Kennedy v. Kennedy

DISSENTING OPINION BY

POPOVICH, J.:

111 I respectfully disagree with the majority’s finding that the trial court had no basis upon which to disturb the arbitration award and that the trial court erred by fading to award judgment interest from the date of the arbitration award.

¶2 Firstly, I disagree that the trial court did not have the authority to modify the arbitration award. Section 7315(a)(2) of the Uniform Arbitration Act states that the trial court may modify or correct an arbitration award when “the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted.” 42 Pa.C.S.A. § 7315(a)(2).

¶ 3 Attorney Fingerman entered into an agreement to arbitrate with Husband and Wife that stated that Attorney Fingerman agreed to abide by the provisions of the interim agreement and the Uniform Arbitration Act. See Agreement to arbitrate, 6/25/01, at 1-2. The interim agreement stated specifically that any assets contained in the GRAT were not to be considered marital assets. Interim agreement, 4/12/00, at 7. Parties can, by contract, exclude specific property from being included as marital property. 23 Pa.C.S.A. § 3501(a)(2). Therefore, I would find that Attorney Fingerman’s decision to address the issue was in error because the interim agreement provided him with no authority to make findings regarding property which was excluded by the parties as marital property. Accordingly, I believe that the issue of the GRAT shares was never properly before Attorney Fingerman.

¶ 4 Furthermore, the majority quotes at length both parties’ respective arguments on the issue of whether the GRAT shares were to be considered marital property set forth in their letter-memoranda submitted to Attorney Fingerman. It is my belief that the parties’ letter-memoranda should not have been considered since Attorney Fingerman did not have the authority to request the parties to submit these letter-memoranda. Additionally, I disagree with the majority when it states that Husband admitted that his reversionary interest in the stock was a marital asset. See Majority opinion, at 885. The majority bases its finding, in part, on Husband’s failure to dispute Attorney Fingerman’s findings at the arbitration hearing, as follows: “Second, the reversionary interest, the quote ‘retained annuity’ unquote of the Grantor Retained Annuity Trust or the GRAT, if *888you will, is subject to equitable distribution.” N.T. Arbitration hearing, 4/22/02, at 27-31. As I believe that Attorney Finger-man did not have the authority to address this issue at the hearing, I would find that Husband’s failure to object to Attorney Fingerman’s statement did not constitute an admission. Thus, I would find that the first requirement of Section 7315(a)(2) was met when Attorney Fingerman ruled on the GRAT shares, which were not marital property by the interim agreement and not before him.

¶ 5 I would conclude that the second requirement of 42 Pa.C.S.A. § 7315(a)(2) was satisfied because the arbitration award could have been corrected without affecting the merits of the decision upon the issues submitted. Attorney Finger-man valued the parties’ total marital assets as approximately $30,000,000. Mr. Fin-german then awarded Husband 60% of the marital assets and Wife 40% of the marital assets. The trial court did not alter these percentages. It merely deducted the value of the GRAT shares from the marital property total because it found that the GRAT shares were not marital property. Wife’s modified award still equaled 40% of the entire marital estate, which was the same portion of the marital estate that Attorney Fingerman originally awarded to her. Therefore, I would have found that the trial court’s exclusion of the GRAT shares from the parties’ marital property would not have affected the merits of Attorney Fingerman’s arbitration award. Thus, as I believe that the trial court met the requirements of 42 Pa.C.S.A. § 7315(a), I would find that the trial court had the power to modify the arbitration award.

¶ 6 Secondly, I disagree with the majority’s finding that that the trial court erred in failing to award judgment interest from the date of the arbitration award. As I would find that the trial court’s modified arbitration award was correct, I would find that the date from which Husband was required to make the first cash distribution was sixty days from January 31, 2003 (the date the trial court’s order was docketed), as per the parties’ collateral agreement.5

¶ 7 Because I would conclude that the interim agreement did not give Attorney Fingerman the power to decide the GRAT issue and an award modification would not affect the merits of Mr. Fingerman’s decision, I would find that the trial court correctly modified the arbitration award.6 In light of my belief, I would find that the date from which interest should be calculated was sixty days from January 31, 2003. Accordingly, I would remand the February 20, 2003 judgment and the July 11, 2003 divorce decree with instructions to modify the judgment and decree to show January 31, 2003, as the award date and to take any further necessary action in connection with said modification. Respectfully, I must dissent.

. The trial court held that interest did not begin to accrue until it modified the arbitration award by its order of January 28, 2003. However, because the order was not docketed until January 31, 2003, January 31st, then, was the final determination date. See Pa. R.A.P. 108(b).

. I would also find that Wife's second and third arguments fail because the trial court's modification did not affect the proportion of the equitable distribution and because the arbitrator’s award was incorrect.