Opinion

Vita S Shannon v. Aron L Ralston

Court: Michigan Court of Appeals
Filed: May 23, 2019
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 7.7%

“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.”

How later courts described this case

“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.”

Written by the judges who cited it.

The opinion

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VITA S. SHANNON, UNPUBLISHED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

Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued June 28,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

Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued August 29,

2018 (Docket No 344356).

Vita S Shannon v Aron L Ralston, unpublished order of the Court of Appeals, issued August 29,

2018 (Docket No 344418).

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

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

“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).

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:

* * *

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.

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.

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:

* * *

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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