Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the 256th Judicial District Court Dallas
County, Texas, Trial Court Cause No. DF07-04168-Z
Justices Francis, Stoddart, and Schenck.
J. SCHENCK JUSTICE.
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.
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
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.
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
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.
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.
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. In the interim, Mother and Father
reached agreements in December 2013 and again in May 2014
regarding visitation terms and schedules for Mother.
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
now seeks relief from the November 12, 2015 and June 2, 2016
orders in the instant petition for writ of mandamus.