Tuesday, May 17, 2011




2.Whether the trial court exceeded its authority when it ordered further arbitration based on facts that occurred after the decedent-ex-husband's death; Bayati v. Bayati; Kaleva-Norman-Dickson Sch. Dist. v. Kaleva-Norman-Dickson Teachers' Ass'n; Miller v. Miller; MCL 600.5081;

3.Whether the trial court properly refused to enter an amended judgment of divorce;

4.A consent judgment of divorce; MacInnes v. MacInnes; Laffin v. Laffin;

5.Whether the plaintiff-PR was time-barred from seeking enforcement of the arbitration award; Waiver;

6.Whether the defense of "laches" barred plaintiff's motion for entry of an amended judgment of divorce; Rowry v. University of MI; Nielsen v. Barnett; Lothian v. Detroit;

7.Whether the doctrine of "unclean hands" barred plaintiff's claim; Richards v. Tibaldi; Derosia v. Austin;

8.Whether general principles of equity barred plaintiff's clai

Court: Michigan Court of Appeals (Unpublished 04/19/11),Case Name: Axxxxx v. Axxxxx,e-Journal Number: 48614,Judge(s): Per Curiam – Gleicher, Sawyer, and Markey, No. 296595, Oakland Circuit Court, Family Division,LC No. 2000-639921-DO

The court held that the trial court erred by remanding the case for issuance of an updated binding arbitration report and award based on changes in circumstances following the decedent-ex-husband's death.

No party filed a motion to vacate or modify the arbitration award, and no ground existed allowing the trial court to vacate or modify the award in this case.

However, the court held that the trial court properly denied the plaintiff-PR's motion for entry of an amended judgment of divorce.

Thus, the court reversed the trial court's order remanding the case for further arbitration and remanded the case for entry of an order denying plaintiff's motion as barred by the defenses of laches and unclean hands, as well as general principles of equity.


The decedent and the defendant-ex-wife divorced after over 14 years of marriage. In their consent judgment of divorce, they agreed to submit the division of marital property to binding arbitration, and to incorporate the arbitration award into an amended judgment of divorce. One asset that the arbitrator was to consider was a piece of real estate (the Eagle River property). In 1/03 the arbitrator awarded the property to the parties as tenants in common and gave the decedent the right to purchase defendant's interest in it by paying her $30,000 within 120 days. The arbitration award was never incorporated into an amended divorce judgment. The decedent died just over 2 months after the award was issued and before the 120-day window to buy defendant's interest in the Eagle River property expired. Defendant apparently spent $90,000 to redeem the property after a foreclosure. The court concluded that it was significant that the parties agreed to one arbitration - whatever decision was rendered in that one arbitration would become binding. They "did not agree to further arbitration based on changes in circumstances occurring after the arbitrator rendered his decision or after the decedent died." The court held that the trial court erred by ordering further arbitration in light of events occurring after the decedent's death, expanding the scope of arbitration for which the parties contracted. As to plaintiff's claim that the trial court erred by refusing to enter an amended divorce judgment, the court held that the defendant suffered prejudice from the delay of over six years in the case (as "evidenced by the extreme change in circumstances surrounding the disputed property"). Further, the court agreed with defendant that plaintiff could not "seek enforcement of the same arbitration award that the decedent (and later the estate) breached." The arbitration award held the decedent fully responsible for all debts related to the Eagle River property, and mandated that neither party take any action to incur any further liens on the property. "Despite these provisions, the decedent (and later the estate) failed to make home equity loan payments on the Eagle River property and allowed it to go into foreclosure." This was a violation of the arbitration award.


“A party cannot be required to arbitrate an issue which he

has not agreed to submit to arbitration.” Kaleva-Norman-Dickson School Dist v Kaleva-

Norman-Dickson Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975).


MCL 600.50811 governs the vacation or modification of arbitration awards in domestic

relation matters:

(1) If a party applies to the circuit court for vacation or modification of an

arbitrator’s award issued under this chapter, the court shall review the award as

provided in this section or section 5080.

(2) 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.

(3) The fact that the relief granted in an arbitration award could not be

granted by a court of law or equity is not grounds for vacating or refusing to

confirm the award.

(4) An application to vacate an award on grounds stated in subsection

(2)(a) shall be made within 21 days after the grounds are known or should have

been known.

(5) If the court vacates an award, the court may order a rehearing before a

new arbitrator chosen as provided in the agreement or, if there is no such

provision, by the court. If the award is vacated on the grounds stated in

subsection (2)(a) or (c), the court may order a rehearing before the arbitrator who

made the award.


Consent judgments of divorce, like all other contracts entered between two

parties acting of their own free will, are to be construed and applied as such. Id. As a panel of

this Court stated in Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008):

If no reasonable person could dispute the meaning of ordinary and plain contract

language, the Court must accept and enforce contractual language as written,

unless the contract is contrary to law or public policy. In general, consent

judgments are final and binding upon the court and the parties, and cannot be

modified absent fraud, mistake, or unconscionable advantage. [Citations



As the Michigan Supreme Court alluded to in Rowry, 441 Mich at 11, the applicable

statute of limitations at law may provide insight, by analogy, in determining the period of delay

after which laches may operate to bar a claim in a court of equity:

“The omission to do what one is by law required to do to protect his rights, and

which justifies a fair presumption that he has abandoned the same, under

circumstances which misled or prejudiced an adverse party, may in equity operate

as laches which bar[s] the assertion of such right later under changed conditions,

even though the statute of limitations has not run.” [Id., quoting Olson v

Williams, 185 Mich 294, 301; 151 NW 1043 (1915).]


With regard to contractual disputes, specific performance of a contract may be granted only

where the party seeking such relief has tendered full performance. Derosia v Austin, 115 Mich

App 647, 652; 321 NW2d 760 (1982).



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