Arbitration is a type of alternative dispute resolution. It’s a way to resolve a case outside of the litigation process. Through arbitration, a third-party neutral (the arbitrator) decides specific issues in a case, or the entire case, after considering evidence, argument, and the applicable law. Arbitration can be helpful for those who want to resolve issues outside of the courtroom but still need someone to help. Compared to litigation, the arbitration process has the added benefits of privacy, and control over who helps decide the case and the timeline.
Arbitration can be binding or non-binding, depending on what the parties decide at the outset of the process. Notably, Massachusetts law dictates that a judge cannot order parties to participate in binding arbitration. The parties must agree to do so.
If the parties agree to engage in binding divorce or family law arbitration, a Probate and Family Court judge will still review the arbitrator’s award. The judge, however, must be highly deferential to the arbitrator’s decision and can only change the decision in limited circumstances. This is a strict standard of review that generally gives the arbitrator the final say in a case.
This strict standard of review does not apply in nonbinding arbitrations, however. If an arbitration is nonbinding, a judge has a lot more discretion regarding the approval of the arbitrator’s award and possible changes.
Below we’ll explain how a recent divorce case involving arbitration evolved. This case, Imbrie v. Imbrie, made its way to the Massachusetts Appeals Court, so we’ll explain the court’s decision. What you may find particularly interesting, however, is the insight the Appeals Court offers about issues that arise in family law cases: custody; parenting plans; guardian ad litem reports; the appointment of parenting coordinators; and support. Read on to learn more.
Quick Case Synopsis
The applicable standard of review for arbitration was at the center of the controversy in a recent Massachusetts Appeals Court case, Imbrie v. Imbrie.
In Imbrie, the parties filed a stipulation with the Probate and Family Court. In that stipulation, they agreed to submit their divorce matter to “private adjudication.” Shortly thereafter, the probate judge referred the matter to “arbitration” and the parties executed an “arbitration agreement.” The agreement provided that an adjudicator would “‘hear the dispute as ARBITRATOR pursuant to Rule 53 of the Mass. Rules of Domestic Relations Procedure'” (emphasis in original). Rule 53 governs proceedings before masters. At no point did the parties agree to participate in binding arbitration.
At the conclusion of the arbitration proceedings, the Probate and Family Court judge reviewed the arbitrator’s draft findings of fact and judgment. The probate judge then issued a divorce judgment almost completely adopting the arbitrator’s decision and making minimal changes. The probate judge said he was “strictly bound” to do so.
The Appeals Court concluded that “because the parties agreed to proceed under the standard applicable to proceedings involving masters under Rule 53 and did not agree to submit the case to binding arbitration, it was error for the judge to defer to the adjudicator’s rulings under the standard applicable to binding arbitrations.” In turn, the court vacated the portions of the divorce judgment pertaining to legal custody regarding medical decisions for the children, the parenting coordinator, and the parenting plan. The Appeals Court then remanded the case to the probate court for further proceedings.
This case involves a highly contentious and very drawn-out divorce. In 2000, Annika and Gregory Imbrie married. In 2007, 2009, 2013, respectively, their three children were born. The family lived an upper-middle-class lifestyle. This was partly due to financial support from Annika’s parents. In 2010, Annika and Gregory bought a high-end home in Newton.
Annika is a patent attorney and Gregory is a cardiologist. Both began their careers in Massachusetts. Gregory began a fellowship position in the Boston area. Meanwhile, Annika accepted an associate position at a Boston law firm. Annika had a reduced billable hour requirement so she could spend more time with her children.
All three of the parties’ children have “‘medical conditions and/or disabilities.'” The middle child has “‘debilitating'” and “‘extreme sensory issues.'” Between 2013 and 2016, this child received medical treatment from behavioral health and traditional and nontraditional medical providers. For the most part, Annika was responsible for scheduling and attending those appointments.
In November 2013, Annika left her law firm so that she could attend to the children’s needs. She then began working from home part-time. Later, in 2015, the husband accepted a full-time position as an interventional cardiologist in New Hampshire. Annika remained living in Newton with the children. Gregory, on the other hand, commuted between Newton and New Hampshire.
Gregory eventually began living with his parents in New Hampshire during the week. On the weekends, he returned to Newton. The marriage subsequently fell apart. In November 2016, Gregory and Annika lived together for the last time.
As their marriage declined, Annika and Gregory began disagreeing about their children’s medical treatment—especially that of their middle child. Gregory preferred traditional medical treatment. Annika, however, preferred nontraditional treatments, like alternative, homeopathic therapies.
On November 28, 2016, Annika filed for divorce. “Highly contentious divorce proceedings” followed and dragged on for years. We’ll provide a brief overview of what transpired over those years below.
January 2017 Parties Stipulate to Custody & Parenting Time
- Annika and Gregory agreed that their children would primarily live with Annika. Gregory’s parenting time would include two weekday dinner visits each week and every other weekend.
- The parties would share legal custody. They further agreed to give each other at least one week’s notice of any scheduled medical appointments for the children.
- Annika and Gregory agreed to the appointment of a parenting coordinator for nonfinancial parenting issues. They agreed to split the parenting coordinator’s fees.
February 2017 Probate and Family Court Order: Judge Okays Stipulation & Orders Support
- In February 2017, the Probate and Family Court issued an order, which included Annika and Gregory’s stipulation.
- The probate court further required Gregory to pay Annika $1,942 per week in base unallocated support (essentially, support for the children and Annika combined into one payment).
- In addition to the base unallocated support, the court also ordered Gregory to pay, as additional unallocated support, 20% of his bonus in 2017.
August 2017 Gregory Amends Answer and Counterclaim as to Custody
- Gregory filed an amended answer and counterclaim to the divorce complaint. In it, he asked for: 1) sole legal custody as to medical and school-related decisions only (shared legal custody otherwise) for the children; and, 2) permission to move the children to New Hampshire.
September 2017 Parties Agree to and Court Orders Appointment of Guardian ad Litem
- Annika and Gregory agreed to the appointment of a guardian ad litem (“GAL”) to investigate and report on the following issues in their case: 1) custody; 2) parenting plan; and, 3) the children’s medical care. On the same day, the probate court issued an order appointing the GAL.
January 2018 Parties Agree to Parenting Coordinator
- Annika and Gregory agreed to the appointment of a parenting coordinator (“PC”) to resolve any parenting issues for a period of two years. They gave themselves the option to enter into another PC agreement after that two-year period (if they agreed to do so at that point).
May 2018 GAL Files Her Report
- In 2018, the GAL filed her report with the probate court. In the report, the GAL recommended that the children continue to live with Annika during the school year and spend three weekends per month, and up to two dinner visits per week, with Gregory.
- The GAL said it’d be impractical to give Gregory medical decision-making power since Annika is the children’s primary caretaker. However, the GAL said Annika’s decision-making authority shouldn’t go unchecked. The GAL added that giving one parent the decision-making authority might not be in the children’s best interests.
Parties Agree to “Private Adjudication”
In March 2019, Annika and Gregory agreed to submit their case to “private adjudication.” They also agreed that they’d submit an order of reference to the probate court for its approval. An order of reference essentially lays out the scope and timeline of the private adjudication. Days later, however, the judge assigned to the case at the time issued an order of reference on his own accord.
Shortly thereafter, in a subsequent arbitration agreement, the parties agreed that an adjudicator would hear their matter “‘as ARBITRATOR pursuant to Rule 53 of the Mass. Rules of Domestic Relations Procedure'” (emphasis in original).
In August 2019, the arbitrator held a two-day hearing. In the months that followed, the arbitrator prepared her draft judgment, rationale, and findings of fact. The parties then offered their objections and oppositions. Amended draft judgments and findings, and further party objections followed. The question at the center of this back-and-forth: Which parent would get decision-making authority (partial legal custody) regarding the children’s medical care?
The “December 2020 Drafts”
Ultimately, over a year later, in December 2020, the adjudicator filed a second amended draft judgment, findings, and rationale with the Probate and Family Court (the “December 2020 drafts”). The December 2020 drafts proposed to:
- Award Annika physical custody of the children;
- Establish a parenting plan for Gregory;
- Continue the appointment of the parenting coordinator for three years;
- Grant the parties shared legal custody of the children, but give Gregory final medical decision-making authority;
- Order Gregory to pay base unallocated support of $1,986.38 per week until either party dies, Annika remarries or cohabitates, or 160 months from the date of the divorce, whichever occurs first;
- Order Gregory to pay additional unallocated support amounting to 20% of his gross bonus income;
- Effectuate an equitable and nearly equal division of property.
Annika and Gregory Each File Motions with the Court
Gregory and Annika filed motions with the Probate and Family Court as well. In his motion, Gregory requested modifications to the December 2020 draft judgment and findings regarding the parenting plan, unallocated support, and property division. Meanwhile, Annika filed a motion asking the court to adopt the December 2020 draft judgments and findings as-is with an exception. She requested that the court grant final medical decision-making authority to her, not Gregory.
Probate and Family Court Ruling
In April 2021, the Probate and Family Court largely accepted and adopted the arbitrator’s December 2020 draft judgment and findings. In doing so, the judge concluded that Annika and Gregory “‘agreed to binding arbitration'” and so he was “‘strictly bound'” by the arbitrator’s conclusions, even if those conclusions were in error. The judge added that he had to give “‘extreme deference'” to the arbitrator’s findings, rationale, and judgment.
Notably, the Probate and Family Court judge applied “the Gravlin standard” when making his decision to largely adopt the December 2020 drafts. This standard of review, from the Gravlin case, is highly deferential to an arbitrator’s decision. Under Gravlin, a judge isn’t looking to see if the arbitrator made some error regarding the facts or how the law applies to the case at hand. Instead, the judge is, in essence, only determining if the arbitrator: 1) exceeded her authority by granting a remedy that goes beyond the scope of the arbitration agreement or that’s prohibited by law; or, 2) “‘decided the matter based on fraud, arbitrary conduct, or procedural irregularity in the hearing.'” If neither occurred, under Gravlin, the judge greatly defers to the arbitrator’s decision.
Massachusetts Appeals Court Decision
Probate & Family Court Judge Applied the Wrong Standard: Should Not Have Applied Gravlin Standard
The Massachusetts Appeals Court concluded that “‘it was error for the [Probate and Family Court] judge to defer to the [arbitrator’s] rulings under the standard applicable to binding arbitrations.'” Basically, the judge shouldn’t have applied the Gravlin standard because that’s for binding arbitration.
Here, the parties did not agree to binding arbitration. That was clear from their arbitration agreement. And a judge cannot force them into binding arbitration. “‘A judge may not…order parties to submit to binding arbitration absent their agreement, as such an order would be an improper delegation of the judge’s authority…,'” the Appeals Court stated, quoting the Gravlin case. So, no binding arbitration, no Gravlin standard.
The Parties Did Not Intend to Participate in Binding Arbitration
In reviewing the long, drawn-out history of this case, the Appeals Court found that the parties agreed to submit to “private adjudication.” Annika and Gregory also agreed that they’d file a draft order of reference (laying out the scope and timeline of the adjudication) with the probate court. Before the parties could do so, however, the probate court judge voluntarily referred the matter to arbitration.
In the parties’ arbitration agreement that followed shortly thereafter, the parties agreed that an adjudicator would hear their dispute as an arbitrator under Rule 53 of the Massachusetts Rules of Domestic Relations Procedure. This rule applies to “Masters” whom the court appoints to hear evidence in a matter and report back facts. Gregory and Annika further stated that a judge could modify any award by the adjudicator in their matter after review, pursuant to Rule 53.
So, the Judge Should’ve Applied A Less Deferential Standard
Given that Annika and Gregory intended to proceed with arbitration under Rule 53, and “[in] the absence of clear, unequivocal language stating that the parties intended to submit the case to ‘binding arbitration,'” the Appeals Court stated that it “[could not] conclude that the parties intended to be so bound.”
And so, the Appeals Court held, “…to the extent that the judge gave substantial deference to the adjudicator’s rulings, rather than employing a less deferential review prescribed by Rule 53, this was error.”
Under Rule 53, the court need not defer completely to the arbitrator’s decision. The arbitrator’s job here is mainly to determine the facts of the case. It’s then the trial judge’s job to decide the case (i.e., make a judgment) based on the facts and how the judge concludes the law applies to those facts. The arbitrator does not ultimately decide the remedy in the case—”only ‘[t]he [arbitrator’s] findings of fact are binding on the probate judge and on this court—unless they are [, among other things,] ‘clearly erroneous…,'” said the Appeals Court.
So, since this case is governed by Rule 53 and since it’s not a binding arbitration case, the probate judge should’ve reviewed the arbitrator’s fact findings for “clear error.” Moreover, the judge should’ve treated the arbitrator’s legal conclusions as recommendations only.
Diving into the Issues on Appellate Review
In the sections that follow, we summarize the Appeals Court’s conclusions regarding specific issues that arose in this case. You’ll read the same thing over and over. Namely, this was not binding arbitration and so the Gravlin standard of review does not apply. The probate judge placed way too much weight on the arbitrator’s legal conclusions. Instead, the judge should’ve made his own legal determinations and rulings. You get that, but we’ll still offer what the Appeals Court has to say.
What you may find particularly interesting, however, is the insight the Appeals Court offers in its decision about issues that arise in divorce and family law cases: custody; parenting plans; guardian ad litem reports; the appointment of parenting coordinators; and support.
Appeals Court Decision: Legal Custody Regarding Medical Decisions
As you may recall, the arbitrator proposed granting Gregory final medical decision-making authority on behalf of the children. Treating this case like binding arbitration, the probate judge went along with it.
But what should’ve actually happened? First, the Probate and Family Court judge should’ve reviewed the arbitrator’s findings of fact for clear error. Then the judge should’ve drawn his own conclusions about how the law applies in this case and made his own determinations regarding the children’s best interests (based on non-erroneous findings of fact). Since the judge didn’t do that, the Appeals Court said he needs to try again—without giving the arbitrator so much deference.
The Appeals Court states, “Because the judge did not treat the adjudicator’s ruling as a mere recommendation, and instead gave it unwarranted deference, he improperly delegated his authority…Accordingly, the issue of medical decision-making must be remanded to the judge for the purpose of reviewing the adjudicator’s findings and recommended rulings pursuant to rule 53, and for the judge to make the final discretionary determination concerning which parent will promote the children’s best interests.”
An Interesting Point from the Appeals Court on Custody
When a case is as contentious as this one is, what is a judge to do regarding legal custody? The Appeals Court, noting that this issue will likely arise when the case goes back to the probate court, comments. And, through this commentary, we gain insight into what judges consider when making some legal custody determinations.
The Appeals Court states outright: “…it is generally inappropriate to grant shared legal custody to parents who display a high level of acrimony that impedes their ability to jointly make decisions about the children’s welfare.” Essentially, if the parents can’t get along and it’s this bad, how can we expect them to agree when it comes to the children? And, if they can’t agree, how can we give them shared legal custody?
Moreover, the Appeals Court expresses concern about giving Gregory sole legal custody regarding medical decisions for the children since Annika has physical custody, the children have extensive medical issues, and Annika takes them to almost all their medical appointments. Although a judge can give full or partial legal custody to a parent who doesn’t have physical custody, the issue is one of practicality.
So, the Appeals Court says that, if the probate judge grants partial sole legal custody regarding medical decisions to Gregory, the judge should make “findings clearly demonstrating that…the decision is necessary to promote the children’s safety and wellbeing.”
Appeals Court Decision: Parenting Plan
Gregory stated on appeal that the probate judge didn’t properly consider corrections to parts of the arbitrator’s parenting plan that went against the GAL’s recommendations. Gregory proposed increasing his parenting time to three weekends per month.
The Appeals Court again found that the probate judge incorrectly applied the Gravlin standard and deferred to the arbitrator’s determination regarding the parenting plan. Instead, the judge should’ve used his discretion and determined the appropriate parenting plan himself.
Accordingly, the Appeals Court threw out the parts of the probate court’s judgment regarding the parenting plan and sent this issue back to the probate court. The Probate and Family Court judge must now consider the arbitrator’s findings and recommendations. The judge must then exercise her or his own discretion and determine the parenting plan that would be in the children’s best interests.
An Interesting Point from the Appeals Court Regarding GAL Recommendations
You may be wondering: Does a judge have to adopt a GAL’s recommendation? The Appeals Court notes that a judge doesn’t have to adopt a GAL’s recommendations. However, a judge should explain her reasoning if she rejects the GAL’s recommendations.
Here, the probate judge failed to determine the appropriate parenting plan. He just deferred to the arbitrator’s decision. Consequently, the judge didn’t explain why he did not follow the GAL’s recommendation.
Appeals Court Decision: Parenting Coordinator
The Appeals Court agreed with Gregory’s two contentions regarding the parenting coordinator. First, the probate judge erred in adopting the arbitrator’s ruling extending the PC appointment to resolve parenting disputes. Second, Annika and Gregory didn’t agree to pay for the PC to mediate medical disagreements beyond January 2020. So, it was improper for the judge to require them to submit medical disputes to the PC before Gregory could exercise his final medical decision-making authority.
An Interesting Point from the Appeals Court Regarding Parenting Coordinator Appointments
In its reasoning, the Appeals Court made a few points regarding the appointment of a PC. The Appeals Court began by saying that, yes, judges have the authority to appoint PCs in appropriate circumstances. However, unless the parties agree, “‘a judge cannot shift the final decision-making authority granted by statute to a third party'” (i.e., to the PC). Further, a judge cannot order parties to use a PC if it means one or both parents have to pay for the services without her or his consent.
In this case, the parties agreed to PC services through January 2020. The Probate and Family Court judgment, however, extended the appointment for another three years without a fee cap agreed upon by the parties. This was an error, said the Appeals Court. Accordingly, it vacated the portions of the divorce judgment that required the parties to continue using and paying for the PC.
Appeals Court Decision: Property Division
The Probate and Family Court judge concluded that the arbitrator properly determined the date for valuing the marital estate for purposes of equitable distribution. The arbitrator valued the marital estate at the time of the divorce, not the parties’ separation. On appeal, Gregory argued that the judge was wrong to do so. The Appeals Court disagreed with Gregory on this issue.
Regarding property division, the Appeals Court determined the probate judge considered the arbitrator’s findings. He then made his own legal conclusions regarding the appropriate date for dividing the marital estate (as opposed to simply deferring to the arbitrator’s decision).
The Probate and Family Court Judge Regarding Property Division (Prior to Appeal)
Here it was the Probate and Family Court judge that offered helpful information regarding property division in divorce. The judge ruled that “‘[a]ssets are typically valued and divided as of the date of divorce…'” Even if Gregory accumulated the money in question after the parties separated and after paying support to Annika, Gregory was able to accumulate those funds because Annika was primarily responsible for the children. While Gregory could work full-time, Annika could not. Accordingly, Annika was unable to accrue additional savings and assets. The probate judge added that the “‘care and maintenance of a child by a spouse even while separated is a contribution to the marital partnership.'”
Appeals Court Decision: Unallocated Support
Gregory challenged on appeal various parts of the divorce judgment’s unallocated support provision. He did not persuade the Appeals Court, however. Of particular interest are two issues that the Appeals Court determined were not properly before them.
First, Gregory argued that the arbitrator and the probate judge, in turn, erroneously disregarded Annika’s receipt of financial contributions from her parents when determining Annika’s need for support. Gregory, however, did not raise this issue in his motion (filed with the Probate and Family Court) detailing his objections to the arbitrator’s December 2020 draft judgment and findings.
Second, Gregory argued on appeal that it was a mistake to award unallocated support for 160 months without considering “the years of temporary support payments as a result of the extenuated litigation.” But, again, Gregory failed to raise this issue in his probate court motion outlining his objections.
The Appeals Court stated that an “‘issue not raised or argued below may not be argued for the first time on appeal.'” Having not raised these issues in the probate court, Gregory waived them on appeal.
An Interesting Point from the Appeals Court Regarding Unallocated Support
The Appeals Court then noted that the duration of general term alimony typically starts when the divorce judgment enters. Moreover, a judge need not consider the duration of temporary alimony. The latter point is especially true when there’s no indication that the recipient spouse was to blame for the drawn-out divorce proceedings.
The Final Word from the Appeals Court
The Appeals Court ultimately vacated the portions of the divorce judgment pertaining to three issues. The first issue is legal custody regarding the children’s medical treatment. The second issue is the parenting coordinator. And the third issue is the parenting plan. Those three matters were sent back to the Probate and Family Court for further proceedings. The rest of the divorce judgment stands.
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