in the Interest of C.A.K., a Child

• Court: Court of Appeals of Texas
• Decided: June 24, 2009
• Docket: 04-08-00344-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00344-CV

In the INTEREST OF C.A.K.

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CI-05451 Honorable Barbara Nellermoe, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Steven C. Hilbig, Justice

Delivered and Filed: June 24, 2009

AFFIRMED

Sondra Grohman appeals the trial court’s judgment confirming an arbitration award that

requires her to pay fees to Mary Bullock and San Antonio Kids Exchange for providing Parenting

Coordinator services and requires Grohman to pay the attorney’s fees incurred by Bullock and Kids

Exchange in the arbitration. We affirm the judgment.

BACKGROUND

Grohman and Clarence Kahlig were divorced in 2001. The agreed final divorce decree

appointed Grohman and Kahlig joint managing conservators of their child, C.A.K. The parties signed 04-08-00344-CV

a contemporaneous arbitration agreement that provided for binding arbitration under the Texas

Arbitration Act to resolve any disputes regarding possession or conservatorship of C.A.K., with the

exception of designation of joint or sole managing conservatorship and primary residence. The

agreement authorizes the arbitrator to “award any modification of possession or the rights and duties

of [the parties] that would be in the best interest of the child.”

Grohman and Kahlig subsequently filed cross petitions seeking to be appointed sole

managing conservator. In 2003, after a lengthy trial, a jury found Kahlig should be designated sole

managing conservator of C.A.K. In re C.A.K., 155 S.W.3d 554, 557-58 (Tex. App.—San Antonio

2004, pet. denied). Pursuant to the arbitration agreement, Grohman and Kahlig then arbitrated their

management and access rights. Id. at 558. The arbitrator’s June 2003 award determined it was in

C.A.K.’s best interest to spend 70% of his time with Kahlig and 30% with Grohman and made other

modifications to the parents’ rights and duties. Id. The arbitration award was confirmed by the trial

court and affirmed by this court on appeal. Id. at 558, 564.

Numerous sessions with the arbitrator followed, and in a September 2004 award, the

arbitrator found Grohman had committed multiple violations of prior awards, “demonstrated that she

has not accepted the testimony of numerous professionals regarding her conduct, nor the results of

the various arbitration hearings and trial, that have taken place since the parties’ divorce,” and that

“[s]uch failure has resulted in a continuous legal battle which places [C.A.K.] between his parents,

and . . . is clearly not in his best interest.” As a result, the arbitrator mandated Grohman’s periods

of possession with C.A.K. be supervised and appointed Mary Bullock as Parenting Coordinator.

The award sets forth the duties of the Parenting Coordinator to include providing parenting

education to both parents, resolving the day-to-day possession and access disputes between the

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parties, serving as the conduit for oral and written communications between the parties, and

providing the supervision of Grohman required by the award. The award authorized Bullock to

delegate any of the duties required of her. The arbitrator ordered Grohman and Kahlig to each pay

one-half of the cost of any joint sessions with the Parenting Coordinator, and ordered Grohman to

pay all of Parenting Coordinator’s other fees. The award specifically ordered Grohman to “timely

pay such advances and outstanding fees are [sic] as required by the PC,” and stipulated that “[f]ailure

to pay the PC will be considered a failure to cooperate with the PC and a violation of the award.”

Grohman and Kahlig were ordered to cooperate with the Parenting Coordinator and the award

authorizes Bullock to terminate periods of possession between Grohman and C.A.K. if Grohman is

in violation of the award. The award resolved various other issues and was later confirmed by the

trial court. On appeal, this court reversed a portion of the judgment that confirmed an arbitration

award ordering Grohman to pay her own attorneys, but affirmed the remainder of the judgment. In

re C.A.K., No. 04-05-00487-CV, 2006 WL 12698 (Tex. App.–San Antonio Jan. 4, 2006, pet.

denied).

Pursuant to the authority given her in the September 2004 arbitration award, Bullock

designated San Antonio Kids Exchange to provide supervision of Grohman’s periods of possession

and of telephone calls between Grohman and C.A.K. Grohman disputed some of Bullock’s and Kids

Exchange’s fees and the conditions they placed on Grohman’s supervised possession of C.A.K.

These matters were arbitrated, and in a December 15, 2005 award, the arbitrator ruled Grohman’s

periods of possession would remain supervised and all exchanges of possession would occur at Kids

Exchange. He further ordered that Grohman and Kahlig “are to pay any Kids Exchange invoices in

full at the time they are presented to them for payment by Kids Exchange. Such invoices may contain

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charges for services, supervised visitation, courier, etc. Failure to remain current with regard to such

charges may result in elimination or cessation of one or more visitation periods.”

Grohman moved to remove Bullock as Parenting Coordinator, and in January 2006, the trial

court referred the motion and Grohman’s objections to Bullock’s and Kids Exchange’s fees to the

arbitrator. At the referral hearing in the trial court, Grohman’s attorney argued that issues regarding

Grohman’s access to C.A.K. and the fee disputes should be arbitrated together because the issues

are “bundled together.” The arbitration was scheduled for January 24, 2006, but did not occur

because Grohman failed to pay her share of the arbitration deposit. Instead, in February, Grohman’s

attorney sent the arbitrator a letter asking him “to clarify in writing that neither Ms. Bullock, Kids

Exchange, nor their attorneys are parties to the Arbitration Agreement and that none of them have

standing to complain, respond, file requests, seek relief, or otherwise loiter in this arbitration forum.”

The arbitrator addressed this issue in a February 15, 2006 arbitration award, ruling that Bullock, as

the Parenting Coordinator, is a party to the arbitration and had the right to retain counsel and to

address contested issues in the arbitration. In June 2006, the trial court rendered a judgment that

confirmed the December 15, 2005 and February 15, 2006 arbitration awards, including the findings

and rulings discussed above. Grohman did not appeal that judgment and it is final.

In July 2006, Grohman filed an emergency motion in the trial court seeking to replace

Bullock as Parenting Coordinator and alleging Grohman’s rights were being violated because

Bullock temporarily suspended supervision services due to Grohman’s failure to pay Bullock’s fees.

The trial court referred the matter to arbitration. During the course of the arbitration, Grohman,

despite her attorney’s earlier “bundling” argument, asserted the arbitrator had no authority to decide

the fee dispute. In response, Bullock filed a motion in the trial court asking the trial court to confirm

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its previous referral of the financial disputes to arbitration. Grohman objected, and after an

evidentiary hearing, the court found it had referred all financial disputes between Grohman, Bullock,

and Kids Exchange to binding arbitration on January 6, 2006. The court reaffirmed the referral,

finding the arbitrator had appointed Bullock “pursuant to an arbitration award for the best interests

of [C.A.K.] and these financial disputes arise therefrom.”

The arbitrator found Bullock and Kids Exchange had provided reasonable and necessary

services to Grohman, Kahlig, and C.A.K. pursuant to the earlier arbitration awards appointing

Bullock Parenting Coordinator, setting forth her duties, and authorizing her to designate third parties

to provide supervision services. He found that before the arbitration began on November 21, 2006,

Grohman failed and refused to pay the billed fees. He found $7,602.50 to be the amount of billed

and unpaid reasonable fees, costs, and expenses for the services provided by Bullock for the benefit

of Grohman and C.A.K. and $7,386.38 to be the amount of billed and unpaid reasonable fees, costs,

and expenses for the services provided by Kids Exchange for the benefit of Grohman and C.A.K.

The arbitrator awarded Bullock and Kids Exchange their unpaid fees, the attorney’s fees they

incurred in resolving the fee dispute, and their costs. Over Grohman’s objection, the trial court

rendered a judgment adopting the arbitrator’s findings and confirming his award.

DISCUSSION

Grohman brings one issue on appeal, asserting the trial court erred “by allowing nonparties

to inject themselves into a divorced couple’s agreement to arbitrate possession and conservatorship

disputes, thereby circumventing judicial procedures to determine the justness and reasonableness of

a statement on an open account.” Grohman makes numerous assertions that the trial court erred in

referring the issue to the arbitrator, the arbitrator exceeded his authority, and the trial court erred in

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confirming the award. Essentially, however, Grohman appears to be complaining that (1) her fee

dispute with Bullock1 is not within the scope of a valid arbitration agreement; (2) she may not be

compelled to arbitrate disputes with Bullock because she is not a party to the arbitration agreement;

and (3) the arbitrator acted outside his authority in awarding attorney’s fees.

Whether an agreement imposes a duty to arbitrate is a question of law we review de novo.

In re C& H News Co., 133 S.W.3d 642, 645 (Tex. App.–Corpus Christi 2003) (orig. proceeding).

In determining whether a claim falls within the scope of an arbitration agreement, we focus on the

factual allegations and resolve any doubts in favor of coverage. In re FirstMerit Bank, N.A., 52

S.W.3d 749, 754 (Tex. 2001). Kahlig and Grohman’s arbitration agreement provides the arbitrator

“shall make by binding arbitration award any modification of possession or the rights and duties of

[the parties] that would be in the best interest of the child.” This agreement “broadly authorizes the

arbitrator to make any modification to [Grohman’s] rights that would be in C.A.K.’s best interests.”

C.A.K., 2006 WL 12698, at *1 (affirming judgment that confirmed arbitration award that, inter alia,

ordered Grohman to pay psychologist’s fees, and holding arbitrator had authority to enter award

requiring Grohman to obtain leave from arbitrator before filing any further complaints or grievances

against mental health care professionals because such modification of her rights was in C.A.K.’s best

interests).

The terms and conditions of Grohman’s possession of and access to C.A.K. are matters

expressly within the scope of the arbitration agreement. In arbitrating the disputes between Grohman

and Kahlig regarding the terms and conditions of Grohman’s possession of C.A.K., the arbitrator

found it to be in C.A.K.’s best interest to appoint Bullock as Parenting Coordinator, and authorized

1 … Throughout the argument portions of her brief, Grohman refers to and discusses Bullock and Kids Exchange collectively as “Bullock.” W e adopt this reference.

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her to delegate some of her supervisory duties to Kids Exchange. In previous final and binding

arbitration awards, the arbitrator mandated Grohman’s periods of possession be supervised,

authorized Bullock to charge Grohman for her services, ordered Grohman to pay the invoices in full

when presented, and authorized Bullock to condition Grohman’s periods of possession on timely

payment of the fees billed. It appears2 Grohman’s dispute regarding the fees primarily concerns the

manner in which Bullock performed the coordinating and supervisory services required by the earlier

arbitration awards – she complains the fees were for services of “poor quality,” contends Bullock

had a conflict of interest, objects to signing a form Bullock required as a condition of providing

services, and objects to Bullock’s temporary suspension of services when Grohman failed to pay the

fees. Grohman’s obligation to pay the Parenting Coordinator’s fees and her disputes about the

propriety of the fees necessarily relate to her possession of C.A.K. and her rights and duties as

possessory conservator. Grohman’s attorney recognized this when he argued to the trial court in

January 2006, that issues regarding Grohman’s access to C.A.K. and the fee disputes should be

arbitrated at the same time because the issues are “bundled together.” Accordingly, we hold the fee

dispute is within the scope of Grohman’s and Kahlig’s arbitration agreement.

Grohman nevertheless contends Bullock may not compel her to arbitrate the dispute because

Bullock is not a party to the arbitration agreement. “A person who has agreed to arbitrate disputes

with one party may in some cases be required to arbitrate related disputes with others.” Meyer v.

WMCO-GP, LLC, 211 S.W.3d 302, 304 (Tex. 2006). Arbitration may be required even when the

agreement contains phrases such as “between the parties” or when the motion to compel arbitration

2 … Grohman did not bring forward the record made of the arbitration proceedings, which presumably reflects her precise objections to the fees. W e have attempted to glean the substance of Grohman’s objections to payment of the fees from statements in Grohman’s emergency motion to remove Bullock as Parenting Coordinator and from statements in her appellate brief.

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is filed by a non-signatory and is not joined by a signatory. Id. at 305, 306-07. A nonsignatory may

compel arbitration of a signatory’s claims that arise out of and relate directly to the agreement

containing the arbitration clause. Meyer, 211 S.W.3d at 306 (citing Grigson v. Creative Artists

Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.), cert. denied, 531 U.S. 1013 (2000)); see also, In re

Polymerica, LLC, 271 S.W.3d 442, 447-449 (Tex. App.–El Paso 2008, orig. proceeding [mand.

pending]) (holding that signatory who sought and received substantial benefits under arbitration

agreement could be compelled to arbitrate claim against non-signatory that arose under agreement).

After the September 2004 arbitration award, Bullock’s duties included resolving the day -to-

day possession and access disputes between Grohman and Kahlig, serving as a conduit for oral and

written communications between them, determining, within limitations, the amount and nature of

supervised possession Grohman could have with C.A.K., and facilitating telephone conversations

between Grohman and C.A.K. These duties arose out of and are related directly to the parents’

arbitration agreement. Under the unique circumstances of this case, we hold Grohman may be

compelled to arbitrate Bullock’s claim for fees and Grohman’s objections to paying the fees.

Lastly, Grohman contends the award of attorney’s fees in favor of Bullock exceeded the

arbitrator’s authority. Section 171.048(c) of the Texas Civil Practice and Remedies Code provides:

The arbitrators shall award attorney’s fees as additional sums required to be paid under the award only if the fees are provided for:

(1) in the agreement to arbitrate; or

(2) by law for a recovery in a civil action in the district court on a cause of action on which any part of the award is based.

TEX . CIV . PRAC. & REM . CODE ANN . § 171.048(c) (Vernon 2005). Bullock was entitled to an award

of fees under both of these provisions. The arbitration agreement authorizes the arbitrator, “at his

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own discretion and taking into consideration which party initiated the arbitration,” to “make a

binding arbitration award requiring either party pay costs, legal fees or expert fees of the other party.”

The provision clearly contemplates a fee award in favor of the opposing party in the arbitration. As

we have held, Bullock and Kids Exchange were proper parties to the arbitration. Under the terms of

the arbitration agreement, the arbitrator acted within his discretion in making a binding fee award.

Moreover, because Bullock prevailed on a claim for services rendered, she would have been entitled

to attorney’s fees under section 38.001 of the Civil Practice and Remedies Code had she filed a civil

action in court. Accordingly, the attorney’s fee award is also authorized by section 171.048(c)(2).

We overrule Grohman’s issue and affirm the trial court’s judgment.

Steven C. Hilbig, Justice

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