Kelm v. Kelm

623 N.E.2d 39, 68 Ohio St. 3d 26
Ohio Supreme Court·Decided December 15, 1993·No. No. 92-1523·Published·Cited by 77 cases

Opinions

Douglas, J.

Arbitration, as a method of alternative dispute resolution, has long been favored in the law. See Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 551 N.E.2d 186; and Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 22 OBR 95, 488 N.E.2d 872. Both parties agree with this proposition. Appellant argues, however, that regardless of the enforceability of an arbitration provision in an antenuptial agreement, the arbitration clause at issue, by its very terms, pertains only to matters of permanent spousal and/or child support and not matters of a temporary nature. Appellant also takes an alternate position, [28]*28urging that arbitration, even when there is an agreement to do so, does not serve the immediate needs of a spouse and children for support during the pendency of the divorce. Appellant further argues that taking away the power of the court, by arbitration agreement or otherwise, to determine and set temporary support, violates public policy since the court is deprived of its statutory jurisdiction and obligation to provide for the best interest of minor children involved in a divorce case.

Conversely, appellee contends that the arbitration provision was intended to cover, among other things, support matters of both a temporary and permanent nature. Appellee further disagrees with appellant’s claim that temporary spousal and/or child support, if arbitrable, undermines a trial court’s duty to provide for a spouse and minor children during the pendency of a domestic relations case. Appellee submits that arbitration can provide a quick and inexpensive resolution of matters in a matrimonial dispute and, if need be, a domestic relations court has the authority to supervise such proceedings.

Paragraph 10 of the parties’ antenuptial agreement provides, in part, that:

“In the event of a dispute between the parties hereto over an arbitrable matter * * *, such dispute shall be resolved by arbitration to the extent permitted by law. A dispute over an arbitrable matter shall mean only (a) a dispute as to the alimony or child support provisions incident to a termination of their marriage, or (b) a dispute regarding the nature, extent and division of real or personal property acquired during their marriage. * * * ” (Emphasis added.)

A portion of the parties’ contentions focuses on an interpretation of the language “incident to a termination of their marriage,” as used in the arbitration clause. Appellant asserts that this phrase only pertains to support matters which are of a permanent nature, while appellee argues that the phrase covers all matters of spousal and/or child support prior to and after a final decree of divorce.

We believe the court of appeals was correct in its determination of this issue, finding that the arbitration provision in the antenuptial agreement, by its plain language, affects temporary and permanent spousal and/or child support. The use of the words, “incident to,” obviously encompasses not only those matters which are concomitant to a final decree of divorce but also matters which arise during the pendency of a matrimonial dispute.

It is clear that antenuptial agreements, when properly implemented, are enforceable in this state. Gross v. Gross (1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E.2d 500. However, this court has not considered whether an agreement to arbitrate disputes in domestic relations matters, regarding spousal and/or child support, is enforceable. Other jurisdictions have confronted this or similar issues and have consistently approved of arbitration as a proper forum for determining [29]*29matters of support. In general, these jurisdictions have concluded that arbitration is a viable means of resolving disputes incident to divorce or separation. See, e.g., Bandas v. Bandas (Va.App.1993), 430 S.E.2d 706; Faherty v. Faherty (1984), 97 N.J. 99, 477 A.2d 1257; Schneider v. Schneider (1966), 17 N.Y.2d 123, 269 N.Y.S.2d 107, 216 N.E.2d 318; and Hirsch v. Hirsch (1975), 37 N.Y.2d 312, 372 N.Y.S.2d 71, 333 N.E.2d 371. See, also, Spencer v. Spencer (D.C.1985), 494 A.2d 1279; Masters v. Masters (1986), 201 Conn. 50, 513 A.2d 104. Compare Crutchley v. Crutchley (1982), 306 N.C. 518, 293 S.E.2d 793.

This court has frequently recognized the validity and enforceability of agreements to arbitrate in many areas of the law. “Arbitration is favored because it provides the parties thereto with a relatively expeditious and economical means of resolving a dispute * * * [and] ‘ * * * has the additional advantage of unburdening crowded court dockets.’ ” Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 712, 590 N.E.2d 1242, 1245. Given the benefits of arbitration, and our pronouncements on the subject, we see no reason why agreements to arbitrate should not be included in the area of domestic relations. The time has come to join the rulings and views espoused by our sister jurisdictions in this area. Therefore, we hold that in a domestic relations case, matters of temporary or permanent spousal and/or child support may, by mutual consent of marriage partners, be made subject to an agreement to arbitrate. Further, we note that the court of appeals was correct in concluding that attorney fees were part of “support” to which appellant was entitled. See R.C. 3105.18(H).

Appellant takes particular offense at the acquiescence of the court of appeals allowing for arbitration of disputes concerning matters of temporary child support. Appellant cites Civ.R. 75 and various sections of R.C. Title 31, urging that disputes concerning child support are exclusively within the province of a trial court as parens patriae and are, therefore, not arbitrable as a matter of law and public policy.

There is no question that pursuant to Civ.R. 75 and R.C. Title 31 courts are provided with broad authority over such matters as spousal support, child support, and custody of children. However, there is nothing in either the rule or statutory scheme which prohibits parties to a marital dispute from agreeing to arbitrate any differences that may arise with respect to “support.”

The Supreme Court of New Jersey in Faherty, supra,

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Kelm v. Kelm, 623 N.E.2d 39, 68 Ohio St. 3d 26 (Ohio 1993).

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