523 S.W.3d 783
Tex. App.2017Background
- Mother and Father divorced; their Agreement Incident to Divorce (AID) required Father to pay contractual alimony and child-related expenses (private school, extracurriculars).
- Disputes arose over interpretation/enforcement of the AID. Parents agreed via Rule 11 Agreement to submit support (binding, "baseball-style") and possession (nonbinding mediator-style recommendation after in‑camera meeting with children) to a single arbitrator.
- At arbitration the arbitrator signed an award: she selected Mother’s binding support proposal but also issued two possession paragraphs as binding orders (contrary to the Rule 11 Agreement) and required therapy for Father.
- Father moved to vacate the award; trial court vacated the entire award, finding the arbitrator exceeded her authority. Mother moved to confirm only the support portion; trial court denied confirmation and later held a trial on Father’s modification counter-petition, granting long‑distance visitation.
- Mother appealed, arguing the court should have modified/confirmed the support portion of the award rather than vacating it; Father urged vacatur and raised timeliness and other defenses.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court should have modified (partially confirmed) rather than vacate the arbitration award | The arbitrator exceeded authority only as to possession; under Tex. Civ. Prac. & Rem. Code §171.091(a)(2) the court should excise possession language and confirm the support award | The entire award should be vacated (arguing excessiveness, partiality, violations of law, or no meeting of minds) | Court: Modify, not vacate. Excise possession portion; remand for best‑interest hearing before confirming support award. |
| Whether possession was submitted to binding arbitration | Rule 11 expressly limited possession to a nonbinding mediator’s proposal after in‑camera interviews; support was submitted for binding "baseball‑style" arbitration | Father contended provisions in Mother’s proposal touched possession so arbitrator lacked authority to select it | Court: Possession was not submitted for binding arbitration; arbitrator exceeded authority by issuing binding possession orders. |
| Whether arbitrator’s nondisclosure/evident partiality warranted vacatur | Mother: nondisclosure was trivial/remote and did not create a reasonable impression of partiality | Father: nondisclosure of prior social ties plus post‑vacatur attempted amendment indicate evident partiality | Court: Father produced no evidence of prejudicial partiality; nondisclosure was trivial and speculative—insufficient to uphold full vacatur. |
| Whether trial court erred in trying Father’s modification counter‑petition after vacatur | Mother: vacatur should have compelled re‑arbitration; she also asserted service and continuance defects | Father: trial court permissibly proceeded; counter‑petition tried by consent | Court: TAA allows (but does not require) rehearing; Mother waived service complaint; continuance denial not an abuse of discretion. Trial on merits okay. |
Key Cases Cited
- Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011) (interlocutory orders may merge into final judgment)
- Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 2011) (arbitrator derives power from parties' agreement)
- Gulf Oil Corp. v. Guidry, 327 S.W.2d 406 (Tex. 1959) (arbitrator decides matters submitted expressly or by necessary implication)
- Amoco D.T. Co. v. Occidental Petro. Corp., 343 S.W.3d 837 (Tex. App.—Houston [14th Dist.] 2011) (de novo review of confirmation/vacatur of arbitration award)
- Burlington N. R.R. v. TUCO Inc., 960 S.W.2d 629 (Tex. 1997) (evident partiality standard requires nondisclosure that would create a reasonable impression of bias)
- Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518 (Tex. 2014) (trivial information need not be disclosed)
- In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) (doubts about arbitration scope resolved in favor of arbitration)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (judicial rulings generally do not establish bias)