Ada Curby (Sadler) v. John James Sadler

  NUMBER 13-03-442-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ADA CURBY (SADLER),                                                     Appellant,

v.

JOHN JAMES SADLER,                                                      Appellee.

___________________________________________________________________

On appeal from the 2nd 25th District Court

of Lavaca County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, Ada Curby, challenges a trial court order confirming an arbitration award. By one issue, appellant contends the trial court erred in confirming the arbitration award because the award exceeded the authority conferred upon the arbitrator. We affirm.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

         According to the final decree of divorce, both appellant and appellee, John Sadler, were appointed joint managing conservators of their two-year-old child. Appellant was granted the exclusive right to establish the primary residence of the child in Lavaca County, Texas, and granted the right to receive child support. A temporary possession schedule was established, and both parties agreed to determine an appropriate possession schedule once the child entered school. After the child started school, the trial court ordered arbitration on the issue of possession in accordance with the final decree of divorce. The trial court also granted appellee’s motion for clarification of final decree of divorce ordering that “the arbitrator shall have the power to award possession of the child . . . to John Sadler and Ada Curby, on such terms as he determines to be in the child’s best interest, irrespective of residency restriction.” Before the arbitration proceedings, the parties entered into stipulations which were accepted and entered by the trial court. The stipulations also granted the arbitrator the power to determine the appropriate possession schedule for the child, irrespective of the residency restriction. Additionally, it was stipulated that the parties would continue to be joint managing conservators.

         After the arbitration proceeding, the arbitrator determined that there had been a material and substantial change in the child’s circumstances since the date of rendition of the final decree of divorce and that the provisions of the arbitration award were in the child’s best interest. The award established that both parties would remain joint managing conservators. The award further specified the parties’ respective periods of possession and stated that the child was to attend school in the area of appellee’s residence for 2003-2004 and all subsequent school years. The trial court subsequently signed an order confirming the arbitration award. This appeal ensued.  

II. JURISDICTION

         As a preliminary matter, we must address whether we have jurisdiction to hear this appeal. Appellee contends that section 171.092 of the civil practice and remedies code was not complied with and therefore, there is no final judgment from which appellant can appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 171.092 (Vernon Supp. 2004). Section 171.092 states, in relevant part, that when a trial court grants an order confirming an arbitration award, the court shall enter a judgment or decree conforming to the order. Id. We note that this section sets forth a procedural requirement of the court and compliance with this section alone does not necessarily result in a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001) (When there has not been a conventional trial on the merits, a judgment is final for purposes of appeal “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.”). We, therefore, decline to follow appellee’s interpretation of section 171.092.  

            Furthermore, after reviewing the language of the trial court’s order confirming the arbitration award, we find that the order meets the requirement of section 171.092. The trial court’s order reads in part, “IT IS, THEREFORE, ORDERED, JUDGED AND DECREED that the Arbitrator’s Award rendered subsequent to binding arbitration . . . is confirmed and approved as such Arbitration Award is in the best interest of the child . . . and the court thereby confirms and enters the Arbitration Award as this Court’s own order.“ We construe this language to be in essence the judgment or decree contemplated in section 171.092. Moreover, we conclude after reviewing the record that the trial court’s order confirming the arbitration award is a final judgment as it actually disposes of all claims and all parties. See id. Therefore, this Court has jurisdiction.       

III. CONFIRMATION OF ARBITRATION AWARD

         In appellant’s sole issue, she contends that the trial court erred in confirming the arbitration award because the award exceeded the authority conferred upon the arbitrator. Specifically, appellant argues that the arbitration award constitutes a de facto change in conservatorship which was not an issue to be determined in arbitration.

A. Standard of Review

         We review a trial court’s confirmation of an arbitration award de novo. Thomas James Assoc., Inc. v. Owens, 1 S.W.3d 315, 320 (Tex. App.–Dallas 1999, no pet.). The trial court, on the other hand, must review an arbitrator’s award with great deference. See Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.–Dallas 2004, pet. denied). Because arbitration awards are favored by the courts as a means of disposing of disputes, the courts indulge every reasonable presumption in favor of upholding the awards. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (orig. proceeding); Nuno v. Pulido, 946 S.W.2d 448, 452 (Tex. App.–Corpus Christi 1997, no writ). A mere mistake of law or fact is insufficient to set aside an arbitration award. Nuno, 946 S.W.2d at 452. However, the trial court is required to vacate an award if the arbitrator exceeded his power, as argued here by appellant. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.088 (a)(3)(A) (Vernon Supp. 2004).

B. AnalysisAppellant’s contention that the arbitrator exceeded his power is based on the presumption that the change in the possession schedule constitutes a de facto change in conservatorship. In support of this argument, appellant relies on Dalton v. Doherty, 670 S.W.2d 422 (Tex. App.–Forth Worth 1984, no writ) and Werlein v. Werlein, 652 S.W.2d 538 (Tex. App.–Houston [1st Dist.] 1983, no writ). However, we find the facts of these two cases distinguishable.

         In each case cited by appellant, the trial court entered an order modifying the possession schedule which the court of appeals determined “completely deprived” or “entirely stripped” the sole managing conservator of his function as managing conservator. See Dalton, 670 S.W.2d at 424; Werlein, 652 S.W.2d at 540. This case, by contrast, does not have a sole managing conservator, but instead involves a situation in which both parents were appointed joint managing conservators. Additionally, the change in the possession schedule in this case was the result of an arbitration proceeding agreed to by both parties and did not have the effect of “completely depriving” or “entirely stripping” either joint managing conservator of his or her function. There has been no drastic modification of appellant’s function as joint managing conservator as found in Dalton and Werlein. Therefore, we decline to follow these two cases, and find that the arbitration award did not constitute a de facto change in conservatorship.

         Moreover, after reviewing the record, we find that the arbitrator did not exceed his power in rendering the arbitration award. According to the trial court’s order on appellant’s motion for clarification and the stipulations of the parties, the arbitrator was granted the power to award possession of the child on such terms as he determined to be in the child’s best interest, irrespective of the residency restriction. We find nothing in the arbitrator’s award showing that he exceeded this power. Nor do we find that the arbitrator changed the status of the parties as joint managing conservators. Therefore, the trial court did not err in confirming the arbitration award. Appellant’s sole issue is overruled.           IV. CONCLUSION  Accordingly, the judgment of the trial court is affirmed.

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Memorandum Opinion delivered and

filed this 27th day of August, 2004.