February 12, 2019
From Charleston County Gordon B. Jenkinson, Family Court
Judge Judy L. McMahon, Family Court Judge Jocelyn B. Cate,
Family Court Judge Jack A. Landis, Family Court Judge Daniel
E. Martin, Jr., Family Court Judge
Grady Query, Michael W. Sautter, and Brooke Hurt Maiden, all
of Query Sautter & Associates, LLC, of Charleston, for
Vance Stricklin, Jr., of Moore Taylor Law Firm, P.A., of West
Columbia, Robert N. Rosen, of Rosen Law Firm, LLC, of
Charleston, and Katherine Carruth Goode, of Winnsboro, for
P. Singh appeals various family court ordersapproving
agreements to arbitrate, arguing binding arbitration of
issues pertaining to child custody, visitation, and support
violates the children's constitutional rights and
contradicts state law and court rules. We vacate and remand.
P. Singh (Mother) and Gunjit Rick Singh (Father) separated in
January 2012 and subsequently entered into a settlement
agreement (the Settlement Agreement). Mother and Father have
two children: S.K.S., who was born in 2001, and H.K.S.S., who
was born in 2010. In the Settlement Agreement, Mother and
Father agreed the children would reside primarily with
Mother. The parties also agreed to submit certain potential
disputes regarding child custody, child support, and
visitation to a mutually agreed-upon arbitrator for binding
arbitration. They further agreed the arbitrator's
decisions as to such issues would "be binding and
non-appealable" and the arbitrator's written award
would "operate as a conclusive resolution" of such
issues. In 2013, the family court granted the parties a
divorce based on one year's separation and approved the
Settlement Agreement, which the family court incorporated
into its final divorce decree.
that year, Father filed an action in the family court seeking
modification of custody, visitation, and child support.
Mother and Father entered a consent order, agreeing to
dismiss Father's complaint and submit the matter to
arbitration. Pursuant to this agreement, the family court
issued an order to arbitrate, noting the parties understood
the arbitrator's decision would "be final and
binding upon them" and they had no right to apply
to any court for relief if either was dissatisfied with that
arbitration was held, and the arbitrator issued a temporary
arbitration award, determining Mother was to retain physical
custody over the children and Father would have visitation
every other weekend. Thereafter, the arbitrator conducted a
final arbitration to determine custody, visitation, and other
matters. Before the arbitrator issued the final
award, the parties again amended their agreement to
arbitrate, and the family court issued an order to arbitrate
reflecting the amendment. That order included the following:
d. The parties understand that the Arbitration rules do not
give explicit authority for the parties to submit
child-related issues . . . to binding arbitration. However,
the parties, upon advice of counsel and believing it to be in
the best interest of their minor children, are submitting the
issues . . . related to custody and support of their minor
children . . . to binding arbitration. . . . The parties
further acknowledge that this provision is submitted with
their mutual consent and upon the authority of this Order of
the Family Court. . . . . . . .
h. . . . . The parties' decision to refer this case for
final, binding arbitration is made pursuant to the South
Carolina Uniform Arbitration Act . . . . It is the intention
of the parties and the Order of this Court that beyond a
request to the Arbitrator to reconsider issues which he had
decided, the decision of the Arbitrator shall be final and
binding except to the limited extent provided in the
j. The parties also understand that the decision of the
Arbitrator shall, pursuant to the South Carolina Uniform
Arbitration Act . . ., become the Order of the Family Court
and shall be enforceable by the Family Court, just as any
Final Order. . . . The parties have agreed that they shall
abide by and perform any and all aspects of the award
rendered under arbitration and that a judgment shall be
entered on each and every aspect of the award, as would
otherwise be allowed with any Order of this Court.
amended agreement to arbitrate also contained a provision
requiring a party to immediately pay a monetary penalty as
liquidated damages if either party attempted to avail himself
of the family court's judgment by appealing the award or
asking the family court to change or modify the award.
Although we are struck by the parties' assumption of the
authority to instruct the family court that it must
accept the award as an order of the family court,
the most astonishing condition of the amended agreement to
arbitrate imposed an automatic and immediate penalty of $10,
000 upon any party seeking to exercise their rights in a
court of law as a punishment for challenging the
the arbitrator issued a partial arbitration award and,
subsequently, a final arbitration award. In both, the
arbitrator found a substantial and material change in
circumstances had occurred and awarded custody of the
children to Father with Mother to have visitation every other
weekend and every other Wednesday. The final arbitration
award also addressed child support and other issues between
departure from her previous endorsement of arbitration,
Mother moved for emergency relief, asking the family court to
vacate the partial and final arbitration awards as to the
issues of custody, visitation, and child support. Mother
argued the awards were void pursuant to Rule 60(b)(4) of the
South Carolina Rules of Civil Procedure because they
violated the South Carolina Constitution and South Carolina
statutory and case law. The family court held a hearing and
issued two orders: the first denied Mother's Rule 60(b)
motion as premature, and the second confirmed the partial and
final arbitration awards.
then filed five motions to vacate the various orders of the
family court relating to the parties' agreements to
arbitrate, including the orders confirming the arbitration
awards and denying Mother's Rule 60(b) claims. In these
motions, Mother argued the orders were void under Rule
60(b)(4) because they purported to approve agreements to
submit children's issues to binding arbitration or
facilitate binding arbitration of children's issues.
family court held hearings on each motion. The court
initially granted the motion to vacate the order approving
the Settlement Agreement and the consent order dismissing
Father's complaint and submitting the matter to
arbitration; however, the court subsequently reversed itself
and denied the motion, finding (1) Mother was estopped from
objecting to the arbitration because she procured and
accepted a benefit from the Settlement Agreement and the
consent order of dismissal, (2) she waived her right to
object by participating in the arbitration proceedings, (3)
her due process rights were not violated because parents have
the right to make decisions for their children, and (4) she
waived her constitutional rights by agreeing to the
arbitration and failing to timely challenge the arbitration.
The family court ultimately denied the remainder of
Mother's Rule 60(b)(4) motions.
Mother's Rule 60(b)(4) motions were pending before the
family court, Mother filed a Notice of Appeal of the order
confirming the partial and final arbitration awards, which we
held in abeyance until the family court ruled upon
Mother's motions. Thereafter, Mother timely appealed all
orders denying her Rule 60(b)(4) motions. We now consider all
of the orders Mother appealed.
courts review family court matters de novo, with the
exceptions of evidentiary and procedural rulings."
Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266
(2019). The family court has discretion in deciding whether
to grant or deny a motion made pursuant to Rule 60(b).
Ware v. Ware, 404 S.C. 1, 10, 743 S.E.2d 817, 822
(2013). Thus, our review of such procedural rulings "is
limited to determining whether there was an abuse of
discretion." BB&T v. Taylor, 369 S.C. 548,
633 S.C. 548, 551, 633 S.E.2d 501, 503 (2006). "We
review questions of law de novo." Ziegler v.
Dorchester County, 426 S.C. 615, 619, 828 S.E.2d 218,
the family court's resolution of a motion under Rule
60(b) is addressed to its sound discretion, the crux of the
question presented to this court on appeal- whether issues
involving children can be subject to binding arbitration-is a
question of law. Thus, we review this issue de novo.
Arbitration of Children's Issues
evidenced in the Settlement Agreement and the family
court's various orders approving the parties'
modifications to their agreement to arbitrate, both parties
repeatedly agreed any arbitration award would be
non-appealable. We also acknowledge that throughout the
foregoing proceedings, Mother expressly agreed to submit
these issues to binding arbitration and availed herself of
the benefits of arbitration until the outcome no longer
suited her. Nonetheless, the resolution of this question does
not depend upon the rights of either parent or their waiver
thereof; rather, the question we must decide is whether the
family court-upon the request of the parents-can delegate its
duty to determine the best interest of children to a private
individual. We find it cannot.
federal and state policy favor arbitrating disputes."
Towles v. United HealthCare Corp., 338 S.C. 29, 34,
524 S.E.2d 839, 842 (Ct. App. 1999). "Any doubts
concerning the scope of arbitrable issues should be resolved
in favor of arbitration." Carolina Care Plan, Inc.
v. United HealthCare Servs., Inc., 361 S.C. 544, 550,
606 S.E.2d 752, 755 (2004). In South Carolina, arbitration
agreements are governed by the Uniform Arbitration Act (the
Arbitration Act). S.C. Code Ann. §§ 15-48-10 to
-240 (2005). The Arbitration Act provides that a
"written agreement to submit any existing
controversy to arbitration . . . is valid, enforceable and
irrevocable, save upon such grounds as exist at law or in
equity for the revocation of any contract." §
15-48-10(a) (emphasis added). Section 15-48-10(b) sets forth
exceptions to the application of the Arbitration Act. As our
supreme court has explained, because the terms of section
15-48-10 are clear, "the court must apply those terms
according to their literal meaning." Soil
Remediation Co. v. Nu-Way Envtl., Inc., 323 S.C. 454,
457, 476 S.E.2d 149, 151 (1996). Further, "[w]here the
terms of statutes are positive and unambiguous, exceptions
not made by the Legislature cannot be read into the Act by
implication." Vernon v. Harleysville Mut. Cas.
Co., 244 S.C. 152, 157, 135 S.E.2d 841, 844 (1964).
Section 15-48-10 does not specifically exclude the
arbitration of issues involving child custody, visitation,
and support. Therefore, we cannot read such an exception into
the Arbitration Act.
V, sections 1 and 12 of the South Carolina Constitution
empowered the General Assembly to vest "[j]urisdiction .
. . in matters appertaining to minors" with the courts.
Pursuant to this authority, the General Assembly enacted
section 63-3-530 of the South Carolina Code (2010 & Supp.
2019), which vested family courts with exclusive jurisdiction
over matters involving child ...