IN THE INTEREST OF S.M.H. AND W.H.H., MINOR CHILDREN
Appeal from the 246th District Court Harris County, Texas
Trial Court Cause No. 2013-06052
consists of Justices Christopher, Busby, and Jewell.
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.
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.
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.
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
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.
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
• 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
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.
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.
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.
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
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
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.
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.
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
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).
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.
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).
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).
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.").
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.
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. §
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