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Ex Parte Petition of Messer12/14/1998
Appeal From Greenville County Amy C. Sutherland, Family Court Judge
Heard November 5, 1998
REVERSED
Patricia Houston Messer appeals from a family court order dismissing her petition and rule to show cause for contempt on the ground the parties had previously agreed to arbitrate all disputes connected with their separation agreement. We reverse.
FACTS
These parties were formerly husband and wife, having been divorced in September of 1983. Prior to their divorce , the parties entered into a separation agreement, which, inter alia, provided for Wife's support. Paragraph seventeen of the agreement stated:
"Any dispute or misunderstanding arising out of or in connection with this Agreement shall be arbitrated. Accept as otherwise below provided, the arbitration shall be had pursuant to Section 15-47-10 through Section 15-47-30 of the Code of Laws of the State of South Carolina, 1976 as amended. The parties intend that such decision of the arbitrators shall be final and Section 15-47-40 and Section 15-47-50 of the Code of Laws of the State of South Carolina shall have no effect and there shall be no right of appeal."
In the parties' divorce decree, dated September 14, 1983, the family court Judge approved the agreement and made it a part of the decree.
By petition dated August 15, 1997, Wife alleged Husband had refused to make alimony payments as provided in paragraph four of the separation agreement and sought to hold him in contempt. In his reply, Husband asserted that, pursuant to paragraph seventeen of the agreement, this dispute should be submitted to arbitration. Thereafter, Husband filed a motion to dismiss the action based on lack of subject matter jurisdiction.
At the hearing on Husband's motion to dismiss, counsel for Wife asserted the arbitration provision contained in the separation agreement was unenforceable because it did not comply with South Carolina Code section 15-48-10(a). The family court Judge ruled that because the separation agreement had been approved and made an order of the court, the provision with respect to arbitration was no longer part of a contract subject to section 15-48-10(a), but was binding as a court order. Accordingly, the family court Judge granted Husband's motion to dismiss, finding that any dispute must be resolved by arbitration.
LAW
1. Arbitration
The controlling statute, S.C. Code Ann. § 15-48-10(a) (Supp. 1997), in relevant part provides that
"a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. Notice that a contract is subject to arbitration pursuant to this chapter shall be typed in underlined capital letters, or rubber-stamped prominently, on the first page of the contract and unless such notice is displayed thereon the contract shall not be subject to arbitration."
Subsection (b) goes on to exclude certain types of claims from the Uniform Arbitration Act, including workers' compensation claims, unemployment compensation claims, and collective bargaining disputes between employers and employees. Also excluded are lawyer-client and doctor-patient agreements, personal injury claims, and claims based on insurance or annuity contracts. S.C. Code Ann. § 15-48-10(b).
In Soil Remediation Co. v. Nu-Way Env., Inc., 323 S.C. 454, 476 S.E.2d 149 (1996), the South Carolina Supreme Court held that section 15-48-10 must be strictly construed by the courts. "The terms of the statute are cle
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