MAHASIN A. HAWDI, Appellant
ATHEEL MUTAMMARA, AGENT AND ATTORNEY-IN-FACT FOR WILLIAM B. MUTAMMARA, Appellee
Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-236345
consists of Justices Lloyd, Kelly, and Hightower.
an appeal from a final judgment confirming an arbitration
award. Appellant Mahasin A. Hawdi is the wife of William B.
Mutammara, who currently resides in a senior assisted living
and memory care facility. Mahasin is 78 years old, and
William is 88 years old. Atheel Mutamarra is William's
adult son, Mahasin's stepson, and the holder of financial
and medical powers of attorney for William.
their marriage in 2007, Mahasin and William signed a
premarital agreement that set forth provisions regarding the
characterization of and rights to manage their assets during
and after their marriage. This agreement included an
arbitration provision. In 2016, a dispute arose between
Atheel and Mahasin regarding ownership and use of property
that Atheel contended was his father's separate property.
Atheel sought arbitration under the premarital agreement to
obtain "a declaration of the rights, duties, and
obligations" of each spouse under the agreement, the
imposition of a constructive trust over William's
separate property that was allegedly possessed by Mahasin,
and injunctive relief to preserve William's assets.
Mahasin opposed arbitration, but the trial court granted
Atheel's motion to compel arbitration. Atheel later
sought confirmation of the arbitration award, and the trial
court entered a final judgment.
appeal, Mahasin raises seven issues. Four issues challenge
the trial court's order compelling arbitration, and three
issues challenge the arbitration award as included in the
final judgment. We affirm.
Mahasin and William married, they signed a premarital
agreement. They stipulated that their intent was "to
clarify their respective property rights to eliminate any
uncertainty about those rights." The agreement
identified what would comprise each party's separate
property upon marriage, and it provided that "[e]ach
party will have the full, free, and unrestricted right to
manage the separate property over which he or she has
control." It also provided that "[n]either
party will have the authority to encumber or dispose of the
other party's separate property without the other
party's express written consent."
agreement also provided for "binding arbitration"
"in accordance with Texas arbitration law.":
The parties agree to submit to binding arbitration any
dispute or controversy regarding the validity,
interpretation, or enforceability of this agreement, as
well as all issues involving its enforcement in connection
with a dissolution proceeding between the parties. Each party
expressly waives any right to trial by a court or trial by a
jury. If a dissolution proceeding or declaratory judgment
proceeding is filed in Texas, the arbitrator appointed under
this agreement will simultaneously be designated as special
master under the Texas Rules of Civil Procedure, and the
parties agree to jointly apply to the court for any orders
that are necessary to vest the arbitrator with all powers and
authority of a special master under the rules.
The parties agree to appoint one arbitrator, whose decisions
will be binding in all respects. Any arbitrator appointed by
the parties must be an attorney who (i) has undergone
arbitration training conducted by the American Bar
Association or the American Academy of Matrimonial Lawyers
and (ii) is in good standing with the State Bar of Texas. The
first party requesting arbitration must designate the name of
an arbitrator in the request. The other party must then
designate the name of an arbitrator. If the parties cannot
agree on an arbitrator within fourteen days after either
party's written request for arbitration, the two
designees must select a qualified arbitrator, who will be
designated the sole arbitrator of the dispute. If the parties
cannot agree on the ground rules and procedures to be
followed during the arbitration proceedings, the arbitrator
shall have the sole authority to establish the ground rules
and procedures to be followed during the arbitration
proceeding. The parties agree to attend the arbitration on
the date and at the time and place set by the arbitrator. The
cost of arbitration must be borne as the arbitrator directs.
The award of the arbitrator will be binding and conclusive on
the parties, and a judgment setting forth the arbitration
award may be entered in any court of competent jurisdiction.
years after the premarital agreement was signed and while
Mahasin was out of town, William signed a statutory durable
power of attorney in favor of Atheel. Six weeks later,
William was diagnosed with Alzheimer's Disease. Two years
later, in July 2015, while Mahasin was recovering from a
serious accident, Atheel placed William in a senior
assisted-living memory-care facility, where he remains.
Disputes arose between Mahasin and Atheel regarding access to
William and financial matters, including occupation of the
year later, Atheel requested arbitration in writing,
designated Bruce Wayne Wettman as arbitrator, and informed
Mahasin that she had 14 days to "agree to an
arbitrator." Mahasin neither replied nor objected to
Atheel's designation of Wettman as arbitrator. Atheel
filed with the district court an application to compel
arbitration designating Wettman as arbitrator. He later
amended the application, attaching a copy of the premarital
agreement. Mahasin opposed arbitration asserting that Atheel
lacked standing to enforce the arbitration clause.
parties unsuccessfully mediated before Wettman. The trial
court granted the amended application to compel arbitration,
specifically finding that: (1) the existence of an agreement
to arbitrate is undisputed; (2) Mahasin "nevertheless
refuses to arbitrate"; (3) "the arbitration
agreement contains a delegation clause whereby the parties to
the arbitration agreement intend for the arbitrator to decide
gateway matters regarding the validity, interpretation or
enforceability of the arbitration agreement, and all other
legal and factual matters"; and (4) Mahasin failed to
raise any valid defenses to the arbitration agreement. The
court ordered arbitration "with the designated
arbitrator" and retained jurisdiction "to appoint
an arbitrator" "should the agreed method of
arbitration was conducted, Wettman entered an award. Wettman
found that when they signed the premarital agreement, Mahasin
and William acknowledged that they "had or reasonably
could have had full and complete knowledge of property owned
by the other party." The arbitrator also found that
Mahasin had entered into the premarital agreement knowingly
and voluntarily and that she declined to retain independent
counsel despite having had the opportunity to do so. The
arbitrator found that the marital home was William's
separate property because it was "purchased entirely
with cash" that was William's separate property. The
arbitrator also found that Mahasin had withdrawn nearly $300,
000 from an investment account that was solely William's
separate property and put the money in other accounts for her
personal living expenses. The arbitrator awarded Atheel $172,
000 plus 6% postjudgment interest. He also ordered that
Mahasin had the right to continue living in the marital home
and that Atheel could conduct one inspection per month
"at a mutually agreeable date and time." The
parties were ordered to pay their own costs and
filed an application with the court to confirm the award.
Mahasin objected and sought to vacate the arbitration award.
She argued that the arbitrator improperly exceeded his powers
under the Texas Arbitration Act by finding that the marital
home was William's separate property. She argued that
when a spouse uses separate property to acquire real property
during a marriage and takes title in both spouses' names,
Texas law presumes that the nonpurchasing spouse has received
a gift of a one-half interest in the property. She attached a
copy of the deed to her objection and application to vacate.
Mahasin made no argument about the money transferred from the
investment account, and she made no argument about the proper
characterization of the property under the parties'
trial court entered a final judgment confirming the
arbitration award, and Mahasin appealed.
raised seven issues on appeal. Some relate to the order
compelling arbitration, and others relate to the final
judgment confirming the arbitration award.
Issues relating to the order compelling
order compelling arbitration may be reviewed in an appeal
from the final judgment. See Perry Homes v. Cull,
258 S.W.3d 580, 586 n.9 (Tex. 2008). We review a trial
court's ruling on a motion to compel arbitration for an
abuse of discretion, deferring to the trial court's
factual determinations that are supported by evidence and
examining questions of law de novo. ...