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Singh v. Singh

Court of Appeals of South Carolina

December 18, 2019

Gunjit Rick Singh, Respondent,
Simran P. Singh, Appellant. Appellate Case No. 2015-000434

          Heard February 12, 2019

          Appeal 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

          O. Grady Query, Michael W. Sautter, and Brooke Hurt Maiden, all of Query Sautter & Associates, LLC, of Charleston, for Appellant.

          C. 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 Respondent.

          LOCKEMY, C.J.

         Simran P. Singh appeals various family court orders[1]approving 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.


         Simran 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.

         Later 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 decision.

         An 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.[2] 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[3] . . . . 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 statutory procedure.
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.

         The 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 arbitrator's decision.

         Thereafter, 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 the parties.

         In a 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[4] 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.

         Mother 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.

         The 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.[5]

         While 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.


         "Appellate 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, 220 (2019).

         Although 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.


         I. Arbitration of Children's Issues

         As 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.

         "Both 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.

         Article 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 ...

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