*1 Richmond I. BANDAS WILLIAM
v. BANDAS KAY DENSON HELEN No. 0143-92-2 Decided June
Counsel Bandas, se. I. pro
William Parkerson, Anderson, on for brief), appellee. Jr. & (Anderson P. Harry Opinion an order
MOON, C.J.* affirming I. Bandas appeals William wife, Denson Kay him and his Helen award between arbitration Bandas, ap the court failed to use (1) following grounds: on the award; (2) the arbitration affirming of review when standard propriate the award based on substantive in to scrutinize failing the court erred the award of affirming erred when the court (3) fairness and equity; classification, and division of mari valuation and the spousal support due date of the effective the court erred tal property; (4) award; (5) the arbitration embodied in award monetary for the the husband. Except against court erred in sanctions imposing [*] On May 1, 1993, Judge Moon succeeded Judge Koontz as Chief Judge. domestic we affirm because amount of sanctions imposed, uncon- case an arbitration award must be unless it is relations upheld scionable against public policy. wife, 30, 1980, husband,
On and the May appellee, appellant, Richmond, child, were married in have one Virginia. Benjamin They Bandas, Bill of Denson born 1986. Wife filed a April Complaint 20, 1989, husband on in the Circuit Court of the against April City wife, Richmond. The for divorce to Code ground alleged by pursuant that, 20-91(3), was after the husband was convicted of a marriage 16, 1986, confined in the and co- felony, penitentiary September habitation had not resumed. Husband filed a that on cross-bill alleging 24, 1988, November wife deserted him him “tele- by informing that she no wanted to be married and did not want to phone longer resume cohabitation with him his release.” upon 8.01-581.01, to Code entered
Subsequently, pursuant into an arbitration which agreement “they provided specifically that in lieu of a trial of agree this case before the Circuit Court of the *3 Richmond, of the same shall be City arbitrated and decided arbitrator named herein.” The further that “either of agreed them submit court the decision of the arbitrator as a final may arbitrated, between them as to the binding agreement issues said affirmed, to be ratified and reference in agreement an incorporated by order or decree appropriate Code 20-109.1.” pursuant § The arbitrator found that the wife had a for divorce ground against 20-91(3); husband under Code the arbitrator also found that husband § had for divorce ground against 20-91(1) wife under Code because § while the husband was incarcerated wife committed The ar- adultery. bitrator found that under these circumstances recrimination was a de- found, however, fense of the husband. He further that wife was enti- 20-107.1, tled to under the spousal support of Code exception her The arbitrator found that notwithstanding adultery. denial such award to wife would be The trial court affirmed the manifestly unjust. arbitrator’s award.
I. Husband contends that the trial court used the incorrect standard of review when the arbitration award. arbitrator,
After errors reviewing alleged of the the trial court addressed the issue of the standard of review of arbitration
430
8.01-581.010,
awards. The court cited Code
which states that be-
cause another court of law or
would not
equity
such
grant
award em-
decision,
bodied in the arbitrator’s
this fact is not a
ground
vacate
such award. The court also cited Howerin Residential Sales
v.
Corp.
Tidewater, Inc.,
Century Realty
174,
235 Va.
The trial based on Howerin, Code 8.01-581.01 and stated that “the test should be there whether is a gross miscarriage justice under the circumstances.” The trial court found none. there is no law in
Although with the Virginia dealing standard of review of arbitration cases, in domestic agreements relations other ju risdictions have considered the matter. See v. Faherty Faherty, 97 N.J.
99,
Masterson,
The New
Jersey Supreme
held that arbitration
Faherty,
*4
valid,
awards in domestic relations “shall be
enforceable and irrevo-
cable,
such
except
as exist at law or in
for the
upon
grounds
equity
n.2,
revocation of a contract.”
Virginia has the Uniform Arbitration adopted Act in Code 8.01- 8.01-581.01, 581.01 et Code seq. entitled of Arbitration “Validity Agreement,” states in pertinent part: arbi- to controversy submit any existing to
A written agreement to submit to arbitration in a written contract tration or a provision valid, is between arising thereafter any controversy irrevocable, as exist at grounds such except upon enforceable and contract. any for the revocation law or equity up should be arbitration agreements implies This language unconscionable, public policy is against held unless the agreement contract in equity. aside a two set which are grounds Act, adopted by Arbitration as in the Uniform Nowhere in a agreement to review an arbitration courts required are Virginia, as than other disputes, with more scrutiny context domestic relations in the standard of review We hold that have us hold. husband would should conform in domestic relations agreements arbitration volving Arbitration agree 8.01-581.01. set forth in Code to the standard aside on appeal in them shall not be set embodied ments and the award such, as in equity to set aside a contract exist grounds unless there or, contrary public policy. unconscionability
II. erred in to scrutinize failing that the trial court Husband contends equity, argues for substantive fairness award the arbitration argu- Act. This bound the Arbitration court cannot be that the trial Arbitration Act does that the husband’s premise ment is based upon holding on our Based equity. for substantive fairness not provide in do- for arbitration agreements standard of review concerning cases, husband. we with disagree mestic relations court how the trial Furthermore, concerning contention in its let- stated incorrect. The court award is reviewed the arbitration in this record that the arbitra- no indication “there is ter opinion The court policy.” or is against public is tion award unconscionable as follows: found it that what to see Court, out its responsibility in carrying urg- this record at has reviewed
orders is appropriate, [husband’s] Arbi- thinking ones that a fair the issues are to find that only ing Indeed, the law could resolve. knowledge trator with adequate the same way decided these questions itself could have the Court in the Especially in regular proceedings. it heard the evidence had of the in the context and here generally, context arbitration arbitration, principles according agreement specific *5 432 themselves, none, made for there utterly is no basis and
parties which rightly could the Court to invoke the relief urge [husband] he seeks. trial
“The court’s must be accorded findings deference. great Its will not be disturbed on judgement unless appeal plainly wrong 405, without it.” evidence to v. Va. Keyser Keyser, 7 support App. 409, 698, (1988) (citation 374 omitted). S.E.2d 701
Here, abundant evidence exists to the court’s support conclusion aside, that husband is not entitled to have the arbitrator’s award set there evidence is no that the award is unconscionable or against public policy.
HI. Next, the husband contends the trial court erred in the classification, award of and the spousal support, valuation division of marital property.
A. Spousal Support Husband that wife argues is under guilty Code adultery and, therefore, 20-91(1) is not entitled § Code support pursuant 20-107.1, which states in pertinent § part: maintenance and be
Any shall support subject limita- 20-109, tions set forth in and no maintenance and permanent § shall be awarded from a if there support exists such spouse favor a of divorce under spouse’s ground provisions However, 20-91(1). the court make such an award not- may § of such withstanding existence if the court ground determines evidence, from clear and convincing that a denial support and maintenance would a constitute injustice, based upon manifest the respective degrees the rela- during marriage of fault tive economic circumstances of the parties. added). (emphasis determined arbitrator that both had a of divorce. parties ground
The wife’s ground was for husband’s under felony conviction Code 20-91(3); ground was for under Code adultery result, 20-91(1). As a the arbitrator determined that recrimination Davis, 12, was a defense of the See husband. Davis v. 8 Va. App. (1989). S.E.2d bar However, would not that recrimination arbitrator determined at both were because from seeking support wife spousal fault, notwithstanding spouse’s states that fault. Code 20-107.1 fault,” based on “degrees to such be awarded may spouse support factors, establishes convincing clear evidence other if among *6 such support. justice requires 29, 1989, at issue here stated arbitration award dated December
The $2,873,670 as October estate of husband had a personal that $20,000. that his ex- annual Husband testified an salary and noted that the net $4,701.25 The arbitrator month. per were penses income” to hus- a “reasonable was used attribute of husband worth $103,777. band, The wife from assets are “negligible.” assets aside marital
Wife’s residence, $374,324 did hus- their marital from the sale of received that business had decorating produced Wife also had an interior band. arbitrator, in the based on income produced in the The income past. $38,000 $43,000 Wife wife’s business. annually attributed past, that due to the and litigation, that her business was depressed testified $11,428.79. her were monthly expenses fact the marriage ap- The also considered the lasted arbitrator in- and husband had been and one-half eight years, proximately and had com- for the wife during marriage, carcerated several years incarceration. adultery mitted after husband’s of their relative of fault both evidence degree in the arbitrator and trial court economic circumstances supported that the wife should receive finding support. nor court husband’s argu-
Neither arbitrator the trial accepted there was no viola- ment that recrimination was not a defense because a 20-91(3) of incarceration of ground tion of Code concerning that he for a We the husband’s contention disagree with spouse felony. wife, him in (3), not violate 20-91 because the visiting did Code after the husband had cohabitation with husband resumed prison, was incarcerated. correctly
The arbitrator stated: [Cjohabitation many more of is a “bundle of duties”... however duties, are missing these incidents rights responsibilities, is and the other the situation one of incarcerated where the parties chores, is not. Contribution to household food party preparation, children, sexual care of emotional companionship, intimacy, sup- communication, between port parties, personal participation in social events . . . and other incidences of . . . cohabitation are as well as the incident of sexual missing support. 20-91(3)]
The statute itself that confinement presumes [Code § “resumed,” terminates cohabitation. . . use of the word By has its legislature clearly that in case of expressed judgement ceased, confinement for cohabitation has felony, having ceased, be must “resumed.” voluntarily We hold that the trial court was correct the arbitrator’s that each determination had a of divorce spouse ground against other, defense, that recrimination was a valid and that spousal support was in this case wife’s proper despite adultery.
B. Amount of Spousal Support Husband contends that the arbitrator failed to consider all of the fac- tors Code 20-107.1 in the amount *7 determining of spousal § support. However, the arbitrator found in the award that specifically making $103,777, husband’s net income would be into account taking all of husband’s assets. The arbitrator found also that the wife’s annual in- $38,000 $43,000. factors, come would be these as well “Reviewing hereto, all the as factors mentioned in Exhibit C attached and consid- evidence, Exhibits, all the the ering arguments of counsel and con- 20-107.1,” factors set forth in Code the sidering arbitrator awarded § $2450 wife month. per
The arbitrator each listed of the factors of Code 20-107.1 and ap- the these factors to circumstances of the plied husband wife. We hold evidence the court’s affirmance of the supports arbitration award the amount of the regarding spousal support.
C. Classification of Marital and Separate Property Husband that the argues arbitrator erred by failing assets separate assets, husband that had become with marital but commingled were traceable to his assets. separate
We with disagree We stated legal analysis. Pommerenke, 241, Pommerenke v. 7 (1988), Va. 372 S.E.2d App. 630 that: (1987)], Smoot, S.E.2d 728 Va. Smoot [v.
[I]n $20,000 injury a personal from premarital contributed husband on the parties’ of a home the construction toward settlement that Code Court held The Supreme owned property. jointly of the par decree as may property “Court 20-107.3 [entitled doctrineapplicable “source adopt does not ties”] funds two states, only 20-107.3 contemplates and “Code in other each expressly property, and separate kinds property-marital defined.” added). omitted) (citation (emphasis at 633 372 S.E.2d
Id. at Pommerenke, did the trial court we hold that on the language Based decision classifying property the arbitrator’s err in affirming not either marital separate. the value the arbitrator miscalculated that
Husband also argues be- is the difference miscalculation estate. The alleged the marital $2,495,287.70 of the property the arbitrator tween the finding E of the Arbitra- value on Exhibit the marital property is marital and However, $27,179. $2,468,108.70. This difference is Award as tion error, and the total changed by accepting this recognized the arbitrator Exhibit E: marital the lesser amount of property and infor- the voluminous testimony I cannot trace back through differ- in order to identify about the marital property mation of time and consequent expense. ence investment large without event, difference, in any I am reluctant to incur that expense. end results of or a on the impact have no impact, negligible will that I had used in change figure this case. I will therefore E, on Exhibit that is shown figure drafts to reflect previous $2,468,108.70. that is
Therefore, of the marital of the lower amount husband the benefit got based on have to make his monetary payment as he would property, the trial amount. We hold that marital estate of a lower percentage *8 on the matter. the arbitrator’s affirming finding court did not err by of Marital D. Division Property the divi- arbitrator erred to base failing Husband contends that by set forth in Code the marital estate on the factors sion of of husband’s contributions 20-107.3(E), to consider failing § of the awarded wife thirty percent the marital estate. The arbitrator marital estate. the factors of Code not listed his decision only
The arbitrator award based on the mari- 20-107.3(E) relating making monetary § to the the of such factors he also mentioned applicability tal property, conten- and wife. We reject of the husband circumstances tion. the estate is his contribution to marital citing
Husband’s argument n.2, Va. merit. We stated in Zipf v. Zipf, App. also without (1989), 266 n.2 as follows: 382 S.E.2d construed, however, to sanction a dispro- herein be shall Nothing because of assets in favor of one party simply division portionate for development has been primarily responsible party each contributions of non-monetary marital assets. The [of factors in Code as well as the other specified parties], the] 20-107.3(E) must be considered. § divi- the arbitrator’s that evidence in the record supports We hold and the court was correct in of the marital sion property such decision.
IV. erred in the hus- ordering that the circuit court Husband next argues the date award from interest on the distribution band to pay equitable 18, 1991, award, the date the the arbitrator’s June opposed to Code 20-109.1. was order incorporated pursuant § either of the could agreement parties The arbitration provided the agreement to the court to affirm or ratify submit the agreement award called for The arbitration to Code 20-109.1. pursuant ‘ of the delivery be due and ‘within 30 days award to monetary payable the rate of eight and shall bear interest at of this . . . arbitration award 6.1-330.53) amounts as remain (Code annum for such cent per per after the date of deliv- 31st commencing day due owing award.” of this arbitration ery affirmed what hold that the court order simply
We delivery accrue after thirty-one days to: the interest agreed having the arbitration award.
V. Code that sanctions were appropriate pursuant Wife alleged to the circuit court were 8.01-271.1 because grounds appeal *9 sanc- and ordered The circuit court agreed “frivolous and improper.” tions. ‘is of a sanction the imposition the issue underlying
“[W]here fact, the trial court’s ruling we do not accord one of law and not factual conflicting be accorded if reached upon it would weight same Thus, standard in re an abuse-of-discretion . . . we apply evidence.’ v. of sanctions.” Oxenham court’s award or denial a trial viewing 281, 287, Johnson, (1991). 402 S.E.2d 241 Va. motions, 8.01-271.1, entitled “Signing pleadings,
Code § motions; sanctions,” states in pertinent part: other oral papers; certificate an or constitutes a The signature attorney party (ii) . to the best of his information knowledge, him that. . belief, or reasonable motion formed after inquiry, pleading, [such and is warranted by existing other is well fact grounded paper] extension, modification, for the law or a faith good argument . . . reversal of law. existing or made in viola-
If a motion or other is signed pleading, paper initiative, rule, court, motion or its own tion of this upon upon or made the shall who person signed paper impose upon motion ... an sanction. appropriate trial court stated that contentions were not based on husband’s law, law. Husband existing nor did
existing they attempt change his a domestic relations cited no case position vacating supporting award, arbitration when the outcome of the is- support property owned sues are to the amount of grossly property pri- disproportionate or to marriage. for husband to
The trial court further stated that no basis existed above, the arbitra- contest the arbitrator. As discussed findings tor the facts to the code sections determining applied appropriate award and and did not commit error any monetary spousal support result, in its determination. As a the award not unconscionable nor was against public policy. court, that because the
On before this husband asserts trial appeal court refused to wife’s that the arbitration award was adopt position modifiable, not the court with the husband on this issue. The agreed fact that the trial court with the husband that the award could agreed
be modified does not the trial court from preclude hus- sanctioning award, band. the trial court it Although agreed could review the it found no merit to claim it should be modified. essence,
In the husband that the arbitration argued award should be treated as from a commissioner in report Even under that chancery. *10 standard, husband still would not have been entitled to relief as a mat- ter of His almost law. were based false asser- arguments totally upon tions and he made no that would him legal argument entitle to relief. noted, As the it more trial court was than a after the arbitrator had year made his in the before made findings proposed award husband any to it. objection did not
We hold that the trial court abuse its discretion by awarding cited in sanctions based on the errors husband his motion to alleged by vacate the arbitration award and of the arbitrator. Howev- findings er, issues, how because one of the an arbitration award regarding cases, in should be treated a trial court domestic relations which by of first in was raised husband was and because impression Virginia, reasonable that the distribu- argument husband had a facially equitable excessive, tion award was we remand the award of sanctions to the trial court for review and for a new award that recognizes it motion before was not frivolous and without merit. totally in part,
Affirmed reversed in part, and remanded. Elder, X, concurred.
Barrow, X, in concurring part dissenting part.
While I concur with the of the merits of this majority’s disposition I court should not have sanctions believe that trial appeal, imposed observes, no law exists in re- Virginia this case. As the majority in domestic agreements the standard of review arbitration garding Furthermore, to the arbitra- appellant’s challenge relations cases. an tor’s determination that recrimination did not bar award of spousal new relatively to the wife involved an a support interpretation Code I believe that “a com- Consequently, amendment to 20-107.1. after reasonable could . . . have formed petent attorney, inquiry, was “warranted by reasonable belief” that the contention appellant’s 611, 614, law.” v. Board 239 Va. existing Tullidge Supervisors, Furthermore, I would resolve doubt any 391 S.E.2d 290 (1990). in his favor.