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15-P-448                                            Appeals Court

           LORA ANN GRAVLIN   vs.   DAVID E. GRAVLIN, JR.


                           No. 15-P-448.

           Middlesex.     March 1, 2016. - May 5, 2016.

              Present:   Trainor, Meade, & Blake, JJ.


Divorce and Separation, Child support, Modification of judgment.
     Arbitration, Divorce and separation, Confirmation of award.
     Parent and Child, Child support.



     Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on May 16, 2011.

     A motion to confirm an arbitration award on complaints for
modification and contempt was heard by Patricia A. Gorman, J.


    Floyd H. Anderson for the husband.
    Lora Ann Fickett, pro se.


    BLAKE, J.   The husband, David E. Gravlin, Jr., appeals from

four Probate and Family Court judgments dated April 16, 2014,

that issued following the confirmation of an original and an

amended arbitration award in favor of the wife, Lora Ann
                                                                         2


Gravlin.1   He argues that the judge improperly delegated her

authority by allowing the parties' joint motion to submit their

pending complaints to binding arbitration, and abused her

discretion in entering judgments based on the arbitrator's

award.   We affirm.

     Background.      The parties executed a separation agreement

(agreement) on October 17, 2011, which was incorporated and

merged in a judgment of divorce nisi on November 17, 2011.       The

agreement provides, in pertinent part, that David is to pay Lora

Ann $750 per week as child support for the support of their

three minor children.      The agreement explains that "[t]his

amount exceeds the amount of support required pursuant to the

child support guidelines currently in effect, and is reflective

of the parties' shared desire to maintain the marital home for

the benefit of the children."

     On October 9, 2012, David filed a complaint for

modification seeking to reduce his child support obligation.        In

support of his complaint, David alleged the following change of

circumstances:

     "1. [David] has experienced a major loss of income
     and the said child support order is therefore now
     inconsistent with the child support guidelines even if
     [Lora Ann] is considered to be the primary custodial
     parent.

     1
       As the parties share a surname, we shall use their first
names for ease of reference.
                                                                    3


     2. The co-parenting schedule actually being carried
     out by the parties since said divorce judgment is
     consistent with equally shared physical custody and
     therefore [David] asserts that child support should be
     modified based on that schedule as well."

Lora Ann filed both an answer denying the change in

circumstances alleged and a counterclaim for modification

seeking an order requiring David to pay one half of the cost of

the children's extracurricular activities, equipment, and school

fees.    Over the span of about one year, she also filed multiple

complaints for contempt alleging, among other things, that David

was in arrears on his child support obligation.     David filed

answers to those complaints claiming that Lora Ann was not

entitled to the requested relief.

     On January 21, 2014, the parties, both represented by

counsel, filed a joint motion to submit all pending complaints

to binding arbitration.2    It provides:   "The parties agree to

waive their right to trial on these issues and stipulate that

the arbitrator's decision will be binding upon them and will not

be subject to appeal."     The parties further agreed upon the

attorney who would serve as the arbitrator and that they would

equally share the expense of the arbitration.     The motion was

allowed the same day.    In a margin notation, the judge removed

     2
       The pending complaints included David's complaint for
modification filed October 9, 2012, and Lora Ann's counterclaim
for modification and four complaints for contempt filed February
28, 2013, April 3, 2013, July 5, 2013, and November 18, 2013.
                                                                      4


the trial date scheduled for March 6, 2014.   On February 27,

2014, the parties executed an arbitration and fee agreement

(arbitration agreement), which was also signed by the

arbitrator.   It restates that the parties are bound by their

court-approved joint motion to submit the pending complaints to

binding arbitration.3

     A hearing before the arbitrator was held on February 27,

2014, after which he issued a decision and award dated March 14,

2014, in which he denied David's complaint for modification;

dismissed Lora Ann's counterclaim for modification and complaint

for contempt filed July 5, 2013; and found David in contempt

pursuant to Lora Ann's complaints filed February 28, 2013, April

3, 2013, and November 18, 2013.   David moved to reconsider.     In

response, the arbitrator denied the motion and issued an amended

arbitration decision and award dated April 14, 2014, in which he

amended his award on the complaint for contempt dated November

18, 2013.   Thereafter, the same judge issued an order setting

forth the terms of the original and the amended arbitration

decision and award, and issued judgments accordingly.4   In



     3
       The arbitration agreement also describes the complaints to
be addressed, the process to be used, and the hourly rate and
retainer of the arbitrator.
     4
       The Probate and Family Court docket does not reflect the
filing of an opposition to the original or the amended
arbitration decision and award. It is unclear to this court
                                                                    5


pertinent part, David's complaint for modification was dismissed

with prejudice.    This appeal followed.5,6

     Discussion.    1.   Delegation of judicial authority.   As a

threshold matter, arbitration has long been recognized as a

valid means of resolving disputes between divorcing parties.

See Kutz v. Kutz, 369 Mass. 969, 970 (1976); Reynolds v.

Whitman, 40 Mass. App. Ct. 315, 316-317 (1996).     A judge may

not, however, order parties to submit to binding arbitration

absent their agreement, as such an order would be an improper

delegation of the judge's authority under G. L. c. 208, § 34.

See Gustin v. Gustin, 420 Mass. 854, 857 (1995) ("a judge

typically cannot order parties to a dispute to submit that

dispute to binding arbitration unless the parties agree to do

so").7   Indeed, this court and the Supreme Judicial Court have



what transpired at the hearing held on April 16, 2014, scheduled
at the parties' request, because no transcript was provided.
     5
       In his notice of appeal, David specified that he was
appealing the judgments regarding his complaint for modification
filed October 9, 2012, and Lora Ann's complaints for contempt
filed February 28, 2013, April 3, 2013, and November 18, 2013.
     6
       To the extent that David's brief contains claims regarding
proceedings that were subsequent to the filing of his notice of
appeal, we do not consider them.
     7
       The court in Gustin v. Gustin held that to preserve
judicial resources, a judge to a divorce proceeding may order
the parties, without their agreement, to submit the division of
household property to an intermediary, whose recommendation
would then be subject to the judge's approval. Gustin v.
Gustin, supra at 857-858.
                                                                   6


repeatedly held that a judge may not compel an unwilling party

to submit to a nonjudicial third-party decision-making

authority.   See Bower v. Bournay-Bower, 469 Mass. 690, 691

(2014) (judge may not order parties to submit resolution of

conflict to a parent coordinator); Ventrice v. Ventrice, 87

Mass. App. Ct. 190, 193-194 (2015) (judge may not order parties

to a divorce proceeding to engage in out-of-court mediation,

without their consent and at their own expense, prior to filing

subsequent actions in court).

     The facts of this case set it well apart from those cited

supra, wherein parties were unwillingly compelled to redress

their complaints outside of the courts.   Here, it is undisputed

that with the advice of counsel, and with no challenge to the

validity of the agreement to arbitrate, the parties agreed to

remove their case from consideration by a judge of the Probate

and Family Court and have it decided through binding

arbitration.   When such an agreement exists, no improper

delegation of a judge's authority follows.8



     8
       The case of Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233,
234-235 (1979), cited by David, is consistent with our result.
That case holds that an arbitration provision within a
separation agreement, even "if validly incorporated in the
decree nisi, could not have the effect of precluding resort to
the Probate Court for enforcement or modification of the alimony
and child support provisions of the decree. Any other result
would enable a judge, by inserting or incorporating an
arbitration provision in the judgment, to divest the court of
                                                                   7


    2.    Confirmation of the award.   If parties do agree to

resolve their disputes though binding arbitration, following the

arbitrator's decision and award, the judge retains the

"nondelegable duty to make the final and binding resolution of

the case."    Ventrice v. Ventrice, supra at 194.   David claims

that the judge abused her discretion in this regard in

dismissing his complaint for modification of his child support

obligation.   Specifically, he complains that the arbitrator

disregarded the plain language of G. L. c. 208, § 28, failed to

make findings justifying his refusal to modify the initial child

support order, and used faulty reasoning rather than applying

the applicable statutes and child support guidelines.

    Because David did not include, as part of the record on

appeal, a transcript of the proceedings wherein the judge

confirmed the arbitrator's original and amended awards, he has

waived this claim.    See Mass.R.App.P. 8(b)(1), as amended, 430

Mass. 1601 (1999); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84

(1995).   Without such a record, we are unable to examine the




the power given it by G. L. c. 208, § 37, to modify orders for
alimony and child support." Bloksberg v. Bloksberg, supra at
235. In other words, a judge may not, through the entry of a
decree nisi incorporating a separation agreement, compel parties
to arbitrate disputes. The language of Bloksberg does not,
however, prevent parties from agreeing to resolve their present
disputes through binding arbitration.
                                                                    8


process by which the judge reviewed the original and the amended

arbitration decision and award.

     Notwithstanding the waiver, however, we take this

opportunity to comment upon the review of arbitration cases

arising in the Probate and Family Court.    Arbitration claims

arise in multiple and varied legal contexts, whether by private

agreement or based in statute.    See, e.g., Boston v. Boston

Police Patrolmen's Assn., 443 Mass. 813 (2005) (arbitration of

collective bargaining agreements, pursuant to G. L. c. 150C);

School Comm. of Lexington v. Zagaeski, 469 Mass. 104 (2014)

(arbitration of teacher dismissal, pursuant to G. L. c. 71, §

42); Conway v. CLC Bio, LLC, 87 Mass. App. Ct. 503 (2015)

(arbitration of commercial disputes, pursuant to G. L. c. 251).

While no statute explicitly governs arbitration within the

Probate and Family Court, the overarching principles governing

the review of arbitration awards equally apply.9    Those

principles generally dictate that judicial review of matters

submitted to arbitration is narrow in scope.     Katz, Nannis &

Solomon, P.C. v. Levine, 473     Mass. 784, 793 (2016), and cases

cited.   In the context of the Massachusetts Uniform Arbitration

     9
       In the domestic relations case of Kutz v. Kutz, the
Supreme Judicial Court cited to certain sections of the
Massachusetts Uniform Arbitration Act for Commercial Disputes,
G. L. c. 251, but did not go further to apply that statute to
arbitration matters arising in the Probate and Family Court.
Kutz v. Kutz, supra at 970.
                                                                      9


Act for Commercial Disputes, G. L. c. 251, review is confined to

determining whether the arbitrator:     (1) "exceed[ed] his

authority by granting relief beyond the scope of the arbitration

agreement, . . . by awarding relief beyond that to which the

parties bound themselves, . . . or by awarding relief prohibited

by law," or (2) "decided the matter based on 'fraud, arbitrary

conduct, or procedural irregularity in the hearings.'"

Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass

1006, 1007 (1990), quoting from Marino v. Tagaris, 395 Mass.

397, 400 (1985).     Typically, no inquiry is made into whether the

arbitrator made erroneous findings of fact or conclusions of

law.    School Comm. of Lowell v. Robishaw, 456 Mass. 653, 660

(2010); Conway v. CLC Bio, LLC, supra at 505-506.     "This strict

standard of review is highly deferential to the decision of an

arbitrator, and it reflects a strong public policy in the

Commonwealth in favor of arbitration."     School Comm. of

Lexington v. Zagaeski, supra at 110, citing School Comm. of

Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758

(2003).     See Miller v. Cotter, 448 Mass. 671, 676 (2007).10


       10
       Probate and Family Court cases that are submitted, by
agreement, to binding arbitration do, however, retain one unique
characteristic. Arbitration awards will never bind the parties
in perpetuity as to issues of child custody, child support, or
merged alimony provisions, as they remain subject to
modification under the applicable standards. The division of
assets, however, survive the entry of judgment and, therefore,
are not subject to modification.
                                                                  10


    Where, as here, in proceedings before the Probate and

Family Court, parties freely, and with the advice of counsel,

enter into arbitration agreements to resolve conflicts outside

of that court, we see no reason to depart from these well-

settled principles of law.   Accordingly, the judgments dated

April 16, 2014, as to the complaint for modification filed

October 9, 2012, and the complaints for contempt filed February

28, 2013, April 3, 2013, and November 18, 2013, are affirmed.

                                   So ordered.
