Richard M. Borchers, P.C.

11001 West 120th Avenue, Suite 400

Broomfield, CO  80031 

303.426.7365
The Hon. Richard M. Borchers
Richard M. Borchers

 

       

    

    I enjoy the challenges of alternative dispute resolution, and look forward to the opportunity to assist you and your clients with your next arbitration or mediation.  Please call 303-426-7365 to obtain available dates, or e-mail me at:  rborchers@rborchers.com.

   

ARBITRATION IN DOMESTIC CASES?
By Richard M. Borchers
President, Richard M. Borchers, P.C. 
     
     A question  arises periodically concerning the availability of arbitration to resolve disputes in domestic cases. Domestic dockets in Colorado state courts continue to expand, but without a corresponding increase in available judicial help. Resolution of domestic issues takes longer than anyone would like. The issue then is whether domestic cases can be arbitrated and what are the pros and cons of using arbitration.

   The decision of the Colorado Court of Appeals in the case of In re Marriage of Popack, 998 P.2d 464 (Colo.App. 2000) dealt with the availability of arbitration for issues surrounding a petition for legal separation. The wife initially had agreed to allow a religious tribunal to resolve most of the traditional issues that are in a case brought under the Uniform Dissolution of Marriage Act. This included issues involving the twelve children born during the marriage. Subsequently, the wife filed a petition for legal separation. The husband moved to stay proceedings in the district court, pending arbitration of all issues. The district court entered an order denying the husband's motion for a stay. The wife appealed. The court of appeals reviewed the agreement which contained the arbitration paragraph. The court noted, in part, as follows:

Applying these principles here, the language of the agreement evidences an unambiguous intent by the parties to arbitrate all matters related to their marriage, present or future. It contains no qualifying or limiting language, and nothing in the agreement indicates that the parties intended to link the agreement to any particular proceeding.
   
     The key is whether a party voluntarily and knowingly entered into the agreement to arbitrate all domestic issues. The court of appeals remanded the case back to the district court and also held that the provisions of C.R.S. §14-10-128.5 allow for a  de novo review of issues involving the children, including custody and child support. 

   The parties in the case of In re Marriage of Leverett, 318 P.3d 31 (Colo.App. 2012) had agreed to arbitrate post-decree issues involving their children. A dispute arose over father's alleged refusal to follow the arbitrator's order. Mother cited father for contempt of court. A magistrate was assigned to the case and ultimately held father in contempt for failing to abide by the arbitrator's award. Father appealed, arguing that he had not violated a court order and that the arbitrator's award could not be enforced through contempt. The court of appeals agreed.

Accordingly, where as here, one party fails to comply with an arbitration award under section 14-10-128.5, the other party may make a motion to the district court for an award confirming that award under section 13-22-222(1). Once the court issues a confirming order, this order is enforceable through a contempt action. In this way, the arbitrator's award under section 14-10-128.5 can be given the weight of a court order, and the purposes and designs of both statutes can be harmonized and maintained.

   Thus, the arbitration award must be confirmed under the Uniform Arbitration Act to be considered an order of the district court. Once the court confirms the arbitration award, it can be enforced through a contempt proceeding.
     
     The parties in the case of  In re Marriage of Rivera , 300 P.3d 994 (Colo.App. 2013) had agreed to arbitrate property and related issues. The parties also agreed to arbitrate future issues involving their children, pursuant to C.R.S. §14-10-128.5. Issues arose involving the children, and the designated arbitrator issued an award resolving the issues. Neither party made a request for a  de novo hearing. The court of appeals held that a request for a de novo hearing had to be made within thirty days of the arbitrator's award. The statute now provides that a de novo request must be made within thirty-five days. The court of appeals held that trial court jurisdiction was limited to confirming the award.

     The most recent decision of the court of appeals is In re Marriage of Vanderborgh, ___P.3d ___, 2016 COA 27 (Colo.App., February 25, 2016) The parties had agreed in their permanent orders to appointment of an arbitrator to resolve future issues involving their children. The trial court appointed the designated arbitrator of the parties. Issues arose concerning parenting time. The arbitrator issued an award resolving the disputes that had arisen. Father objected to the arbitrator's award and made a request for a de novo review. The trial judge refused to set a de novo hearing. Father appealed to the court of appeals, arguing that he had a right to a de novo review.

   The court of appeals held that the provisions of C.R.S. §14-10-128.5 were discretionary with the district court.

The purpose of a de novo hearing is for the court to hear the relevant evidence and base its decision whether to 'substantially uphold' the arbitrator's decision on the evidence, not just the "pleadings." (citation omitted).....Instead, we conclude that the only reasonable reading of these words is that upon the filing of a motion for a de novo hearing, the court considers the "pleadings filed" in exercising its discretion whether to grant a de novo hearing. Then, if those pleadings persuaded the court to grant a de novo hearing, it will consider the pleadings and the arguments and evidence presented at the hearing on the ultimate question of whether the motion to modify the arbitrator's award should be granted or denied.

     Thus, de novo review under C.R.S. §14-10-128.5 is discretionary. A party who has agreed to arbitrate child issues also has the right to file a motion seeking to vacate an arbitration award. C.R.S. §13-22-223. A party challenging an award must prove that one of the five statutory grounds exist that would warrant vacation of an award. That may be a daunting task.

    T he decision to arbitrate in a domestic case is one that should not be made lightly. Arbitration may simplify resolution of issues and reduce the cost of litigation. The prevailing case law will make it more difficult to seek review by a district court, especially if the granting of a motion for  de novo review is discretionary.