Sosebee v. Sosebee ( 2015 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Melanie Sosebee, Respondent,
v.
Ernest Jeffrey Sosebee, Appellant.
Appellate Case No. 2014-001559
Appeal From Charleston County
Edgar H. Long, Jr., Family Court Judge
Unpublished Opinion No. 2015-UP-481
Submitted August 1, 2015 – Filed October 14, 2015
AFFIRMED
Paul E. Tinkler, of Law Office of Paul E. Tinkler, of
Charleston, for Appellant.
Alan David Toporek, of Uricchio Howe Krell Jacobson
Toporek Theos & Keith, PA, of Charleston, for
Respondent.
PER CURIAM: Ernest Jeffrey Sosebee (Appellant) appeals the family court's
orders denying his motion to terminate the authority of the arbitrator or stay
arbitration and his motion to amend the arbitration award. On appeal, Appellant
argues the family court erred in (1) not terminating the authority of the arbitrator
when the arbitrator did not enter his order within the timeframe set forth in the
arbitration agreement, (2) requiring Appellant to pay attorney's fees, and (3) not
finding an evident miscalculation of figures in the alimony award. We affirm.
1. The family court did not err in denying Appellant's motion to terminate the
arbitrator's authority or stay arbitration. "Arbitration is a favored method of
settling disputes in South Carolina. When a dispute is submitted to arbitration, the
arbitrators determine questions of both law and fact. Generally, an arbitration
award is conclusive and courts will refuse to review the merits of an award. An
award will only be vacated under narrow, limited circumstances." Pittman Mortg.
Co. v. Edwards, 327 S.C. 72, 75-76, 488 S.E.2d 335, 337 (1997) (citations
omitted). "[F]amily courts presented with arbitration agreements and awards must
proceed, as any other court, in accordance with the terms of the Arbitration Act.
Thus, an agreement to arbitrate may be set aside by the family court only upon
proof of grounds as exist at law or in equity for the revocation of any contract. The
court may correct or modify an arbitration award only in accordance with the
provisions [of] section 15-48-140 [of the South Carolina Code (2005)], and the
court may vacate the award only upon the establishment of one of the grounds set
forth in section 15-48-130 [of the South Carolina Code (2005)], or the rarely
applied non-statutory ground of manifest disregard or perverse misconstruction of
the law. Otherwise, the family court must confirm the arbitration award." Swentor
v. Swentor, 336 S.C. 472, 485-86, 520 S.E.2d 330, 337-38 (Ct. App. 1999)
(citations and internal quotation marks omitted). Appellant has not established any
of the grounds for vacating an arbitration award under section 15-48-130. Further,
Appellant has not set forth a legal basis for terminating the arbitration agreement.
See Jackson Mills, Inc. v. BT Capital Corp., 312 S.C. 400, 403-04, 440 S.E.2d 877,
879 (1994) ("[A]n arbitration agreement itself is subject to termination . . . . [I]t is
only when a party has valid grounds upon which to challenge the arbitration clause
itself that arbitration may be avoided. For example, a party may claim the
controversy arose out of events occurring subsequent to expiration of the
arbitration agreement itself, or a party may allege that the arbitration agreement
was never entered into." (citation omitted)). Finally, Appellant has not cited any
South Carolina law to support his contention that the arbitrator lost his authority or
jurisdiction when he did not timely deliver his award. Although section 15-48-
90(b) of the South Carolina Code (2005) requires the arbitrator to file the
agreement within the timeframe set forth in the arbitration agreement, it does not
provide a remedy for the arbitrator's failure to do so or state the arbitrator loses
authority or jurisdiction if the award is not timely filed. Likewise, the arbitration
agreement here did not condition the arbitrator's authority or jurisdiction upon
timely filing an award. Under the facts of this case—where Appellant did not file
his motion to terminate the arbitrator's authority or otherwise object to the
arbitrator's delay until after he had an opportunity to review a draft of the award—
we decline to create a legal remedy under section 15-48-90 or determine, as a
matter of law, the arbitrator lost his authority or jurisdiction.
2. Because Appellant is not the prevailing party on appeal, we need not consider
his argument that Respondent is not entitled to attorney's fees on the basis that she
was not the prevailing party. Appellant's argument that the attorney's fees award
was not supported by factual evidence was never raised to the family court; thus, it
is not preserved. See Buist v. Buist, 410 S.C. 569, 574, 766 S.E.2d 381, 383 (2014)
("It is well settled that an issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the [family] court to be preserved.");
id. at 576-77, 766 S.E.2d at 384-85 (holding a motion to reconsider constitutes a
timely challenge to a fee award but finding the husband failed to preserve his
argument when his motion to reconsider was not sufficiently specific).
3. The family court did not err in denying Appellant's motion to modify or correct
the arbitration award. See S.C. Code Ann. § 15-48-140(a) ("Upon application
made within ninety days after delivery of a copy of the award to the applicant, the
court shall modify or correct the award where: (1) [t]here was an evident
miscalculation of figures or an evident mistake in the description of any person,
thing[,] or property referred to in the award . . . ."); Lauro v. Visnapuu, 351 S.C.
507, 517, 570 S.E.2d 551, 556 (Ct. App. 2002) (reversing the circuit court's
modification of an arbitration award when "the arbitrator did not commit a
mathematical error in computing the total amount of the award" but rather
"consciously declined to award [one of the parties] the full amount of the
contract").
AFFIRMED.1
FEW, C.J., and KONDUROS and LOCKEMY, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.