DocketNumber： 14-06-01095-CV
Filed Date： 9/29/2009
Status： Precedential
Modified Date： 4/17/2021
Affirmed and Memorandum Opinion filed September 29, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-06-01095-CV
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IN THE INTEREST OF E.B.L.G., H.L.L.G., AND N.L.G.
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 1999-53560
M E M O R A N D U M O P I N I O N
In this suit affecting the parent-child relationship, appellant, Lynn G., appeals from the trial court=s order affirming a post-divorce arbitration award. In five issues, Lynn argues (1) the trial court erred in not hearing and ruling on fourteen Amotions,@ (2) the trial court and the arbitrator erred in not considering Lynn=s evidence of family violence and ordering her to arbitration despite such evidence, (3) the trial court erred in appointing Mary Sean O=Reilly as an arbitrator because she had acted as a Ade facto@ mediator in the case, (4) the arbitrator erred in refusing to grant a continuance based on pleadings and evidence missing from the court=s files, and (5) the arbitrator acted beyond her power and the trial court therefore erred in refusing to vacate the award. Because all dispositive issues of law are settled, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
Lynn and Joseph G. began divorce proceedings in 1999. As part of those proceedings, they executed a Mediated Settlement Agreement (MSA) in which they agreed on certain terms of the divorce and left other matters for trial to the court. On September 19, 2002, the court signed the Final Decree of Divorce, which incorporated the agreed terms of the MSA and set forth the court=s rulings on matters tried to the court.
Starting before the divorce was final, Lynn filed a petition and amended petitions for enforcement by contempt in which she alleged Joseph had violated provisions of the temporary orders and the divorce decree. On April 2, 2003, Lynn filed a Petition to Modify Parent-Child Relationship and Request for Temporary Orders. On February 18, 2005, on Joseph=s opposed Motion for Appointment of Arbitrator, the court appointed the Honorable Mary Sean O=Reilly as the arbitrator.
On June 8, 2005, Lynn filed an Opposed Motion for Recusal of Arbitrator, in which she stated she was Ano longer comfortable that the arbitrator is capable of reaching independent decisions and has lost confidence in the ability of the arbitrator to make determinations regarding the best interest of the children the subject of the lawsuit.@
On or around June 15, 2005, Joseph filed an Original Answer and Counter-Petition to Modify Parent-Child Relationship. He subsequently moved the court for an order of referral to arbitration. He represented that the parties= attorneys had met with Judge O=Reilly, but that Lynn had refused to arbitrate and refused to sign any documents that would facilitate arbitration. On August 26, 2005, the trial court granted Joseph=s motion and issued an order that the following disputes be arbitrated: all issues raised in Lynn=s Petition to Modify Parent-Child Relationship and Joseph=s Counter-Petition that related to (1) parental rights and duties of the parties, (2) periods of parental possession of the parties= children, (3) rights to make educational and medical decisions about the parties= children, and (4) extra-curricular activities of the parties= children.
At a hearing on December 14, 2005, Lynn=s recusal motion was reset for December 22, 2005. In the interim, Lynn=s attorney informed Joseph=s attorney that Lynn had decided to withdraw her request for recusal, and no one appeared before the court on December 22.
On April 18, 2006, the trial court signed an order confirming that arbitration was to occur on May 17 and 18, 2006, before Judge O=Reilly. The arbitration was to cover Aall issues other than enforcement.@
On May 3, 2006, Lynn filed an AOpposed Supplemental Motion for Recusal of the Arbitrator.@ Lynn alleged the arbitrator was biased as evidenced by the arbitrator=s moving the case forward despite the pending motion for recusal and a pending issue regarding Lynn=s securing a new attorney.
On May 15, 2006, Lynn filed a First Amended Motion for Recusal of the Arbitrator. She alleged the following additional evidence of arbitrator bias: refusing Lynn=s request to record the May 4, 2006 motion hearing for continuance and denying Lynn=s motion for continuance immediately after Lynn=s request for a record. She also referred to having informed the arbitrator, at the end of the hearing, about missing Adocuments, pleadings and evidence@ and difficulty securing counsel because of the missing materials.
Arbitration was held on May 17 and 18, 2006.[1] Judge O=Reilly heard and denied Lynn=s subsequent motion to reopen evidence on June 23, 2006, and signed the binding arbitration award on July 31, 2006.[2] The award was then filed on August 4, 2006.
On September 7, 2006, the trial court heard argument on Joseph=s application for confirmation of the arbitration award and Lynn=s motion to vacate it. At the hearing, Lynn urged the following grounds for vacation: (1) the arbitrator exceeded her authority; (2) the arbitrator did not recuse herself and the court did not recuse her; (3) the arbitrator did not postpone the arbitration when there was a pending motion challenging the arbitration clause on the ground of fraud in the inducement; (4) the arbitrator did not reopen evidence when Lynn contended there was evidence of family violence; and (5) the arbitrator did not consider the best interests of the children.[3] The trial confirmed the order the same day and modified the Final Decree of Divorce to reflect the arbitration award.
Lynn filed a motion for new trial, which the trial court heard and denied.[4]
II. Discussion
A. Issue One: No Hearings or Rulings on Motions
In issue one, Lynn argues, AThe trial court erred in not setting hearings on or ruling on [fourteen listed motions] and abused its discretion by not taking action on the motions within a reasonable time.@[5] The Amotions@ were (1) petitions for enforcement by contempt, (2) motions for recusal of the arbitrator, (3) motions for continuances, and (4) motions for evidentiary hearings on selected motions.
As an initial matter, we observe that Lynn is not complaining about an adverse ruling by the court. She also does not point to any place in the record where she objected to the trial court=s refusal to rule.[6] To preserve a complaint for appellate review, Athe record must show . . . the trial court (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection or motion, and the complaining party objected to the refusal.@ Tex. R. App. P. 33.1(a)(2).
Additionally, even were we to assume (and we do not do so) that the trial court somehow erred or abused its discretion by not acting on these motions, Lynn has not suggested any remedy for the error. Her appeal stems from an order of the court that was based on the arbitration award. The enforcement actions were specifically excluded from the arbitration, and the arbitration award did not include disposition of these actions. Any inaction by the court on the motions for enforcement is not relevant to the order Lynn challenges on appeal.
Finally, with one exception, original proceedings are the only cases Lynn cites in support of her contention that the trial court was required to act.[7] If Lynn is asking this court to vacate the arbitration award as a result of the court=s lack of action as asserted in issue one, she has provided no authority to support her request.[8]
For the preceding reasons, we overrule Lynn=s first issue.
B. Issue Two: Purported Lack of Consideration Given to Family Violence
In issue two, Lynn argues (1) the trial court should not have ordered her to arbitration because she was a victim of family violence and (2) the arbitrator erred in refusing to hear evidence of family violence in determining the arbitration award would be in the best interest of the children. Lynn=s entire argument on this issue comprises three paragraphs. Her only authority is Texas Code of Criminal Procedure Article 5.08, a provision relating to criminal prosecutions arising from family violence.[9] Lynn provides no citation to the appellate record. See Tex. R. App. P. 38.1(i) (stating appellant=s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record).
Lynn has not adequately briefed this issue. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (stating that, even though courts interpret briefing requirements reasonably and liberally, parties asserting error on appeal must put forth some specific argument and analysis citing the record and authorities in support of the parties= argument). Accordingly, we overrule Lynn=s second issue. See id.
C. Issue Three: Appointment of Judge Mary Sean O=Reilly as Arbitrator
In issue three, Lynn argues the trial court Aerred in appointing Judge O=Reilly as arbitrator for the reason that she had previously served in the de facto capacity of mediator contrary to the holding of In re Cartwright.@ See 104 S.W.3d 706 (Tex. App.CHouston [1st Dist.] 2003, orig. proceeding). In Cartwright, a couple proceeded through two lawsuits after a divorce. See id. at 708. The former wife filed a lawsuit stating various property claims, and the former husband later filed a suit affecting the parent child relationship (SAPCR). Id. at 708. The two suits were consolidated, and Judge O=Reilly, the same judge who arbitrated the present case, mediated the Cartwright SAPCR. See id. at 710. The trial court subsequently ordered the parties to arbitrate the property claims before Judge O=Reilly. Id. The former husband filed a petition for writ of mandamus, arguing Judge O=Reilly should not arbitrate the property issues because she had been privy to confidential information during mediation of the related SAPCR. Id. at 713. The court of appeals agreed, stating,
The mediation process encourages candid disclosures, including disclosures of confidential information, to a mediator. It is the potential for the use of that confidential information that creates the problem when the mediator, over the objection of one of the parties, becomes the arbitrator of the same or a related dispute. Just as it would be improper for a mediator to disclose any confidential information to another arbitrator of the parties= dispute, it is also improper for the mediator to act as the arbitrator in the same or a related dispute without the express consent of the parties.
Id. at 714.
In the present case, however, the trial court did not appoint Judge O=Reilly as a mediator, but solely as an arbitrator. Although Lynn complains Judge O=Reilly interviewed the parties, the children, and other witnesses and conducted ex parte meetings, she points to nothing in the record that would suggest confidential information was exchanged in these meetings.[10] Cartwright is inapposite.
Additionally, in her motions to recuse Judge O=Reilly, Lynn never alerted the trial court to the complaint she raises in issue three. The trial court appointed Judge O=Reilly on February 18, 2005. On June 8, 2005, Lynn filed a motion to recuse Judge O=Reilly, stating she Awas no longer comfortable that the arbitrator is capable of reaching independent decisions and has lost confidence in the ability of the arbitrator to make determinations regarding the best interest of the children the subject of the lawsuit.@ Before the date set for a hearing on the motion, Lynn=s attorney informed Joseph=s attorney that Lynn was no longer pursuing the motion, and no one appeared at the hearing.
On May 3, 2006, Lynn filed a pro se supplemental motion for recusal of the arbitrator, in which she characterized her June 8 motion as a AMotion to Recuse for Bias@ and alleged additional incidents had Aoccurred to further the bias of the arbitrator.@ The gravamen of her complaint was the arbitrator=s continuing Ato move forward and proceed with attempting to set the arbitration before the Movant has had her opportunity to present her [June 8] Motion to this Court.@ Lynn also alleged her former attorney set the arbitration dates without her knowledge.
Finally, on May 15, 2005, Lynn, again pro se, filed a first amended motion for recusal of the arbitrator. She alleged additional bias as evidenced by (1) refusing Lynn=s request to record a May 4, 2006 motion for continuance and (2) denying the motion for continuance immediately after the request for a record. In the motion, Lynn also referred to having informed the arbitrator about missing Adocuments, pleadings and evidence@ and difficulty securing counsel because of the missing materials.
In short, nothing in Lynn=s three motions to recuse Judge O=Reilly presented the trial court with the complaint Lynn now presents in issue three.
For the preceding reasons, we overrule Lynn=s third issue.
D. Issue Four: Multiple Complaints about the Arbitration
In issue four, Lynn complains the arbitrator erred (1) by refusing to grant a continuance for good cause (i.e., pleadings, including the 2003 Petition to Modify the Parent Child Relationship, and evidence being missing from the court=s file) and counsel=s consequential inability to know what was pending before the court and the arbitrator, (2) by conducting the arbitration on issues outside the MSA, and (3) in basing the arbitration award on information previously obtained while serving in the capacity as a mediator.[11] In our discussion of issue five, below, we address whether Judge O=Reilly exceeded the scope of her power; in our discussion of issue three, above, we addressed whether the appellate record supports Lynn=s claim that Judge O=Reilly improperly gained information through a mediation process. Under issue four, we therefore consider only the arbitrator=s purported error in not granting a Acontinuance.@
Under the Texas Arbitration Act, A[o]n application of a party, the court shall vacate an award if . . . the arbitrators . . . refused to postpone the hearing after a showing of sufficient cause for the postponement.@ Tex. Civ. Prac. & Rem. Code Ann. ' 171.088(a)(3)(B) (Vernon 2005).[12] To support her claim she was erroneously denied a continuance, Lynn provides a single example: AActing pro se, [Lynn] at the commencement of the May 17, 2006 arbitration objection to the arbitration going forward >based on what was on file with the court.=@
Lynn does not provide this court with a citation to the record. Nevertheless, we observe that commencement of the proceedings was delayed on May 17 because Lynn=s attorney had not yet arrived. Additionally, Lynn requested arbitration be delayed until the court of appeals ruled on the mandamus she filed. Finally, Lynn stated, AAnd I also want to say that I object to this hearing going forward pursuant to what I have on file with the Court.@
Judge O=Reilly responded by confirming she would wait a few minutes for counsel to arrive and asked Lynn to identify her attorney: AI have asked you to identify that person; and if you are willing to do that, now would be the time to do that. If not we=ll await that arrival and delay the evidentiary hearing initiation until 9:30 this morning.@ Lynn did not identify the attorney, but stated she Awould prefer to wait until 9:30.@
After Lynn=s attorney, Rick Ramos, arrived, there was further discussion of the mandamus proceedings. Judge O=Reilly confirmed the mandamus was directed at the judge of the trial court, and proceeded to open the arbitration, indicating Lynn=s and Joseph=s petitions to modify the parent-child relationship were the matters to be arbitrated. Ramos then stated, AMy client has had a difficult time tracking pleadings and documents that were filed on her behalf in the case. I do not have a working copy of the pleading [sic] that were filed on her behalf.@ Judge O=Reilly then provided Ramos with a copy, and Ramos proceeded to call his first witness without further objection.
On the record and argument before this court, we cannot conclude Judge O=Reilly=s not having further postponed the arbitration warrants vacation of the award pursuant to Texas Civil Practice and Remedies Code section 171.088(a)(3)(B). For the preceding reasons and those set forth in sections II. C. and D., we overrule Lynn=s fourth issue.
E. Issue Five: The Texas Arbitration Act
In issue five, Lynn argues (1) Judge O=Reilly erred by violating the provisions of the Texas Arbitration Act and (2) the trial court erred by refusing to vacate the award pursuant to Texas Civil Practice and Remedies Code section 171.088. Lynn cites language in the MSA stating that periods of possession, including Jewish holidays, and child support shall Abe tried to the Court.@ Lynn next contends that, contrary to this language, the arbitrator exceeded her powers by modifying periods of possession and changing child support.[13] She then reasons the trial court erred by not vacating the award. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.088(a)(3)(A) (providing, on application of party, court shall vacate award if arbitrators exceeded their powers).
Contrary to Lynn=s representation, the arbitration award contains nothing to indicate the arbitrator changed the child support provided in the final divorce decree. Lynn=s argument regarding periods of possession overlooks (1) the relationship of the MSA to the final divorce decree and (2) the arbitration provision in that decree.
Lynn and Joseph signed the MSA on October 30, 2001. The trial court subsequently tried the divorce case, and the final divorce decree incorporates matters on which the parties agreed in the MSA and matters, including periods of possession and child support, that were tried to the court. The final divorce decree also contains the following provision:
IT IS FURTHER ORDERED AND DECREED that, in the event of disputes regarding periods of possession, extracurricular activities, or rights and duties of the conservators, the parties shall submit the dispute for arbitration with a mutually acceptable arbitrator. If the parties are unable to agree to a mutually acceptable arbitrator, the Court will appoint an arbitrator upon application of a party.[14]
Thus, the final decree of divorce specifically required that disputes regarding periods of possession be arbitrated. Judge O=Reilly acted within her power in arbitrating the periods of possession and the trial court did not err in denying Lynn=s motion to vacate the award.
For the preceding reasons, we overrule Lynn=s fifth issue.
III. Conclusion
Having overruled Lynn=s five issues, we affirm the order of the trial court.
/s/ Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.
[1] Lynn filed a motion for writ of mandamus on May 17, 2007. Our court denied it the same day.
[2] Although the Binding Arbitration Award indicates the motion to reopen evidence was heard and denied on June 9, 2006, the reporter=s record indicates the proceeding occurred on June 23, 2009.
[3] The parties have not provided a record citation for Lynn=s motion to vacate the award, and we have not found the motion. At the hearing, Lynn=s counsel represented there were eight grounds in the motion, but indicated he would not be covering all of them.
[4] Lynn does not direct any of her appellate arguments at the denial of her motion for new trial.
[5] Lynn represents that some of the motions and exhibits thereto are not in the clerk=s record and directs this court to the voluminous appendix to her brief. We do not consider documents in the appendix that are not part of the appellate record. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (A[W]e cannot consider documents attached as appendices to briefs and must consider a case based upon the record filed.@).
[6] On November 28, 2006, Lynn filed an AEmergency Motion for Oral Hearing on Pending Motions,@ in which she referred to several of the motions and petitions she lists in her appellate brief. The trial court denied this motion the following day.
[7] The only case other than mandamus cases is Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984). Nelson is a medical malpractice limitations case. See id. at 920.
[8] We address the merits of her motions for recusal under issue three, below.
[9] See Tex. Code Crim. Proc. Ann. art. 5.08 (Vernon 2005). Family Code section 153.0071, however, provides for arbitration and mediation in suits affecting the parent-child relation. Tex. Fam. Code Ann. ' 153.0071(a), (c) (Vernon 2008). Regarding mediation, the section provides in part:
A party may at any time prior to the final mediation order file a written objection to the referral of a suit affecting the parent‑child relationship to mediation on the basis of family violence having been committed by another party against the objecting party or a child who is the subject of the suit. After an objection is filed, the suit may not be referred to mediation unless, on the request of a party, a hearing is held and the court finds that a preponderance of the evidence does not support the objection.
Id. ' 153.0071(f).
Thus, at least in relation to a mediation referral, the statute contemplates a timely written objection by a party asserting he or she or a child subject of the suit is a victim of family violence. In the present case, there is nothing in the record to indicate Lynn alerted the court or the arbitrator to a potential family-violence issue until after the two-day arbitration was completed.
At the June 23, 2006 hearing on Lynn=s motion to reopen evidence, Judge O=Reilly commented that was the first time she had heard anything about family violence. Judge O=Reilly nevertheless set aside August 29, 30, and 31 to hear offers of proof on the motion to reopen evidence. At a hearing on August 2, however, Lynn=s counsel stated they were Awaiving our request for an offer of proof.@ The arbitration award was then filed on August 4, 2006 (although signed on July 31, 2006). At the subsequent hearing on Lynn=s motion to vacate the award, she offered an affidavit in which she described Joseph=s acts of aggression toward her. The trial court sustained Joseph=s objection to the affidavit on the ground it had not been submitted to Joseph. We may not evaluate a trial judge=s ruling on an arbitration award based on materials that had not been presented to the judge before that ruling. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex. App.CHouston [1st Dist.] 2005, pet. denied).
[10] Lynn=s only Arecord@ citation in support of her contention Judge O=Reilly acted as a de facto mediator is a set of Judge O=Reilly=s handwritten notes of a purported meeting with Joseph on April 15, 2005. Although Lynn contends these notes have been removed from the court=s file, the appellate record contains, as part of an exhibit from the hearing on the motion for new trial, a handwritten page with A4/15/05@ and AJoe [G.]@ in the top right corner. Lynn, however, points to nothing to indicate these notes were before the trial court before it rendered its decision confirming the arbitration award. See Hamm, 178 S.W.3d at 272 (stating appellate court may not evaluate trial judge=s ruling on arbitration award based on materials not presented to judge before such ruling). Additionally, although Judge O=Reilly served as mediator when this case was previously on appeal, Lynn did not object to Judge O=Reilly=s appointment on that ground until the hearing on the motion for new trial and does not raise that ground in her argument to this court. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (AIt is axiomatic that an appellate court cannot reverse a trial court=s judgment absent properly assigned error.@).
[11] This issue is multifarious. We are not required to address multifarious issues. Willis v. Donnelly, 118 S.W.3d 10, 33 n.15 (Tex. App.CHouston [14th Dist.] 2003), aff=d in part and rev=d in part on other grounds, 199 S.W.3d 262 (Tex. 2006). Nevertheless, to the extent we can ascertain the alleged errors with reasonable certainty, we address the substance of Lynn=s subissues here or our discussion of issues three and five. See Zeolla v. Zeolla, 15 S.W.3d 239, 241 n.2 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).
[12] The Texas Arbitration Act applies if the parties agreed to binding arbitration. See In re Cartwright.@ 104 S.W.3d 706, 711 (Tex. App.CHouston [1st Dist.] 2003, orig. proceeding). The final divorce decree provides, AThe arbitrator=s decision shall be binding on the parties.@
[13] As part of issue five, without further development or citation to the record, Lynn argues AFurther, as required by ' 153.0071(b) of the Texas Family Code, the Court did not have a >best interest of the child= hearing to determine if the arbitration award was in the best interest of the [G.] children.@ We do not consider this undeveloped argument. See Tex. R. App. P. 38.1(i) (stating appellant=s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). We do note the San Antonio court of appeals has concluded that trial courts do not have an independent duty to hold a best interest hearing under section 153.0071(b). See In the Interest of C.A.K., 155 S.W.3d 554, 561 (Tex. App.CSan Antonio 2004, pet. denied).
[14] Emphasis added.