                           STATE OF MICHIGAN

                            COURT OF APPEALS



ROBERT JENE CUMMINGS,                                                UNPUBLISHED
                                                                     May 19, 2015
               Plaintiff/Counter-Defendant-
               Appellant,

v                                                                    No. 318724
                                                                     Eaton Circuit Court
JEANETTE RAE CUMMINGS,                                               LC No. 98-000231-DO

               Defendant/Counter-Plaintiff-
               Appellee.


Before: WILDER, P.J., and OWENS and M.J. KELLY, JJ.

PER CURIAM.

        In this post-judgment divorce proceeding, plaintiff, Robert Jene Cummings, appeals as of
right from the trial court’s October 2, 2013 order, which denied plaintiff’s motion to vacate the
November 12, 2012 binding mediation award and incorporated the award into the parties’ May
25, 2000 judgment of divorce. We affirm.

        Initially, we note that the final order in this case refers to the award as both a binding
mediation award and an arbitration award. The parties and the trial court also interchangeably
refer to the process used in this case as arbitration and binding mediation. However, the award
states that it is a binding mediation award and the agreement signed by the parties states that it is
a binding mediation agreement. Further, binding mediation is equivalent to arbitration, given the
binding nature of both processes, and thus, subject to the same judicial review. Frain v Frain,
213 Mich App 509, 511-513; 540 NW2d 741 (1995); see also Miller v Miller, 474 Mich 27, 33 n
4; 707 NW2d 341 (2005). Therefore, we refer to the process used in this case as binding
mediation.

        Plaintiff married defendant, Jeanette Rae Cummings, in 1974, and filed for divorce in
February 1998. The parties agreed to binding mediation in 1999 regarding “all issues,” and that
binding mediation award was incorporated into the May 25, 2000 judgment of divorce, which
disposed of all issues in the case. Approximately nine years later, in April 2009, defendant filed
a motion to enforce the judgment of divorce, asking the trial court to order that plaintiff return
the various personal property items listed in addendum B of the judgment of divorce that were
awarded to defendant. In July 2009, she filed a supplement to her motion, seeking emergency
spousal support. In October 2009, the parties stipulated to binding mediation once again. The

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mediator issued a binding mediation award on November 12, 2012, which was eventually
incorporated into the parties’ judgment of divorce.

       On appeal, plaintiff argues that the award should be vacated because he did not receive
due process, the mediator acted contrary to law and agreement, and the mediator was not
impartial. MCL 600.5081(2) provides four circumstances under which a reviewing court may
vacate a domestic relations arbitration award:

       (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.

       First, plaintiff argues that the award should be vacated because he was not afforded due
process where the proceedings were untimely and the mediator was not impartial. Plaintiff cites
Dobrzenski v Dobrzenski, 208 Mich App 514; 528 NW2d 827 (1995), to argue that the
proceedings cannot be piecemealed with continuous delays and irregularities. As stated in
Dobrzenski,

       Due process applies to any adjudication of important rights. It is a flexible
       concept calling for such procedural protections as the particular situation
       demands.      Due process requires fundamental fairness, which involves
       consideration of the private interest at stake, the risk of an erroneous deprivation
       of such interest through the procedures used, the probable value of additional or
       substitute procedures, and the state or government interest, including the function
       involved and the fiscal or administrative burdens imposed by substitute
       procedures. [Id. at 515 (internal quotations and citations omitted).]

       Plaintiff argues that, as in Dobrzenski, the mediation “got out of control” with numerous
motions filed, numerous hearings held, multiple attorney substitutions, two trial judges, two
mediations, and lost records. However, the record does not defy review as in Dobrzenski and the
proceedings did not spiral out of control to the extent that they did in Dobrzenski. See
Dobrzenski, 208 Mich App at 515 (stating that issues in that case “were tried piecemeal, tossed
back and forth between referee and judge, and complicated with multiple show cause hearings
and motion hearings using four different court reporters, double reversal of findings by the court,
twenty-three adjournments, lost records, substitutions of counsel, and partial hearings in propria
persona”).

        Plaintiff cites multiple attorney substitutions as a reason to support his argument that he
did not receive due process, however, he was the one substituting attorneys. Further, the fact that
the original trial judge retired does not automatically affect due process. Plaintiff also does not


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identify which records were lost or incomplete, and he substantially contributed to many of the
motions filed in the case.

        Additionally, contrary to plaintiff’s argument, the proceedings did not drag out over 13
years in violation of MCL 552.508.1 Rather, the divorce proceedings were finalized in May
2000 when the judgment of divorce was entered, which distributed the parties’ assets and
determined spousal support. The second binding mediation, occurring approximately nine years
later, was a result of defendant’s motion to enforce the judgment of divorce, which is not a
continuation of the original action, but rather a post-judgment enforcement action. Defendant
also requested an extension of spousal support, and because the trial court originally provided
alimony, it is vested with continuing jurisdiction, regardless when the motion was filed, pursuant
to MCL 552.28. See Rickner v Frederick, 459 Mich 371, 378-379; 590 NW2d 288 (1999).2
Finally, plaintiff also requested and agreed to the second binding mediation.

        Plaintiff further argues that the three years it took to complete the mediation was
untimely, but the record shows that the proceedings did consistently move along, albeit slowly,
and most of the delays are attributable to motions filed by plaintiff and his substitution of counsel
four times.


1
    MCL 552.508 provides,
                 The circuit court shall utilize referees and take other appropriate action to
         expedite obtaining relief in the form of child or spousal support in domestic
         relations matters, including the entry and enforcement of child support orders and
         the enforcement of spousal support orders, as necessary to obtain dispositions of
         petitions for relief within the following time frames:

                (a) Ninety percent of dispositions within 3 months after filing a petition.

                 (b) Ninety-eight percent of dispositions within 6 months after filing a
         petition.

                 (c) One hundred percent of dispositions within 12 months after filing a
         petition.
2
  MCL 552.28 creates a statutory right for either party to seek modification of alimony, and
provides:
                 On petition of either party, after a judgment for alimony or other
         allowance for either party or a child, or after a judgment for the appointment of
         trustees to receive and hold property for the use of either party or a child, and
         subject to section 17, the court may revise and alter the judgment, respecting the
         amount or payment of the alimony or allowance, and also respecting the
         appropriation and payment of the principal and income of the property held in
         trust, and may make any judgment respecting any of the matters that the court
         might have made in the original action.


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        In further support of his due process claim, plaintiff also cites Miller v Miller, 264 Mich
App 497; 691 NW2d 788 (2004), rev’d 474 Mich 27 (2005), to argue that a full and fair hearing
before a neutral mediator is required, and the parties did not agree to the procedures the mediator
used. Our Supreme Court in Miller reversed this Court’s finding that the Domestic Relations
Arbitration Act (DRAA) required a formal hearing. Miller, 474 Mich at 35. Rather, the
Supreme Court stated, “[a]rbitration is by its nature informal. The appropriate structure for an
arbitration hearing is best decided by the parties and the arbitrator. A procedure by which the
arbitrator shuffles between the parties in separate rooms questioning and listening to them
satisfies the act’s requirements of a hearing.” Id.

        In this case, the parties agreed to binding mediation, which like arbitration, does not
require a certain degree of formality. The record shows that numerous hearings were held and
the mediator heard testimony from both sides. Plaintiff does not identify what procedures the
mediator used that the parties did not agree to, other than to say that objections were made as to
how the mediator handled the issues. Plaintiff argues that the mediator did not allow cross-
examination of some witnesses, called his own witnesses, advocated for defendant, and
participated in ex parte communications, but plaintiff makes no citation to the record. The
excerpts of the proceedings in the record show that plaintiff was able to cross-examine the
witnesses, and the parties’ mediation agreement states that the mediator may request information
from a third party if he deemed it helpful. Accordingly, plaintiff has failed to support his claim.

        Next, plaintiff argues that the award should be vacated because the mediator exceeded its
powers and acted contrary to law and agreement by mediating issues that were decided over 13
years ago and by delaying the mediation proceedings over three years. Pursuant to MCL
600.5081(2)(c), “a party seeking to prove that a domestic relations arbitrator exceeded his or her
authority must show that the arbitrator either (1) acted beyond the material terms of the
arbitration agreement or (2) acted contrary to controlling law.” Washington, 283 Mich App at
672. “A reviewing court may not review the arbitrator’s findings of fact, and any error of law
must be discernible on the face of the award itself.” Id. (internal citations omitted).

        Plaintiff argues that under MCR 2.612(C), MCR 2.119(F), and MCR 7.104(A)(1), and
the doctrine of laches and res judicata, the issues addressed in the second mediation should never
have been raised because the parties agreed to only one mediation and one divorce and the
judgment of divorce issued in May 2000 already disposed of the issues. Plaintiff, however, does
not identify the issues which he argues should not have been addressed by the mediator. The
mediation award shows that defendant was awarded $97,252.38, the value of the property that
defendant was to be awarded in the judgment of divorce that plaintiff never handed over, $652
per month for spousal support based on her exigent circumstances which included her lack of
income and health issues, and $75,000 in attorney fees and costs for the “extended mediation”
related to the property issues and plaintiff’s substitution of counsel and delays. Thus, it is clear
that the issues addressed by the mediator involved enforcement of the judgment of divorce and
modification of spousal support. The court rules plaintiff cites address relief from a final
judgment, reconsideration of a final judgment, and appealing a final judgment, and do not apply
to the current factual scenario.

       Further, plaintiff seems to ignore the fact that the trial court originally provided alimony,
and thus, was vested with continuing jurisdiction to review spousal support pursuant to MCL

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552.28. Likewise, plaintiff makes no argument that defendant’s claim to enforce the property
award in the judgment of divorce was untimely, and pursuant to MCL 600.5809(3),3 defendant
had 10 years to bring her claim to enforce the judgment of divorce. See Rybinksi v Rybinski, 333
Mich 592, 596; 53 NW2d 386 (1952); Peabody v DiMeglio, 306 Mich App 397, 404-405; 856
NW2d 245 (2014). Plaintiff argued that the judgment of divorce discharged the parties from all
actions they may have against each other, but makes no argument that this also precludes actions
to enforce the judgment of divorce. Notably, the judgment of divorce also contained a clause
giving the trial court authority to enforce the judgment of divorce and issue sanctions if the
parties could not determine the amount of cash or substitute real or personal property.

        Plaintiff also seems to place emphasis on the fact that the binding mediation agreement
states that a new judgment of divorce would be entered, which is contrary to the principles of res
judicata. However, the agreement simply states that the award would be incorporated into “the
judgment entered in the case” and that plaintiff would prepare a proposed judgment. It further
states that the parties would need to agree on the language to be used in the judgment of divorce.
This language does not indicate that a new judgment would necessarily be issued. Rather, “the
judgment entered in the case” can easily be inferred to mean the May 25, 2000 judgment of
divorce. And, in fact, the trial court incorporated the November 12, 2012 mediation award into
that judgment of divorce.

        Plaintiff also asserts that the mediator acted contrary to law by issuing the award eight
months after the proceedings concluded, which was contrary to MCL 600.5078(1). MCL
600.5078(1) does require the arbitrator to issue the written award within 60 days after the end of
the hearing or after the receipt of proposed findings of fact and conclusions of law. However, in
Washington, 283 Mich App at 676 n 6, this Court held that relief from an untimely arbitration
award was not warranted where the appellant failed to allege “what substantial difference would
have resulted from a timely arbitration ruling,” which plaintiff has failed to do in this case.
Rather, plaintiff merely asserts that the award was untimely. There is also nothing in record that
indicates the delay had an effect on the mediator’s award. See id. Moreover, pursuant to MCL
600.5078(1), an arbitrator may issue the award 60 days after the parties submit their proposed
findings of fact and conclusions of law. Because the record does not indicate whether the parties
submitted these, and if so, when, the record is insufficient to conclude whether the mediator did
in fact violate MCL 600.5078(1). Therefore, plaintiff has failed to support this claim.

       Finally, plaintiff argues that the award should have been vacated because the mediator
was not impartial, and it shows on the face of the award. To vacate an arbitration award based
on partiality, the partiality or bias “ ‘must be certain and direct, not remote, uncertain or
speculative.’ ” Bayati v Bayati, 264 Mich App 595, 601; 691 NW2d 812 (2004)), quoting Belen



3
  MCL 600.5809(3), provides in part, “the period of limitations is 10 years for an action founded
upon a judgment or decree rendered in a court of record of this state . . . from the time of the
rendition of the judgment or decree.” The judgment of divorce was entered on May 25, 2000,
and defendant brought her action to enforce it on April 23, 2009, within the 10-year limitation
period.


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v Allstate Ins Co, 173 Mich App 641, 645; 434 NW2d 203 (1988). In other words, the bias or
prejudice must be concrete. Id.

        First, plaintiff asserts that the mediator advocated for defendant throughout the
proceedings. For example, plaintiff asserts that the mediator referred to defendant as his client,
and stated that he cared for her and that she “needs a man to defend her.” However, plaintiff
provides no support or citation to the record for these statements, other than to reference an
affidavit by one of his former attorneys. As noted, bias must be concrete and not speculative,
and statements made by a person can easily be taken out of context. Without more, it is difficult
to conclude that these statements alone demonstrate concrete bias.

        Second, plaintiff argues that the mediator participated in ex parte communications with
the parties, particularly defendant and her attorney. However, there are also references made in
the record to the fact that the mediator had causal conversations with one of plaintiff’s previous
attorneys, and there is no indication that any ex parte communication influenced the mediation
award or involved anything more than causal conversation about the case. Further, plaintiff
provides no authority that ex parte communication was prohibited. There is no rule that ex parte
contact between an arbitrator and the parties requires that the award be vacated. Cipriano v
Cipriano, 289 Mich App 361, 370; 808 NW2d 230 (2010). Rather, cases where the arbitration
award was vacated due to ex parte communication involved a violation of the arbitration
agreement prohibiting such conduct. Id. The binding mediation agreement in this case did not
contain a clause prohibiting ex parte communication, so there is no indication that the mediator
exceeded his powers by acting beyond the material terms of the parties’ contract. See id. at 371.

        Third, plaintiff argues that the mediator wasted time during the proceedings discussing
the grievances that were filed against him. This fact does not show that the mediator had a
concrete bias against plaintiff. Rather, it appears that the mediator simply wanted to tell his side
of the story and defend the allegations against him. It also appears that the mediator was
attempting to explain how incredible he found plaintiff and his witnesses, given the various
inconsistencies and hostility displayed throughout the proceedings, including the allegations
made in the grievances.

        Fourth, plaintiff argues that the mediator employed procedures that were unfairly
prejudicial to the parties. Specifically, plaintiff asserts that the mediator only considered
defendant’s evidence and witnesses and dismissed all of plaintiff’s testimony and witnesses. The
mediation award, however, indicates otherwise. The mediator thoroughly discussed the
testimony of the parties’ witnesses. The fact that the mediator found plaintiff and his witnesses
to be incredible does not indicate bias. See, e.g., Armstrong v Ypsilanti Charter Twp., 248 Mich
App 573, 597; 640 NW2d 321 (2001) (noting that judicial rulings are almost never sufficient to
show bias unless there is a “deep-seated favoritism”).

         Plaintiff also asserts that the mediator badgered witnesses, but the only example he gives
is that the mediator poked a witness with a pencil. While poking a witness with a pencil, if that
is exactly what occurred, is inappropriate, it does not show a concrete bias.

     Finally, plaintiff argues that the mediator unreasonably delayed the proceedings.
However, plaintiff does not explain how the mediator unreasonably delayed the proceedings. He

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does not identify any actions the mediator took, other than to delay issuing the award by eight
months, and does not explain how a delay in proceedings is evidence of bias. As discussed
above, many of the mediation delays were attributable to plaintiff. And the passage of time does
not show concrete bias.

        Notably, in reviewing the excerpts of the mediation hearings, the record shows that the
hearings were often hostile or aggressive. As the trial court noted, although there are times
where the mediator’s behavior was not indicative of “a good mediator” or necessarily
professional, overall, it appears that the mediator did the best that he could to control the
situation he was presented with and keep calm when the hearings became aggressive. The
mediator addressed all the parties’ objections during the hearings, attempted to clarify testimony,
and made sure that specific questions were answered without the witnesses adding unnecessary
information. The award also shows that the mediator thoroughly considered the testimony
provided by both parties and made determinations regarding all the witnesses’ credibility. While
the mediator certainly made his frustrations and anger known many times, he did not display a
“deep-seated favoritism or antagonism that would make fair judgment impossible.” Armstrong,
248 Mich App at 597 (internal quotations and citations omitted). Therefore, we affirm the
binding mediation award that was incorporated into the May 25, 2000 judgment of divorce.4

       Affirmed.




                                                            /s/ Kurtis T. Wilder
                                                            /s/ Donald S. Owens
                                                            /s/ Michael J. Kelly




4
  In affirming the binding mediation award, we reject defendant’s argument that plaintiff’s
motion to vacate the award was untimely. Pursuant to MCR 3.602(J)(3), plaintiff had 21 days
after the date of the award to file the motion to vacate, unless a motion to correct errors or
omissions was filed. Vyletel-Rivard v Rivard, 286 Mich App 13, 23; 777 NW2d 722 (2009). If a
motion to correct errors or omissions is filed, then the 21-day period begins on the date the
mediator’s decision on the motion is delivered. Id. Such motion was filed by defendant in this
case, but the mediator suffered a stroke before he could issue a decision on the motion. The trial
court issued a decision on the motion and an order reflecting that ruling was entered in August
29, 2013, after plaintiff filed his motion to vacate. Accordingly, the motion was timely pursuant
to MCR 3.602(J)(3) and Rivard.


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