trial court erred in failing to vacate the arbitrator’s order.7

“This Court reviews de novo a trial court’s ruling on a motion to vacate or modify an
arbitration award. This means that we review the legal issues presented without extending any
deference to the trial court.” Washington v Washington, 283 Mich App 667, 671; 770 NW2d

6
“Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule
of stare decisis, a court may nonetheless consider such opinions for their instructive
or persuasive value.” Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219, 228 (2017), lv
den 919 NW2d 639 (2018).
7
Plaintiff’s argument is conditioned on a finding that the arbitrator acted within the scope of his
authority in considering the issue of change of domicile in the first place, which is the issue in
Docket No. 343886.

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908 (2009) (citations and quotation marks omitted). “Whether an arbitrator exceeded his or her
authority is also reviewed de novo.” Id. at 672.

On September 29, 2017, plaintiff filed a motion for summary disposition regarding a
change of domicile. In the motion, plaintiff claimed that her employer required her to move to
San Mateo, California. Plaintiff acknowledged that, in general, any move of over 100 miles
required permission from the other parent or permission from the trial court after consideration
of a number of factors in MCL 722.31. However, plaintiff argued that an exception existed
under MCL 722.31(3), which specifically provided that the section did not apply to a situation in
which a change of domicile would actually move the child closer to the other parent. The move
to California would result in the child being less than 1,000 miles away from defendant
compared to the over 1,000 with the child living in Birmingham, Michigan. It is notable that
plaintiff did nothing to challenge the arbitrator’s authority to decide the issue. In fact, plaintiff
was the one who put the matter before the arbitrator.

The arbitrator denied plaintiff’s motion in a written opinion and order dated November 3,
2017. The opinion came after plaintiff moved with the child to California on October 1, 2018.
The arbitrator first looked to the governing documents. The “Order for Allocation of Parental
Responsibilities” specifically provided that “Neither party shall relocate outside of the
metropolitan Denver area with the minor child without written permission from the other party or
Order of the Court.” The accompanying parenting plan contemplated plaintiff’s imminent move
to Michigan. And the parties’ arbitration agreement specifically provided that Michigan law
applied. The arbitrator concluded:

In the present matter, the Arbitrator accepts that the proposed move
(which already took place) means there will be less ‘radial miles’ between
Defendant and the child – i.e. San Mateo, California, is closer to Colorado (where
Defendant resides) than it is to Birmingham, Michigan (which is where Plaintiff
and the child resided before they moved to California); however, the Order
contains a provision stating that “written permission from the other party” is
required before a move is made, and if the other party does not grant permission,
then an “Order of the Court” must be obtained. As such, the instant case is
consistent with Gagnon, supra, because when “a child’s custody is governed by a
court order that prohibits the child from moving to another state without the
permission of the court”, criteria found in MCL 722.31 must be evaluated by the
Court, or, as here, the Arbitrator.

Nevertheless, Plaintiff will take the position that the statement in the Order
only applies to moves from Denver. But this is not the case. Again, the Order
states: “Neither party shall relocate outside of the metropolitan Denver area with
the minor child without written permission from the other party or Order of the
Court.” Here, Defendant did not grant permission for Plaintiff to move the child
from Birmingham to San Mateo. Consequently, an “Order of the Court” is
required if the proposed move is to be formally effectuated. Given this situation,
the parties implemented the arbitration clause in the “Parenting Plan”, and in that
regard, Plaintiff filed the instant (C)(10) Motion, which invokes the ‘less distance’
exception of MCL 722.31. But, as explained, Gagnon indicates that even when

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 an exception to the applicability MCL 722.31 exists (based on the statute itself), a
provision in a court order can override the exception. In the present case this is
what occurred. And the applicable Order provision is all-encompassing because
the Order states that a court order must be obtained for relocations “outside of the
metropolitan Denver area”, and San Mateo, California is, of course, “outside of
the metropolitan Denver area” (i.e. it is in California). Likewise, with respect to
Gagnon, the “the proposed residence change involves leaving the state” (of
Michigan, where the Order and “Parenting Plan” were registered). (The proposed
move would also involve leaving the state of Colorado.)

Ultimately, the arbitrator denied plaintiff’s motion for summary disposition and concluded that
“the criteria set forth in MCL 722.31(4) must be evaluated (by way of arbitration) in connection
with Plaintiffs relocation from Birmingham, Michigan, to San Mateo, California.”

Plaintiff filed a motion to “correct the arbitrator’s errors,” arguing that the arbitrator’s
reliance on Gagnon v Glowacki, 295 Mich App 557; 815 NW2d 141 (2012) and Mogle v Scriver,
241 Mich App 192; 614 NW2d 696 (2000) was misplaced because the cases were factually
distinguishable. Plaintiff argued that MCL 722.31 should be interpreted and applied as written
and that a plain reading provides that moves over 100 miles that take a child nearer the other
parent do not require an analysis under MCL 722.31(4).

The arbitrator rejected plaintiff’s attempt to distinguish Gagnon:

This argument is in error because Gagnon v Glowacki specifically states
that an inquiry under MCL 722.31(4) must be undertaken “regardless of the
distance involved” if there is a “court order that prohibits the child from moving
to another state without the permission of the court”, and the move “involves
leaving the state”. (Emphasis added). Here, there is a court order, and the move
involves leaving the state. Hence, “regardless of the distance involved” - ie.
longer or shorter - the criteria set forth in MCL 733.31(4) cannot be bypassed. As
such, there is no error or omission, and as a result, there is no basis to change the
Arbitrator’s Opinion and Award on this issue.

Finally, the arbitrator concluded:

What Plaintiff appears to be saying . . . is that since, on its face, the statute
(MCL 722.31) contains exceptions (such as the legal custody exception, and the
reduction-in-distance exception, which are both discussed herein), then those
exceptions are the end of the story. But Gagnon v Glowacki - which post-dates
both Spires (2007) and Brausch (2009) - says otherwise. As explained herein,
even though MCL 722.31 contains exceptions to the applicability of its own
section (4), those exceptions may be overridden if the operative child custody and
parenting time order “prohibits the child from moving to another state without the
permission of the court regardless of the distance involved[,] if the proposed
residence change involves leaving the state”. Here, the operative order requires
an agreement between the parties or permission of the Court. Furthermore, the
move in question involves leaving the state. Therefore, under Gagnon v

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 Glowacki, “the factors under MCL 722.31(4) are the proper criteria for the court
to consider.” That is the end of the story.

On December 27, 2017, plaintiff asked the trial court to vacate the arbitrator’s opinion
pursuant to MCL 600.5080 and MCL 600.5081(2)(c) on the basis that the arbitrator exceeded his
powers. Plaintiff re-iterated the arguments she had made to the arbitrator: that Gagnon was
distinguishable and that MCL 722.31(3) should be interpreted and applied on its face.

The trial court denied plaintiff’s motion in a February 14, 2018 opinion and order.
Quoting at length this Court’s opinion in Eppel v Eppel, 322 Mich App 562; 912 NW2d 584
(2018), which confirmed the strict standard for setting aside an arbitrator’s order under the
Domestic Relations Arbitration Act (“DRAA”), MCL 600.5070 et seq., the court concluded:
“This Court cannot find there has been an error of law that is readily apparent on the face of the
award without second-guessing the Arbitrator’s thought processes.” The trial court later denied
plaintiff’s motion for reconsideration, noting: “The Court finds that Plaintiff raises the same
issues and/ or facts previously raised. Moreover, Plaintiff fails to address and discuss the recent
published Court of Appeals decision in Eppel . . ., to which the Court cited in its Opinion and
which sets forth the requisite standard for the Court to vacate the arbitrator’s award.”

On appeal, plaintiff argues that the arbitrator exceeded his authority by even deciding the
change of domicile issue. MCL 600.5081(2)(c) provides:

(2) If a party applies under this section, the court shall vacate an award under any
of the following circumstances:

* * *

(c) The arbitrator exceeded his or her powers.

Our Court has recently explained:

Under the domestic relations arbitration act (DRAA), parties to a domestic-
relations proceeding may stipulate to submit their disputed issues to binding
arbitration, pursuant to a written contract that defines, dictates, and limits the
powers of the arbitrator. By default, the trial court is required to enforce the
arbitrator’s award. However, the trial court is required to vacate the award under
MCL 600.5080(1) if the trial court finds the award adverse to the best interests of
the child or, relevant to the instant matter, under MCL 600.5081(2)(c), if the
arbitrator exceeded his powers. An arbitrator exceeds his or her powers if the
arbitrator acts in contravention of controlling law, or exceeds the powers that the
parties’ agreement granted to him. The phrase “exceed his powers” is essentially
longstanding shorthand for deviating from the contract or controlling law. In
order for a court to vacate an arbitration award because of an error of law, the
error must have been so substantial that, but for the error, the award would have
been substantially different. Any such error must be readily apparent on the face
of the award without second-guessing the arbitrator’s thought processes, and the
arbitrator’s findings of fact are immune from review altogether. [Eppel v Eppel,

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 322 Mich App 562, 571–572; 912 NW2d 584 (2018) (citations and quotation
marks omitted).]

Plaintiff maintains that the arbitrator acted both beyond the material terms of the
arbitration agreement as well as outside his authority in issuing an opinion denying summary
relief and finding that plaintiff required court permission prior to moving the child to California.
In effect, plaintiff argues that the arbitrator had no business even deciding the change of domicile
because, under the plain language of MCL 722.31(3), no permission from defendant or the court
was even necessary. However, plaintiff invited any alleged error by asking the arbitrator to take
up the issue in the first place.

“Invited error” is typically said to occur when a party’s own affirmative conduct
directly causes the error. For example, in Vannoy v City of Warren, 386 Mich
686, 690; 194 NW2d 304 (1972), this Court explained that a party cannot seek
appellate review of an instruction that he himself requested, saying,
“Assuming error as claimed, that error comes within the purview of what of
tradition and common sense is known as ‘invited error.’ ” Appellate review is
precluded because when a party invites the error, he waives his right to seek
appellate review, and any error is extinguished. [Cassidy v Cassidy, 318 Mich
App 463, 476; 899 NW2d 65, 75, lv den 501 Mich 908 (2017), quoting People v
Jones, 468 Mich 345, 352 n 6, 662 NW2d 376 (2003).]

“It is settled that error requiring reversal may only be predicated on the trial court’s actions and
not upon alleged error to which the aggrieved party contributed by plan or negligence.” Cassidy,
318 Mich App at 476, quoting Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003).
Plaintiff may not argue that the arbitrator exceeded his authority when plaintiff was the one that
requested the arbitrator to exercise his authority on that precise issue.

As to the merits of plaintiff’s claim that the arbitrator committed an error of law, MCL
722.31 provides, in relevant part:

(1) A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as otherwise
provided in this section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location that is more than
100 miles from the child’s legal residence at the time of the commencement of the
action in which the order is issued.

(2) A parent’s change of a child’s legal residence is not restricted by subsection
(1) if the other parent consents to, or if the court, after complying with subsection
(4), permits, the residence change. This section does not apply if the order
governing the child’s custody grants sole legal custody to 1 of the child’s parents.

(3) This section does not apply if, at the time of the commencement of the action
in which the custody order is issued, the child’s 2 residences were more than 100
miles apart. This section does not apply if the legal residence change results in the
child’s 2 legal residences being closer to each other than before the change.

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Subsection (4) then sets forth the factors to be used when a trial court decided a motion for
domicile.

Plaintiff maintains that the exception in subsection (3) applies and that, because the move
to California brings the child closer to defendant in Colorado, there was no need to seek
permission from defendant or the court. In the trial court, plaintiff cited Spires v Bergman, 276
Mich App 432; 741 NW2d 523 (2007) and Brausch v Brausch, 283 Mich App 339; 770 NW2d
77 (2009), in support of her position.

In Spires, the mother wanted to move to Texas. She had sole legal and physical custody
of the child. The trial court granted the mother’s motion for a change of domicile, finding that
because the mother had sole legal custody of the child, MCL 722.31 did not apply, and that it
was not required to consider the factors enumerated in MCL 722.31(4). Spires, 276 Mich App at
434-435. On appeal, the father argued that common-law required the trial court to consider the
so-called D’Onofrio8 factors, as codified in MCL 722.31(4), regardless of the plain language of
the statute regarding sole legal custody. This Court disagreed, explaining: “when the Legislature
codified Michigan’s usage of the D’Onofrio factors, it concurrently chose to expressly exempt
custody cases in which the relocating parent has sole legal custody.” Spires, 276 Mich App at
438. It added: “Use of the D’Onofrio factors in change-of-domicile cases is now exclusively
controlled by MCL 722.31, and the language of MCL 722.31(2) plainly provides that ‘[t]his
section does not apply if the order governing the child’s custody grants sole legal custody to 1 of
the child’s parents.’” Id.

This Court also rejected the father’s claim that MCR 3.211(C) compelled the trial court to
consider the D’Onofrio factors. The rule provides:

A judgment or order awarding custody of a minor must provide that

(1) the domicile or residence of the minor may not be moved from Michigan
without the approval of the judge who awarded custody or the judge’s successor,

(2) the person awarded custody must promptly notify the friend of the court in
writing when the minor is moved to another address, and

(3) a parent whose custody or parenting time of a child is governed by the order
shall not change the legal residence of the child except in compliance with section
11 of the Child Custody Act, MCL 722.31.

The Court held: “the language of the court rule does not require the family court to consider
the D’Onofrio factors. Instead, the court rule simply requires the court to comply with MCL
722.31, which by its own language makes consideration of the D’Onofrio factors unnecessary
when the relocating parent has sole legal custody.” Spires, 276 Mich App at 439.

8
D'Onofrio v D'Onofrio, 144 NJ Super 200, 206–207, 365 A 2d 27 (1976)

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 In Brausch, the mother moved with the minor child from Michigan to Canada. She had
sole legal custody of the child. The parties’ divorce order indicated that were no prohibitions
against moving the child out of state or more than 100 miles. Brausch, 283 Mich App at 343.
However, the trial court, on the father’s motion to modify custody, concluded that the provisions
in the judgment of divorce that waived a parent’s rights to a hearing on the child’s removal from
Michigan and waived the 100–mile rule were unenforceable and also found that a de facto joint
legal custodial environment existed such that the provisions of MCL 722.31(4) applied. Id. at
346. On appeal, the mother argued that the trial court clearly erred when it failed to honor the
language of the judgment of divorce, which awarded plaintiff sole legal custody of the child and
also contained a domicile clause. This Court concluded that the provision regarding change of
domicile was enforceable, but agreed that the trial court erred in ordering the child be returned to
Michigan. Id. at 348.

This Court concluded that the plain and unambiguous language of the statute provided
that a parent with sole legal custody is not restricted in the same manner as a parent with joint
legal custody. “Parents with joint legal custody must obtain consent from the other parent, or
permission from the trial court after a review of certain factors, before moving a child more than
100 miles. Neither consent nor consideration of the factors is necessary when a parent has sole
legal custody.” Id. at 349, citing Spires, 276 Mich App at437-438. The Court reconciled the
plain language of MCL 722.31(2) with MCR 3.211(C). The Court explained:

At first glance, it would appear that the provisions of MCL 722.31 and MCR
3.211(C) conflict. They do not. Simply stated, when a parent with sole legal
custody desires to relocate, he or she must first obtain the trial court’s approval,
but the factors set forth in D’Onofrio v. D’Onofrio, 144 NJ Super 200, 206–207,
365 A 2d 27 (1976), and codified in MCL 722.31(4) do not apply to the request.
Accordingly, pursuant to the court rule, plaintiff was required to obtain court
approval of her potential move with the parties’ child to Canada. [Brausch, 283
Mich App at 349–350.]

This Court concluded that “[t]he court rule and the statute that apply in this case can be read
harmoniously, and their plain language cannot be interpreted as distinguishing between interstate
and intrastate moves.” Id. at 352.

Clearly, Brausch and Spires have limited applicability where both cases involved a move
by a parent who enjoyed sole physical custody. That is not the case here where the parties share
joint physical custody.

Instead, the case on point is Gagnon v Glowacki, 295 Mich App 557; 815 NW2d 141
(2012). In Gagnon, the mother wanted to move to Canada and filed a motion for a change in
domicile. The trial court granted the motion and this Court affirmed. Although the parties did
not dispute the application of MCL 722.31(4) in Gagnon, this Court, citing Mogle, stated:

On its face, MCL 722.31 is only applicable when a parent attempts to change the
domicile of a child to a location that is over 100 miles away. However, when a
child’s custody is governed by a court order that prohibits the child from moving
to another state without the permission of the court, as is the case here, regardless

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 of the distance involved if the proposed residence change involves leaving the
state, then the factors under MCL 722.31(4) are the proper criteria for the court to
consider. [Gagnon, 295 Mich App at 566.]

On appeal, plaintiff argues that there is no order specifically requiring court permission to
move after the child has moved out of Denver, that is, from Michigan to California or any other
location. This argument is disingenuous in light of the facts of this case. The “Order for
Allocation of Parental Responsibilities” specifically provided that “Neither party shall relocate
outside of the metropolitan Denver area with the minor child without written permission from the
other party or Order of the Court.” The accompanying parenting plan contemplated plaintiff’s
imminent move to Michigan. “The Parents also acknowledge that Ms. Shannon intends on
relocating to the State of Michigan in the near future.” And the parties’ arbitration agreement
specifically provided that Michigan law applied. As defendant maintains, these provisions, read
together, can result in only one logical interpretation – the child may reside in either the Denver
area or Michigan without the agreement of the parties or permission from the court. The child
residing in any other location, including moving from Michigan to California, is barred absent an
agreement of the parties or permission from the court. The arbitrator properly concluded that in
deciding whether to grant permission, the arbitrator was required to apply the provisions in MCL
722.31(4). Because the arbitrator did not exceed his authority or commit an obvious error of
law, it follows that the trial court did not err in denying plaintiff’s motion to vacate the
arbitrator’s opinion.

IV. SCOPE OF ARBITRATION

On appeal, plaintiff points to MCL 600.5071, which requires that an arbitration
agreement set forth the specific issues to be arbitrated. Plaintiff notes that when the arbitration
agreement was signed on August 31, 2017, limited parenting time was the only issue; the
arbitration agreement did not speak to any issue involving a change in custody of the child. She
argues that the trial court erred when it denied her motion for summary disposition on the issue.
We disagree.

“We review de novo a circuit court’s summary disposition decision.” Packowski v
United Food & Commercial Workers Local 951, 289 Mich App 132, 138; 796 NW2d 94 (2010).
“Summary disposition is appropriate when the trial court lacks jurisdiction of the subject matter.”
Id., quoting MCR 2.116(C)(4). “For jurisdictional questions under MCR 2.116(C)(4), this Court
determines whether the affidavits, together with the pleadings, depositions, admissions, and
documentary evidence, demonstrate a lack of subject matter jurisdiction.” Packowski, 289 Mich
App at 138–139.

On March 8, 2018, plaintiff filed a motion for summary disposition pursuant to MCR
2.116(C)(4) (lack of subject matter jurisdiction), challenging the arbitrator’s ability to adjudicate
defendant’s December 2017 motion to change custody. In her motion, plaintiff argued that the
parties’ arbitration agreement was void because it did not conform to the requisites of MCL
600.5071 and, further, that the arbitrator could not hear and rule on the issue of child custody
because the issue was not specified in the parties’ arbitration agreement.

MCL 600.5071 of Michigan’s Domestic Relations Arbitration Act provides:

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 Parties to an action for divorce, annulment, separate maintenance, or child
support, custody, or parenting time, or to a postjudgment proceeding related to
such an action, may stipulate to binding arbitration by a signed agreement that
specifically provides for an award with respect to 1 or more of the following
issues:

(a) Real and personal property.

(b) Child custody.

(c) Child support, subject to the restrictions and requirements in other law and
court rule as provided in this act.

(d) Parenting time.

(e) Spousal support.

(f) Costs, expenses, and attorney fees.

(g) Enforceability of prenuptial and postnuptial agreements.

(h) Allocation of the parties’ responsibility for debt as between the parties.

(i) Other contested domestic relations matters.

Plaintiff noted that one of the requirements of MCL 600.5071 is that the agreement must set
forth, in writing, specific issues which are sought to be the subject of an award. In her motion,
plaintiff argued that the arbitration agreement in this case failed to reveal, exactly, what issues
were to be arbitrated. She maintained that the parties’ use of the phrase “all issues in the pending
matter” provided “no clue as to the identity of such issues.” Plaintiff added that such language
was meaningless, “leaving one to guess at issues which are arbitrable.” Plaintiff maintained that
she could not be required to arbitrate an issue which she did not agree to submit to arbitration.
Because there was nothing in the arbitration agreement that referenced a change of permanent
physical custody, plaintiff argued that the arbitrator lacked the ability to hear the issue. Plaintiff
further argued that the parties’ parenting plan, which was the document forming the basis for the
proceedings in Michigan, did not speak at all to any change of permanent physical custody.
Plaintiff found additional support for her claim in a letter defendant’s attorney sent to the court’s
law clerk, which referenced the issues remaining to be determined by the arbitrator. This
November 2017 letter mentioned nothing about custody. Plaintiff concluded that “it cannot be
claimed, with any smidgeon of legitimacy, that the issue of a change in permanent physical
custody of the parties’ daughter was part of the Arbitration Agreement at the time it was signed.”

Defendant responded that, under the parenting plan, the parties agreed to engage a
mediator/arbitrator to assist them in making substantial or permanent changes to the parenting
plan and resolving other disputes concerning the child. On August 31, 2017, the parties entered
into the arbitration agreement, which clearly set forth arbitrator would decide “all issues pending
in this matter.” Defendant argued that since a request to change custody undoubtedly concerned
a substantial or permanent change to the parenting plan, the arbitrator had authority to decide

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defendant’s motion for change of custody pursuant to the parties’ parenting plan and arbitration
agreement. Defendant pointed out that plaintiff never previously complained about the arbitrator
deciding such matters. In fact, she was the one who presented the arbitrator with a motion
regarding changing the child’s domicile.

The trial court denied plaintiff’s motion at an April 11, 2018 hearing.

Plaintiff filed a motion for reconsideration two days later. By this time, plaintiff was on
her fourth attorney. At oral argument, the trial court had asked plaintiff’s counsel to explain how
plaintiff’s May 3, 2017 “Request for Child Custody Determination/Registration Under the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) impacted her claim that
the parties did not contemplate child custody as an issue to be arbitrated. The standard form
provided:

2. That petitioner [plaintiff] requests that this court register the attached child
custody determination under the Uniform Child Custody Jurisdiction and
Enforcement Act, MCL 722.1101 et seq.

* * *

The petitioner [plaintiff] requests that this court register the attached child custody
determination.

Plaintiff explained that the form had no impact on the matter of arbitration because the document
“is a request for the Parenting Plan . . .to be registered with the Oakland County Circuit Court.
It does not indicate that Petitioner agreed to have any arbitration; nor does it even speak to a
change in permanent physical custody.” Plaintiff’s attorney asked the court: “Query: What
document shows that Petitioner agreed to arbitrate an issue about a change in permanent physical
custody?”

The trial court provided the answer in its April 27, 2018, opinion and order denying
plaintiff’s motion for reconsideration. The court first noted that:

under Colorado law, the term “custody” is not used in relation to child law issues.
Rather, Colorado uses the term “parental responsibilities.” Colorado law further
provides for the “Allocation of Parental Responsibilities” (APR), which requires a
determination regarding decision making responsibilities and parenting time.
Moreover, §14-10-137.7, C.R.S. provides as follows:

14-10-131.7. Designation of custody for the purpose of other state and
federal statutes. For purposes of all other state and federal statute that
require a designation or determination of custody, the parenting plan set
forth in the court’s order shall identify the responsibilities of each
party. . . .

Accordingly, on March 27, 2014, the parties agreed to a Parenting Plan that was
entered by the District Court, City and County of Denver, Colorado (“Parenting
Plan”). [Footnotes omitted.]

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 The trial court then looked to the specific provision in the parties’ parenting plan, which
included the following provisions: Decision-Making Authority; Parenting Time; and
Mediation/Arbitration. The trial court also considered the Colorado court order that incorporated
the parenting plan. On April 24, 2017, the parties entered into a “Stipulation to Modify
Jurisdiction for Parenting and UCCJEA Related Issues,” which requested the Colorado Court to
cede jurisdiction for parenting and UCCJEA related issues to the Oakland Circuit Court. On
May 3, 2017, plaintiff filed her “Request for Child Custody Determination/Registration Under
the Uniform Child Custody Jurisdiction and Enforcement Act” to which plaintiff was required to
attach “all judgments; decrees; and temporary, initial, and modification orders issued to date.”
Accordingly, plaintiff attached the parties’ parenting plan. The trial court again noted that on
May 9, 2017, it entered the “Order of Registration of Child Custody Determination as a Foreign
Judgment,” which ordered that the “child custody determination” attached by plaintiff be
registered in Michigan and filed as a foreign judgment. On June 7, 2017, the Court also signed
the “Confirmation of Registration of Custody Determination Under UCCJEA (without hearing),”
which specifically provided that “[t]he child custody determination registered on 5/9/2017 is
confirmed and is subject to the same enforcement procedures as a child custody determination
issued by this Court.” The parties’ subsequent arbitration agreement provided that the arbitrator
would decide “[a]ll issues in the pending matter.”

The trial court disagreed with plaintiff’s position that only those issues pending at the
time the agreement was entered were subject to arbitration.

This Court disagrees and finds that [plaintiff] misconstrues the language of
the “Arbitration Agreement.” Contrary to Petitioner’s claim, the Arbitration
Agreement specifically related to “all issues in the pending matter” - not to only
those issues that were pending at the time the Agreement was signed. (Emphasis
added). Therefore, regardless of when the issue of physical custody arose, it is
undisputedly an issue in the pending matter and is undisputedly an issue
concerning [the child].

Moreover, [plaintiff] queries the Court: “What document shows that
[plaintiff] agreed to arbitrate an issue about a change in permanent physical
custody?” . . . The Court answers [plaintiff’s] query by referring [plaintiff] to the
Parenting Plan to which she stipulated. While the term “custody” is not used in
the Colorado “Parenting Plan,” the “Parenting Plan” neverthless [sic] specifically
provides that “[the child] shall reside with the [plaintiff] Mother” and “[i]f this
plan becomes unworkable, the parties shall utilize the mediation/arbitration
process provisions.” (“Parenting Plan,” pp 4-5).

While Colorado does not use the term “custody,” Michigan law does.
Under Michigan’s Child Custody Act, MCL 722.21 et seq, a distinction is made
between physical custody and legal custody: physical custody pertains to where
the child shall physically “reside,” whereas legal custody is understood to mean
decision-making authority as to important decisions affecting the child’s welfare.
Grange Ins Co of Mich v Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013).
Here, the parties agreed that “[the child] shall reside with [plaintiff] Mother.”
(Emphasis added). Accordingly, and contrary to [plaintiff’s] claim, while the

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 magic term “physical custody” was not used, the Court finds the parties
nevertheless agreed that Petitioner was awarded “physical custody” of [the child]
and that if the parenting plan becomes unworkable, they shall utilize
mediation/arbitration.

The Court further answers [plaintiff’s] query by referring [plaintiff] to the
specific Mediation/Arbitration section of the “Parenting Plan.” Under this
section, [plaintiff] agreed to “engage the services of a Mediator/Arbitrator
(‘Arbitrator’)” to assist in making substantial or permanent changes to her
Parenting Plan and resolving other disputes concerning [the child]” (“Parenting
Plan,” p 8, ¶ 1). The Court further refers [plaintiff] to Paragraph 2 of the
Mediation/ Arbitration section of the “Parenting Plan” to which Petitioner
agreed to utilize “the services of the Arbitrator” if “there are any disputes
regarding a substantial or permanent change to this Parenting Plan that the Parents
are unable to resolve by themselves.” . . . In such instance, Paragraph 2 further
provides that:

The parents shall mutually agree upon a qualified person to act as
Arbitrator. If the parents cannot agree within 7 days they shall each submit
a name to the Court and the Court shall have jurisdiction to determine the
Arbitrator. (See, “Parenting Plan,” ¶ 2).

Certainly, [defendant’s] motion to change physical custody is tantamount
to seeking a substantial or permanent change regarding with whom [the child]
shall reside, which, under the “Parenting Plan” is to be resolved by
mediation/arbitration if the parties are unable to resolve this dispute themselves.
Further, [plaintiff] acquiesced to submitting the issue of physical custody to Mr.
Schnelz because she failed to submit a name to the Court for a new arbitrator
under Paragraph 2 of the “Parenting Plan.”

The Court finds that a request to change physical custody undoubtedly
“concerns [the child],” and undoubtedly relates to a “substantial or permanent
change to the Parenting Plan,” which are issues [plaintiff] agreed to
Mediate/Arbitrate. The Court, therefore, finds “physical custody” is an issue in
this “pending matter” to which the parties agreed to arbitrate both under the
“Parenting Plan” and under the “Arbitration Agreement.”

The trial court’s detailed recitation of the facts and explanation cannot be improved upon.
The parties’ agreement that “all issues in the pending matter” were subject to arbitration clearly
included issues of domicile and custody.

An arbitration agreement is a contract by which the parties forgo their rights to
proceed in civil court in lieu of submitting their dispute to a panel of arbitrators.
The parties’ agreement to submit a matter to arbitration constitutes the law of the
case, and the arbitrators are bound to follow the guidelines set forth in the four
corners of the document. The scope of arbitration is determined by the contract
and arbitrators who derive their authority from the contract calling for their

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 services are bound to act within the terms of the submission. Independent of the
contract, an arbitration panel has no jurisdiction over a particular dispute. [Beattie
v Autostyle Plastics, Inc, 217 Mich App 572, 577–578; 552 NW2d 181 (1996)
(cleaned up).]

Moreover,

Arbitration is a matter of contract. Accordingly, when interpreting an arbitration
agreement, we apply the same legal principles that govern contract interpretation.
Our primary task is to ascertain the intent of the parties at the time they entered
into the agreement, which we determine by examining the language of the
agreement according to its plain and ordinary meaning. In considering the scope
of an arbitration agreement, we note that a party cannot be required to arbitrate an
issue which [it] has not agreed to submit to arbitration. The general policy of this
State is favorable to arbitration. The burden is on the party seeking to avoid the
agreement, not the party seeking to enforce the agreement. In deciding the
threshold question of whether a dispute is arbitrable, a reviewing court must avoid
analyzing the substantive merits of the dispute. If the dispute is arbitrable, the
merits of the dispute are for the arbitrator. [Altobelli v Hartmann, 499 Mich 284,
295–296; 884 NW2d 537 (2016).]

Where, as here, arbitration is under the DRAA, there must be a written agreement that
sets out the subjects of the arbitration and the arbitrator’s powers. MCL 600.5071; MCL
600.5072(1)(e) (“The court shall not order a party to participate in arbitration unless each party to
the domestic relations matter acknowledges, in writing or on the record, that he or she has been
informed in plain language of all of the following . . . The arbitrator’s powers and duties are
delineated in a written arbitration agreement that all parties must sign before arbitration
commences.”); Miller v Miller, 474 Mich 27, 34; 707 NW2d 341 (2005) (“As long as the parties
agree to some document that meets the minimal requirements of MCL 600.5071 and MCL
600.5072(1)(e), the agreement is sufficient.”); Cipriano v Cipriano, 289 Mich App 361, 371; 808
NW2d 230 (2010) (“The DRAA requires that parties first sign an agreement for binding
arbitration delineating the powers and duties of the arbitrator.”) Again, “arbitration is a matter of
contract and that the arbitration agreement is the agreement that dictates the authority of the
arbitrators.” Cipriano, 289 Mich App at 376.

It is difficult to conceive of language more all-encompassing than an agreement to
arbitrate “all issues in the pending matter.” This is demonstrated by plaintiff’s own action of
bringing a motion for summary disposition on the issue of her request for change of domicile, as
discussed in Section III. The trial court did not err when it concluded that the arbitration
agreement met the DRAA’s requirements for statutory arbitration of a domestic relations dispute
and was otherwise valid and enforceable.

V. DISQUALIFICATION OF THE ARBITRATOR

Plaintiff argues that the trial court erred when it denied her various motions to disqualify
the arbitrator.

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 The parties disagree about the standard of review. Defendant believes that the issue
should be reviewed as though the trial court denied plaintiff’s motion to vacate an arbitration
award. Defendant believes that when the trial court denied plaintiff’s motions for
disqualification, it was confirming the arbitrator’s refusal to disqualify himself. In contrast,
plaintiff believes the issue should be reviewed, not as an appeal from an arbitration award, but as
an appeal from a motion for disqualification. We agree with plaintiff’s position and find support
in MCL 600.5075, which provides:

(1) An arbitrator, attorney, or party in an arbitration proceeding under this chapter
shall disclose any circumstance that may affect an arbitrator’s impartiality,
including, but not limited to, bias, a financial or personal interest in the outcome
of the arbitration, or a past or present business or professional relationship with a
party or attorney. Upon disclosure of such a circumstance, a party may request
disqualification of the arbitrator and shall make that request as soon as practicable
after the disclosure. If the arbitrator does not withdraw within 14 days after a
request for disqualification, the party may file a motion for disqualification with
the circuit court.

(2) The circuit court shall hear a motion under subsection (1) within 21 days after
the motion is filed. If the court finds that the arbitrator is disqualified, the court
may appoint another arbitrator agreed to by the parties or may void the arbitration
agreement and proceed as if arbitration had not been ordered.

Although plaintiff may have asked the arbitrator to recuse himself on one occasion, plaintiff
sought recourse from the trial court under the statute and the issue should be treated as one
denying a motion for disqualification.

Moreover, MCR 3.216(E)(5) provides: “The rule for disqualification of a mediator is the
same as that provided in MCR 2.003 for the disqualification of a judge. The mediator must
promptly disclose any potential basis for disqualification.” Although the court rule discusses
“mediator” and not specifically “arbitrator,” the arbitrator in this case played a dual role, acting
as both mediator and arbitrator. As such, it is appropriate to look to MCR 2.003 and related case
law to determine whether the arbitrator should have disqualified himself and whether the trial
court erred in denying plaintiff’s motions for disqualification.

Under these circumstances, we “review[] a trial court’s factual findings regarding a
motion for disqualification for an abuse of discretion and its application of the facts to the law de
novo.” In re MKK, 286 Mich App 546, 564; 781 NW2d 132, 143 (2009). An abuse of discretion
occurs when a decision is outside the range of reasonable and principled outcomes. Id.

Plaintiff makes three discrete claims of bias warranting disqualification of the arbitrator:
(1) that the arbitrator engaged in ex parte communication in violation of the arbitration
agreement; (2) that the arbitrator used derogatory language in describing women; and (3) that the
arbitrator was so enmeshed in the extrajudicial issue of plaintiff’s clawing back of fees that it
allowed the issue to impact his overall determination. Each of these must fail for various
reasons. First, at the time of the ex parte communication, the arbitrator was acting as a mediator,
not as an arbitrator and the prohibition against ex parte communications did not apply. Not only

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that, but the arbitrator acted appropriately by apprising plaintiff’s attorney of the
communications. There was nothing about the circumstances surrounding the ex parte
communication that demonstrates bias or the appearance of bias. Second, plaintiff’s claim that
the arbitrator used derogatory language in describing women is highly suspect and not the least
bit timely. Instead, it appears that plaintiff was grasping at straws when she raised the issue in a
motion for reconsideration of her first motion to disqualify. Third, there was nothing
inappropriate about the arbitrator’s conduct following plaintiff’s claw-back of fees paid.
Plaintiff’s behavior occurred during the proceedings and, therefore, was not extrajudicial. The
arbitrator was within his right to take judicial notice of her conduct and consider the conduct
when determining moral fitness.

1. EX PARTE COMMUNICATIONS

On October 27, 2017, plaintiff filed her first motion to disqualify the arbitrator based on
alleged ex parte communications. Plaintiff argued that while MCL 600.5081(2) provided a basis
for setting aside an arbitrator’s award, the “DRAA is silent . . . as to the criteria for which an
arbitrator must recuse himself or be disqualified to continue to act as arbitrator with the
exception of the arbitrator’s impartiality . . .. If the conduct at issue, however, results in any
award by the arbitrator being void ab initio, then the arbitrator must be disqualified.” Citing
Cipriano v Cipriano, 289 Mich App 361; 808 NW2d 230 (2010), plaintiff argued that
defendant’s ex parte communications with the arbitrator, which violated the clear terms of the
parties’ arbitration agreement, rendered the award void regardless of whether it impacted the
arbitrator’s impartiality and, because an award is per se void under those circumstances, it
follows that the arbitrator exceeded his authority.

Defendant filed a response to plaintiff’s first motion to disqualify on November 2, 2017.
Defendant pointed out that any “bright line” rule regarding ex parte communications had no
application in this particular situation where the arbitrator served as both mediator and arbitrator.
The parties met with the arbitrator on September 12, 2017 and discussed a variety of issues.
Because mediation was only partly successful, the rest of the issues needed to be arbitrated.
Defendant also pointed out that the arbitrator never responded to defendant’s unsolicited emails
and, in fact, advised that any further ex parte communication would be inappropriate.

The trial court heard plaintiff’s first motion for disqualification on November 8, 2017.
The trial court noted the difficulty in this situation where the arbitrator was acting as both
mediator and arbitrator:

The issue in this case, . . .there’s no bright line when you’re talking about
mediation or arbitration. And if you have issues that are going to arbitration, what
are they? What are the issues that are defined for arbitration? Because I’m not
certain that there’s a violation whatsoever with ex parte communications. And
I’m not sure you’re in arbitration or mediation, and I don’t know if you do, Mr.
Dizik [plaintiff’s counsel], ‘cause you can’t express to me where the bright line
rule is.

There were, for example, continuing issues with the order reflecting the parties’ August 31, 2017
mediation agreement, requiring a second mediation. It also resulted in defense counsel filing a

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motion for entry of order with the trial court, which plaintiff deemed inappropriate. At the close
of plaintiff’s argument, the trial court stated: “I’m gonna contact your offices. I’m gonna
request some additional information on some things. And then I’m going to issue an opinion.”
Thereafter, the trial court denied plaintiff’s first motion for disqualification. The standard form
included the following language: “Based on the arguments made before the Court on November
8, 2017 along with the parties’ briefs and submission of issues, the Court is not satisfied that Mr.
Schnelz should be removed as mediator/arbitrator in this matter, especially in light of a
November 2, 2017 letter from Plaintiff’s own counsel to opposing counsel and Mr. Schnelz,
which specifically references issues to be addressed at mediation, not at arbitration.”

Plaintiff filed a motion for reconsideration on December 12, 2017. Plaintiff
acknowledged that “[a]lthough the fact that the conduct that has occurred does seem to indicate
impartiality, or at a minimum, an appearance of impropriety, the most important aspect with
regard to the instant action is the arbitrator’s conduct which without question exceeded his
powers as provided in the parties’ arbitration agreement.” Citing Gates v USA Jet Airlines, Inc,
482 Mich 1005, 762 NW2d 83 (2008), plaintiff argued that the ex parte communication rendered
any subsequent awards void as a matter of law.

The trial court was unmoved by plaintiff’s motion for reconsideration. At a December
20, 2017 hearing, the trial court stated:

With regard to your request for reconsideration, it’s denied. . . .The issues
previously were whether or not things were arbitrated, whether or not you got to
cross-examine, et cetera. I do believe that this is just another attempt to try to get
a different arbitrator with respect to this matter, and I don’t see any basis for the
reconsideration.

The trial court denied plaintiff’s motion for reconsideration in a December 26, 2017, opinion and
order, finding that plaintiff merely re-stated her previous arguments.

On appeal, plaintiff argues that the trial court erred in failing to grant plaintiff’s request to
disqualify the arbitrator on the basis of ex parte communications. Although not specifically
labeled disqualifying, plaintiff argues that the grounds for vacating an award under MCL
600.5081(2) also constitute grounds for disqualifying an arbitrator under MCL 600.5075. MCL
600.5081(2) provides:

(2) If a party applies under this section, the court shall vacate an award under any
of the following circumstances:

* * *

(c) The arbitrator exceeded his or her powers.

However, the statute is relevant only to vacating an arbitrator’s award. That is not the case here.
There is no award from which plaintiff seeks relief; instead, the issue on appeal is the trial
court’s refusal to disqualify the arbitrator based on ex parte communications. The statute cannot
form the basis for disqualification. Instead, the relevant statute is MCL 600.5075, which, again,
provides:

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 (1) An arbitrator, attorney, or party in an arbitration proceeding under this chapter
shall disclose any circumstance that may affect an arbitrator’s impartiality,
including, but not limited to, bias, a financial or personal interest in the outcome
of the arbitration, or a past or present business or professional relationship with a
party or attorney. Upon disclosure of such a circumstance, a party may request
disqualification of the arbitrator and shall make that request as soon as practicable
after the disclosure. If the arbitrator does not withdraw within 14 days after a
request for disqualification, the party may file a motion for disqualification with
the circuit court.

(2) The circuit court shall hear a motion under subsection (1) within 21 days after
the motion is filed. If the court finds that the arbitrator is disqualified, the court
may appoint another arbitrator agreed to by the parties or may void the arbitration
agreement and proceed as if arbitration had not been ordered.

However, assuming that MCL 600.5081(2) is applicable, plaintiff argues that the
arbitrator exceeded the scope of his authority by acting contrary to the arbitration agreement,
which expressly prohibited ex parte communication. Citing Cipriano and Gates, plaintiff argues
that just as an arbitrator’s violation of an arbitration agreement constitutes per se acting outside
the scope of authority, it likewise serves as the basis for disqualification. In Cipriano, the
arbitrator considered a husband’s ex parte communications that were made after the arbitration
hearing but before the award was issued. Cipriano, 289 Mich App at 368. Citing Hewitt v Reed
City, 124 Mich 6, 8-9; 82 NW 616 (1900), the wife argued that the award was void as a matter of
law regardless of whether the communication affected the arbitrator’s partiality. Cipriano, 289
Mich App at 369. This Court rejected such a bright-line approach and, instead, considered
whether the ex parte communication violated the parties’ arbitration agreement. Id. at 371. The
Court noted that “the parties’ arbitration agreement . . . made no mention of ex parte
communication with the arbitrator. . . . According to the parties’ agreement, the arbitrator
retained the discretion to receive information from [the husband] in order to expedite the
proceedings.” Id. at 372. In contrast, the parties’ agreement here expressly prohibited ex parte
communications.

In Gates, this Court rejected the defendant’s argument that an arbitration award had to be
vacated because of ex parte communications between the plaintiff and the arbitrators. Gates v
USA Jet Airlines, Inc, unpublished per curiam opinion of the Court of Appeals, issued February
5, 2008 (Docket No. 272860). The majority concluded:

We have reviewed the document at issue in the instant case, which plaintiff
submitted to the arbitrators after the parties’ dispute had already been submitted
for decision. Even assuming arguendo that the document was truly ex parte in
nature, we simply cannot conclude that the document had the same effect on the
arbitrators as did the ex parte communication discussed in Hewitt. The ex parte
document submitted by plaintiff in this case contains no novel legal arguments or
substantive legal authority. Instead, it merely represents a compilation of
defendant’s own revenue figures for 1996, 1997, and 1998. As such, the
substance of the document at issue was already known to defendant, and it can
hardly be said that the information contained therein was intended “to influence

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 the arbitrator[s] on a question of law.” Id. at 8, 82 NW 616. Any improper
communication between plaintiff and the arbitrators was therefore harmless, and
plaintiff is entitled to no relief on this issue. [Id. unpub op at 2.]

Judge O’Connell dissented. He wrote:

In the case at bar, plaintiff submitted a brief, without serving it on
defendant, after the case was submitted. As in Hewitt, the brief that plaintiff
submitted to the arbitrators contains substantive legal argument about the
contractual bonuses plaintiff alleged he was entitled to receive under the
employment agreement. In the brief, plaintiff urged the arbitrators to award him
contractual bonuses, even if it adopted defendant’s definition of “new revenues.”
In my opinion, the plaintiff’s brief goes beyond what was submitted
in Hewitt, because plaintiff included arguments in his brief and not merely
objective, legal authority to support his position. . . .

As in Hewitt, plaintiff’s brief also violated the express rules governing the
arbitration. The arbitrators instructed:

[T]here shall be no ex parte contact by any party with any arbitrator
and . . . all pleadings, motions, briefs, discovery requests and responses,
correspondence, exhibits, affidavits, documents and things of every type
shall be served contemporaneously upon all arbitrators and counsel with a
written and signed proof of service.

Similar to the party in Hewitt, supra at 8, 82 NW 616, plaintiff submitted the brief
without serving it on defendant, thus violating the express rules governing the
arbitration. Based on this case’s similarity to Hewitt and plaintiff’s improper
communication with the arbitrators, this Court should vacate the arbitration
award. [Gates, unpub op, pp 3-4 (O’CONNELL, dissenting)]

Our Supreme Court reversed the judgment of the Court of Appeals and vacated the arbitration
award, for the reasons stated in Judge O’Connell’s dissenting opinion. Gates v USA Jet Airlines,
Inc, 482 Mich 1005; 756 NW2d 83 (2008).

MCL 600.5081(2), Cipriano and Gates appear to support plaintiff’s position that the
arbitrator exceeded the scope of his authority by acting contrary to the arbitration agreement,
which expressly prohibited ex parte communication. However, as evidenced above, the
arbitrator was acting as both mediator and arbitrator. The ex parte correspondence appeared to
occur while the parties were still mediating several issues. There is no definitive evidence that
the arbitrator was acting as an arbitrator at the time of communication. As such, MCL
600.5081(2) is inapplicable. Moreover, unlike in Cipriano and Gates, the ex parte
communication in this case occurred before the arbitration process was underway. In Cipriano
and Gates, the parties attempted ex parte communications after the arbitration process was
completed but before the awards were issued. Finally, as evidence by the arbitrator’s emails, he
immediately apprised the parties that defendant had produced ex parte communications. He took
no action and, instead, advised counsel that the parties refrain from communicating with him

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directly. Under the particular circumstances of this case, the ex parte communications did not
form a basis for disqualifying the arbitrator.

2. DISPARAGING REMARKS

As previously stated, plaintiff raised the issue of the arbitrator’s alleged disparaging
remarks for the first time in her motion for reconsideration, following the trial court’s denial of
her first motion for disqualification. Plaintiff alleged that “the arbitrator made a disturbing
remark in an August 2017 session with Plaintiff and her attorney.” Plaintiff’s December 11,
2017 affidavit, filed under seal, provided:

5. During mediation, one of the issues raised was my desire that the father of my
three year old daughter, [the child], also the Defendant herein, not have
paramours or guests of the opposite sex spend the evening while the Defendant
exercised his parenting time.

6. While discussing the issue of prohibiting paramours during Defendant’s
parenting time, the mediator/arbitrator, Kurt E. Schnelz, Esq., said “paramours, I
like that word. It is better than saying his [Defendant’s] b*****s.”

7. The arbitrator apparently felt comfortable using a derogatory and insulting
gender-related term in front of me. This was the first day of mediation in my case
and my first time having any experience with the arbitrator.

8. The arbitrator’s comments regarding Defendant’s “b*****s” made me
uncomfortable. The comments made by the arbitrator also made me feel that the
arbitrator did not have a great respect for women. This has resulted in me not
trusting the mediation/arbitration process. The arbitrator has complete control
over my case in his dual role as both mediator and arbitrator and his use of a
misogynistic term destroyed any confidence I had in the system of dispute
resolution he was solely in charge of.

9. I did not raise this issue earlier as I had and continue to have serious concerns
about the arbitrator’s control over the on-going process which involves serious
decisions with respect to my own and my daughter’s personal lives and futures
and women are often vilified when they raise these types of issues and concerns.

In denying plaintiff’s motion for reconsideration on this particular issue, the trial court
ruled:

The Court finds that, with the exception of an affidavit that relates to an
event that occurred prior to the last motion, Plaintiff’s counsel raises the same
issues and/or facts previously raised. The Court further finds that the affidavit
relates to facts that could have been raised prior to the original order.

Again, this is an issue that could have and should have been raised back in August 2017
when the alleged statements were made. Instead, plaintiff merely reiterated the same arguments
once she discovered her motion for disqualification based on ex parte communications was

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denied. At the time the alleged comments were made, the parties had not yet signed the
arbitration agreement. The arbitrator was acting as mediator.

MCR 3.216(E)(5) provides: “The rule for disqualification of a mediator is the same as
that provided in MCR 2.003 for the disqualification of a judge. The mediator must promptly
disclose any potential basis for disqualification.”

“MCR 2.003 governs the procedure for disqualifying a judge due to a lack of impartiality
to hear a case. This procedure is exclusive and must be followed.” Law Offices of Lawrence J
Stockler, PC v Rose, 174 Mich App 14, 23; 436 NW2d 70 (1989). A motion to disqualify a trial
court judge must be filed with 14 days after the moving party discovers the ground for
disqualification. MCR 2.003(D)(1)(a); Cain v Dep’t of Corrections, 451 Mich 470, 494; 548
NW2d 210 (1996); Kloian v Schwartz, 272 Mich App 232, 244; 725 NW2d 671 (2006). “If a
motion is not timely filed . . . untimeliness is a factor in deciding whether the motion should be
granted.” MCR 2.003(D)(1)(d); In re MKK, 286 Mich App 546, 565; 781 NW2d 132 (2009).
“Delay in raising it in a disqualification motion until an unpopular order was entered makes it
suspect and untimely.” Wayne Co Jail Inmates v Wayne Co Chief Executive Officer, 178 Mich
App 634, 665; 444 NW2d 549 (1989).

Plaintiff’s motives are all the more suspicious because she did file a motion for
disqualification based on defendant’s ex parte communications with the arbitrator and failed to
raise this important allegation. “[T]he moving party must include all grounds for disqualification
that are known at the time the motion is filed.” MCR 2.003(D)(2). This is not a situation where
the disqualifying circumstances were not apparent to plaintiff at the time of her original motion.
See People v Gibson (On Remand), 90 Mich App 792, 796; 282 NW2d 483 (1979). Plaintiff’s
gamesmanship will not be rewarded.

3. EXTRAJUDICIAL AND FINANCIAL CONFLICT

On May 2, 2018, several months after the trial court denied plaintiff’s motion for
reconsideration of her first motion for disqualification, plaintiff again sought to disqualify the
arbitrator. This time she focused on his alleged financial interest in the proceedings. Plaintiff
explained that on March 2, 2018, she paid the arbitrator $13,941.90, part of which ($6,441.90),
was for an invoice for past services, and the other part of which ($7,500.00), was for an advance
deposit for future billings. Plaintiff then “became concerned that the deposit of money for future
services by the Arbitrator may have placed her in a vulnerable position, in that she would have a
situation wherein she could have money taken prior to any invoice having been forwarded to her
and prior to any explanation as to the necessity of such charges.” Plaintiff then asked her credit
card company to return some, but not all, of the funds. Thereafter, on April 19, 2018, the
arbitrator contacted plaintiff’s attorney to express his displeasure and indicated that plaintiff’s
actions would factor into the custody issues. Plaintiff alleged that the “fee matter” resulted in the
arbitrator developing a bias against plaintiff. Plaintiff believed the arbitrator leveled inaccurate
accusations against her. For example, the arbitrator believed that plaintiff asked her credit card
company to reverse all charges when, in fact, she only requested the future payment portion. For
that reason, plaintiff’s attorney asked the arbitrator to recuse himself in an April 24, 2018 letter.

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 The trial court heard arguments on plaintiff’s motion on May 9, 2018. The parties agreed
that the custody portion of the arbitration proceedings had concluded. After listening to
plaintiff’s counsel lengthy argument, the trial court noted:

But under [MCL 600.5075], I don’t see how you fit. It says an arbitrator,
attorney, or party in an arbitration proceeding under this chapter shall disclose any
circumstances that may affect an arbitrator’s impartiality, including, but not
limited to, bias, a financial or personal interest in the outcome of the arbitration,
or a past or present business or professional relationship with a party.

So this is not a financial interest.

Plaintiff’s attorney argued that, even so, the arbitrator should not be able to use the fee
dispute in connection with the custody dispute because “[t]his is something which had nothing to
do with – let’s say she jaywalked somewhere in California, or let’s say she went through a red
light, that wouldn’t be part of a custody case . . ..” Counsel complained that the arbitrator was
taking the fee dispute “personally.” The trial court disagreed:

[T]he issue is that she – that she gave the money, and a month later she pulls it
back without telling anybody, after authorizing it, and indicates, you know . . .it’s
whether or not that’s an issue, and it should go to her veracity under the Child
Custody Act. I mean . . . her own character. . . . I don’t think – I don’t think Mr.
Schnelz believed he was entitled to the money; I don’t think Mr. Schnelz has an
issue financially that he’s not being paid. That’s not the issue.

The trial court then ruled:

Okay. Mr. Schwartz, respectfully, your motion is denied. This Court finds that
the petitioner did not overcome the heavy presumption of judicial impartiality,
and petitioner failed to establish a display of deeply seated favoritism or
antagonism that would make fair judgment impossible.

The Supreme Court case specifically indicates, and it’s one of the cases
that you cited – one of the cases you cited, sir, that judicial rulings alone almost
never constitute a valid basis for bias or . . .partiality motion, and in and of
themselves apart from the surrounding comments or accompanying opinions they
cannot possibly show reliance upon extrajudicial source, and that they can only in
the rarest circumstances evidence the degree of favoritism or antagonism
required.

And sir, so with regard to this, there is nothing that happens in a judicial
proceeding that forms the basis of facts with regard to a case of improper
proceeding here and of bias or impartiality on behalf of Mr. Schnelz.

Again, MCL 600.5075 governs disqualification of a domestic relations arbitrator. It
provides:

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 (1) An arbitrator, attorney, or party in an arbitration proceeding under this chapter
shall disclose any circumstance that may affect an arbitrator’s impartiality,
including, but not limited to, bias, a financial or personal interest in the outcome
of the arbitration, or a past or present business or professional relationship with a
party or attorney. Upon disclosure of such a circumstance, a party may request
disqualification of the arbitrator and shall make that request as soon as practicable
after the disclosure. If the arbitrator does not withdraw within 14 days after a
request for disqualification, the party may file a motion for disqualification with
the circuit court.

And MCL 600.5081(2) provides for the vacation of an arbitration award when:

* * *

(b) There was evident partiality by an arbitrator appointed as a neutral, corruption
of an arbitrator, or misconduct prejudicing a party’s rights.

“[I]t seems well established that the partiality or bias which will overturn an arbitration award
must be certain and direct, and not remote, uncertain or speculative.” North American Steel
Corp v Siderius, Inc, 75 Mich App 391, 404; 254 NW2d 899 (1977). “Thus, while it is conceded
that arbitrators must disclose to the parties any dealings that might create an impression of
possible bias, the impression must be a reasonable one. It is not any undisclosed relationship, no
matter how peripheral, superficial or insignificant, that compels vacation on the grounds of
partiality or prejudice.” Id.

Plaintiff spends a good deal of time referring to case law involving the disqualification of
judges. We find such law to be only tangentially related to the issue where MCL 600.5075 so
clearly controls. Still, “[d]ue process requires that an unbiased and impartial decision-maker
hear and decide a case.” Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012).
Under MCR 2.003(C)(1), a judge must be disqualified from hearing a case in which he cannot
act impartially or is biased against a party. However “[a] trial judge is presumed unbiased, and
the party asserting otherwise has the heavy burden of overcoming the presumption.” Mitchell,
296 Mich App at 523. “[J]udicial rulings, in and of themselves, almost never constitute a valid
basis for a motion alleging bias, unless the judicial opinion displays a “deep-seated favoritism or
antagonism that would make fair judgment impossible” and overcomes a heavy presumption of
judicial impartiality. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 597; 640 NW2d
321 (2001), quoting Cain v Dep’t of Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996). In
fact, “a trial judge’s remarks made during trial, which are critical of or hostile to counsel, the
parties, or their cases, ordinarily do not establish disqualifying bias.” In re MKK, 286 Mich App
546, 567; 781 NW2d 132 (2009).

MCR 2.003(C)(1)(b) provides that disqualification of a judge is warranted if “[t]he judge,
based on objective and reasonable perceptions, has either (i) a serious risk of actual bias
impacting the due process rights of a party as enunciated in Caperton v Massey, [556] US [868];
129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of
impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.” However,

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 The United States Supreme Court has disqualified judges and decisionmakers
without a showing of actual bias in situations where “experience teaches that the
probability of actual bias on the part of the judge or decisionmaker is too high to
be constitutionally tolerable.” Among the situations identified by the Court as
presenting that risk are where the judge or decisionmaker

(1) has a pecuniary interest in the outcome;

(2) “has been the target of personal abuse or criticism from the party before him”;

(3) is “enmeshed in [other] matters involving petitioner ...”; or

(4) might have prejudged the case because of prior participation as an accuser,
investigator, fact finder or initial decisionmaker. [Cain, 451 Mich at 498.]

Plaintiff fails to demonstrate that the arbitrator demonstrated partiality or bias such that
he should have been disqualified. Moreover, the trial court, having dealt with plaintiff’s
numerous motions and being well-acquainted with the case, saw beyond plaintiff’s claims. Even
plaintiff admits that the arbitrator does not have a financial stake in the outcome of the
proceedings, yet she persists in arguing that this “extrajudicial issue” has tainted the arbitrator’s
ability to remain impartial. However, as the arbitrator aptly noted, the issue of fees is not
extrajudicial where the parties agreed to split the fees evenly. The trial court did not err.

VI. CONCLUSION

In Docket No. 339944, plaintiff sought, and received, an appointment of a GAL to
investigate allegations of inappropriate conduct against defendant. Because these allegations had
already been investigated, plaintiff readily agreed to pay any and all expenses for the GAL.
However, once the GAL determined that there was no basis for the allegations, plaintiff balked at
paying. She instead argues on appeal that the fee amounted to attorney fees for which she has an
appeal by right. However, plaintiff does not have an appeal of right over the trial court’s order
requiring her to pay the GAL’s fees because the record clearly reveals that the GAL was only
incidentally an attorney and was not acting as an attorney in her investigative process. Plaintiff
is not entitled to relief from the result of actions to which she not only consented, but requested.

In Docket No. 343213, plaintiff asked the arbitrator to approve a change of domicile.
When things did not go her way, plaintiff switched tactics and argued that the arbitrator acted
outside the scope of his authority when he denied plaintiff’s motion for summary disposition on
the issue of change of domicile. But, once again, it was plaintiff who placed the issue before the
arbitrator. The parties’ agreement prevented such a move without the other parent’s consent or
court order. Contrary to plaintiff’s argument, the fact that the move would have brought the
child closer to defendant was of no consequence. The trial court, therefore, did not err when it
denied plaintiff’s motion to vacate the arbitrator’s opinion.

In Docket No. 343886, plaintiff – who readily agreed to submit to arbitration in
accordance with the parties’ parenting agreement – argues that the arbitrator had no basis for
considering and deciding issues of custody because the arbitration agreement did not specifically
set forth what, exactly, would be arbitrated. However, it is difficult to conceive of a broader

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scope of arbitration than “all issues in the pending matter,” as used by the parties. Consequently,
the arbitrator had the authority to decide defendant’s motion for a change in custody. Again,
plaintiff agreed to something and then attacked the arbitrator’s authority.

In Docket Nos. 344356, 344418, and 346344, plaintiff made several last ditch efforts to
have the arbitrator disqualified for a number of reasons, including: ex parte communications, use
of denigrating language toward women, and the arbitrator’s alleged financial interest in the
arbitration process. As discussed at length above, each of the arguments lack a basis in fact. At
the time of the alleged ex parte communications, the arbitrator was acting in a dual capacity as
arbitrator and mediator. Additionally, plaintiff offers no reasonable explanation for failing to
bring the issue of potential bias against women to the court’s attention when the statement was
made even before the parties signed the arbitration agreement. Finally, as is the case with
plaintiff throughout these proceedings, the issue of the arbitrator’s alleged financial bias was one
of her own making by stopping payment in violation of the parties’ agreement to split the cost of
arbitration and in violation of the arbitrator’s instructions.

Affirmed.

/s/ James Robert Redford
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly

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