Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re S.M.H.

Court of Appeals of Texas, Fourteenth District

April 13, 2017

IN THE INTEREST OF S.M.H. AND W.H.H., MINOR CHILDREN

         On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 2013-06052

          Panel consists of Justices Christopher, Busby, and Jewell.

          OPINION

          Tracy Christopher Justice

         This is an appeal from a final judgment in a suit affecting the parent-child relationship. The parties elected to submit their dispute to binding arbitration, but after the arbitrator issued her award, the trial court vacated the award upon finding that the arbitrator had exceeded her authority. The main issue presented to us is whether the trial court erred by issuing this vacatur. We conclude that it did. Although we agree that the arbitrator exceeded her authority, we believe that vacatur was not the correct remedy. Only a portion of the award was based on an issue outside of the arbitrator's authority, and that portion could have been excised from the award without affecting the merits of the arbitrator's other decision, which was based on an issue properly submitted to her. The trial court should have modified the award, rather than vacating it in its entirety. We reverse the trial court's judgment in part and remand for a hearing to determine whether confirmation of a modified award would be in the best interest of the children.

         In a separate issue, we also consider whether the trial court erred by proceeding to a trial on the merits on a matter raised in a counter-petition for modification. Finding no error with respect to this issue, we affirm this part of the trial court's judgment.

         BACKGROUND

         When Mother and Father divorced, they privately agreed that Father would continue to support Mother and the two children whom they shared. For Mother's benefit, Father promised to pay contractual alimony, and for the children's benefit, Father promised to pay for private school tuition and for other costs relating to extracurricular activities. These terms and many others were reduced to writing in an Agreement Incident to Divorce ("AID"), which was incorporated into the final decree of divorce.

         After the divorce, disagreements arose over Father's support obligations, with each side insisting on different interpretations of the AID. Acknowledging that the AID was "sloppily written, " Mother filed a petition with the trial court to clarify the terms of the AID and to enforce the obligations that Father had allegedly failed to honor.

         Father filed a counter-petition, seeking a modification of his possession. Anticipating that he would be moving to another city, Father requested terms for long-distance visitation.

          Mother and Father attended mediation, which resulted in a partial settlement of their dispute. In an effort to resolve other issues, Mother and Father entered into a Rule 11 Agreement, wherein they both agreed to submit to arbitration. The material terms of the Rule 11 Agreement provided as follows:

• A single arbitrator would preside over the arbitration. The arbitrator would be the same person who presided over the parties' mediation.
• The arbitration would be "baseball style, " meaning that Mother and Father would each submit a proposal to the arbitrator, who was bound to select one of the two proposals, without making any changes to the proposal selected.
• The issues submitted to the arbitrator would be limited to support and possession.
• The support issue would be subject to binding arbitration, and the arbitrator's ruling would not be restricted to what a court might be able to order under Texas law. The parties expressly acknowledged that they contemplated "payments and issues which exceed those found in the Texas Family Code."
• Unlike the support issue, the possession issue would not be subject to binding arbitration. On this issue alone, the parties would request the arbitrator to meet with the children privately and then "propose a mediator's proposal" on the terms of holiday schedules and long-distance visitation.

         Mother and Father exchanged their proposals three days before the arbitration. Then, on the morning of the arbitration, they entered into an Arbitration Agreement, which the arbitrator also signed. Under the terms of the Arbitration Agreement, the parties agreed to be bound by the rules set forth in the Rule 11 Agreement.

          At the end of the arbitration, the arbitrator accepted Mother's proposal. This acceptance was memorialized in a written award drafted entirely by the arbitrator. The award also contained two paragraphs that addressed the issue of possession, but these paragraphs were not written in the form of a mediator's proposal. Instead, they were written as orders, in violation of the Rule 11 Agreement. The arbitrator ordered that holidays should be split between the parents and that terms should be added to the divorce decree allowing for long-distance visitation. The arbitrator also ordered Father to participate in therapy as a condition of his possession.

         Back before the trial court, Mother moved to confirm the award and Father moved to vacate it. Father offered a laundry list of grounds in favor of vacatur, but the trial court relied on just one of them. Finding that the arbitrator had exceeded her authority, the trial court vacated the award in full.

         Mother objected to the vacatur. She explained that the award had two parts: one addressing support, which was represented by the proposal that Mother had submitted to the arbitrator at the beginning of arbitration; and another addressing possession, which was represented by the two paragraphs drafted by the arbitrator. Mother argued that the trial court could give effect to the support portion of the award because the parties had a valid agreement to arbitrate that issue. As for the possession portion, Mother argued that the trial court should treat the arbitrator's two paragraphs as just a mediator's proposal, which the parties were free to reject. Mother moved the trial court to confirm just the support portion of the award, but the trial court denied that motion.

         The parties then proceeded to a trial on the merits, but the only matter litigated was Father's counter-petition to modify the terms of his possession. The parties abandoned all other pending claims, although Mother reserved the right to challenge the trial court's ruling on the arbitration award.

         At the close of evidence, the trial court found that there was a change in circumstances and that Father was entitled to long-distance visitation. After denying several post-trial motions, the trial court signed a final judgment modifying the divorce decree with new terms of possession. Mother appealed from that final judgment.

         ISSUES PRESENTED

         Mother complains of two issues. In her first issue, she argues that the trial court erred by not confirming the support portion of the arbitration award. In her second issue, she argues that the trial court erred by proceeding to trial on Father's counter-petition for modification.

         Father responds to these issues in his brief, but he also raises a jurisdictional challenge, arguing that Mother's notice of appeal is untimely. We address the jurisdictional issue first.

         APPELLATE JURISDICTION

         To invoke an appellate court's jurisdiction, a party must file a written notice of appeal with the trial court clerk. See Tex. R. App. P. 25.1(a)-(b). In most cases, the notice of appeal must be filed within thirty days of the final judgment. See Tex. R. App. P. 26.1. A shorter deadline applies if the appeal is accelerated. In those accelerated cases, the notice of appeal must be filed within twenty days of the judgment or order being appealed. See Tex. R. App. P. 26.1(b).

         Believing that this appeal is accelerated, Father argues that Mother's notice of appeal is untimely because it was filed more than twenty days after the trial court vacated her arbitration award. Father's argument is mistaken on two points: (1) whether Mother's appeal is accelerated, and (2) what judgment or order she is appealing.

         Accelerated appeals are defined in the Texas Rules of Appellate Procedure. They include "appeals from interlocutory orders (when allowed by statute)" and "appeals required by statute to be accelerated or expedited." See Tex. R. App. P. 28.1(a).

         The trial court's order vacating the arbitration award is interlocutory, as Father correctly points out. However, Mother did not appeal from that interlocutory order. She appealed from the trial court's final judgment, and the interlocutory order vacating the arbitration award merged into that final judgment. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 924 (Tex. 2011) (holding that an interlocutory order merged into the final judgment).

         Mother had a right under the Texas Arbitration Act ("TAA") to bring an interlocutory appeal from the trial court's vacatur order before the case proceeded to a trial on the merits and before a final judgment was rendered. See Tex. Civ. Prac. & Rem. Code § 171.098(a); Branch Law Firm L.L.P. v. Osborn, No. 14-14-00892-CV, - S.W.3d -, 2016 WL 444867, at *3 (Tex. App.-Houston [14th Dist.] Feb. 4, 2016, pet. denied). But the TAA did not require Mother to bring an interlocutory appeal. Cf. Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex. 2009) (holding that Chapter 74 authorizes an interlocutory appeal, but does not mandate it). And Mother's failure to bring an interlocutory appeal does not mean that her timely appeal from the final judgment must be treated as accelerated, where the TAA does not require such appeals to be accelerated. See Tex. Civ. Prac. & Rem. Code § 171.098(b) ("The appeal shall be taken in the manner and to the same extent as an appeal from an order or judgment in a civil action.").

         Mother filed her notice of appeal within thirty days of the trial court's final judgment. That is all that was required to invoke this court's jurisdiction. See Tex. R. App. P. 26.1. We therefore proceed to the merits of Mother's two appellate complaints.

         ARBITRATION AWARD

         I. Mother's Argument

         A trial court must confirm an arbitration award unless grounds are offered for vacating, modifying, or correcting the award. See Tex. Civ. Prac. & Rem. Code § 171.087. One basis for modification occurs when the arbitrator has "made an award with respect to a matter not submitted to [her] and the award may be corrected without affecting the merits of the decision made with respect to the issues that were submitted." Id. § 171.091(a)(2). When this provision applies, the trial court must modify the award and then confirm it as modified. Id. § 171.091(c).

         Mother argues that the trial court should have acted under the authority of this provision by confirming a modified award, rather than by vacating the award in full. More specifically, Mother argues that the trial court should have removed the possession portion of the award, thereby allowing the support portion to stand on its own. To prevail on this theory, Mother was required to show (A) that the parties submitted the support issue to the arbitrator, but not the possession issue; and (B) that the removal of the possession portion of the award can be achieved without affecting the merits of the support portion of the award. Id. § 171.091(a)(2). Whether Mother satisfied this burden is a legal question, subject to de novo review. See Amoco D.T. Co. v. Occidental Petro. Corp., 343 S.W.3d 837, 844 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) ("We review de novo a trial court's decision to confirm or vacate an arbitration award."). We begin our analysis by considering what issues were submitted to the arbitrator.

          A. The support issue was submitted for binding arbitration, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.