AFFIRM; and Opinion Filed July 17, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01309-CV
IN THE INTEREST OF M.W.M., JR., A MINOR CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-07-04168-Z
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Schenck
Opinion by Justice Schenck
Father appeals the trial court’s order denying his motion to compel arbitration of this family
law controversy. In his first issue, he asserts Mother’s motion seeking enforcement of the
judgment’s terms is subject to an arbitration provision incorporated within the final judgment
itself. In his second issue, he urges that post-judgment collection matters and discovery are subject
to the arbitration agreement. We affirm the trial court’s order. Because all issues are settled in the
law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
The parents divorced in 2010. Their June 21, 2010 Amended Agreed Final Decree of
Divorce (“Divorce Decree” or judgment) includes agreements to mediate, and, if necessary,
arbitrate future disputes that may arise between the parties, including certain unspecified financial
disputes. The Divorce Decree also required Father to make payments to Mother, beginning on the
date the Divorce Decree was entered and continuing through December 2017.1 Father failed to
make the first property division payment due to Mother under the Divorce Decree. Mother sought
and obtained an arbitration award for $51,847.33 and interest and later obtained an order from the
trial court confirming that arbitration award (“2010 Judgment”). Husband did not contest the
arbitrability of that dispute.
On May 31, 2017, 2 Mother filed a motion for arbitration award, requesting the arbitrator
award to her the remaining unpaid amounts of contractual alimony and property division
payments. Father requested that the arbitrator combine the proceedings on Mother’s motion for
arbitration award with his own request for child support and with other child related financial
issues. The arbitrator agreed to combine the issues into one hearing and ordered each party to
deposit $10,000 to cover his expected fee.
In June 2017, Mother filed an application for a turnover order in the trial court, seeking an
order requiring Father to turn over the balance of his investment portfolio of $96,263.75 to satisfy
the obligations set out by the court in its 2010 Judgment.3 A few days later, Mother moved to
compel Father to produce documents responsive to post-judgment discovery requests she had
served to aid in her attempts to enforce the 2010 Judgment. Mother then filed an application for
court order, which sought an order enforcing the 2010 Judgment and an order requiring Father to
provide “adequate security for the arbitration award to which [Mother] is entitled.” On June 30,
1
The Divorce Decree provided for contractual alimony where Father agreed to pay Mother $800,000 in installment amounts of $114,285.71
paid annually for six years, beginning the first anniversary date of the entry of the Divorce Decree. The Divorce Decree also provided that if Father
failed on demand to pay Mother the payment of any periodic amount due and such failure continued for more than 30 days after Mother gave Father
written notice of the failure, the entire remaining contractual alimony obligation of Father would become immediately due and payable to Mother.
Finally, the Divorce Decree awarded property division payments to Mother per the following schedule: (a) $51,847.33 to be paid upon entry
of the Divorce Decree; (b) $51,847.33 to be paid within six months of the entry of the Divorce Decree; (c) $50,000 to be paid on December 21,
2012; (d) $50,000 to be paid on December 21, 2014; (e) $50,000 to be paid on December 21, 2016; and (f) $100,000 to be paid on December 21,
2017.
2
In the intervening years, the parties have participated in other proceedings before the arbitrator regarding issues related to their child. See
In re M.W.M., Jr., 523 S.W.3d 203 (Tex. App.—Dallas 2017, no pet.).
3
In her application, Mother asserted that, including interest, the balance owed on the judgment was approximately $72,776.17, and that
interest continued to accrue at a rate of $9.732 per day.
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Mother filed a motion for judgment, which sought a judgment on all the contractual alimony and
property division payments set forth in the Divorce Decree (except for the amount awarded to her
in the 2010 Judgment). That same day, Mother filed an application for court assistance in which
she sought a ruling that post-judgment discovery and collection remedies were not “disputes
regarding financial matters” and thus not were within the scope of the arbitration agreement. Her
application for court assistance also sought alternative rulings that (1) she was entitled to a prompt
arbitration hearing with a fee deposit based only on the time required to establish the amount to be
awarded to her for Father’s non-payment under the Divorce Decree, or (2) the arbitration
agreement in the Divorce Decree is unenforceable because it is unconscionable or illusory. Father
filed a combined motion to compel arbitration and response to Mother’s motion for judgment, as
well as separate responses to Mother’s application for turnover relief and Mother’s application for
court assistance. In both pleadings, Father urged that Mother’s issues raised in her applications
and motion were subject to the arbitration agreement in the Divorce Decree.
The associate judge heard and denied Father’s motion to compel arbitration, and he
appealed that decision to the district court judge. The district judge conducted hearings on Father’s
appeal of the associate judge’s order and issued an order denying Father’s motion to compel
arbitration, in which the district judge included the finding “that the arbitration provision in the
[Divorce Decree] does not cover the use of post-judgment remedies, such as turnover and
garnishment, nor does it cover the use [of] post-judgment discovery directed at collection of the
unpaid judgment balance.” Father timely filed this appeal.
DISCUSSION
We review a trial court’s order denying a motion to compel arbitration for abuse of
discretion. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009). We defer to the trial
court’s factual determinations that are supported by evidence but review the trial court’s legal
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determinations de novo. Id. Whether the claims in dispute fall within the scope of a valid
arbitration agreement is a question of law, which we review de novo. Id.
A party seeking to compel arbitration must establish the existence of a valid arbitration
agreement and the existence of a dispute within the scope of the agreement. Rachal v. Reitz, 403
S.W.3d 840, 843 (Tex. 2013).
In his first issue, Father urges Mother’s motion for judgment is subject to arbitration
because it alleges financial disputes that are subject to the arbitration agreement.
Father moved to compel arbitration under the Texas Arbitration Act, which provides that
a “written agreement to arbitrate” is enforceable if it provides for arbitration of either an existing
controversy or one that arises “between the parties after the date of the agreement.”4 TEX. CIV.
PRAC. & REM. CODE ANN. § 171.001(a).
The arbitration agreement in the Divorce Decree provides in part as follows:
The parties agree that, if they are not able to reach an agreement through use of the
Mediator, the following shall be submitted for binding arbitration:
1. any disputes regarding the children’s education;
2. any dispute regarding periods of possession;
3. modification of any of the following:
a. conservatorship;
b. terms and conditions of conservatorship;
c. periods or levels of possession;
d. supervised possession;
e. terms and conditions of possession;
f. child support.
4. enforcement (if not seeking contempt) of any of the following:
a. child support
4
The parties’ agreement specified that arbitration will be conducted in accordance with both Texas General Arbitration Act (Chapters 154
and 171 of the Texas Civil Practice & Remedies Code) and section 153.0071 of the Texas Family Code (Alternative Dispute Resolution
procedures—Parent–Child Relationship). We recognize that the Federal Arbitration Act (“FAA”) applies to all arbitration disputes in state or
federal court that involve commerce, and that the Supreme Court’s jurisprudence concerning the parties’ ability to alter its review standards, whether
by explicit agreement or by selection of other law, is potentially complicated. In re M.W.M., Jr., 523 S.W.3d at 207. However, the arbitration
agreement in this case is not within the FAA’s broad reach, as the agreement containing it concerns wholly intra-state divorce, custody matters. Id.
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b. periods of possession
c. terms and conditions of conservatorship
d. terms and conditions of possession
5. any disputes regarding financial matters.
Father urges that the phrase “any disputes regarding financial matters” within the
arbitration agreement applies to Mother’s claims for judgment for past-due and accelerated
property division and contractual alimony payments despite the trial court’s having resolved the
underlying controversies in the Divorce Decree.
As set forth in the Divorce Decree, Mother and Father attended a mediation, settled all
disputes between them and entered into the agreed Divorce Decree as a result. When such an
agreement is incorporated into a divorce decree, it is considered a contract, and it is interpreted
and enforced under general contract law. See In the Interest of L.R.P., 05-14-01590-CV, 2016 WL
514174, at *2 (Tex. App.—Dallas, Feb. 9, 2016, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN.
§ 7.006(a) (providing for written agreement between divorcing spouses concerning division of
property and liabilities of spouses and maintenance of either spouse)). Moreover, arbitration
agreements are interpreted under traditional contract principles. See In re M.W.M., Jr., 523 S.W.3d
203, 207 (Tex. App.—Dallas 2017, no pet.). When a contract’s meaning is unambiguous, our task
is to determine the parties’ intentions as expressed in the written instrument. Apache Deepwater,
LLC v. McDaniel Partners, Ltd., 485 S.W.3d 900, 906 (Tex. 2016). We examine and consider the
entire writing in an effort to harmonize and give effect to all the provisions of the contract so that
none will be rendered meaningless. Id.
As noted above, the amounts Mother seeks in her motion for judgment are past-due and
accelerated property division and contractual alimony payments, all of which were set forth in the
Divorce Decree. If asset divisions and alimony payments set forth in the Divorce Decree were not
already conclusively resolved by the Divorce Decree, then the provisions establishing property
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division and contractual alimony payments would be rendered meaningless. See id. Accordingly,
“any disputes regarding financial matters” as referenced in the arbitration agreement must refer to
disputes that arise post-judgment not those that have already been resolved by the court itself.
Stated another way, once settled by the court and reduced to the form of a final judgment, the
parties can no longer treat the underlying issues as in “dispute.”5 Because Mother’s claims relate
to Father’s failure to pay amounts already set forth in the Divorce Decree, they do not fall within
the scope of the arbitration agreement. See Rachal, 403 S.W.3d at 843.
Father also urges that Mother’s actions in obtaining an arbitration award for the first
payment Father failed to make constitute an acknowledgment that her claims for property division
and contractual alimony payments are within the scope of the arbitration agreement. We construe
Father’s argument to be that Mother’s actions constitute waiver of any right to seek a trial court’s
order enforcing the Divorce Decree or consent to arbitrate all claims for property division and
contractual alimony payments. See TEX. R. APP. P. 38.9. However, Father does not cite, nor have
we found, any authority to support this argument.
We overrule Father’s first issue.6
In his second issue, Father urges that any post-judgment collection matters and discovery
pursued by Mother are similarly covered by the arbitration agreement. We have already decided
in addressing Father’s first issue that Mother’s claims related to property division and contractual
alimony payments are not within the scope of the arbitration agreement. Mother’s application for
turnover relief and motion to compel discovery relate to her efforts to enforce the 2010 Judgment,
which confirmed her arbitration award for Father’s nonpayment of the first payment under the
5
This reading also harmonizes paragraph 5 of the arbitration agreement with the remaining paragraphs, all of which are forward looking.
6
As part of his first issue, Father urges that Mother misapplies the doctrine of ejusdem generis to interpret the arbitration agreement and that
the arbitration provision is neither unconscionable nor illusory. In light of our resolution of his first issue, we need not address these other
arguments. See TEX. R. APP. P. 47.1.
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Divorce Decree. Accordingly, the arbitration agreement’s limitations on discovery do not apply
to Mother’s attempts to enforce the 2010 Judgment or to compel post-judgment discovery related
to Father’s non-payment of the property division and contractual alimony payments.7
We overrule Father’s second issue.
In light of our resolution of Father’s issues, we need not address Mother’s cross-issue
premised on our sustaining one or both of Father’s issues. See TEX. R. APP. P. 47.1.
CONCLUSION
We affirm the trial court’s order.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
171309F.P05
7
Even assuming the arbitration agreement did contemplate enforcement of the property division and contractual alimony payments,
Mother’s post-judgment collection and discovery matters relate to the 2010 Judgment, which confirmed her arbitration award for Father’s
nonpayment of the first payment under the Divorce Decree.
The civil practice and remedies code provides for a party to obtain a court order and judgment confirming an arbitration award and further
provides that such judgment may be enforced in the same manner as any other judgment or decree. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 171.087, 171.092. Section 31.002(b) provides for collection of judgment through court proceeding and permits a court to order the judgment
debtor to turnover non-exempt property that is in the debtor’s possession or is subject to the debtor’s control. Id. § 31.002(b). Mother’s application
for turnover relief requested an order that Father turn over property in Father’s possession to the sheriff for execution, and her requests for discovery
sought information regarding Father’s financial assets and thus ability to pay the ordered property division and contractual alimony amounts.
Father urges that the phrase “any disputes regarding financial matters” is so broad as to encompass Mother’s attempts to enforce any arbitration
awards unless such claims were expressly excluded. However, nothing in this arbitration agreement indicates the parties agreed to waive their
rights to obtain orders or judgments from the court to confirm arbitration awards or to enforce the same.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.W.M., JR., A On Appeal from the 256th Judicial District
MINOR CHILD Court, Dallas County, Texas
Trial Court Cause No. DF-07-04168-Z.
No. 05-17-01309-CV Opinion delivered by Justice Schenck,
Justices Bridges and Brown participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Helen Austin recover her costs of this appeal from
appellant Michael W. Mitchell.
Judgment entered this 17th day of July, 2018.
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