Debra Gray King v. Daniel Rosson King ( 2020 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 27, 2020
In the Court of Appeals of Georgia
A20A0034. KING v. KING.
BARNES, Presiding Judge.
This is a divorce action in which Debra Gray King (the “wife”) and Daniel
Rossen King (the “husband”) agreed to arbitration. The superior court ultimately
vacated the arbitration award based on, among other things, the arbitrator’s failure to
comply with a provision of the parties’ arbitration agreement incorporated into a
consent order that required the arbitrator to make written findings of fact and
conclusions of law. Following the grant of her application for discretionary review,
the wife appeals from the trial court’s order vacating rather than confirming the
arbitration award. For the reasons set forth below, we affirm.
The record reflects that the parties married in July 1991 and have three adult
children. In October 2016, the wife filed the present divorce action in the Superior
Court of Fulton County. The parties subsequently agreed to mediation, and if
mediation failed, to binding arbitration. The parties’ agreement specified the
procedure that would be followed in the arbitration if the mediation was unsuccessful
and the format of the award issued by the arbitrator, and the agreement was
incorporated into a consent order entered by the superior court (the “Consent Order”).
Among other things, the Consent Order required the arbitrator to address all issues
not resolved in the mediation and stated:
Each party agrees that the arbitrator’s award is binding in all respects
upon all Parties and shall be entered as a final judgment in the Superior
Court of Fulton County, State of Georgia or any court of competent
jurisdiction. As part of the Award, the arbitrator shall prepare Findings
of Fact and Conclusions of Law to be submitted to the Court to be
confirmed for signature and entry and which shall become the Final
Judgment and Decree of Divorce once confirmed by the Court.1
After mediation failed to resolve the parties’ dispute, the parties participated
in arbitration that extended over several days. The arbitration was not transcribed.
Following the arbitration, the arbitrator issued a written award that purported to
1
The wife points to emails between the parties and the arbitrator that she argues
reflect that before the mediation and arbitration commenced, the parties agreed to a less
formal arbitration process in certain respects than was set forth in the Consent Order in the
event that arbitration was necessary. Those emails, however, do not discuss the provision
of the Consent Order requiring that an arbitration award submitted to the superior court
include findings of fact and conclusions of law.
2
“resolve[ ] all claims between the parties,” including all issues regarding the division
of marital property raised at the arbitration hearing (the “Arbitration Award” or
“Award”). The Arbitration Award also stated that the parties had agreed to the
manner in which their personal property would be divided and that a personal
property settlement agreement signed by the parties was incorporated into the Award.
The wife filed a motion to confirm the Arbitration Award in the superior court
under the Georgia Arbitration Code, OCGA § 9-9-1 et seq. (the “Arbitration Code”).
The husband opposed the motion to confirm and filed a motion to clarify and modify
the Arbitration Award, contending that the arbitrator’s authority was imperfectly
executed because the Award was conclusory in nature and did not contain any
findings of fact and conclusions of law as required by the Consent Order. The
husband also filed a motion to vacate the Arbitration Award in which he asserted that
the arbitrator had overstepped and imperfectly executed his authority by failing to
make the required findings of fact and conclusions of law. The husband contended
that the Arbitration Award was flawed in several other respects, including that some
of the marital assets were omitted from the equitable division of property, that the
arbitrator had not determined the marital or separate property status of certain realty
purchased by the wife, and that the parties had never agreed to and signed a
3
settlement agreement resolving their dispute over the division of their personal
property.
On December 21, 2018, the superior court denied the wife’s motion to confirm
the Arbitration Award, concluding that “the lack of completeness of the Arbitrator’s
Award regarding among other things, findings of fact and conclusions of law,
distribution of personal property and proceeds from sale of certain realty by [the
wife],” established imperfect execution of the arbitrator’s authority (the “December
2018 Order”). The superior court remanded the case to the arbitrator so that all
matters could be fully addressed and resolved.
Following remand to the arbitrator, a dispute arose over an alleged ex parte
communication between the arbitrator and the wife’s counsel and over whether the
arbitrator had a conflict of interest based on his prior engagements by the law firm of
the wife’s counsel. The husband requested that the arbitrator recuse himself from
further participation in the arbitration proceedings. In January 2019, the arbitrator
voluntarily recused himself, denying that there was any meritorious ground for
recusal but nevertheless concluding that he would recuse from the matter to avoid any
appearance of impropriety and to ensure confidence in the outcome of the arbitration
proceedings.
4
The wife then filed in the superior court a renewed motion to confirm the
Arbitration Award, motion for reconsideration of the December 2018 Order, and
motion for contempt against the husband. On May 29, 2019, the superior court denied
the wife’s motions and reaffirmed its December 2018 Order, finding that the
Arbitration Award “was imperfectly executed for the reasons set forth in [that] Order”
(the “May 2019 Order”). The superior court reiterated that the Arbitration Award did
not contain findings of fact and conclusions of law as required by the Consent Order
and held that the deficiencies in the Award could not be remedied in light of the
arbitrator’s recusal. Consequently, the trial court vacated the Arbitration Award and
remanded the matter for arbitration before a replacement arbitrator, “with direction
that all matters be fully addressed, including findings of fact and conclusions of law
and disposition of all issues between the parties in this matter.” The wife
subsequently filed her application for discretionary review of the May 2019 Order,
which this Court granted, resulting in the present appeal.
1. As a threshold matter, the husband argues that the wife’s appeal of the May
2019 Order should be dismissed for lack of jurisdiction. According to the husband,
the superior court’s May 2019 Order was an interlocutory ruling because the court in
substance merely declined to reconsider its December 2018 Order and remanded the
5
matter for further arbitration proceedings before a final divorce decree could be
entered. Consequently, the husband argues, the wife was required to follow this
Court’s interlocutory appeal procedures set out in OCGA § 5-6-34 (b) to appeal from
the May 2019 Order, including obtaining a certificate of immediate review from the
trial court, which the wife failed to do, thereby necessitating dismissal of the appeal.
See Mayor &c Aldermen of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga.
16, 17 (1) (441 SE2d 63) (1994) (order denying motion for reconsideration is an
interlocutory order that “can be the subject of an application for interlocutory appeal
if a certificate of immediate review is obtained from the trial court”). We are
unpersuaded.
The May 2019 Order included the trial court’s decision to vacate the
Arbitration Award. OCGA § 9-9-13 of the Arbitration Code addresses the vacatur of
arbitration awards, and subsection (e) of that statute plainly and unambiguously
provides that an order vacating such an award constitutes a final judgment for
purposes of appellate review. See OCGA § 9-9-13 (e).2 And, as we have
2
OCGA § 9-9-13 (e) states in part:
Upon vacating an award, the court may order a rehearing and
determination of all or any of the issues either before the same arbitrators or
before new arbitrators appointed as provided by this part. . . . The court’s
ruling or order under this Code section shall constitute a final judgment and
6
explained,”the court’s judgment is deemed final for appeal purposes [under OCGA
§ 9-9-13 (e)] even though it is undisputed the case must be returned to the arbitrator
for rehearing.” Amerispec Franchise v. Cross, 215 Ga. App. 669, 669 (452 SE2d 188)
(1994). Thus, contrary to the husband’s argument, the May 2019 Order was not
interlocutory.
Furthermore, given that the underlying subject matter of this case was divorce,
the appropriate method for appeal from the May 2019 Order was an application for
discretionary appeal pursuant to OCGA § 5-6-35 (a) (2),3 which applies to appeals
shall be subject to appeal in accordance with the appeal provisions of this
part.
3
OCGA § 5-6-35 provides in pertinent part:
(a) Appeals in the following cases shall be taken as provided in this
Code section:
...
(2) Appeals from judgments or orders in divorce, alimony, and
other domestic relations cases including, but not limited to, granting or
refusing a divorce or temporary or permanent alimony or holding or declining
to hold persons in contempt of such alimony judgment or orders . . . .
...
(b) All appeals taken in cases specified in subsection (a) of this Code
section shall be by application in the nature of a petition enumerating the
errors to be urged on appeal and stating why the appellate court has
jurisdiction. The application shall specify the order or judgment being
appealed and, if the order or judgment is interlocutory, the application shall
set forth, in addition to the enumeration of errors to be urged, the need for
interlocutory appellate review.
7
from judgments or orders in divorce cases, rather than a direct appeal pursuant to
OCGA § 5-6-34 (a) (1),4 which applies to final judgments generally. See Walker v.
Estate of Mays, 279 Ga. 652, 653 (1) (619 SE2d 679) (2005) (“Where both the direct
and discretionary appeal statutes are implicated, it is always the underlying subject
matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-
34 or § 5-6-35.”) (citation and punctuation omitted); Self v. Bayneum, 265 Ga. 14, 14
(453 SE2d 27) (1995) (“Since the underlying subject matter is divorce, [the appellant]
was required to file an application for appeal as provided in OCGA § 5-6-35 (a)
(2).”); Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522 (521 SE2d 456) (1999)
(noting that the underlying subject matter determines whether discretionary or direct
appeal is authorized “even if a remedy such as arbitration is sought”). Accordingly,
the present appeal is properly before us based on the grant of the wife’s application
for discretionary appeal.
4
OCGA § 5-6-34 provides in pertinent part:
(a) Appeals may be taken to the Supreme Court and the Court of
Appeals from the following judgments and rulings of the superior courts, the
Georgia State-wide Business Court, the constitutional city courts, and such
other courts or tribunals from which appeals are authorized by the
Constitution and laws of this state:
(1) All final judgments, that is to say, where the case is no longer
pending in the court below, except as provided in Code Section 5-6-35[.]
8
2. The wife contends that the superior court erred in vacating the Arbitration
Award. We disagree.
To further the legislative purpose of permitting contracting parties to obtain
“the expeditious and final resolution of disputes by means that circumvent the time
and expense associated with civil litigation,” the Arbitration Code strictly limits the
scope of a superior court’s review of an arbitration award. Greene v. Hundley, 266
Ga. 592, 597 (3) (468 SE2d 350) (1996). See America’s Home Place v. Cassidy, 301
Ga. App. 233, 233-234 (687 SE2d 254) (2009). In this regard, OCGA § 9-9-13 (b)
sets out the narrow circumstances under which a superior court can vacate an
arbitration award:
The [arbitration] award shall be vacated. . . if the court finds that
the rights of that party were prejudiced by:
(1) Corruption, fraud, or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3) An overstepping by the arbitrators of their authority or such
imperfect execution of it that a final and definite award upon the subject
matter submitted was not made;
(4) A failure to follow the procedure of this part, unless the party
applying to vacate the award continued with the arbitration with notice
of this failure and without objection; or
(5) The arbitrator’s manifest disregard of the law.
9
These five statutory bases are the exclusive grounds for vacating an arbitration award.
ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007).
Furthermore, in addition to showing one of the five listed statutory grounds, a party
seeking vacatur under OCGA § 9-9-13 (b) must show that his or her rights were
prejudiced as a result of one of the listed grounds. Conmac Corp. v. Southern
Diversified Dev., 245 Ga. App. 895, 898 (1) (c) (539 SE2d 532) (2000); Bennett v.
Builders II, 237 Ga. App. 756, 757 (3) (516 SE2d 808) (1999). “Unless the court
vacates or modifies the arbitration award, the court must grant a party’s application
under the [Arbitration Code] to confirm the award. OCGA § 9-9-12.” Brazzel v.
Brazzel, 337 Ga. App. 758, 761 (2) (789 SE2d 626) (2016). Mindful of these
principles, we turn to the record and arguments raised in the present case.
In its May 2019 Order, the superior court vacated the Arbitration Award based
on OCGA § 9-9-13 (b) (3). Specifically, the superior court ruled that there had been
“imperfect execution” of the arbitrator’s authority under OCGA § 9-9-13 (b) (3)
because, among other things, the Arbitration Award did not contain findings of fact
and conclusions of law as expressly required by the parties’ arbitration agreement
incorporated into the Consent Order.
10
(a) The wife first argues that the superior court erred in vacating the Arbitration
Award because the Award included sufficient findings of fact and conclusions of law
to substantially comply with the Consent Order. A review of the Arbitration Award,
however, belies the wife’s argument.
A number of sections in the Arbitration Award begin with the phrase, “Based
upon the testimony and evidence presented at the Arbitration,” but the Award does
not cite to or discuss any of the testimony or evidence presented at the arbitration
hearing that led the arbitrator to divide the marital property as he did. Nor does the
Arbitration Award contain any citations to legal authority or provide any legal
analysis explaining the rationale for the arbitrator’s division of the marital property.
In the absence of any recitation of facts or legal analysis explaining the arbitrator’s
decision making, the Arbitration Award did not comply with the express provision
of the Consent Order requiring findings of fact and conclusions of law. Cf. Sherman
v. Dev. Auth. of Fulton County, 320 Ga. App. 689, 693 (1) (740 SE2d 663) (2013)
(holding that “summary conclusions that contain no hint about the evidence or
analysis the court relied on to arrive at them,” and that “cite no legal authority and
contain no analysis that explains them,” fail to qualify as findings of fact and
11
conclusions of law under OCGA § 9-11-52 (a));5 In the Interest of D. L. G., 212 Ga.
App. 353, 353 (1) (442 SE2d 11) (1994) (concluding that when making findings of
fact and conclusions of law required under OCGA § 9-11-52 (a), “[t]he trial judge is
to ascertain the facts and to state not only the end result of that inquiry but the process
by which it was reached. A mere recitation of the events that took place at the trial
does not satisfy the requirements of OCGA § 9-11-52 (a). Furthermore, a bare
statement of what the court considered in reaching its conclusions is not a recitation
of how those facts give support to or what constitutes the separate conclusions.”)
(citations and punctuation omitted).
(b) The wife further argues that even if adequate findings of fact and
conclusions of law were not included in the Arbitration Award, the superior court
erred in determining that the omission of such findings and conclusions constituted
an imperfect execution of the arbitrator’s authority under OCGA § 9-9-13 (b) (3). We
are unpersuaded.
5
OCGA § 9-11-52 (a) provides in part:
In ruling on interlocutory injunctions and in all nonjury trials in courts
of record, the court shall upon request of any party made prior to such ruling,
find the facts specially and shall state separately its conclusions of law. . . .
Although OCGA § 9-11-52 (a) is not applicable to the arbitrator’s decision, cases
construing that statute are instructive because they provide guidance as to what constitute
adequate findings of fact and conclusions of law when requested by the parties.
12
An arbitration award can be vacated where there is such imperfect execution
of the arbitrator’s authority “that a final and definite award upon the subject matter
submitted was not made.” OCGA § 9-9-13 (b) (3). “The limits of an arbitrator’s
authority are defined by the parties’ arbitration agreement.” Henderson v. Millner
Dev., 259 Ga. App. 709, 711 (1) (578 SE2d 289) (2003). See United Health Svcs. of
Ga. v. Alexander, 342 Ga. App. 1, 2 (2) (802 SE2d 314) (2017) (“Arbitration is a
matter of contract, meaning that arbitrators derive their authority to resolve disputes
only from the parties’ agreement.”) (citation and punctuation omitted). Thus, an
arbitrator is “bound by the terms of the parties’ agreement in crafting his award.”
Henderson, 259 Ga. App. at 711 (1). An arbitrator imperfectly executes his or her
authority where there is a “significant failure to fully and clearly address the issues
presented,” Amerispec Franchise, 215 Ga. App. at 670, and whether there has been
such a failure turns on what the parties’ arbitration agreement required of the
arbitrator. See Hansen & Hansen Enterprises, v. SCSJ Enterprises, 299 Ga. App. 469,
473-474 (2) (b) (682 SE2d 652) (2009). As we have explained:
An arbitration award should be consistent with terms of the underlying
agreement and reflect the essence of that contract; it must not
demonstrate an imperfect execution of the arbitrator’s authority. . . . [An
13
arbitrator] is not free to ignore the express terms of a valid and
enforceable contract.
(Citation and punctuation omitted.) Sweatt v. Intl. Dev. Corp., 242 Ga. App. 753, 755
(1) (531 SE2d 192) (2000).
Here, the Arbitration Award was inconsistent with the express provision of the
parties’ arbitration agreement incorporated into the Consent Order requiring findings
of fact and conclusions of law. Because the arbitrator failed to issue an award in the
form explicitly required by the parties’ contract, the superior court was authorized to
conclude that there was such an imperfect execution of the arbitrator’s authority that
a final and definite award was not made, and that one of the five statutory grounds for
vacatur thus had been satisfied.6 See Hansen & Hansen Enterprises, 299 Ga. App. at
473-474 (2) (b); Sweatt, 242 Ga. App. at 755 (1). See also Cat Charter v.
Schurtenberger, 646 F3d 836, 843 (11th Cir. 2011) (arbitrator must “provide an
award in the form required by an arbitration agreement”); Western Employers Ins. Co.
6
As previously noted, the arbitration hearing in the instant case was not transcribed,
but the absence of the transcript was not fatal to the husband’s request for vacatur because
the error by the arbitrator was reflected on the face of the Arbitration Award. See ABCO
Builders, 282 Ga. at 309 (indicating that in some cases, vacatur can be authorized based
on “the face of the award”). See also Montes v. Shearson Lehman Bros., 128 F3d 1456,
1461 (11th Cir. 1997) (arbitrators “expressly took note” in arbitration award that party had
asked them to disregard controlling law and arbitrators ruled in favor of that party).
14
v. Jefferies & Co., 958 F2d 258, 261-262 (B) (9th Cir. 1992) (arbitration award
properly vacated where arbitration panel failed to include findings of fact and
conclusions of law required by the parties’ arbitration agreement); New Elliott Corp.
v. Man Gutehoffnungshutte AG, 969 FSupp. 13, 15 (S.D. N.Y. 1997) (case remanded
to arbitrators to provide adequate findings of fact and conclusions of law, where
arbitration agreement “provided (somewhat unusually) for written findings of fact and
conclusions of law”); Treadwell v. Village Homes of Colo., 222 P3d 398, 401 (Colo.
App. 2009) (“The parties can require arbitrators to issue written findings and, where
agreements so require, arbitrators exceed their powers by not making such
findings.”). Cf. Universal Mgmt. Concepts v. Noferi, 270 Ga. App. 212, 214-215 (1)
(605 SE2d 899) (2004) (arbitration award was “imperfect in a manner of form” and
thus subject to modification under OCGA § 9-9-14 (b) (3) where award was
inconsistent with parties’ agreement “setting forth the parameters of the award”).
In arguing that the omission of findings of fact and conclusions of law from the
arbitration award did not supply a ground for vacatur, the wife points to several cases
enunciating the general rule that an arbitrator is not required to make findings of fact
or explain his or her reasoning for the arbitration award. See Greene v. Hundley, 266
Ga. 592, 595 (2) (468 SE2d 350) (1996); Payton v. Jackson, 326 Ga. App. 319, 321
15
(756 SE2d 555) (2014); Azordegan v. Ebrahimi, 311 Ga. App. 509, 510 (2) (716
SE2d 528) (2011); Doman v. Stapleton, 272 Ga. App. 114, 117 (611 SE2d 673)
(2005); Marchelletta v. Seay Constr. Svcs., 265 Ga. App. 23, 28 (2) (593 SE2d 64)
(2004); Atlanta Gas Light Co. v. Trinity Christian Methodist Episcopal Church, 231
Ga. App. 617, 620 (2) (500 SE2d 374) (1998); Cotton States Mut. Ins. Co. v.
Nunnally Lumber Co., 176 Ga. App. 232, 234-235 (2) (335 SE2d 708) (1985). But
the cases cited by the wife are distinguishable because none of them involved the
situation where, as in the current case, the parties chose to include an express
provision in their arbitration agreement requiring the arbitrator to make findings of
fact and conclusions of law. See id. Hence, those cases simply set out a default rule
that no specific form of arbitration award is required, but because arbitration is a
matter of contract, see United Health Svcs. of Ga., 342 Ga. App. at 2 (2), parties are
free to contact around that default rule, unless prohibited by statute or public policy.
See RSN Properties v. Engineering Consulting Svcs., 301 Ga. App. 52, 53 (686 SE2d
853) (2009) (“Unless prohibited by statute or public policy, the parties to a contract
are free to contract on any terms and about any subject matter in which they have an
interest.”) (citation and punctuation omitted). And we discern no such statutory or
public policy prohibition in this case.
16
The wife asserts that Brookfield Country Club v. St. James-Brookfield, LLC,
287 Ga. 408, 413 (1) (696 SE2d 663) (2010), limits the authority of contracting
parties in the context of arbitration, but that case is clearly distinguishable. In
Brookfield Country Club, the parties entered into an arbitration agreement that stated
that a trial court could vacate the arbitration award “if the court finds the arbitrator’s
award is not consistent with applicable law or not supported by a preponderance of
the evidence . . . all in addition to ground for vacation of an award as set forth in the
Georgia Arbitration Code.” 287 Ga. at 409. The Supreme Court held that parties
cannot contractually expand the scope of a trial court’s review of an arbitration award
to include grounds for vacatur beyond the five statutory grounds set forth in OCGA
§ 9-9-13 (b), and that the trial court’s review of the arbitration award thus was limited
to the five listed grounds, despite the parties’ arbitration agreement to the contrary.
See Brookfield Country Club, 287 Ga. at 410-413 (1). In contrast, in the present case,
the parties did not contract to add any additional statutory grounds for vacatur, and
the husband relied on the existing statutory “imperfect execution” ground as a basis
for vacating the Arbitration Award. And, as previously noted, the “imperfect
execution” ground takes into account the terms and conditions of the arbitration to
which the parties agreed in their contract. See Hansen & Hansen Enterprises, 299 Ga.
17App. at 473-474 (2) (b); Sweatt, 242 Ga. App. at 755 (1). Thus, the prohibition on
contracting parties enunciated in Brookfield Country Club is not applicable under the
circumstances of this case, and the parties were free to contract around the default
rule under Georgia law that no findings of fact and conclusions of law are required
in an arbitration award.
(c) The wife also contends that the superior court erred in vacating the
Arbitration Award because the husband did not show that his rights were prejudiced
by the arbitrator’s imperfect execution of his authority. Again, we disagree.
Here, the parties contracted for specific terms of arbitration, including that any
award that was entered would contain findings of fact and conclusions of law that
could be incorporated into the final divorce decree, and the husband thus did not
receive the benefit of his bargain, and his contractual rights were undermined, when
the arbitrator issued an award that ignored that term of the parties’ agreement. The
wife “has not indicated why, under simple principles of contract law, [the husband]
should be held to the terms of a contract for which [he] did not bargain.” Western
Employers Ins. Co., 958 F2d at 261-262 (B). Furthermore, the omission of the
required findings of fact and conclusions of law from the arbitration award severely
curtailed the ability of the husband to review the arbitrator’s decision for error and
18
to seek meaningful (albeit limited) judicial review of the award. See Ordner Constr.
Co. v. Parkside Crossing, 300, 276 Ga. App. 753, 754 (1) (624 SE2d 206) (2005)
(noting that “[w]ithout the arbitration hearing transcript, and in the absence of
detailed findings of fact in the arbitration award, we have no means of discerning the
basis for the arbitrator’s decision”). See also Cat Charter, 646 F3d at 845 (pointing
out that if contracting parties wish for “greater explanation” of the arbitrator’s award,
they can request that the arbitrator “provide findings of fact and conclusions of law”).
Cf. Sadler v. Rigsby, 338 Ga. App. 549, 551 (1) (790 SE2d 639) (2016) (“Findings
of fact and conclusions of law enable the parties to specify the errors the trial court
purportedly made, and enable the appellate court to review the judgment adequately
and promptly.”) (citation and punctuation omitted). Under these circumstances, there
was sufficient evidence of prejudice to justify vacatur of the arbitration award.7
For these combined reasons, we conclude that the superior court committed no
error in vacating the Arbitration Award under the “imperfect execution” prong of
OCGA § 9-9-13 (b) (3) for failure to include the findings of fact and conclusions of
7
It is not fatal to the superior court’s May 2019 Order that it did not contain an
express finding that the husband suffered prejudice. See Conmac Corp., 245 Ga. App. at
898 (1) (c) (if there is any evidence in the record that the party seeking vacatur was
prejudiced, trial court’s vacatur order will be affirmed, even if court made no express
finding of prejudice).
19
law expressly required by the parties’ arbitration agreement incorporated into the
Consent Order.8
2. In a separate enumeration of error, the wife contends that the superior court
erred in failing to confirm the Arbitration Award. We disagree in light of our decision
in Division 1 that the Award was properly vacated. See OCGA § 9-9-12 (“The court
shall confirm an award upon application of a party made within one year after its
delivery to him, unless the award is vacated or modified by the court as provided in
this part.”) (emphasis supplied).
Judgment affirmed. Gobeil, J., and Senior Appellate Judge Herbert E. Phipps
concur.
8
Because vacatur was authorized based on the arbitrator’s failure to make the
required findings of fact and conclusions of law, we need not address whether the superior
court erred in further determining that the arbitrator imperfectly executed his authority by
failing to resolve issues pertaining to the distribution of personal property and the proceeds
from the sale of certain realty. See generally Extremity Healthcare v. Access To Care
America, 339 Ga. App. 246, 258 (3), n. 7 (793 SE2d 529) (2016) (superior court’s
arbitration ruling will be affirmed if right for any reason).
20