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In re Marriage of Roth

Court of Appeals of Colorado, First Division

April 6, 2017

In re the Marriage of Michelle J. Roth, Appellant, and Robert M. Roth, Appellee.

         El Paso County District Court No. 13DR30542 Honorable Gilbert A. Martinez, Judge

          Davide C. Migliaccio, Attorney at Law, Davide C. Migliaccio, Colorado Springs, Colorado, for Appellant

          Stinar, Zendejas & Gaithe, LLC, M. James Zendejas, Colorado Springs, Colorado, for Appellee


          TAUBMAN, JUDGE

          ¶ 1 This dissolution of marriage case between Michelle J. Roth (wife) and Robert M. Roth (husband) presents a novel issue involving the interplay of subject matter jurisdiction between the district court and an arbitrator when the arbitrator dies while a request to modify or correct an arbitration award is pending before him.

         ¶ 2 The appeal arises from the district court's judgment confirming an arbitration award dividing the parties' marital estate. Wife contends that the district court lacked subject matter jurisdiction to confirm the award when both parties had timely requested the arbitrator to modify or correct it but the arbitrator died before he could rule on those requests. She argues that, at that point, the court only had jurisdiction to appoint a replacement arbitrator to complete the arbitration proceedings. Husband responds that the court properly confirmed the award because wife had not alleged proper grounds under the Colorado Uniform Arbitration Act (CUAA), §§ 13-22-201 to -230, C.R.S. 2016, to modify or correct it.

         ¶ 3 We conclude that the district court exceeded its jurisdiction in confirming the award and that it erred in denying wife's motion to appoint a replacement arbitrator. Thus, we vacate the judgment confirming the award, reverse the order denying wife's motion, and remand the case to the district court to appoint a replacement arbitrator to complete the arbitration proceedings.

         I. Background

         ¶ 4 After husband petitioned in 2013 to end the parties' three-year marriage, the parties agreed to arbitrate the permanent orders issues and requested that the district court transfer jurisdiction of the case to their chosen arbitrator, a retired district court judge. The court granted their request.

         ¶ 5 The parties' arbitration agreement provided in relevant part that all dissolution issues would be submitted to arbitration; the CUAA would govern the proceedings; after issuing an award, the arbitrator would reserve jurisdiction for twenty days to enable the parties to seek clarification, correction, or modification of the award; and if jurisdiction was reserved on an issue, the arbitrator would hear it unless he was unavailable.

         ¶ 6 Arbitration proceedings were conducted pursuant to the parties' agreement, and the arbitrator issued an award on March 10, 2015. In relevant part, the award divided the parties' property by giving seventy-five percent to husband and twenty-five percent to wife based on the short duration of the marriage and husband's greater contributions to acquiring the property. It further provided that the resulting equalization payment due from husband to wife would be paid in quarterly installments, based on one percent of the gross profits of husband's business, plus statutory interest. The award also provided, consistent with the parties' arbitration agreement and the CUAA, that the parties would have twenty days to request a correction, modification, or clarification of the award from the arbitrator. See § 13-22-220(1)-(2), C.R.S. 2016.

         ¶ 7 Both parties submitted timely requests to the arbitrator for modification and clarification of the award. Wife raised multiple issues in her request, including the equity of the seventy-five percent/twenty-five percent marital estate division, the valuation of husband's business interests, the distribution of the parties' tax refund, and the equalization payment terms. Husband requested that the arbitrator clarify the award concerning the tax refund and tax debt, reconsider the valuation finding for one of his businesses, and reduce the equalization payments to wife accordingly.

          ¶ 8 On April 12, 2015, while the parties were in the process of submitting their responses and replies to the arbitrator concerning their requests for modification or clarification, the arbitrator died. Five days later, wife moved in district court to appoint a replacement arbitrator under section 13-22-215(5), C.R.S. 2016, which provides that "[i]f an arbitrator ceases or is unable to act during the arbitration proceeding, a replacement arbitrator shall be appointed . . . to continue the proceeding and to resolve the controversy." A week later, husband moved that the district court confirm the arbitrator's award under section 13-22-222, C.R.S. 2016. A status conference was set to address the parties' motions.

         ¶ 9 At the conference, wife argued that the arbitrator had greater power under the CUAA to modify the award than the court did, and therefore, the court could not confirm the award when the parties' requests to the arbitrator to modify and clarify it were still pending, but must instead appoint a replacement arbitrator to consider those requests. Husband argued that under the CUAA, even the arbitrator cannot alter the merits of the award, and therefore, the parties' arbitrator, even if still alive, would have lacked authority to modify the award on the grounds wife alleged. Wife responded that a replacement arbitrator, and not the court, must determine which issues fall within the statutory modification criteria and which do not. She further argued that she was confident the arbitrator would have corrected the award concerning one issue she raised - that under the equalization payment terms, more in interest will accrue on the equalization amount than is paid out to her quarterly.

         ¶ 10 The district court found that wife was essentially seeking to relitigate the permanent orders and it denied her motion for a replacement arbitrator and granted husband's motion to confirm the ...

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