FILED

rnURT OF APPEALS D!Vi

STATE OF WASHINGTON

2013 FEB 25 AH 11= 27

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the 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 the claim have not been established." RCW 7.04A.070(3).

Instead, when determining whether a dispute must be arbitrated, the court must

limit its inquiry tothe question ofwhether that dispute falls within the scope of the

parties' agreement to arbitrate. If it can be fairly said thatthe arbitration

agreement covers the dispute, arbitration isrequired.

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

refusing to order arbitration. Moreover, because the subject of that dispute

clearly fell within the scope of the 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 a joint petition for dissolution of

their marriage on February 15, 2011. On September 6, 2011, the parties

participated in mediation before Harry R. Slusher. At the conclusion of the oneday mediation, they executed a "stipulation and agreement" pursuant to Civil

Rule (CR) 2A. The CR 2A agreement, which was 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 that Michael would pay to Lisa the following:2

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The CR 2Aagreement further specified that "[ejach party understands that

even though final documents yet need to be prepared this stipulation and

11n order to avoid confusion, Lisa Pascale and Michael Pascale are referred to as Lisa

and Michael, respectively.

2In addition, in order "[t]o settle all aspects ofthiscase," the CR2A agreementstipulated

that Michael would payto Lisa $1,666 permonth for 29 months beginning at the conclusion ofthe

spousal maintenance schedule set forth in section 13(g). The agreement noted that"[f]or tax

purposes, this will also be spousalmaintenance." There is no challenge 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 of the 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 of the parties as set forth in the 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. As drafted 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 four years (48 months) of maintenance specified in Michael's

proposed final dissolution documents, Lisa asserted thatsection 13 ofthe CR 2A

agreement in fact provided for eight years (96 months) of spousal maintenance.

She contended that the draft proposed by Michael eliminated the first 48 months
No. 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 thereafter filed a cross-motion asking the court to order the parties

to binding arbitration or, in the alternative, to enter the final documents that he

had proposed. In addition, he sought an award of attorney fees against Lisa

pursuant to CR 11, alleging that her motion to enforce was made in bad faith.

Lisa, in turn, requested an award of attorney 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

court thereafter 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 dispute in determining the arbitrability of that dispute,

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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No. 68103-6-1/5

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 of the 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 law vests courts with the power to determine 'whether... a

controversy is subject to an agreement to 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. at 403. If the

reviewing court "can fairly 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

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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 which on 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 first explained in 1961:

[l]f the parties have promised to submit the subject matter to

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

of the arbitrator, and not those of the 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 courts in

lieu of the relative expedience 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 13 ofthe CR 2A Agreement relating to spousal support."

As the court characterized it, this dispute involved the "wifefs] assertion] that the

agreement requires the husband to pay spousal support in decreasing amounts

for a total of 96 months" and "the husband['s] contention] that the parties'

agreement was that he would pay spousal support for only 48 months." The trial

court then determined that the dispute was not arbitrable because "[t]he written

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No. 68103-6-1/7

document is clear on its face."

In so ruling, however, the trial court improperly examined the merits of the

controversy. As noted above, a court must resolve "the threshold legal question

of arbitrability of the 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, but directly 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 in the clearest cases to the arbitrator."

Hanford Guards. 57 Wn.2d at 498. A court may not refuse to order arbitration on

the basis that the claim lacks merit. RCW 7.04A.070(3). Here, because the trial

court chose to examine the merits of the parties' dispute in determining the

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

Instead, in determining the arbitrability of this dispute, the proper question

is only whetherthe dispute regarding the spousal maintenance provision falls

within the scope of the arbitration provision. That question must be resolved by

examining the language ofthe arbitration agreement itself. Heights. 148Wn.

App. at 403. Here, the CR2A agreement provides that "[a]ny disputes in the

drafting ofthe final documents or any other aspect ofthis agreement (form or

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No. 68103-6-1/8

substance), or any issue not discussed shall be submitted to Harry R. Slusher for

binding arbitration." At minimum, this provision requires the arbitration of

disputes pertaining to the drafting of the final documents, disputes as to either

the "form or substance" of the 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 of the final documents and to

the substance of the CR 2A agreement. Lisa's disagreement with Michael arose

from his allegedly improper drafting of the final dissolution documents, a matter

that is expressly encompassed within the agreement to arbitrate. Moreover, it is

the meaning of the spousal maintenance provision—a matter pertaining to the

"substance" of the CR 2A agreement—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," no further inquiry into the merits was

permissible.3 Davis. 152 Wn. App. at 718. Arbitration ofthe dispute was thus

required.

This is a prudent and sensible rule. The primary purposes of arbitration

are "speed and convenience." Saleemi. 292 P.3d 108, at U20. Any inquiry into

3Lisa contends that the alleged dispute concerns only the enforcement of the CR 2A

agreement, a subjectwhich, she asserts, is expressly excluded from the parties' agreement to

arbitrate. Lisa is correct that the CR 2A agreement specifies that "this stipulation and agreement

is effective and binding upon execution and enforceable in court." However, this case does not

involve the simple matterofenforcing an undisputed contractual term. Instead, the parties'

dispute concerns the meaning ofthe contractual languagecontained within theiragreement.

Because this dispute pertains to the substance ofthe CR2A agreement—a matterfalling

squarely within the ambitofthe arbitration provision—arbitration is required.

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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" in the second line of the 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 of maintenance 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 its entirety. 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 for only 48 months. Given that multiple reasonable interpretations

of the contractual language exist, we cannot say, as the trial court believed, that

the spousal maintenance provision is unambiguous.

Thus, even were we to review the merits in determining the arbitrability of

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No. 68103-6-1/10

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 of the

controversy.4

Because the subjects of the parties' dispute—the drafting of the final

dissolution papers and the meaning of the spousal maintenance provision—

plainly fall within the scope of the 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 of maintenance, as she asserts, then

the CR 2A agreement 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 of the CR 2A

agreement's enforceability and the record is largely silent with respect to this

issue. We will not abrogate the written agreement of the parties in the absence

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

4 Indeed, in this case, the arbitrator is uniquely well-situated to resolve this dispute.

Having personally observed the negotiation of the parties during mediation, he is best positioned

to properly discern the intentof the partiesregarding the meaning of the spousal maintenance

provision.

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No. 68103-6-1/11

arbitrator who must determine the meaning of the spousal maintenance

provision, any ruling regarding the fairness of that provision would be premature.

More importantly, however, the enforceability of the CR 2A agreement,

like the parties' dispute regarding the substance of the spousal maintenance

provision, is a matter for 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 of this 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 entered into afterJanuary 1, 2006. RCW 7.04A.030. The

UAA stipulates that it is the arbitrator who must determine "whether a contract

containing a valid agreement to arbitrate is enforceable." RCW 7.04A.060(3). As

our Supreme Court has observed, unless a challenge relates only and

specifically to the arbitration clause itself, the enforceability 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. 153 Wn.

App. 870, 885, 224 P.3d 818 (2009)).

Here, the arbitration provision requires the arbitration of disputes relating

to any aspect ofthe form orsubstance ofthe CR 2A agreement. Lisa has lodged

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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 of the issues in this case, we agree and, accordingly,

vacate the trial court's award of attorney 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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