Helen Yu-Wen Chang v. Siu , 234 Ariz. 442 ( 2014 )


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  •                                IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    In re the Marriage of:
    HELEN YU-WEN CHANG, Petitioner/Appellee,
    v.
    WILLIAM MOLIM SIU, Respondent/Appellant.
    No. 1 CA-CV 12-0798
    FILED 4-22-2014
    Appeal from the Superior Court in Maricopa County
    No. FC2009-005645
    The Honorable Teresa A. Sanders, Judge
    AFFIRMED
    COUNSEL
    Jensen and Gordon, PLLC, Phoenix
    By Robert A. Jensen, Tracy Gordon
    Co-Counsel for Petitioner/Appellee
    Law Office of Scott E. Boehm, PC, Phoenix
    By Scott E. Boehm
    Co-Counsel for Petitioner/Appellee
    The Cavanagh Law Firm, PA, Phoenix
    By Philip C. Gerard, William F. Begley
    Co-Counsel for Respondent/Appellant
    Law Offices of Annette T. Burns, Phoenix
    By Annette T. Burns
    Co-Counsel for Respondent/Appellant
    Law Offices of Robert E. Siesco, Jr., Phoenix
    By Robert E. Siesco, Jr.
    Co-Counsel for Respondent/Appellant
    OPINION
    Chief Judge Diane M. Johnsen authored the opinion of the Court, in which
    Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
    joined.
    J O H N S E N, Judge:
    ¶1           After a nine-day hearing, an arbitrator concluded the assets
    in a series of brokerage accounts were community property, and the
    superior court adopted that conclusion in a decree of dissolution. On
    appeal, Husband argues the parties’ arbitration agreement requires this
    court to review the legal and factual merits of the arbitrator's decision.
    Without deciding whether Arizona law permits such review, we affirm
    the judgment.
    FACTS AND PROCEDURAL HISTORY
    ¶2           William Molim Siu ("Husband") and Helen Yu-Wen Chang
    ("Wife") married in June 1998. Before the marriage, Husband owned
    various securities. He eventually closed his sole-and-separate securities
    accounts and deposited the securities into a new brokerage account
    containing community funds.        That brokerage account eventually
    generated ten subaccounts with assets of considerable worth.
    ¶3          Wife filed a petition for dissolution in 2009. In the
    proceedings that followed, Husband and Wife agreed to resolve their
    2
    CHANG v. SIU
    Opinion of the Court
    property issues by a binding arbitration conducted pursuant to Arizona
    Revised Statutes ("A.R.S.") sections 12-3001 to -3029 (2014). 1 They
    presented to the superior court a stipulation, which the court approved,
    appointing a retired Maricopa County superior court judge to arbitrate the
    property issues and other matters. In relevant part, the stipulation and
    order provided as follows:
    2.     The parties stipulate, AND IT IS SO
    ORDERED, that [the Arbitrator] is authorized to proceed as
    an Arbitrator, to hold hearings and issue binding Arbitration
    Award(s) orders on all issues raised in the parties'
    dissolution action and heard by him . . . . [The Arbitrator] is
    authorized, pursuant to ARS 12-3001 et seq., to make an
    Arbitration Award on all issues submitted to him pursuant
    to Title 25, Arizona Revised Statutes, and said Arbitration
    Award(s) will include requested findings of fact and
    conclusions of law concerning the disputed issues.
    *      *       *
    4.     Each party expressly waives his or her right to
    a trial before a judge in the Maricopa County Superior Court
    based upon the appointment of the Arbitrator. The parties
    are aware this stipulation is made pursuant to ARS § 12-3001
    et seq.
    The stipulated order established the arbitrator's hourly billing rate at $350
    and granted him the power "to do all acts and to take all measures
    necessary or proper for the efficient performance of his duties," including
    the power to require production of evidence, to resolve discovery disputes
    and the admissibility of evidence and the power to place witnesses under
    oath and examine them. The parties agreed, and the court ordered, that
    the Arizona Rules of Evidence would apply to the arbitration proceedings.
    Finally, the stipulated order provided:
    Appellate jurisdiction preserved to Arizona Court of
    Appeals. The parties agree, AND IT IS ORDERED, that
    each is preserving his and her right to appeal a final
    Arbitration Award to the Arizona Court of Appeals, and
    1     Absent material revision after the relevant date, we cite a statute's
    current version.
    3
    CHANG v. SIU
    Opinion of the Court
    that appeals shall not be taken to the Superior Court of
    Arizona.
    ¶4           After hearing evidence and considering proposed findings
    and conclusions, the arbitrator issued a 34-page ruling. He found, among
    other things, that all of the assets in the brokerage accounts were
    community property and ordered them to be divided equally between the
    parties.
    ¶5             Citing A.R.S. § 12-3020, Husband filed a "Motion to Change,
    Modify and Correct Arbitration Award" asking the arbitrator to "amend[]
    and correct[]" his characterization of the disputed accounts. The arbitrator
    denied Husband's motion, concluding his challenge to the merits of the
    award was not proper under A.R.S. §§ 12-3020 or -3024. The superior
    court then granted Wife's application to confirm the arbitrator's award
    and entered a judgment and decree of dissolution that incorporated the
    arbitrator's findings and conclusions.
    ¶6            Husband timely appealed. We have jurisdiction pursuant to
    Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-2101
    (A)(1) (2014) and -2101.01(A)(6) (2014).
    DISCUSSION
    ¶7           Husband argues the arbitrator erred in concluding the
    brokerage accounts were community property and in dividing them
    equally between the parties. The arbitrator's ruling, he contends,
    misapplies Arizona law and "inappropriately awarded Wife millions of
    dollars of Husband's separate property."
    ¶8            As a matter of public policy, Arizona favors arbitration as a
    means of resolving controversies when parties have agreed to do so. S.
    Cal. Edison Co. v. Peabody W. Coal Co., 
    194 Ariz. 47
    , 51, 
    977 P.2d 769
    , 773
    (1999). Litigants who turn to private arbitration usually do so to resolve
    their disputes speedily and at a minimum of expense. "The primary
    attraction of arbitration is an expeditious and inexpensive method of
    dispute resolution." Rancho Pescado, Inc. v. Northwestern Mut. Life Ins. Co.,
    
    140 Ariz. 174
    , 182-83, 
    680 P.2d 1235
    , 1243-44 (App. 1984); see Gates v.
    Arizona Brewing Co., 
    54 Ariz. 266
    , 269, 
    95 P.2d 49
    , 50 (1939) (arbitration
    allows "the parties to any controversy or dispute . . . to obtain an
    inexpensive and speedy final disposition of the matter involved" by
    agreeing to "submit their controversy" for determination by "judges of
    their own choice").
    4
    CHANG v. SIU
    Opinion of the Court
    ¶9             It does not appear that the parties here, however, were
    trying to save money when they decided to hire a private arbitrator to try
    their case. As noted, the hearing the arbitrator conducted spanned nine
    days, and at the end of the proceeding, each party filed an attorney's fees
    request seeking more than $500,000. Instead, Husband and Wife
    apparently agreed to arbitration because they wanted their complicated
    property issues resolved by an experienced, albeit retired, jurist who
    would have the time to consider the evidence and relevant legal principles
    free of the pressure of a crowded superior court calendar. 2
    ¶10            Litigants who have the resources to do so certainly are free
    to fashion a proceeding such as that which occurred here – a full-blown
    bench trial in every sense of the word, conducted in a law-firm conference
    room rather than a courtroom. See Atreus Cmtys. Group of Ariz. v. Stardust
    Dev., Inc., 
    229 Ariz. 503
    , 506, ¶ 13, 
    277 P.3d 208
    , 211 (App. 2012)
    ("boundaries of [an] arbitrator[’s] powers are defined by the agreement of
    the parties") (quoting Smitty's Super-Valu, Inc. v. Pasqualetti, 
    22 Ariz. App. 178
    , 180, 
    525 P.2d 309
    , 311 (1974)). The question first presented by this
    appeal, however, is whether and to what extent parties may by agreement
    avoid the procedural and substantive limitations our statutes and
    common law impose on the review of a private arbitration award.
    ¶11           Under the Arizona Revised Arbitration Act, §§ 12-3001 et
    seq., upon completion of an arbitration, a party may move the superior
    court to confirm the arbitrator's award. A.R.S. § 12-3022. Pursuant to
    A.R.S. § 12-3023, a party aggrieved by the award may move the court to
    vacate it. Under the statute, the grounds for such a motion are limited:
    The superior court "shall vacate" an award procured by fraud or on a
    showing of "evident partiality," corruption or misconduct by the
    arbitrator, or that the arbitrator exceeded his powers, conducted the
    arbitration without notice or refused to postpone the hearing despite
    sufficient cause; or that "[t]here was no agreement to arbitrate." A.R.S. §
    12-3023(A).
    ¶12           When Wife asked the superior court to confirm the
    arbitrator's award, Husband objected but, pursuant to their agreement not
    2      We take judicial notice that a nine-day trial is an extremely rare
    event in the family court division of Maricopa County Superior Court.
    According to that court's annual report, the 26 or so judges assigned to the
    family court, along with associated commissioners, handled 33,882 new
    cases and 21,820 post-decree filings during 2013.
    5
    CHANG v. SIU
    Opinion of the Court
    to "appeal" the award to the superior court, did not move to vacate the
    award pursuant to § 12-3023(A) or object on any of the grounds in the
    statute. In fact, he did not ask the superior court to rule on any of the legal
    and factual issues he raises on appeal. An appellate court normally will
    not address arguments not raised in the superior court prior to the appeal.
    See McDowell Mountain Ranch Land Coalition v. Vizcaino, 
    190 Ariz. 1
    , 5, 
    945 P.2d 312
    , 316 (1997). This rule is one of procedure, however, which the
    court has discretion to overlook. See Dombey v. Phoenix Newspapers, Inc.,
    
    150 Ariz. 476
    , 482, 
    724 P.2d 562
    , 568 (1986). We may review an issue first
    raised on appeal when, as here, there is no question of notice and the issue
    is a matter of law. Id,
    ¶13            Waiver is one thing; jurisdiction is another. Although this
    court may consider an issue a party arguably waived by failing to raise it
    in the superior court, parties may not by agreement create appellate
    jurisdiction where it otherwise would not exist. Thomas v. Thomas, 
    203 Ariz. 34
    , 36, ¶ 9, 
    49 P.3d 306
    , 308 (App. 2002). Husband argues that in the
    agreement they submitted to the court authorizing the arbitration, he and
    Wife agreed that any substantive review of the arbitrator's award would
    be by this court rather than by the superior court. He cites the provision
    in the stipulation, quoted 
    3 supra
    , that each party "is preserving his and
    her right to appeal a final Arbitration Award to the Arizona Court of
    Appeals, and that appeals shall not be taken to the Superior Court of
    Arizona."     Our jurisdiction, however, arises not from the parties'
    agreement but from the superior court's final order and judgment
    granting Wife's motion to confirm the award, which we have jurisdiction
    to review pursuant to A.R.S. §§ 12-2101(A)(1) and -2101.01(A)(6). See
    Atreus Cmtys. 
    Group, 229 Ariz. at 506
    , ¶ 
    13, 277 P.3d at 211
    .
    ¶14             We turn finally to the scope of our review. Although we
    review a judgment by the superior court confirming an arbitrator's award
    pursuant to A.R.S. §§ 12-2101(A)(1) and -2101.01(A)(6), the cases are clear
    that as long as the award is within the scope of the parties’ agreement,
    "the arbitrators' decision is final both as to questions of fact and law."
    Smitty's 
    Super-Valu, 22 Ariz. App. at 180
    , 525 P.2d at 311. That is, "even
    though a court reviewing an arbitration award might consider erroneous
    some rulings on questions of law, the rulings made by the arbitrators are
    binding unless they result in extending the arbitration beyond the scope of
    the submission." 
    Id. at 181,
    525 P.2d at 311. See Fisher v. Nat'l Gen. Ins. Co.,
    
    192 Ariz. 366
    , 369, ¶ 11, 
    965 P.2d 100
    , 103 (App. 1998) ("An arbitrator's
    decision generally is final and conclusive; the act provides very limited
    grounds for the trial court to deny confirmation of an arbitration award . .
    . ."); Valler v. Lee, 
    190 Ariz. 391
    , 393 n.4, 
    949 P.2d 51
    , 53 n.4 (App. 1997)
    6
    CHANG v. SIU
    Opinion of the Court
    ("judicial review of consensual arbitration awards . . . is limited to
    specified, statutory grounds for modifying, correcting, or refusing to
    confirm an arbitration award").
    ¶15            Husband argues parties to a private arbitration may, by
    contract, agree to judicial review broader than otherwise afforded under
    the law, and contends he and Wife entered such an agreement here. In
    Hall Street Assoc., L.L.C. v. Mattel, Inc., 
    552 U.S. 576
    (2008), the Supreme
    Court held parties to an arbitration under the Federal Arbitration Act, 9
    U.S.C. § 1 et seq., may not by contract expand the scope of judicial review
    of the award beyond that provided by the 
    statute. 552 U.S. at 588
    (limited
    review afforded by federal act "substantiat[es] a national policy favoring
    arbitration with just the limited review needed to maintain arbitration's
    essential virtue of resolving disputes straightaway"). The Court, however,
    expressly left open whether parties to arbitrations governed by state law
    may agree to more expansive judicial review. 
    Id. at 590.
    ¶16           Even before Hall Street, the drafters of the 2000 revision to
    the Uniform Arbitration Act, which Arizona adopted in 2010, debated but
    ultimately rejected a provision allowing parties to agree on "judicial
    review of arbitration awards for errors of law or fact." Unif. Arbitration
    Act § 23 cmt. B (2000). The drafters observed that the absence of such a
    provision "effectively leaves the issue of the legal propriety of this means
    for securing review of awards to the developing case law under the
    [Federal Arbitration Act] and state arbitration statutes." 
    Id. cmt. B(5).
    3
    ¶17           Citing cases from California and Texas, Husband argues we
    should construe the Arizona Revised Arbitration Act to allow parties to
    agree to broader, more substantive appellate review than otherwise
    allowed in the statute and under the cases. See Cable Connection, Inc. v.
    DirecTV, Inc., 
    190 P.3d 586
    , 589 (Cal. 2008) ("California rule is that the
    parties may obtain judicial review of the merits by express agreement");
    Nafta Traders, Inc. v. Quinn, 
    339 S.W.3d 84
    , 102 (Tex. 2011) (agreement that
    arbitrator lacked authority to issue decision containing "reversible error of
    state or federal law" rendered merits of award subject to substantive
    3      Section 4(c) of the revised Uniform Arbitration Act, A.R.S. § 12-
    3004(C), provides that parties "may not waive[] or . . . vary the effect of"
    section 23 of the uniform act, A.R.S. § 12-3023, which in turn provides that
    "the court shall vacate" an arbitration award "procured by corruption,
    fraud or other undue means," and in other specified circumstances. See 
    11 supra
    .
    7
    CHANG v. SIU
    Opinion of the Court
    review on ground that arbitrator exceeded authority). Accord Raymond
    James Fin. Servs., Inc. v. Honea, 
    55 So. 3d 1161
    , 1170 (Ala. 2010); Tretina
    Printing, Inc. v. Fitzpatrick & Assocs., Inc., 
    640 A.2d 788
    , 793 (N.J. 1994); see
    also HH East Parcel, LLC v. Handy & Harman, Inc., 
    947 A.2d 916
    , 926 n.16
    (Conn. 2008); but see Brookfield Country Club, Inc. v. St. James–Brookfield,
    LLC, 
    696 S.E.2d 663
    , 667 (Ga. 2010); HL 1, LLC v. Riverwalk, LLC, 
    15 A.3d 725
    , 736 (Me. 2011); John T. Jones Constr. Co. v. City of Grand Forks, 
    665 N.W.2d 698
    , 704 (N.D. 2003); Pugh’s Lawn Landscape Co. v. Jaycon Dev.
    Corp., 
    320 S.W.3d 252
    , 261 (Tenn. 2010); Barnett v. Hicks, 
    829 P.2d 1087
    ,
    1095 (Wash. 1992); see also Dick v. Dick, 
    534 N.W.2d 185
    , 190–91 (Mich.
    App. 1995).
    ¶18           Husband argues that because under Arizona law, "[t]he
    boundaries of the arbitrators’ powers are defined by the agreement of the
    parties," Smitty's 
    Super-Valu, 22 Ariz. App. at 180
    , 525 P.2d at 311, the
    court should give effect to an agreement to allow substantive judicial
    review of an arbitrator's award. Wife contends that because the parties
    agreed to "binding arbitration," the arbitrator's award should be subject
    only to limited judicial review as provided by statute. See 
    14 supra
    . We
    need not decide whether Arizona law allows parties to contract for
    expanded appellate review of the merits of an arbitrator's award,
    however, because Husband and Wife did not make such an agreement
    here.
    ¶19           "Arbitration is a creature of contract law." Schoneberger v.
    Oelze, 
    208 Ariz. 591
    , 595, ¶ 17, 
    96 P.3d 1078
    , 1082 (App. 2004). The
    interpretation of an arbitration agreement, therefore, is determined
    according to principles of general contract law. See Broemmer v. Abortion
    Servs. of Phoenix, Ltd., 
    173 Ariz. 148
    , 150, 
    840 P.2d 1013
    , 1015 (1992). The
    purpose of contract interpretation is to determine the parties' intent,
    which is best ascertained by examining the language of the contract.
    Grosvenor Holdings, L.C. v. Figueroa, 
    222 Ariz. 588
    , 593, ¶ 9, 
    218 P.3d 1045
    ,
    1050 (App. 2009).
    ¶20           Husband argues the parties intended the "right to appeal"
    provision of the arbitration agreement, quoted in 
    3 supra
    , to subject the
    arbitrator's award to judicial review on the merits. But as we have said, a
    superior court judgment confirming or vacating an arbitration award
    customarily is subject to some (albeit very limited) review by this court,
    see A.R.S. §§ 12-2101(A)(1), -2101.01(A). The arbitration agreement's mere
    reference to "right to appeal" in the court of appeals therefore does not
    prove Husband's contention that the parties intended to grant this court
    the power to review the merits of the arbitrator's award.
    8
    CHANG v. SIU
    Opinion of the Court
    ¶21           Further, the agreement here mandated "binding" arbitration
    conducted "pursuant to A.R.S. § 12-3001 et seq." An agreement for
    "binding" arbitration does not imply substantive judicial review. And we
    cannot disregard the parties' express reference to the Arizona Revised
    Arbitration Act, which as noted above provides for narrow judicial
    review. See Atreus Comtys. 
    Group, 229 Ariz. at 506
    , ¶ 
    13, 277 P.3d at 211
    ("severely limited" review); Smitty's 
    Super-Valu, 22 Ariz. App. at 181
    , 525
    P.2d at 312. Husband argues the parties' intention to allow substantive
    judicial review is proven by the fact that they arranged for a court reporter
    to transcribe all of the hearing proceedings, and argues the only purpose
    of that expense would have been to support an appeal of the merits of the
    award. But the agreement also allowed the arbitrator to require the
    parties to file detailed findings of fact and conclusions of law, the
    preparation of which would have required trial transcripts.
    ¶22           Having rejected Husband's argument that we should review
    the merits of the arbitrator's award, we will affirm the award as long as
    the arbitrator did not exceed the bounds of his authority. Atreus Comtys.
    
    Group, 229 Ariz. at 506
    , ¶ 
    13, 277 P.3d at 211
    .
    ¶23            By their agreement, Husband and Wife authorized the
    arbitrator to "hold hearings and issue binding Arbitration Award(s) orders
    on all issues raised in the parties' dissolution action and heard by him." In
    their joint pre-arbitration statement, the parties asked the arbitrator to
    determine whether "the primary [brokerage] account and the related sub-
    accounts [have] been commingled to an extent that transmutes Husband's
    sole and separate funds into community property" and, if so, to divide the
    accounts. Because the rulings Husband contests were squarely within the
    arbitrator's authority, the superior court did not abuse its discretion by
    confirming the award. See 
    id. (court of
    appeals reviews for abuse of
    discretion a superior court order confirming arbitration award).
    9
    CHANG v. SIU
    Opinion of the Court
    CONCLUSION
    ¶24           We affirm the superior court's order confirming the
    arbitration award and its decree of dissolution incorporating the award. 4
    :MJT
    4     We decline Wife's request for her attorney's fees incurred on appeal
    pursuant to A.R.S. § 25-324(A) (2014). She may recover her costs of appeal
    upon compliance with Arizona Rule of Civil Appellate Procedure 21.
    10
    

Document Info

Docket Number: 1 CA-CV 12-0798

Citation Numbers: 234 Ariz. 442, 323 P.3d 725, 685 Ariz. Adv. Rep. 18, 2014 WL 1598022, 2014 Ariz. App. LEXIS 69

Judges: Johnsen

Filed Date: 4/22/2014

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (22)

Barnett v. Hicks , 119 Wash. 2d 151 ( 1992 )

McDowell Mountain Ranch Land Coalition v. Vizcaino , 190 Ariz. 1 ( 1997 )

Nafta Traders, Inc. v. Quinn , 54 Tex. Sup. Ct. J. 961 ( 2011 )

Atreus Communities Group v. Stardust Development, Inc. , 229 Ariz. 503 ( 2012 )

Rancho Pescado, Inc. v. Northwestern Mutual Life Insurance , 140 Ariz. 174 ( 1984 )

Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc. , 135 N.J. 349 ( 1994 )

Dombey v. Phoenix Newspapers, Inc. , 150 Ariz. 476 ( 1986 )

HH East Parcel, LLC v. Handy & Harman, Inc. , 287 Conn. 189 ( 2008 )

Fisher Ex Rel. Fisher v. National General Insurance , 192 Ariz. 366 ( 1998 )

Valler v. Lee , 190 Ariz. 391 ( 1997 )

Grosvenor Holdings, L.C. v. Figueroa , 222 Ariz. 588 ( 2009 )

Schoneberger v. Oelze , 208 Ariz. 591 ( 2004 )

Thomas v. Thomas , 203 Ariz. 34 ( 2002 )

Dick v. Dick , 210 Mich. App. 576 ( 1995 )

Smitty's Super-Valu, Inc. v. Pasqualetti , 22 Ariz. App. 178 ( 1974 )

Southern California Edison Co. v. Peabody Western Coal Co. , 194 Ariz. 47 ( 1999 )

Hall Street Associates, L. L. C. v. Mattel, Inc. , 128 S. Ct. 1396 ( 2008 )

Broemmer v. Abortion Services of Phoenix, Ltd. , 173 Ariz. 148 ( 1992 )

Gates v. Arizona Brewing Co. , 54 Ariz. 266 ( 1939 )

Pugh's Lawn Landscape Co. v. Jaycon Development Corp. , 2010 Tenn. LEXIS 871 ( 2010 )

View All Authorities »