INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matterofthe Marriage of KAREN M. JONES, Respondent, and PERRYJ. JONES III, Appellant. ) FILED: June 9,2014 No. 70729-9-I DIVISION ONE UNPUBLISHED OPINION

Appelwick, J. — A court may vacate an arbitrator's award in only very limited circumstances, such as when an arbitrator has exceeded his or her legal authority. In this case, Perry fails to meet his burden to show from the face ofthe arbitrator's award that the arbitrator exceeded his authority. We affirm the trial court's orders confirming 

### the arbitrator's award and denying Perry's motions to vacate the award and its entry of final dissolution orders incorporating the award. FACTS 

### Karen Jones and Dr. PerryJones were married for more than 37 years. Perry is
a dentist and during the marriage, both parties worked in his dental practice. They amassed several valuable properties, assets, and collections. Karenfiled fordissolution in 2012. 

### InJanuary 2013, the parties participated inmediation and entered into a CR 2A agreement. They agreedto make certain paymentsfrom the proceeds ofthe sale ofthe 

### marital homethathad alreadyoccurred and agreedto jointlyobtain appraisals ofcertain assets. The parties also agreed that "resolution of the allocation of the parties' remaining assets and liabilities and the determination of spousal maintenance, will beNo. 70729-9-1/2

mediated and, if not settled at mediation, arbitrated by Judge Steve Scott, Ret." They further agreed that the arbitrator would "determine the manner in which the arbitration shall be conducted." During the second mediation in February 2013, the parties again agreed upon
some issues, but failed to resolve the major outstanding financial issues. The parties agreed to make additional payments from the proceeds ofthe home sale, to an "overall 50/50 division ofassets and liabilities," and that each party would retain his or herown individual retirement account. They also stipulated that Perry should be awarded certain collections and assets with a total value ofapproximately $40,000. The parties then entered into an agreed orderto strike the trial date and submit the remaining issues to arbitration. Specifically, the parties determined that "[a]ll 

### financial issues shall be determined in binding arbitration." The arbitrator set a briefing schedule and conducted the arbitration based on the parties' briefs and submissions of evidence. The arbitratorissued an arbitration award on March 18, 2013. At the time of the arbitration, the parties owned two remaining pieces of real property, one in France and the otherin Montana. The arbitratordid not assign a value to either property, but awarded the property in France to Karen and the property in 

### Montana to Perry.1 The spreadsheet attached to the arbitrator's award otherwise 

### assigned valueto assets and awarded each assetto Karen or Perry.2

1The parties agreed to jointly obtain real estate appraisals, butapparentlyfailed to do so. 

### 2As withthe real estate, thearbitratordid notassignvaluetothevehicles awarded to the parties norto air miles, which were divided equally.No. 70729-9-1/3
The primary assetthatthe arbitrator awarded to Perrywas the parties' interestin his dental practice and their interest in the commercial building where the practice is located. The arbitrator awarded the entire value of the parties' retirement investment account associated with the business to Karen. The arbitratorawarded to Perry mostof the furniture, rugs, art collection, stamp collection, and most of the precious metals. 

### Karen received the wine collection, jewelry, and specific pieces of furniture, some designated as community property and some as separate property. The arbitrator awarded each party a portion ofthe remaining proceeds from the sale ofthe marital home. According to the arbitrator's spreadsheet, excluding the real estate, each party received assets of equal value in the amount of $1,059,884. The arbitrator also 

### determined that Karen should receive monthly maintenance payments of$8,000for five years. The arbitrator submitted an explanatory lettertogetherwiththe award "solely for the benefit ofthe parties" and explicitly not to be construed as findings or a part ofthe award itself. 

### Perry filed a motion inthe arbitration proceedings challenging the award and the arbitrator denied the motion. In the superior court, Perry filed a motion to vacate the 

### award on numerous bases, asking the court to reevaluate the evidence before the arbitrator. Karen sought confirmation ofthe award and entry of final dissolution orders incorporating the award. 

### On May 1, 2013, the superior court entered final orders, including a decree of dissolution and findings offact and conclusions of law. In a separate order, the court denied the motion to vacate, granted the motion to confirm, and struck Perry'sNo. 70729-9-1/4

submission ofthe evidentiary record before the arbitrator. Inthis order, the court also granted Karen's motion forfees incurred afterthe conclusion ofthe arbitration. Perry filed a motion for reconsideration following the entry of final orders and an amended motion to vacate. On July 9, 2013, the trial court entered an order denying 

### the amended motion to vacate, awarding approximately $17,000 inpostarbitration fees and costs to Karen, and resolving allpending motions. Perry appeals. DISCUSSION I. Motion To Vacate Perry challenges several aspects of the arbitrator's award. His primary complaints are (1) the arbitratorfailed to distribute assets equally inaccordancewiththe parties' agreement and (2) the arbitrator made a determination of marital misconduct and relied on that finding as a basis to distribute assets unequally. Perry also claims thatthe arbitratorawarded maintenancewithoutmaking required findings or considering his actual income and the disparity inthe parties' ages and health condition. Washington courts accord substantial finality to the decision of an arbitrator rendered in accordance with the parties' contractual agreement and Washington's uniform arbitration act, chapter7.04A RCW. Davidson v. Hensen. 135Wn.2d 112, 118, 954 P.2d 1327 (1998). Accordingly, judicial review of an arbitration award is exceedingly limited, id at 118-19. A court may disturb an award only on the narrow grounds listed in RCW 7.04A.230 and only when those grounds appear on the face of the award. Westmark Props., Inc. v. McGuire, 53 Wn. App. 400, 402, 766 P.2d 1146 (1989). This court's review of an arbitrator's award is limited to review ofthe decisionNo. 70729-9-1/5 by the courtthat confirmed, vacated, modified, orcorrected that award. Expert Drvwall, Inc. v. Ellis-Don Constr., Inc.. 86Wn. App. 884, 888, 939 P.2d 1258 (1997). Perry identifies several statutory grounds for vacating the award. Specifically, he claims there are grounds to vacate based on "evident partiality" of the arbitrator, "corruption" of the arbitrator, and the failure to properly conduct the arbitration in accordancewiththe statute. RCW 7.04.230(1)(b)(i), (ii), and (c). While Perry alleges both "evidentpartiality" and "corruption," he does notattempt to explain or substantiate the allegation of corruption. As to his claim of evident partiality, he contends thatthe arbitrator's award is evidence ofthe arbitrator's partiality toward Karen, because she received assets ofgreatervaluethan the assets awarded to him and more ofthe liquid assets. He also claims thatthe arbitrator relied on evidence of valuation that was favorable to Karen and unreasonably disregarded evidence he submitted. But, Perry provides no authority suggesting that an unfavorable decision alone can support a claim of evident partiality. Rather, caselaw suggests that evident partiality is based on a relationship orcircumstance that raises an inference ofbias that the arbitrator has a duty to disclose. See Schreifels v. Safeco Ins. Co., 45 Wn. App. 442, 445-46, 725 P.2d 1022 (1986) (recognizing split as to whether the "evident partiality" standard should constitute an appearance of bias, actual bias, or the reasonable person standard falling somewhere in the middle). Perry does not allege any such relationship or circumstance. Perry also cites RCW 7.04A.230(c) which provides grounds for vacation ifthe arbitrator "refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwiseNo. 70729-9-1/6


### conducted the hearing contraryto RCW 7.04A.150, so as to prejudice substantiallythe 

### rights of a party to the arbitration proceeding." He claims that the arbitration was 

### conducted contrary to the process setforth in RCW7.04A.150, because the arbitrator issued the award based on the parties' written submissions without conducting an 

### arbitration hearing. But, Perry did not assert this statutory ground for vacation below and generally, we will not consider a theory not presented to the trial court. See RAP 2.5(a). Nevertheless, the statute outlining the process for contractual arbitration authorizes "summary disposition" and also states that the arbitrator may "conduct the arbitration insuch manneras the arbitratorconsiders appropriate so as to aid inthe fair 

### and expeditious disposition ofthe proceeding." RCW7.04A.150(1), (2). Perry does not 

### indicate, nor is there any information in the record to suggest, that Perry requested an arbitration hearing orobjected to the summarydisposition process here. 

### Perry also claims that statutory grounds to vacate exist because the arbitrator "exceeded" his powers. RCW 7.04A.230(1)(d); Federated Servs. Ins. Co. v. Pers. Representative ofEstateofNorberq, 101 Wn. App. 119, 123, 4 P.3d 844 (2000). 

### In particular, Perry contends that the arbitrator exceeded his powers by issuing an award that contravenes the parties' agreementto equally dividethe martial assets. He claims the arbitratoralso exceeded his powers byassessing a predistribution amountof $168,500, which had the effect of reducing his award based on community expenses incurred in connection with his extramarital affair. 

### The facial legal error standard is a "very narrow ground for vacating an arbitral 

### award" thatfurthers the "purposes of arbitration" while preventing "obvious legal error." Broom v. Morgan Stanley DW, Inc., 169 Wn.2d 231, 239, 236 P.3d 182 (2010). OurNo. 70729-9-1/7

courts have applied facial legal error as a basis to vacate only sparingly. ]d at239. An arbitratorexceeds his or her powers within the meaning of RCW 7.04A.230(1)(d) when the arbitration award exhibits an error of law. id at 240. The error, ifany, must be 

### recognizable from the language ofthe award. Federated Servs. Ins. Co., 101 Wn. App. at 124. In considering such a challenge, we review only the face of the award to determine whether it manifests an erroneous rule of law or a mistaken application of law. Boyd, 127 Wn.2d at 263. We do not review the merits ofthe case orthe evidence before the arbitrator. Davidson, 135 Wn.2d at 119. Nor may we extend our review to discern the parties' intent or interpret agreements underlying the merits ofthe dispute, because such an actisessentiallya trialde novo. Boyd, 127Wn.2d at261-62. 

### Perry contends that although the award purports to assign equal value to the assets awarded to each party, the awards are not actually equivalent. Perry claims this is so because the real estate in France is worth more than the Montana real estate. He also claims that the arbitrator failed to properly assign value to separate property 

### awarded to Karen while also failing to properly characterize and allocate his separate property. Perry also claims that the court awarded a nonexistent asset to him by awarding to him communityfunds the parties already spent. 

### Perry asserts thatthe unequal distribution ofassets provides grounds to vacate the award because the parties' expressly agreed to a "50/50 division of assets and liabilities." According to Perry, the arbitrator lacked authority to do anything otherthan divide the assets in a strictlyequalfashion. 

### But, even assuming forthe sake ofargumentthatthe award distributes a greater share ofthe combined assets to Karen, there is no error of law or misapplication of lawNo. 70729-9-1/8 

### evident on the face of the award.3 Resolving Perry's claim that the arbitrator's award conflicts with the parties' agreement would require that we look behind the award and 

### examinethe parties' agreementto determinewhetherthey intended a preciselyequal or approximately equivalent overall division. We would also have to determine whether the parties intended that community assets depleted as a result of Perry's extramarital affair would betaken into account. As explained, it is beyond the scope ofourreview to evaluate an arbitrator's interpretation ofcontracts. Boyd, 127Wn.2d at261-62. Perry also claims that the award manifests an error of law, because it allocates assets based upon a determination of misconduct during the marriage, in violation of RCW 26.09.080. The award, however, states only that $168,500 was already distributed to Perry as "Predistribution/Lisa expenses" and does not include any finding ofmisconduct. Perry's argument is based on the arbitrator's letter which explains that assets
were predistributed to Perry, because itwas "fair andjustthat [he] bearthe cost of his marital misconduct." But, the arbitration award itself does not include the arbitrator's
reasons for the award, and for that reason, we do considerthe arbitrator's explanatory letter. Barnettv. Hicks, 119Wn.2d 151, 156, 829 P.2d 1087 (1992). Even ifwewereto do so, itdoes notdemonstrate thatthe arbitratorerroneously applied the law by treating 

### $168,500 as a predistributed community asset. RCW 26.09.080 requires a trialcourtto distribute the marital assets "without regard to misconduct" and thus prohibits consideration ofimmoral orphysically abusive conduct. Itdoes not, however, preventa 

### 3Ofcourse, determining the truth of this premisewouldrequire us toevaluatethe underlying evidentiary record. Such an inquiryis prohibited. See Davidson, 135Wn.2d at 119.No. 70729-9-1/9


### court fromconsidering the unwarranted dissipation of marital assets.4 In re Marriage of Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991).

II. Maintenance 

### Perry alleges error on the face ofthe award with respectto maintenance. Perry claimsthatinawarding maintenance, the arbitratorfailed to (1) make statutorily-required findings, (2) base the payment amount on his actual income, and (3) consider the disparity in the parties' ages, ability to work, and health condition. But, the arbitration statute does not require findings offact and conclusions of law in support of an award. Barnett, 119 Wn.2d at 156. A court reviewing an award "does not insist upon or even look for a comprehensive explanation ofthe arbitrator's reasoning. Findings offact and conclusions of law need not be stated." Cummings v. Budget Tank Removal & Envtl. Servs., LLC, 163 Wn. App. 379, 391, 260 P.3d 220 (2011). Moreover, when a trial court awards maintenance under RCW 26.09.090, the court must consider the statutory 

### factors, but nothing inthe statute requires specific factual findings on the factors. See Inre Marriage ofMansour, 126Wn. App. 1, 16, 106 P.3d 768 (2004). Nothing inthe award indicates thatthe arbitrator did not properly consider allthe relevant factors, including the parties' ages and health condition. To the contrary, the award indicates that the arbitrator took health and age into consideration, because it provides that Perry may move to modify ifhe becomes unable to work during the period of maintenance. And, the award does not reveal what income level the arbitrator

4We also rejecttheclaim oferroron theface ofthe award becausethe arbitrator improperlyawarded propertyto third parties. The arbitratorawarded a "fewpieces of Chinese porcelain" to Karen, who apparently intends to give the pieces to the parties' adult children.No. 70729-9-1/10


### attributed to Perry to calculatethe maintenance. In his explanatory letter, the arbitrator stated that he disregarded the portion of Perry's income that was related to his ownership ofthe business. But, again, the letteris notpartofthe award and Perrydoes notexplainwhy itamounts to an errorof law.

III. Decree ofDissolution 

### Perry alleges trial court error with respect to entry ofthe decree of dissolution. He appears to argue that some provisions ofthe decree are improper, for instance, provisions for future bankruptcy and tax reporting, because the issues were not addressed in arbitration. But, the arbitrator was charged only with dividing the assets 

### and liabilities. Perry cites no authority suggesting that allissues included in the decree had to be addressed inthe arbitration. Perry had the opportunity to propose his own 

### finalorders and to objectto allprovisions included in finalorders proposed by Karen. Perry also claims that there are discrepancies between the award and some 

### provisions of the decree and argues that the trial courtimproperly modified the terms of the award. For instance, the arbitrator awarded real property to each party, but did not 

### specifically mention the personal property located at the properties, such as furnishings and a car. The decree, on the other hand, specifies that the award of real property 

### encompasses the personal property located on the real estate. In addition, Perry points out that the spreadsheet awards Karen $150,000 for "[tjotal Reserve Value" based on one appraisal ofthe parties' wine collection, whereas the decree awards her the actual wine "wherever stored." Finally, the arbitrator awarded each party a portion of the 

### remaining proceeds from the sale of the parties' marital home inSeattle. The decree convertsthose specificdollaramountsto percentagesofthe remaining proceeds.

10No. 70729-9-1/11 Although Perry argued that the award should be interpreted differently, the decree reflects a reasonable interpretation ofthe award and does not modify the terms 

### of the award. Perry has not demonstrated that the final orders conflict with the arbitration award nor has he articulated any valid basis to reverse the final dissolution orders.

IV. Attorney Fees Karen requests attorney fees on appeal, citing RCW 7.04A.250(3) which provides fees to the prevailing party in postarbitration proceedings. The trial court awarded Karen fees incurred postarbitration. We award her fees under RCW 7.04A.250(3) as well, subjectto hercompliancewith RAP 18.1.

WE CONCUR: 

# ^t,dcilN^O.P.K,

11 C" ro r C' •"" O -Hd je- Z> —r'l C_ —-,". "*"""" 4 ' r—-.

**-—

— ~*

1 *'iJ> • v^ £^"X3

,, r, ,-vy?> "Z..-
. CD

• • —*. r*"" rO i Vt —• CO