Miller v. Miller

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 28, 2005

DEBRA LEA MILLER,

Plaintiff-Appellee,

v No. 127767

JOHN THOMAS MILLER,

Defendant-Appellant.
_______________________________

PER CURIAM.

This case presents the question whether the domestic

relations arbitration act (DRAA)1 requires a formal hearing

during arbitration comparable to that which occurs in

traditional trial proceedings. We conclude that it does

not.

Also at issue is whether a court order to which the

parties have stipulated in writing can satisfy the act’s

requirement of a written agreement to arbitrate. We

conclude that it can. Therefore, we reverse the judgment

of the Court of Appeals, which ruled to the contrary on

1
MCL 600.5070 t seq.
e
both issues, and we reinstate the arbitration award and the

judgment of divorce.

THE FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed for divorce in January 2001. After

failed settlement conferences in the circuit court, on

December 4, 2001, both parties stipulated in writing to

entry of an order sending all issues in the case to binding

arbitration.

The arbitrator put the parties in separate rooms

during the arbitration proceedings. He shuttled between

them, gathering the necessary information and hearing the

respective arguments. Both parties agreed to this

procedure.

At the end of the day, plaintiff asked the arbitrator

for additional sessions. He denied the request, expressly

noting in his written award that plaintiff had failed to

raise anything new to justify further proceedings. When

plaintiff made a second request, the arbitrator gave her

three days to provide an outline of what she would present

at the additional proceedings. She supplied, instead,

voluminous material. Rather than schedule more hearings,

the arbitrator reviewed plaintiff’s material, modified the

award, and issued the final binding arbitration award.

2

 Plaintiff filed a motion in court to set aside the

arbitration award on the basis that the arbitrator had

failed to conduct a “hearing” as required by the DRAA. She

also claimed that no arbitration agreement existed. The

court rejected plaintiff’s claims and entered a judgment of

divorce. In a split published decision, the Court of

Appeals reversed the judgment of the circuit court and

vacated the arbitration award. It held that the DRAA

required a formal hearing and that none occurred during the

arbitration. Miller v Miller, 264 Mich App 497; 691 NW2d

788 (2004).

THE APPROPRIATE STANDARD OF REVIEW

The two issues on appeal are matters of statutory

interpretation that we review de novo. People v Kimble,

470 Mich 305, 308-309; 684 NW2d 669 (2004). When

interpreting a statute, our goal is to give effect to the

Legislature’s intent as determined from a review of the

language of the statute. People v Koonce, 466 Mich 515,

518; 648 NW2d 153 (2002).

Defendant asks us to review the Court of Appeals

decision not to enforce the arbitration award. We review

such decisions de novo to determine whether the arbitrators

exceeded their powers. See Gordon Sel-Way, Inc v Spence

Bros, Inc, 438 Mich 488, 496-497; 475 NW2d 704 (1991).

3

Arbitrators exceed their powers whenever they act beyond

the material terms of the contract from which they draw

their authority or in contravention of controlling law.

DAIIE v Gavin, 416 Mich 407, 433-434; 331 NW2d 418 (1982).

WHAT CONSTITUTES A HEARING UNDER THE DRAA

MCL 600.5081 is the statutory provision that governs

vacation and modification of arbitration awards under the

DRAA. MCL 600.5081(2) provides:

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

(a) The award was procured by corruption,
fraud, or other undue means.

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

(c) The arbitrator exceeded his or her
powers.

(d) The arbitrator refused to postpone the
hearing on a showing of sufficient cause, refused
to hear evidence material to the controversy, or
otherwise conducted the hearing to prejudice
substantially a party’s rights.

The Court of Appeals concluded that the arbitrator

violated MCL 600.5081(2)(d). It reasoned that the

informality of the hearing prejudiced plaintiff’s rights.

The question is whether, in proceedings under the DRAA, the

statute precludes hearings being conducted as the hearing

was conducted in this case.

4

 In reaching its decision, the Court of Appeals

majority relied primarily on MCL 600.5074(1), which

provides:

An arbitrator appointed under this chapter
shall hear and make an award on each issue
submitted for arbitration under the arbitration
agreement subject to the provisions of the
agreement. [Emphasis added.]

The DRAA does not define the term “hear” or “hearing.”

Moreover, it sets no procedural requirements for

arbitration. Rather, it specifically eschews them. For

example, MCL 600.5077 requires, with certain exceptions,

that the arbitrator not make an official record of most

arbitration proceedings.2 This purposeful requirement of

little or no record shows that the Legislature intended not

to require specific procedures in arbitration proceedings.
2
MCL 600.5077 provides:

(1) Except as provided by this section,
court rule, or the arbitration agreement, a
record shall not be made of an arbitration
hearing under this chapter. If a record is not
required, an arbitrator may make a record to be
used only by the arbitrator to aid in reaching
the decision. The parties may provide in the
arbitration agreement that a record be made of
those portions of a hearing related to 1 or more
issues subject to arbitration.

(2) A record shall be made of that portion
of a hearing that concerns child support,
custody, or parenting time in the same manner
required by the Michigan court rules for the
record of a witness’s testimony in a deposition.

5

Without a record, reviewing courts cannot assess what

procedures have been followed.

The Legislature’s failure to provide specific

arbitration procedures is consistent also with tradition.

Historically, judicial review of arbitration awards is

highly limited. Gavin, 416 Mich 433-434. This Court has

characterized arbitration procedures as “informal and

sometimes unorthodox . . . .” Id. at 429. Consequently,

courts should not speculate why an arbitrator ruled in one

particular manner. Id.

Rather than employ the formality required in courts,

parties in arbitration are able to shape the parameters and

procedures of the proceeding. The DRAA requires that they

first sign an agreement for binding arbitration delineating

the powers and duties of the arbitrator. MCL

600.5072(1)(e).

The act also contemplates that the parties will

discuss with the arbitrator the scope of the issues and how

information necessary for their resolution will be

produced. MCL 600.5076. The act contemplates that the

parties will decide what is best for their case. Nowhere

in the DRAA are procedural formalities imposed that

restrict this freedom.

6

 This Court has consistently held that arbitration is a

matter of contract. “It is the agreement that dictates the

authority of the arbitrators[.]” Rowry v Univ of Michigan,

441 Mich 1, 10; 490 NW2d 305 (1992). In this case, the

Court of Appeals decision infringes on the parties’

recognized freedom to contract for binding arbitration.

It restricts the parties’ freedom to decide how the

arbitration hearing should be conducted.3 Plaintiff

presents no convincing argument that the Legislature

intended all DRAA hearings to approximate traditional court

hearings. We know of none.4 It is inappropriate for a

court to read into a statute something that was not

3
The language in US Const, art I, § 3, cl 6, stating
that the Senate shall “try all Impeachments,” does not
constitute an “implied limitation on the method by which
the Senate might proceed in trying impeachments,” Nixon v
United States, 506 US 224, 230; 113 S Ct 732; 122 L Ed 2d 1
(1993). Similarly, the language in MCL 600.5074(1),
stating that the arbitrator “shall hear and make an award
on each issue submitted for arbitration,” does not
constitute an implied limitation on the method by which the
arbitrator might proceed in hearing the issues. (Emphasis
added.)
4
Court of Appeals Judge Kirsten Frank Kelly correctly
noted in her dissent: “[A]lthough the majority refers to
the process [used in this arbitration] as mediation, the
process was still binding; binding mediation is equivalent
to arbitration and subject to the same judicial limitations
on review. Frain v Frain, 213 Mich App 509, 511-513; 540
NW2d 741 (1995).” Miller, 264 Mich App 517-518.

7

intended. AFSCME v Detroit, 468 Mich 388, 412; 662 NW2d

695 (2003).

Significantly, in this case, the parties specifically

agreed to allow the arbitrator to conduct the hearing in

two separate rooms. If the parties and the arbitrator

thought that this was the best way to hold their hearing,

they were at liberty to make that agreement. Because it is

the agreement of the parties that dictates arbitration, the

Court of Appeals should not have altered the agreement.

Rowry, 441 Mich 10.

THE SUFFICIENCY OF THE PARTIES’ WRITTEN ARBITRATION AGREEMENT

Plaintiff argued below that no written arbitration

agreement existed in this case. Defendant disagreed.

Although the Court of Appeals majority did not reach this

issue directly, it listed as alternative grounds for

possible relief that the stipulated order did not

constitute a written arbitration agreement. Miller, 264

Mich App 507 n 12. We disagree.

As we noted earlier, the DRAA requires a written

arbitration agreement setting out the subject of the

arbitration and the arbitrator’s powers. MCL 600.5071 and

MCL 600.5072(1)(e). Here, the parties entered into a

written agreement satisfying these requirements when they

8

stipulated to entry of the particularized order for binding

arbitration that the court in due course entered.

The order lists the issues for arbitration. It

clearly delineates the arbitrator’s powers and duties.

Accordingly, it is sufficient to satisfy the requirements

of MCL 600.5071 and MCL 600.5072(1)(e).5

Nothing in the DRAA mandates that there be an

agreement separate from the stipulated order. This is

consistent with the informal and sometimes unorthodox

nature of arbitration. Gavin, 416 Mich 429. 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. Therefore, we reverse the

5
In addition, but not relevant here, the parties must
satisfy MCL 600.5072(1)(a) to (d), which provide:

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:

(a) Arbitration is voluntary.

(b) Arbitration is binding and the right of
appeal is limited.

(c) Arbitration is not recommended for cases
involving domestic violence.

(d) Arbitration may not be appropriate in
all cases.

9

decision of the Court of Appeals that reached the contrary

conclusion.

CONCLUSION

We hold that the domestic relations arbitration act

does not require that the formality of a hearing in

arbitration proceedings approximate that of a hearing in

court. Arbitration is by its nature informal. The

appropriate structure for an arbitration hearing is best

decided by the parties and the arbitrator. A procedure by

which the arbitrator shuttles between the parties in

separate rooms questioning and listening to them satisfies

the act’s requirement of a hearing.

We also hold that no written agreement beyond the

order for binding arbitration is required (1) if the

parties stipulate to entry of the order and the order meets

the criteria of MCL 600.5071 and MCL 600.5072(1)(e), and

(2) if the parties satisfy MCL 600.5072(1)(a) to (d) on the

record.

Therefore, we reverse the judgment of the Court of
Appeals and reinstate the arbitration award and the
judgment of divorce.
Clifford W. Taylor
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

10

 S T A T E O F M I C H I G A N

SUPREME COURT

DEBRA LEA MILLER,

Plaintiff-Appellee,

v No. 127767

JOHN THOMAS MILLER,

Defendant-Appellant.

_______________________________

CAVANAGH, J. (concurring).

I concur in the result reached by the majority for the

reasons set forth in Renny v Port Huron Hosp, 427 Mich 415,

437; 398 NW2d 327 (1986).

Michael F. Cavanagh
1