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In re M.W.M.

Court of Appeals of Texas, Fifth District, Dallas

April 5, 2017

IN RE M.W.M., JR., A MINOR CHILD

         Original Proceeding from the 256th Judicial District Court Dallas County, Texas, Trial Court Cause No. DF07-04168-Z

          Before Justices Francis, Stoddart, and Schenck.

          OPINION

          DAVID J. SCHENCK JUSTICE.

         Before the Court is relator's petition for writ of mandamus in which he complains of orders removing the parties' contractually-stipulated arbitrator and ordering arbitration to proceed before a substitute arbitrator appointed by the trial court. After reviewing the parties' briefs and the mandamus record, we have determined that relator has established his right to mandamus relief and conditionally grant the writ.

         Summary of Facts

         The underlying proceeding is a Suit Affecting the Parent Child Relationship (SAPCR) relating to the parties' only child, a son. Father is relator. The parents divorced in 2010. Their June 21, 2010 Amended Agreed Final Decree of Divorce includes agreements to mediate, and, if necessary, arbitrate future disputes involving child custody, although the arbitration clause contains language potentially limiting the right to arbitrate, or the choice of arbitrator, in the event of an "emergency."[1]

         Father first requested an emergency hearing with the named arbitrator, Coye Conner, Jr., in July 2012 following Mother's arrest for assault on her new husband. Mother appeared and participated at the hearing without objecting either to the emergency nature of the hearing or to Conner presiding over it. She also did not object to or move to set aside Conner's subsequent award mandating that she refrain from drinking or using drugs for at least twelve hours prior to taking possession of the child, instituting a safety plan for the child, and requiring two home visits during Mother's summer possession.

         In March 2013, Father had continued concerns for his son's safety during visits with Mother and requested a telephonic hearing with Conner. That hearing was scheduled for March 26, 2013. Mother did not object to the hearing. Instead, Mother agreed to forgo her scheduled visitation between March 28 and April 8, resulting in the abatement of the March 26 hearing. Conner then requested hearing dates from Mother and Father and asked the parties to each pay a $5, 000 deposit to cover fees for the past and upcoming hearings. Father paid the arbitrator's fee; Mother did not. On May 2, 2013, Mother once again decided not to exercise her upcoming period of possession. Mother continued to forgo her scheduled visitation until Friday, October 18, 2013. On that day, without notifying Father, Mother arrived early at school to remove her son and kept him for the weekend. Because only Mother knew she planned to pick the child up and keep him for the weekend, the child was not prepared for a weekend stay and returned to his Father's house on Sunday without shoes and wearing the same clothes he had worn to school on Friday.

         On October 23, 2013, Father filed an "Emergency Motion for Relief" with Conner and asked that Mother's rights to possession be suspended until after a hearing could be held to establish necessary safeguards for the child's safety and welfare. Father's counsel served Mother's counsel with the motion and invited Mother to submit her position to Conner. Mother's counsel submitted a letter to the arbitrator that day explaining why Conner should deny Father's motion. Once again, the letter did not object to the continuation of the arbitration proceeding or Conner's presiding over it.

         On October 24, 2013, the arbitrator signed a document captioned "Arbitration Order" in which he temporarily suspended Mother's rights to visitation and possession until a hearing could be convened to establish "appropriate safeguards [to be] put in place for the safety and welfare of the child." Visitation would remain suspended "until another award is made and further order of the Court." The "Arbitration Order" also "authorize[d]" the child's school and staff to "not release [the child] to mother or anyone acting on her behalf until a further award is made in this case." The "Arbitration Order" included the court's style of the case as its header.

         Conner notified both parties' counsel of the "Arbitration Order, " instructed them to coordinate a hearing with his legal assistant, and informed Mother's counsel that she still owed the arbitration fees required to proceed and participate in the arbitration process. It appears that the parties did not have the subsequent hearing as directed by the "Arbitration Order." Instead, on November 25, 2013, Mother filed a motion in the trial court to remove the arbitrator and supplemented that motion on September 17, 2014.[2] In the interim, Mother and Father reached agreements in December 2013 and again in May 2014 regarding visitation terms and schedules for Mother.

         On October 30, 2015, more than two years after Conner signed the "Arbitration Order, " the trial court held a hearing on Mother's 2013 motion to remove the arbitrator. In a November 12, 2015 order, the trial court granted Mother's motion, found that Conner had exceeded his authority by signing the "Arbitration Order, " declared that order void, found that the order should not have been "disseminated publicly, " removed Conner as arbitrator, and appointed Brian Webb as arbitrator. Father appealed the interlocutory order, and this Court dismissed the interlocutory appeal for want of jurisdiction on April 14, 2016. In Interest of M.W.M., No. 05-15-01469-CV, 2016 WL 1469460, at *1 (Tex. App.-Dallas Apr. 14, 2016, no pet.) (mem. op.). In a June 2, 2016 order, the trial court referred all pending issues to arbitration with a substitute arbitrator, Webb.

         Father now seeks relief from the November 12, 2015 and June 2, 2016 orders in the instant petition for writ of mandamus.

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