COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Richmond, Virginia 

MICHAEL ALAN MARKS 

 OPINION BY 

v. Record No. 0222-00-4 JUDGE JEAN HARRISON CLEMENTS 

 JULY 17, 2001 

KAREN MICHAEL MARKS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 James Ray Cottrell (Kyle F. Bartol; Gannon, 

Cottrell & Ward, P.C., on briefs), for 

appellant. 

 David D. Masterman (Condo & Masterman, P.C., 

on brief), for appellee. 

 Michael A. Marks (husband) appeals the decision of the 

trial court affirming an arbitrator's award of certain payments 

to Karen M. Marks (wife). On appeal, husband contends the trial 

court erred by confirming the arbitrator's decision despite 

numerous errors by the arbitrator, including (1) failing to 

apply Virginia law, (2) granting wife a greater share of the 

marital estate than warranted under the parties' antenuptial 

agreement, (3) misinterpreting the antenuptial agreement as to 

the parties' marital residence, (4) relying on numerous 

mathematical miscalculations, (5) failing to apply the statutory 

guideline amount of child support without adequate reason for 

deviation, (6) improperly requiring husband to pay educational 
expenses for the parties' child beyond those authorized by 

Virginia law and the terms of the antenuptial agreement, (7) 

requiring husband to pay all marital liabilities of the parties, 

and (8) awarding attorney's fees to wife.1

 In her response, wife contends husband's appeal is without 

merit because it is procedurally barred. Wife also seeks an 

award of her appellate costs and attorney's fees. We conclude 

that, because husband failed to properly raise his challenge to 

the arbitration award before the trial court, he is foreclosed 

from raising these issues on appeal. We, therefore, affirm the 

trial court's decision. Furthermore, because husband's appeal 

is unjustified, we award wife reasonable appellate costs and 

attorney's fees and remand this matter to the trial court for 

determination of those costs and fees. 

I. PROCEDURAL BACKGROUND 

 Prior to their marriage, the parties entered into an 

antenuptial agreement. In that agreement, the parties provided 

for future dispute resolution as follows: 

Should [husband] and [wife] have difficulty 

implementing this agreement they will put 

all disputed matters before a mediator for 

voluntary resolution. Should this prove 

unsuccessful, the disputed items will be put 

before an arbitrator for a final 

 

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1

 Husband also contends the trial court "further erred in 

making its own award of attorney's fees to the wife and in 

failing to award fees and costs to the husband." We will not 

consider this issue, however, because husband failed to address 

it on brief or in oral argument. See Quintana v. Commonwealth, 

224 Va. 127, 134 n.1, 295 S.E.2d 643, 645 n.1 (1982). 
determination. If there is any problem 

selecting a mediator or arbitrator, the 

parties will request that the American 

Arbitration Association appoint one. 

The parties further provided in the antenuptial agreement that 

the agreement was to be "interpreted under the laws of 

Virginia." 

 The parties, who had one child, separated for the last time 

on September 13, 1998, and wife filed for divorce on September 

18, 1998. She attached the antenuptial agreement to the bill of 

complaint and requested the marital property be divided in 

accordance with the terms of that agreement and that she be 

granted all other appropriate relief consistent with the 

parties' antenuptial agreement. 

 Difficulties implementing the antenuptial agreement arose. 

The parties attempted mediation, but that proved unsuccessful. 

Pursuant to the terms of their antenuptial agreement, the 

parties entered into arbitration. After conducting a three-day 

hearing, the arbitrator issued his award on September 21, 1999. 

That award was officially mailed to the parties by the American 

Arbitration Association on September 24, 1999. 

 On October 1, 1999, wife filed a motion for confirmation of 

the arbitration award pursuant to Code § 8.01-581.09. On 

October 7, 1999, husband filed a motion to "reduce and/or abate 

the support provisions under the terms of the [a]rbitrator's 

award" based on a material change of circumstances and a motion 

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to reconsider the award, in which husband "move[d] that the 

[a]rbitrator reconsider[] the award." The trial court denied 

husband's motion for a reduction in child support by order of 

October 15, 1999, but did not address in that order husband's 

motion to reconsider the arbitrator's award. No hearing was 

held on husband's motion to reconsider, and no ruling was ever 

made or action taken thereon by the court. By order entered 

October 8, 1999, the trial court ordered husband to convey the 

marital home to wife, in accordance with the award of the 

arbitrator, and continued to a later date the remainder of 

wife's motion for confirmation of arbitration award. Counsel 

for husband endorsed the order as "Seen and Objected to delay in 

confirmation." 

 On October 20, 1999, wife filed another motion for 

confirmation of the arbitration award. On November 5, 1999, the 

trial court entered an order confirming the arbitrator's award. 

The order was endorsed by counsel for husband as 

Seen and Excepted to as to the confirmation 

of the award and exception as to the amount 

of time to make payments. Exception as to 

the amount of child support and exception of 

[sic] amount of time support is to be paid. 

*Exception further as to the award of 

college and graduate school education. 

 In a final decree of divorce a vinculo matrimonii entered 

on December 30, 1999, the trial court ordered that its order 

entered November 5, 1999, confirming the arbitrator's award, 

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"remain in full force and effect" and ordered the parties "to 

comply with the terms thereof." The trial court further 

integrated the provisions of the arbitration award in its orders 

in the final decree of divorce concerning the payment by husband 

of child support and child care expenses, the payment by husband 

of child's educational expenses through graduate school, and the 

amount of husband's arrearages for unpaid child support payments 

and child care expenses. Husband's counsel, in endorsing the 

final decree of divorce, attached a list of nineteen exceptions 

to the final decree of divorce, including the following that 

pertain to the arbitration award: 

3. Defendant objects and excepts to the 

court's interlocutory order of November 5, 

1999 confirming the award of the arbitrator 

and the arbitration award. 

4. Defendant objects and excepts to the 

award of the arbitrator on grounds that the 

arbitrator exceeded the scope of arbitration 

by failing to apply the laws of the 

Commonwealth of Virginia with respect to the 

interpretation and enforcement of those 

provisions of the pre-nuptial agreement 

pertaining to child support. 

5. Defendant objects and excepts to the 

award of the arbitrator on grounds that the 

award exceeded the provisions of the 

pre-nuptial agreement, including the 

determination of the award of damages and 

the determination of property division in an 

amount that exceeded 50% of the property 

subject to division under the express terms 

of the agreement. 

6. Defendant objects and excepts to the 

award of the arbitrator on grounds that the 

arbitrator's award failed to correctly 

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interpret the pre-nuptial agreement with 

respect to the identity of the residence 

that was the subject of the agreement, and 

failed to credit defendant's greater 

contributions to the second residence, and 

failed to sustain the waiver of the 

complainant to the proceeds of the first 

resident. 

7. Defendant objects and excepts to the 

award of the arbitrator due to numerous 

mathematical errors made in calculating the 

amounts due each party, and the failure of 

the arbitrator to correct such errors when 

brought to the arbitrator's attention, and 

the court's failure to correct such errors 

when the award of the arbitrator was 

presented for confirmation. 

8. Defendant objects and excepts to all 

awards of attorneys fees made by the court 

and by the arbitrator. 

9. Defendant objects and excepts to the 

denial of the defendant's claims in 

arbitration. 

10. Defendant objects and excepts to the 

arbitrator's decision that the defendant pay 

marital liabilities of the parties. 

11. Defendant objects and excepts to all 

monetary awards made to the complainant in 

arbitration. 

12. Defendant objects and excepts to the 

failure of the arbitrator and the court in 

confirming the arbitrator's award to apply 

the Virginia state child support guidelines 

in determining child support. 

13. Defendant objects and excepts to the 

arbitrator's determination that the 

defendant be required to pay educational 

costs beyond the child's high school 

education as a violation of Virginia law. 

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16. Defendant objects and excepts to the 

failure of the court to award his legal, 

accounting, and arbitration fees. 

18. Defendant hereby preserves all 

objections made and noted in all prior 

proceedings, at the arbitrations, and on the 

prior interlocutory orders rendered by the 

court in this cause. 

 It is from the final decree of divorce that husband now 

appeals. 

II. APPEALABILITY OF ARBITRATOR'S DECISION 

 Husband contends on appeal that the trial court erred in 

confirming the arbitration award because the award contained 

numerous errors by the arbitrator, as memorialized in husband's 

above-noted exceptions to the trial court's final decree of 

divorce. Wife contends that, because husband failed to properly 

raise his challenge to the arbitration award before the trial 

court, he may not now be heard on the issues he raises on 

appeal. We agree with wife's contention. 

 The parties in this case entered into a valid and binding 

antenuptial agreement. According to the terms of that 

agreement, the parties agreed to have any unresolved disputes 

related to their antenuptial agreement remedied through 

arbitration. They also agreed that the interpretation of their 

antenuptial agreement would be governed by Virginia law. 

 In Virginia, a "trial court's review of an arbitration 

award is governed by specific statutory criteria," and "the 

party attacking an arbitrator's award bears the burden of 

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proving the invalidity of the award." Trustees of Asbury United 

Methodist Church v. Taylor & Parrish, Inc., 249 Va. 144, 153, 

452 S.E.2d 847, 852 (1995). The Uniform Arbitration Act, as 

adopted in Code §§ 8.01-581.01 et seq., provides the exclusive 

means for challenging errors in the award by the arbitrator and 

sets forth the procedures for obtaining judicial review and 

confirmation of the arbitration award. Cf. Decker v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 205 F.3d 906, 909 (6th Cir. 

2000) (observing that Federal Arbitration Act [which, we note, 

is substantially similar in pertinent parts to Virginia's 

Uniform Arbitration Act] provides exclusive remedy for 

challenging acts that taint an arbitration award subject to that 

Act). 

 Thus, in choosing to have Virginia law govern their 

arbitration agreement, the parties effectively consented to be 

bound by the rules of the Uniform Arbitration Act. See C & L 

Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of 

Okla., 121 S. Ct. 1589, 1595 (2001) (noting that parties who 

selected Oklahoma law to govern their arbitration agreement 

consented to confirmation of the award in accordance with the 

Oklahoma Uniform Arbitration Act). Accordingly, once the 

arbitrator rendered his decision in this case pursuant to the 

parties' valid agreement to arbitrate their disputes, the 

arbitration award was binding on the parties unless they 

properly and successfully availed themselves of the review 

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provisions of the Uniform Arbitration Act. Cf. Decker, 205 F.3d 

at 909. Code §§ 8.01-581.08, 8.01-581.010, and 8.01-581.011 

provide the sole mechanisms in the Uniform Arbitration Act for 

challenging errors in the award. 

 Code § 8.01-581.08, entitled "Change of award by 

arbitrators," provides, in pertinent part, as follows: 

On application of a party or, if an 

application to the court is pending under 

§§ 8.01-581.09, 8.01-581.010 or 

§ 8.01-581.011, on submission to the 

arbitrators by the court under such 

conditions as the court may order, the 

arbitrators may modify or correct the award 

upon the grounds stated in subdivisions 1 

and 3 of § 8.01-581.011, or for purposes of 

clarifying the award. The application shall 

be made within twenty days after delivery of 

the award to the applicant. . . . The award 

as modified or corrected is subject to the 

provisions of §§ 8.01-581.09, 8.01-581.010 

or § 8.01-581.011. 

If no such application is made within twenty days, "the 

arbitrator has no further authority over the award." Waterfront 

Marine Constr., Inc. v. North End 49ers Sandbridge Bulkhead 

Groups A, B & C, 251 Va. 417, 429, 468 S.E.2d 894, 901 (1996). 

 Code § 8.01-581.010, entitled "Vacating an award," provides 

that, 

[u]pon application of a party, the court 

shall vacate an award where: 

1. The award was procured by corruption, 

fraud or other undue means; 

2. There was evident partiality by an 

arbitrator appointed as a neutral, 

corruption in any of the arbitrators, or 

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misconduct prejudicing the rights of any 

party; 

3. The arbitrators exceeded their powers; 

4. The arbitrators refused to postpone the 

hearing upon sufficient cause being shown 

therefor or refused to hear evidence 

material to the controversy or otherwise so 

conducted the hearing, contrary to the 

provisions of § 8.01-581.04, in such a way 

as to substantially prejudice the rights of 

a party; or 

5. There was no arbitration agreement and 

the issue was not adversely determined in 

proceedings under § 8.01-581.02 and the 

party did not participate in the arbitration 

hearing without raising the objection. 

The fact that the relief was such that it 

could not or would not be granted by a court 

of law or equity is not grounds for vacating 

or refusing to confirm the award. 

 Under Code § 8.01-581.010, the party seeking to vacate the 

award must apply to the court within ninety days after delivery 

of a copy of the award, or, if based upon fraud, within ninety 

days after such grounds are known or reasonably should have been 

known. The application to vacate the award "shall be made by 

filing a petition with the appropriate court within the 

prescribed time limits of this section, or by raising reasons 

supporting vacation in response to another party's petition to 

confirm the award, provided that such response is filed within 

the prescribed time limits of this section." Id. "If the 

application to vacate is denied and no motion to modify or 

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correct the award is pending, the court shall confirm the 

award." Id.

 Under Code § 8.01-581.011, entitled "Modification or 

correction of award," a party seeking to challenge the 

arbitration award may also apply to the court within ninety days 

after delivery of the award to the party to have the court 

modify or correct the award under the following limited 

circumstances: 

1. There was an evident miscalculation of 

figures or an evident mistake in the 

description of any person, thing or property 

referred to in the award; 

2. The arbitrators have awarded upon a 

matter not submitted to them and the award 

may be corrected without affecting the 

merits of the decision upon the issues 

submitted; or 

3. The award is imperfect in a matter of 

form, not affecting the merits of the 

controversy. 

The statute further provides that, if the application to modify 

or correct the award is granted, 

the court shall modify and correct the award 

so as to effect its intent and shall confirm 

the award as modified and corrected. 

Otherwise, the court shall confirm the award 

as made. 

An application to modify or correct an award 

may be joined in the alternative with an 

application to vacate the award. 

Id.

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 Under the Uniform Arbitration Act, applications to the 

court must be "by motion and shall be heard in the manner and 

upon the notice provided by law or rule of court for the making 

and hearing of motions." Code § 8.01-581.013. 

 In this case, the arbitration award was submitted to the 

parties on September 24, 1999. Neither party made a direct 

application to the arbitrator for a modification or correction 

of the award under Code § 8.01-581.08. Wife filed a motion in 

the circuit court on October 1, 1999, for confirmation of the 

arbitration award under Code § 8.01-581.09.2 On October 7, 1999, 

husband filed a pleading in the circuit court that consisted of 

two motions: a motion for reduction or abatement of the support 

provisions in the arbitration award because he had been 

terminated from his employment "since the date of [the] award" 

and a motion to reconsider the arbitration award, in which 

husband moved solely that the arbitrator reconsider the award 

for the reasons listed in the motion. 

 2

 Code § 8.01-581.09, entitled "Confirmation of an award" 

reads as follows: 

Upon application of a party any time after 

an award is made, the court shall confirm an 

award, unless within the time limits 

hereinafter imposed grounds are urged for 

vacating or modifying or correcting the 

award, in which case the court shall proceed 

as provided in §§ 8.01-581.010 and 

8.01-581.011. 

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 While the motion to reconsider did not cite Code 

§ 8.01-581.08 or contain a request that the trial court submit 

the motion to the arbitrator "under such conditions as the court 

may order," the reasons listed in the motion to reconsider were, 

according to husband's characterization in the motion, all 

"computational errors" that "should be corrected upon 

reconsideration by the arbitrator." Some of the grounds 

included in the motion, however, plainly were outside the scope 

of subdivisions (1) and (3) of Code § 8.01-581.011. 

Nevertheless, regardless of whether the grounds listed in the 

motion to reconsider were subject to reconsideration by the 

arbitrator under Code § 8.01-581.08, we find nothing in the 

record that indicates the motion for reconsideration was ever 

considered by the court or arbitrator. 

 The trial court denied husband's motion for a reduction in 

child support by order of October 15, 1999, but did not address 

in that order husband's motion to reconsider the award. No 

hearing was apparently ever requested by husband or held on 

husband's motion to reconsider, and no ruling was ever made or 

action taken thereon by the court. Certainly, the record fails 

to show that the motion was ever submitted by the trial court to 

the arbitrator. It is clear from the record that husband 

obtained no relief from the arbitrator from his motion, as the 

arbitration award remained unchanged. We find, therefore, that 

husband did not exercise the option provided for in Code 

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§ 8.01-581.08 for challenging the alleged errors by the 

arbitrator in the award. 

 Hence, husband's remedy for attacking errors by the 

arbitrator in the arbitration award was confined to obtaining 

judicial review by filing a motion to vacate the award under 

Code § 8.01-581.010 and/or a motion to modify or correct the 

award under Code § 8.01-581.011. Absent such a timely 

application under one or both of those sections, the award would 

be binding on the parties and the trial court would be required, 

in light of wife's motion for confirmation of the award, to 

confirm the award under Code § 8.01-581.09 and then enter a 

decree in conformity with the award under Code § 8.01-581.012.3

 Because the allegations of the arbitrator's wrongdoing 

raised by husband in his exceptions to the trial court's final 

decree of divorce, and on appeal, fell within the purview of 

Code §§ 8.01-581.010 and 8.01-581.011, the issues raised by 

husband on appeal could have been resolved by a timely and 

proper application to the trial court for vacation and 

modification or correction of the arbitration award under those 

sections. Our review of the record, however, convinces us that 

husband did not make such a timely and proper application to the 

 3

 Code § 8.01-581.012 provides, in pertinent part, that, 

"[u]pon granting an order confirming, modifying or correcting an 

award, a judgment or decree shall be entered in conformity 

therewith and be docketed and enforced as any other judgment or 

decree." 

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trial court for judicial review of those issues.4 Indeed, in the 

ninety days following delivery of the arbitrator's award to the 

parties, husband filed no pleadings in the trial court 

pertaining to the alleged errors in that award except, as 

previously noted, the October 7, 1999 motions for reduction or 

abatement of the support provisions in the arbitration award and 

to have the arbitrator reconsider certain "computational errors" 

in the arbitration award. Neither of those motions constituted 

a proper application to the court for vacation of the 

arbitration award under Code § 8.01-581.010 or for modification 

or correction of the arbitration award by the trial court under 

Code § 8.01-581.011. 

 No motion to vacate, modify, or correct the arbitration 

award having been filed by husband, the trial court entered an 

order confirming the arbitrator's award on November 5, 1999. On 

December 23, 1999, more than ninety days after delivery of the 

award to the parties, the trial court entered a final decree of 

divorce in conformity with the award. Husband then appealed 

from the final decree of divorce. 

 We conclude that, despite having consented by express 

contract to be bound by the dispute resolution procedures set 

forth in the Uniform Arbitration Act, husband failed to abide by 

those procedures for challenging errors by the arbitrator in the 

 4

 Counsel for husband conceded as much at oral argument. 

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arbitrator's award and for obtaining judicial review of that 

award. We hold, therefore, that, because he failed to comply 

with the Uniform Arbitration Act's statutory provisions for 

challenging the arbitration award in the trial court, husband 

forfeited his right to appellate review of the award on the 

grounds he raises on appeal. He is, therefore, precluded from 

renewing his challenge to the arbitration award on appeal, and 

we will not consider the merits of husband's assignments of 

error concerning that award. 

 Husband claims he has an absolute right to challenge the 

arbitrator's award on appeal to this Court from the final decree 

of divorce, despite not having availed himself of the review 

provisions of the Uniform Arbitration Act and abided by the 

procedural requirements therein, because Code § 8.01-581.016(6) 

permits an appeal from a decree entered, like the final decree 

here, in conformity with the arbitration award pursuant to Code 

§ 8.01-581.012.5 To interpret Code § 8.01-581.016(6) in the way 

 5

 Code § 8.01-581.016 provides, in pertinent part, that an 

appeal may be taken from: 

1. An order denying an application to 

compel arbitration made under § 8.01-581.02; 

2. An order granting an application to stay 

arbitration made under subsection B of 

§ 8.01-581.02; 

3. An order confirming or denying an award; 

4. An order modifying or correcting an 

award; 

5. An order vacating an award without 

directing a rehearing; or 

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husband suggests, however, would render Code §§ 8.01-581.010 and 

8.01-581.011 and the time constraints prescribed in those 

statutes meaningless. We hold, therefore, that husband's claim 

is without merit. See Natrella v. Board of Zoning Appeals, 231 

Va. 451, 461, 345 S.E.2d 295, 301 (1986). Husband argues that 

to hold as we do renders Code § 8.01-581.016(6) meaningless. We 

disagree. A party who does not obtain judicial review under 

Code §§ 8.01-581.010 and 8.01-581.011 to challenge alleged 

errors in the underlying award may still appeal from the final 

decree under Code § 8.01-581.016(6) to challenge, for instance, 

whether the decree was entered in conformity with the 

arbitration award. 

 Husband also claims that, because his challenge to the 

arbitration award was largely on public policy grounds, he may 

make his challenge at any time, without concern for the time 

limits imposed by the Uniform Arbitration Act. We disagree. 

 While it is true that judgments that are void because they 

were procured by extrinsic or collateral fraud or entered by a 

court that did not have jurisdiction over the parties or subject 

matter may be challenged in any court at any time, the Supreme 

Court concluded in Rook v. Rook, 233 Va. 92, 353 S.E.2d 756 

(1987), that a challenge solely on public policy grounds against 

an agreement incorporated into a decree is subject to the time 

 

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6. A judgment or decree entered pursuant to 

the provisions of this article. 
constraints of Rule 1:1. Id. at 95, 353 S.E.2d at 758. We 

conclude that a similar decision may be reached in this case 

with regards to the time limits mandated in the Uniform 

Arbitration Act for challenging an arbitration award. 

 Here, as in Rook, husband does not contend that the divorce 

decree was procured by fraud or that the decree was void for 

lack of jurisdiction. He contends that provisions of the 

arbitration award violated the public policy of Virginia because 

the arbitrator exceeded his powers under the arbitration 

agreement by "failing to apply the law of Virginia in his 

'interpretation' of the terms of the [a]greement." Such an 

abuse of power by the arbitrator, however, is precisely the 

defect in an arbitration award that Code § 8.01-581.010(3) 

targets: 

Upon application of a party, the court shall 

vacate an award where . . . [t]he 

arbitrators exceeded their powers; 

 * * * * * * * 

An application under this section shall be 

made within ninety days after delivery of a 

copy of the award to the applicant . . . .

 

To rule as husband suggests would render that portion of the 

statute meaningless. We conclude, therefore, that husband's 

challenge to the arbitration award on public policy grounds 

could and should have been raised within ninety days of delivery 

of the arbitration award to husband, as required by Code 

§ 8.01-581.010. Our conclusion is buttressed, we believe, by 

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Code § 8.01-581.010's requirement that an application for 

vacation of an award procured by fraud must be made within 

ninety days of when the fraud is known or should reasonably be 

known, rather than at any time. 

III. APPELLATE COSTS AND ATTORNEY'S FEES 

 Both parties request an award of costs and attorney's fees 

for this appeal. Because husband brought this appeal without 

following the requisite procedures in the trial court, we deny 

husband's request and find that wife should be compensated for 

the reasonable expenses incurred in defending this unjustified 

appeal. See O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 

S.E.2d 98, 100 (1996). We, therefore, remand this case to the 

trial court solely for a determination of those costs and fees. 

 For the foregoing reasons, we affirm the judgment of the 

trial court and remand for further proceedings consistent with 

this opinion. 

 Affirmed and remanded.

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