Family Law Arbitration Supported by Appeals Court, But Questions Remain: Gravelin v. Gravelin
Wednesday, May 11, 2016
In its recent Gravelin v. Gravelin, the Massachusetts Appeals Court flatly confirmed that:
- There is strong public policy in favor of arbitration in Massachusetts.
- Arbitration is a valid means of resolving family law disputes.
- A judge may not order parties to binding arbitration without their agreement.
- A judge may enforce parties’ valid agreement to arbitrate present disputes.
- While the Massachusetts version of the Uniform Arbitration Act (M.G.L., ch. 251) does not explicitly govern family law matters, its overarching principles apply.
- Review of an arbitral award is limited to determine if the arbitrator:
a. Awarded relief beyond that to which the parties agreed;
b. Awarded relief prohibited by law; or
c. Decided a matter based on fraud, arbitrary conduct or procedural irregularity.
- A judgment that enters upon confirmation of an arbitrator’s award on a matter that is modifiable, remains modifiable, by the court under applicable standards.
Four important questions that Gravelin did not confirm or clarify, with our comments:
- While a judge may enforce of a valid agreement to arbitrate a present dispute, is it error not to do so?
Comment: We would think so given that the applicability of MUAA “principles”, which include an obligation to enforce a valid agreement to arbitrate.
- Does Justice Blake’s comment that the appellant had the advice of counsel in agreeing to arbitrate establish that as a quid quo pro to enforcement?
Comment: Advice of counsel is not required to bind a party to arbitrate in a commercial context, as we all know from the boxes we routinely check with every software purchase and credit card transaction. Perhaps counsel should be required in the special context of family law.
- Is a judge precluded from enforcing an agreement to arbitrate that is embodied in a previous agreement, such as a separation agreement, for a dispute that arises later in time?
Comment: Justice Blake invoked Bloksberg v. Bloksburg (1979) to suggest that enforcement of such an agreement to arbitrate is not required, because that would implicate established ban on courts imposing arbitration where the parties have not agreed to it. Bloksburg, in turn, suggests the policy justification that this might permit a judge to slip an arbitration clause into a judgment on his own initiative; and that a previously agreed arbitration clause is inherently modifiable. This precedent, and reliance upon it, strikes us as simplistic, because:
a. If the parties validly agreed to arbitrate future disputes in an incorporated separation agreement, how has the court usurped their rights?
b. If the court declines to enforce an arbitration provision from a separation agreement on the theory of modifiability, should that decision not require findings of material changed circumstances for a merged provision, or something more, for a surviving one?
- Whither the concepts of greater review for child support or parenting matters?
Comment: Gravelin was a child support modification matter. The previous Reynolds v. Whitman matter included a child support award, too. In the earlier case, the Appeals Court found no fault for not applying any heightened level of review beyond a “fair & reasonable” or “fair & equitable” test, as it implied was required for asset division, because the trial judge showed “meticulous attention to the argument of the parties”, thus, the appellate court observed, negating the need for de novo review. Taken together, do the two cases close the matter of child support review? Unfortunately for the appellant (and for readers), appeal of the review hearing process by the trial judge was foreclosed by procedural defect, so clarity remains. And, since parenting issues were not a part of this case, or any other reported case, just where do we stand on arbitration of parenting matters?
No question, Gravelin is a helpful case, but, as you’ve read here before, a dedicated family law arbitration statute could surely help clarify these remaining questions.
Thanks to the Appeals Court for highlighting this, intentionally or otherwise.