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 2001-07

Patricia Mitchell v. Philip A. Mitchell ( 2001 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-01-00361-CV

    Patricia Mitchell, Appellant


    v.



    Philip Mitchell, Appellee





    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

    NO. 98-00617, HONORABLE PAUL DAVIS, JUDGE PRESIDING

    In September 1999, Patricia Mitchell and Philip Mitchell were divorced in Travis County. This post divorce dispute regards their relationship to their six-year-old child. After Philip filed a first amended petition to modify the parent-child relationship, Patricia filed a motion to compel arbitration contending that, pursuant to arbitration clauses agreed to and incorporated in their divorce decree, Philip's claims must be resolved through binding arbitration. The district court denied her motion and Patricia now brings this accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(1) (West Supp. 2001). Patricia contends that the district court erred in denying her motion to compel arbitration because Philip's claims were within the scope of two arbitration clauses contained in their divorce decree. We will affirm in part and reverse and render in part the district court's order.

    Standard Of Review  

    In reviewing the denial of a motion to compel arbitration, generally the appellate court applies a legal-sufficiency or no-evidence standard of review. See Certain Underwriters at Lloyd's of London v. Celebrity, Inc., 950 S.W.2d 375, 377 (Tex. App.--Tyler 1996, no writ). Under either standard of review, the appellate court considers only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding under attack, and disregards all evidence and inferences to the contrary. Id. In this case, however, because no evidence was introduced at the hearing on the motion to compel arbitration and since the only matter before us is the district court's legal interpretation of the two arbitration clauses in the divorce decree, de novo review of the district court's order is appropriate. See Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520 (Tex. App.--Austin 1998, no pet.) (citing BDO Seidman v. Miller, 949 S.W.2d 858, 860 (Tex. App.--Austin 1997, writ dism'd w.o.j.)) (no factual issues in dispute only issue is legal interpretation of arbitration clause). Under these circumstances, this Court may not revise a contract under the guise of professing to interpret it or to make for the parties a contract different from the one they entered into. Stahl Petroleum Co. v. Philips Petroleum Co., 550 S.W.2d 360, 368 (Tex. Civ. App.--Amarillo 1977), aff'd, 569 480 (Tex. 1978).

    In deciding a motion to compel arbitration, a court considers two issues: (1) is there a valid arbitration agreement; and (2) does the agreement encompass the claim. Dallas Cardiology Assocs., P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex. App.--Texarkana 1998, pet. denied); Merrill, Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 878 (Tex. App.--Waco 1992, writ denied). If the court determines that a valid agreement to arbitrate exists and that the claims raised fall within the scope of the agreement, the court must compel arbitration and stay proceedings pending arbitration. Prudential Sec., Inc. v. Banales, 860 S.W.2d 594, 597 (Tex. App.--Corpus Christi 1993, no writ). In this case, neither party contends that the arbitration clauses are invalid; the dispute centers on whether the arbitration clauses encompass Philip's claims.

    Because neither party alleged that the arbitration clauses were ambiguous, whether the arbitration clauses encompassed Philip's claims is a matter of contract interpretation and a question of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Kline v. O'Quinn, 874 S.W.2d 776, 782 (Tex. App.--Houston [14th Dist.] 1994, writ denied). When interpreting the decree, the court considers the plain, ordinary, and generally accepted meanings of the words used. W. Reserve Life Ins. Co. v. Meadows, 261 S.W.2d 554, 557 (Tex. 1953). The court gives effect to the intention of the parties as expressed in the decree and "the instrument alone will be deemed to express the intention of the parties, for it is objective, not subjective, intent that governs." City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968).

    In determining whether the arbitration clauses in the divorce decree encompass Philip's claims, we review the relevant provisions in the decree and his claims asserted in the first amended petition to modify the parent-child relationship.



    Provisions Of Divorce Decree

    While their divorce action was pending, the Mitchells executed an agreement titled, "Irrevocable Settlement Agreement On Child-Related Issues," providing for joint managing conservatorship and assigning possession schedules and particular parental rights. See Tex. Fam. Code Ann. § 153.133(a) (West Supp. 2001). In September 1999, the district court incorporated this agreement into the Mitchells' divorce decree.

    The decree declares that the Mitchells are joint managing conservators and incorporates the terms and conditions of their settlement agreement. The decree sets out the "geographical area for the primary residence" and declares that "Patricia Mitchell shall have the exclusive right to establish the primary physical residence of the child," provided

    the primary residence of the child shall be within Travis or Williamson County, Texas, within a 20-mile radius of the City Hall in Round, Rock, Texas. The parties shall not remove the child from the designated area for the purpose of changing the primary residence of the child until he or she has complied with the procedure stated hereinbelow.



    The next paragraph contains the first arbitration clause:

    Notwithstanding anything to the contrary stated herein, it is ordered, that either party may, at any time, propose a change in the residence of the child. The proposed change shall be determined by binding arbitration.



    The decree next addresses issues related to the parties' periods of possession of the child. The decree details the parties' rights to possession of the child and then sets out ten specific issues regarding terms and conditions of their possession. A second arbitration clause then appears:

    It is ordered that any disagreements between the parties relating to a jointly-shared right or duty, and/or periods of possession of and access to the child, shall be resolved through binding arbitration.



    Child support issues and division of the parties' marital estate were decided by the court and were not part of the Mitchells' irrevocable agreement incorporated into the divorce decree.



    Philip's First Amended Petition To Modify The Parent-Child Relationship

    In March 2001, Philip filed the first amended petition to modify the parent-child relationship and requested that the court replace the joint conservatorship by naming him sole managing conservator. See Tex. Fam. Code Ann. § 156.203 (West 1996). Alternatively, Philip requested that several terms and conditions of the joint managing conservatorship be modified should the district court deny his request for appointment as sole managing conservator. See Tex. Fam. Code Ann. § 156.202 (West 1996).



    The District Court's Order

    The district court denied Patricia's motion to compel arbitration and found that "its prior order that required the parties to arbitrate the issues of the child's residence and the parents' jointly shared rights and duties does not require arbitration of a dispute concerning modification of conservatorship."

    Patricia timely filed an accelerated interlocutory appeal from the court's order denying her motion for arbitration. Patricia contends on appeal that the express language of the arbitration clauses encompass Philip's request for a change in conservatorship. We review Philip's claims separately and determine whether each is encompassed by the decree's arbitration clauses.



    Change To Sole Managing Conservatorship

    We address first Philip's request that the parties' joint managing conservatorship be changed to appoint him sole managing conservator. The Family Code distinguishes a modification that replaces joint conservatorship with sole managing conservatorship from a modification of terms and conditions under a joint conservatorship. Under the Family Code, a court may replace a joint managing conservatorship with a sole managing conservatorship if the circumstances of the child or one of the parties have so materially and substantially changed since the decree that it has caused the order to become unworkable. See Tex. Fam. Code Ann. § 156.203(1)(C) (West Supp. 2001). When changing the entire conservatorship structure, a court must find that the changed circumstances caused the prior order to become unworkable and that a sole managing conservator is in the child's best interest. Id. § 156.203(2). When a party seeks to change only the terms or conditions under a joint managing conservatorship, the court may find either that the order has become unworkable or inappropriate or the circumstances of the child or one of the parties have substantially or materially changed and that modifying the terms of the order would be in the best interest of the child. See Tex. Fam. Code Ann. § 156.202 (West Supp. 2001).

    Patricia argues that Philip's request for a change to sole managing conservator concerns a change in the child's residence and relates to "a jointly-shared right or duty, and/or periods of possession of and access to the child." She suggests that any such change in conservatorship must be resolved by arbitration because the issues specifically addressed in the arbitration clauses will be involved in a change of conservatorship. She argues that there is no language in either arbitration clause that limits their application to disputes arising under the joint managing conservatorship.

    Philip conversely argues that the two arbitration clauses are narrowly drafted clauses and evidence the parties' intent to be exclusive rather than inclusive. Philip contends that the clauses do not encompass his requested change to a sole managing conservatorship because neither provision states that the parties will resolve "all disputes" regarding the child by arbitration. (1) See cf. BWI Companies, Inc. v. Beck, 910 S.W.2d 620, 624 (Tex. App.--Austin 1995, orig proceeding). Philip argues that the issue of a change from joint managing conservatorship to sole managing conservatorship falls outside the scope of the decree's arbitration clauses.

    Patricia relies upon the holdings in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Longoria, 783 S.W.2d 229 (Tex. App.--Corpus Christi 1989, no writ) and Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995), for the proposition that in light of the decree's arbitration clauses, a change in conservatorship must be resolved by arbitration. These cases, however, addressed broad arbitration clauses. In Merrill Lynch, the arbitration clause provided that the employee "agreed to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register." Merrill Lynch, 783 S.W.2d at 230. Similarly, in Prudential Securities, Inc., the arbitration clause provided that the employee agreed to arbitrate, "any dispute, claim or controversy that may arise between [them and the securities firm]." Prudential Securities, Inc., 909 S.W.2d at 897. These cases are distinguishable from the narrow arbitration clauses found in the parties' agreement concerning joint managing conservatorship.

    The Mitchells' divorce decree incorporated the parties' agreement to serve as joint managing conservators. The two arbitration clauses in their agreement address only specific issues within the framework of the parties' joint managing conservatorship--residency of the child and disputes regarding shared rights or duties and periods of possession. Philip's request to be appointed sole managing conservator is a request that the court change the entire framework of the conservatorship. Notably absent from the decree is a broadly worded clause that all disputes relating to the child would be resolved by arbitration. Also absent from the decree is a clause providing specifically that any party seeking to change the framework from joint conservatorship to sole managing conservatorship shall resolve the issue by arbitration. Without a specific agreement to arbitrate an issue there is no authority to require parties to arbitrate. See Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 696 (Tex. App.--Houston [14th Dist.] 1999, orig. proceeding) (arbitration clause covered only disputes related to employee's termination and claims at issue not related to termination). Courts may not expand upon the terms of the decree's arbitration clauses by reading into such clauses a voluntary, consensual agreement to arbitrate where one otherwise does not exist. See In re Glazer's Wholesale Distributors, Inc., No. 05-99-01685-CV, 2001 Tex. App. LEXIS 4401, at * 21-22 (Tex. App.--Dallas June 29, 2001).

    The decree's arbitration clauses address only changes in the terms and conditions under the joint conservatorship; they do not encompass a request to change the type of conservatorship. We hold that the arbitration clauses in the decree do not encompass Philip's claim that the joint managing conservatorship be changed to a sole managing conservatorship. This claim is subject to litigation.



    Philip Mitchell's Alternative Pleadings

    Alternatively, Philip requests that in the event he is not designated sole managing conservator that as a joint managing conservator he be awarded the right to determine the child's residence. Under the decree, the parties agreed that Patricia would be the joint conservator with the right to determine the child's residence.

    The right to establish a child's primary residence is a shared right for parents who are joint managing conservators. See Tex. Fam. Code Ann. § 153.133(a)(1) (West Supp. 2001). As joint conservators, they may decide between themselves and designate which parent will have the exclusive right to establish the child's primary residence. Id. On the contrary, in a sole managing conservatorship, the sole managing conservator has the exclusive right to decide the child's primary residence. See Tex. Fam. Code Ann. § 153.132(1) (West Supp. 2001) (rights of sole managing conservator).

    Philip's alternative pleading, unlike his claim to change the conservatorship framework, requests that the court modify the terms and conditions of the parties' joint conservatorship. Both arbitration clauses encompass this alternative claim. As the right to determine the child's residence is a shared right for joint conservators, the arbitration clause in the decree providing that the parties would arbitrate "any disagreements between the parties relating to a jointly-shared right or duty" encompasses this claim. Additionally, the arbitration clause in the decree providing that "either party may, at any time propose a change in the residence of the child" directly addresses this alternative claim. We hold that Philip's alternative request to modify the rights of the joint managing conservators is encompassed by both arbitration clauses and is not subject to litigation.

    Philip also alternatively requests that in the event he is not designated sole managing conservator, the court modify the shared rights and duties of the parties and the possession periods each has with the child within the framework of the joint managing conservatorship. The arbitration clause in the decree that provides that "any disagreements between the parties relating to a jointly-shared right or duty, and/or periods of possession of and access to the child, shall be resolved through binding arbitration" directly encompasses this request. We hold that Philip's request for a modification of possession periods or of any other shared rights and duties under a joint managing conservatorship are directly within the scope of the decree's arbitration clauses and are not subject to litigation.



    Conclusion  

    We affirm the district court's order denying arbitration of Philip's request to be named the sole managing conservator of the child because that claim is not encompassed by the arbitration clauses in the divorce decree. To the extent the district court's order denying arbitration includes Philip's alternative claims requesting various modifications of the parties' rights under the joint managing conservatorship, we reverse the order and render judgment that all modifications to the parties' rights under the joint managing conservatorship are subject to the arbitration clauses in the divorce decree and must be resolved by binding arbitration, not litigation.





    Bea Ann Smith, Justice

    Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

    Affirmed in Part; Reversed and Rendered in Part

    Filed: July 31, 2001

    Do Not Publish

    1.   For example, there was also no agreement that the parties arbitrate child support issues. These issues were originally determined by the district court and any requested change would be determined by the court.

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    Alternatively, Philip requests that in the event he is not designated sole managing conservator that as a joint managing conservator he be awarded the right to determine the child's residence. Under the decree, the parties agreed that Patricia would be the joint conservator with the right to determine the child's residence.

    The right to establish a child's primary residence is a shared right for parents who are joint managing conservators. See Tex. Fam. Code Ann. § 153.133(a)(1) (West Supp. 2001). As joint conservators, they may decide between themselves and designate which parent will have the exclusive right to establish the child's primary residence. Id. On the contrary, in a sole managing conservatorship, the sole managing conservator has the exclusive right to decide the child's primary residence. See Tex. Fam. Code Ann. § 153.132(1) (West Supp. 2001) (rights of sole managing conservator).