FILED 

### rnURT OF APPEALS D!Vi



### STATE OF WASHINGTON 

## 2013FEB 25 AH11= 27

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Marriage of: LISA R. PASCALE, Respondent,
and MICHAEL J. PASCALE, Appellant. DIVISION ONE No. 68103-6-1

PUBLISHED OPINION

FILED: February 25, 2013 

### Dwyer, J. — The uniform arbitration act (UAA) stipulates that a "court may not refuse to order arbitration because the claim subject to arbitration lacks merit 

### orgrounds for theclaim have notbeen established." RCW 7.04A.070(3). Instead, whendetermining whether a dispute must be arbitrated, the court must 

### limit its inquiry tothequestion ofwhetherthat dispute falls within thescope ofthe parties' agreementtoarbitrate. Ifit can befairly said thatthearbitration agreement covers the dispute, arbitration isrequired. 

### Here, thetrial court improperly reached the merits ofthe parties' dispute in 

### refusing toorderarbitration. Moreover, because thesubject ofthatdispute 

### clearlyfell within thescope ofthe broad arbitration provision to which the parties contracted, arbitration wasin fact required. Accordingly, we reverse and remand.No. 68103-6-1/2

I 

### Lisa Pascale and Michael Pascale1 filed ajoint petition for dissolution of their marriage on February 15, 2011. On September 6, 2011, the parties participated in mediation before Harry R. Slusher. Atthe conclusion ofthe one

### day mediation, they executed a "stipulation and agreement" pursuant to Civil Rule (CR) 2A. The CR 2A agreement, whichwas signed by Lisa and Michael, their attorneys, and Slusher, included sections pertaining to a parenting plan for 

### the parties' two sons, child support, spousal maintenance, and the division of property. Section 13(g) of the agreement—relating to the issue ofspousal maintenance—was hand-drafted by Slusher. This section, which is reproduced 

### below, stated thatMichael would pay toLisa thefollowing:2

-ftu^ *lSVt» W ~j£*Z *$<**€> . vv 

### The CR 2Aagreement further specified that "[ejach party understands that even thoughfinal documents yet need to be prepared this stipulation and

11norderto avoid confusion, Lisa Pascale and Michael Pascale are referred to as Lisa and Michael, respectively. 2In addition, in order"[t]o settleall aspects ofthiscase," the CR2A agreementstipulated thatMichael would paytoLisa $1,666 permonth for 29 months beginning at theconclusion ofthe spousal maintenance schedule setforth in section 13(g). Theagreement noted that"[f]ortax purposes, this will also be spousalmaintenance." There is nochallenge pertaining to this component of the spousal maintenance agreement.No. 68103-6-1/3 agreement is effective and binding upon execution and enforceable in court." In addition, the agreement contained an arbitration clause stipulating that "[a]ny disputes in the drafting ofthe final documents or any other aspect of this agreement (form or substance), or any issue not discussed shall be submitted to Harry R. Slusher for binding arbitration." As contemplated by the CR 2A agreement, following the conclusion of the mediation, Michael drafted the final documents and submitted them to Lisa to be entered in court. However, because Lisa did not agree that the proposed documents embodied the agreement ofthe parties as set forth inthe settlement 

### agreement, she did not present the documents to the court for entry. Instead, Lisa filed a motion to enforce the CR 2A agreement in superior court. 

### In her motion to enforce, Lisa alleged that Michael had misrepresented the 

### parties' agreement regarding the duration of spousal maintenance. Asdrafted by Michael, the section pertaining to maintenance stated: Spousal maintenance shall be provided as follows: Amount Duration $9500 22 months then $7500 14 months then $5000 12 months TOTAL 48 months 

### In contrast to the fouryears (48 months) ofmaintenance specified in Michael's 

### proposed final dissolution documents, Lisa asserted thatsection 13 ofthe CR 2A agreement in factprovided for eight years (96months) of spousal maintenance. She contended that the draft proposed by Michael eliminated the first 48 monthsNo. 68103-6-1/4
of maintenance at $9,500 per month. Thus, she asked the court to approve entry of final dissolution documents awarding her eight years of maintenance. Michael thereafterfiled a cross-motion asking the court to order the parties to binding arbitration or, in the alternative, to enterthe final documents that he had proposed. In addition, he sought an award ofattorney fees against Lisa pursuant to CR 11, alleging that her motion to enforce was made in bad faith. 

### Lisa, in turn, requested an award ofattorney fees based upon having to respond
to Michael's motion. The trial court granted Lisa's motion to enforce the CR 2A agreement, 

### ruling that section 13 of the agreement awarded 96 months of maintenance. The court explained that "[t]he written document is clear on its face. Extrinsic 

### evidence may not be used to modify an agreement that is clear on itsface." Based upon this determination, the court also denied Michael's motion to compel arbitration. The trial court explained that "[tjhere is no arbitrable dispute because 

### of the Court's findings and conclusions regarding the CR 2A Agreement." The courtthereafter awarded attorney fees to Lisa, explaining that her motion "was warranted by the facts and law." Michael appeals.
II Michael first contends that, because a court is not permitted to consider 

### the underlying merits of a disputein determining the arbitrability of thatdispute, the trial court erred by denying his motion to compel arbitration based upon its 

### determination that the spousal maintenance provision was clear on its face. We
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agree. Normal contract principles apply to the interpretation of a CR 2A 

### agreement. Morris v. Maks. 69 Wn. App. 865, 868, 850 P.2d 1357 (1993). We review de novo a trial court's interpretation ofthe language of a contract. Knipschield v. C-J Recreation, Inc., 74 Wn. App. 212, 215, 872 P.2d 1102 

### (1994). A trial court's determination regarding the arbitrability of a dispute is also reviewed de novo. Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., Inc., 148 Wn. App. 400, 404, 200 P.3d 254 (2009); Stein v. Geonerco. Inc., 105 Wn. App. 41, 45, 17 P.3d 1266 (2001). 

### "Washington lawvests courts with the power to determine 'whether... a 

### controversy is subject to an agreementto arbitrate.'" Saleemi v. Doctor's Assocs.. Inc. Wn.2d , 292 P.3d 108, H13 (2013) (quoting RCW 7.04A.060(2)). The arbitrability of a dispute is determined by examining the 

### arbitration agreement between the parties. Heights, 148Wn. App. at403. Ifthe reviewing court "canfairly say that the parties' arbitration agreement covers the 

### dispute, the inquiry ends because Washington strongly favors arbitration." Davis v. Gen. Dynamics Land Svs.. 152 Wn. App. 715, 718, 217 P.3d 1191 (2009); Mendez v. Palm Harbor Homes. Inc.. 111 Wn. App. 446, 454, 45 P.3d 594 

### (2002). Any doubts regarding the applicability of an arbitration agreement "should be resolved in favor of coverage." Heights. 148 Wn. App. at 405 (citing Peninsula Sch. Dist. No. 401 v. Pub. Sch. Emps. of Peninsula. 130 Wn.2d 401, 413-14, 924 P.2d 13(1996)). 

### Furthermore, as the UAA makes clear, a court "may not refuse to order
-5-No. 68103-6-1/6 arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established." RCW 7.04A.070(3). "'Although it is the court's duty to determine whether the parties have agreed to arbitrate a particular 

### dispute, the court cannot decide the merits of the controversy, but may determine 

### only whether the grievant has made a claim whichon its face is governed by the contract.'" Peninsula. 130 Wn.2d at 413 (alteration in original) (quoting Council of County &City Emps. v. Spokane County. 32 Wn. App. 422, 424-25, 647 P.2d 

### 1058 (1982)). As our Supreme Court firstexplained in 1961: [l]fthe parties have promised to submit the subject matterto arbitration, the court should not consider the merits, but should 

### enforce the mutual promises and leave consideration even in the clearest cases to the arbitrator. It is the evaluation and conclusion ofthe arbitrator, and not those ofthe courts, that the parties have 

### promised to abide by. There is no reason why, in the face of their solemn agreement, the parties should be given an alternative of 

### invoking the time consuming and costly machinery ofthe courtsin lieu of the relativeexpedience of an arbitration proceeding.
... If 

### the parties have promised to arbitrate, the court should not refuse to enforce the contract because the solution seems simple. Hanford Guards Union of Am.. Local 21 of Int'l. Guards Union of Am. v. Gen. Elec. Co.. 57 Wn.2d 491, 498, 358 P.2d 307 (1961) (citations omitted). 

### Here, the trial court determined that "a dispute arose between the parties 

### regarding
. . . Section 13oftheCR 2AAgreement relating tospousal support." As the courtcharacterized it, this dispute involved the "wifefs] assertion] that the 

### agreement requires the husband topay spousal support in decreasing amounts for a total of 96 months" and "the husband['s] contention] that the parties' 

### agreementwas that hewould pay spousal supportfor only48months." The trial court then determined that the dispute was not arbitrable because "[t]he written
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document is clear on its face." In so ruling, however, the trial court improperly examined the merits ofthe 

### controversy. As noted above, a court must resolve "the threshold legal question ofarbitrability ofthe dispute by examining the arbitration agreement without 

### inquiry into the merits of the dispute." Heights. 148 Wn. App. at 403. Here, the subject of the parties' dispute was the meaning of the CR 2A agreement's 

### spousal maintenance provision. However, in determining the arbitrability of that 

### dispute, the trial court turned, not to the arbitration agreement, butdirectly to the language of the spousal maintenance provision. Because, the trial court 

### concluded, this language was "clear on its face," the court determined that there
was no dispute subject to the agreement to arbitrate. This was error. Where the parties have agreed to arbitrate a matter, a court must "leave consideration even inthe clearest cases to the arbitrator." 

### Hanford Guards. 57 Wn.2d at 498. A court may not refuse to order arbitration on the basis thatthe claim lacks merit. RCW 7.04A.070(3). Here, because the trial court chose to examine the merits ofthe parties' dispute in determining the 

### threshold question ofarbitrability, the court's method of analysis was erroneous. 

### Instead, in determining the arbitrability of this dispute, the properquestion 

### isonly whetherthe disputeregarding the spousal maintenanceprovision falls within the scope of the arbitration provision. Thatquestion must be resolved by 

### examining the language ofthe arbitration agreementitself. Heights. 148Wn. App. at403. Here, the CR2A agreementprovides that"[a]ny disputes in the drafting ofthefinal documents or any other aspect ofthis agreement(form or
-7-No. 68103-6-1/8 substance), or any issue not discussed shall be submitted to Harry R. Slusherfor binding arbitration." At minimum, this provision requires the arbitration of disputes pertaining to the drafting ofthe final documents, disputes as to either the "form or substance" ofthe CR 2A agreement, and disputes pertaining to any issue not discussed by the parties during the mediation. The parties' dispute clearly falls within the broad scope of this arbitration 

### provision. This dispute pertains both to the drafting ofthe final documents and to the substance ofthe CR 2A agreement. Lisa's disagreement with Michael arose from his allegedly improper drafting ofthe final dissolution documents, a matter 

### that is expressly encompassed within the agreementto arbitrate. Moreover, it is the meaning of the spousal maintenance provision—a matter pertaining to the "substance" of the CR 2Aagreement—that lies at the heart of the dispute. Given 

### that any doubts regarding the applicability of the arbitration agreement must be resolved in favor of coverage, and because it may be fairly said "that the parties' 

### arbitration agreement covers the dispute," nofurther inquiry into the merits was 

### permissible.3 Davis. 152Wn. App. at718. Arbitration ofthedispute was thus required. 

### This is a prudent and sensible rule. The primary purposes ofarbitration 

### are "speed and convenience." Saleemi. 292 P.3d 108, atU20. Any inquiry into 3Lisa contends that the alleged dispute concerns only the enforcement of the CR 2A agreement, a subjectwhich, she asserts, isexpressly excluded from theparties' agreementto arbitrate. Lisa is correct that the CR 2Aagreement specifies that "this stipulation and agreement iseffective and binding upon execution and enforceablein court." However, thiscase does not involve the simple matterofenforcing an undisputed contractual term. Instead, the parties' dispute concerns the meaning ofthecontractual languagecontained within theiragreement. Because this disputepertains to the substance ofthe CR2A agreement—a matterfalling squarely within the ambitofthe arbitration provision—arbitration isrequired.
-8-No. 68103-6-1/9
the merits of a dispute necessarily involves "the time consuming and costly machinery of the courts," Hanford Guards. 57 Wn.2d at 498—exactly the outcome that our state's strong presumption in favor of arbitration seeks to avoid. Indeed, in this case, the trial court's examination of the merits of the dispute wellillustrates these costs and delays. Here, the trial court, in its order issued on December 2, 2011, explained that the spousal maintenance provision was not arbitrable because the contract 

### language was "clear on its face." Unlike the trial court, however, we discern no 

### clarity in the handwritten spousal maintenance provision. On the one hand, by striking only the term "$9500/month" and not the term "48 months" in the first line of the provision, the parties may have intended, as Lisa asserts, that the term "$9500/month" inthe second line ofthe provision be multiplied both by the term "22 months" in the second line and the term "48 months" in the first line. In such 

### an event, the total period ofmaintenance would extend for 96 months. On the other hand, the strikethrough of the term "$9500/month" in the first line of the 

### provision could indicate, as Michael asserts, that the parties intended that this line of the provision be stricken in itsentirety. Underthis interpretation, the term "$9500/month" in the second line of the provision would be multiplied only by the term "22 months" in the second line, and the total period of spousal maintenance 

### would extend foronly 48 months. Given that multiple reasonable interpretations of the contractual language exist, we cannot say, as the trial courtbelieved, that the spousal maintenance provision is unambiguous. 

### Thus, even were we to review the merits in determining the arbitrability of
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the dispute, as Lisa requests, because the agreement is not clear on its face, arbitration would still be required. And, after more than a year of costly litigation, the parties would find themselves in exactly the same position in which they began. Such a result could easily have been avoided had the trial court complied with the statutory mandate and declined to analyze the merits ofthe 

### controversy.4 Because the subjects of the parties' dispute—the drafting ofthe final dissolution papers and the meaning of the spousal maintenance provision— plainly fall within the scope ofthe arbitration clause, the trial court erred by determining that there was no arbitrable dispute and denying Michael's motion to compel arbitration.
Ill Lisa nevertheless contends that ifthe spousal maintenance provision does 

### not unambiguously provide for 96 months ofmaintenance, as she asserts, then 

### the CR 2Aagreement must be set aside for lack of mutual assent or because it

was unfair at the time of its execution. We disagree. As an initial matter, the trial court did not reach the question ofthe CR 2A 

### agreement's enforceability and the record is largely silentwith respect to this issue. We will not abrogate the written agreement ofthe parties in the absence 

### of a developed record. Moreover, because, as discussed above, it is the

4Indeed, in this case, the arbitrator is uniquely well-situated to resolve this dispute. Having personally observed the negotiation of the partiesduring mediation, he is bestpositioned to properly discern the intentof the partiesregarding the meaning of the spousal maintenance provision. -10-No. 68103-6-1/11
arbitrator who must determine the meaning of the spousal maintenance provision, any ruling regarding the fairness ofthat provision would be premature. More importantly, however, the enforceability ofthe CR 2A agreement, like the parties' dispute regarding the substance ofthe spousal maintenance 

### provision, is a matterfor an arbitrator and not a court. Lisa relies on Nelson v. Westport Shipyard. Inc.. 140 Wn. App. 102, 163 P.3d 807 (2007), for the 

### proposition that a court, and not an arbitrator, should determine the enforceability of a contractual agreement. This reliance, however, is misplaced. In Nelson. Division Three ofthis court held that a challenge to the validity 

### of a contract (based upon allegations of fraud, coercion, and misrepresentation) 

### was not subject to a provision requiring the arbitration of disputes "'arising out of [the] Agreement.'" 140Wn. App. at 113-14. However, the arbitration agreement considered in Nelson predated the adoption of the UAA, which governs all 

### arbitration agreements enteredinto afterJanuary 1,2006. RCW 7.04A.030. The UAA stipulates that it is the arbitratorwho must determine "whether a contract 

### containing avalid agreementtoarbitrate isenforceable." RCW 7.04A.060(3). As our Supreme Court has observed, unless a challenge relates only and 

### specifically to the arbitration clauseitself, theenforceability ofthe contract is"'a matter reserved for the arbitrator.'" Townsend v. Quadrant Corp.. 173 Wn.2d 

### 451,460, 268 P.3d 917 (2012) (quoting Townsend v. Quadrant Corp. 153Wn. App. 870, 885, 224 P.3d 818 (2009)). 

### Here, the arbitration provision requires the arbitration of disputes relating 

### toany aspect oftheform orsubstance oftheCR 2A agreement. Lisa has lodged
-11

-No. 68103-6-1/12

no challenge to the validity of this broad arbitration provision. Instead, she challenges the validity of the CR 2A agreement itself. The question of that agreement's enforceability, however, is a matter for the arbitrator to resolve. RCW 7.04A.060. Accordingly, Lisa's claims of unfairness and lack of mutual assent must be addressed by the arbitrator and not by the court.
IV Michael contends that the trial court erred by awarding attorney fees to Lisa. Given our resolution ofthe issues in this case, we agree and, accordingly, vacate the trial court's award ofattorney fees to Lisa. Moreover, we agree that 

### neither party is entitled to attorney fees on appeal. A meritorious issue has been raised, and neither party demonstrates an ability to pay that is far exceeded by that of the other party. Finally, we see no abuse of discretion in the trial court's 

### decision to deny Michael'srequest for CR 11 sanctions. Consequently, we will
not disturb that decision. Reversed and remanded.

We concur: 

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