Alikhan v. Alikhan

Decision Date22 July 2021
Docket Number03-19-00515-CV
PartiesOsman M. Alikhan, Appellant v. Sara Jo Alikhan, Appellee
CourtTexas Court of Appeals

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO D-1-FM-17-001924, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Kelly

MEMORANDUM OPINION

MELISSA GOODWIN, JUSTICE

Osman M. Alikhan appeals from the trial court's final divorce decree that was based on a partial mediated settlement agreement between Osman and Sara Jo Alikhan and an arbitrator's amended award. Osman argues before this Court that the arbitration agreement and arbitration rules for the arbitration proceedings are unconscionable and therefore that the trial court committed error in basing the divorce decree on the arbitrator's award. However, the record does not show that the alleged error was preserved. See Tex.R.App.P. 33.1(a) (requiring error preservation as prerequisite to presenting complaint for appellate review). We therefore affirm.

BACKGROUND[1]

After entering into a premarital agreement and a binding arbitration agreement, Osman and Sara married in 2013 and had two children during their marriage. In 2017, Osman petitioned for divorce. Osman then moved to compel arbitration before a neutral arbitrator "to be appointed by The Islamic Society of North America (ISNA), for a binding decision," based on their premarital agreement. At a hearing, the parties recited and orally assented in open court that they agreed to attend arbitration with Paul Davis as arbitrator in lieu of an ISNA arbitrator and that they had agreed to a temporary arrangement as to the children "to get us from today until we are able to get into arbitration." When the court asked who would prepare the temporary orders, Osman's counsel agreed to draft the orders.

The parties then signed the agreed temporary orders that specified, among other things, that the "case shall be submitted to binding arbitration on all issues with Judge Paul Davis" under "section 154.027 of the Texas Civil Practice and Remedies Code," "the Texas General Arbitration Law," and "sections 6.601 and 153.0071 of the Texas Family Code." See Tex Civ. Prac. &Rem. Code §§ 154.027, 171.001-.098; Tex. Fam. Code §§ 6.601, 153.0071. The temporary orders also stated: "Each party and counsel will be bound by the Family Law Arbitration Agreement and Family Law Arbitration Rules provided by the arbitrator. Each party and counsel are ORDERED to cooperate with the arbitrator."

On July 18, 2018, the parties and the arbitrator signed the family law arbitration agreement and rules, which included that "[t]he parties acknowledge that there will be no court reporter and that the decision of the Arbitrator is binding and final." The parties also signed an addendum that they "have agreed to attempt to mediate some of the issues in the case with Paul Davis functioning as a mediator prior to beginning the arbitration hearing" and "that all information shared with Paul Davis during the mediation phase of the case will remain confidential" but "that Paul Davis may use any information shared with him, either in the mediation phase or in the arbitration phase, in arriving at any decision he makes in the arbitration." The mediation occurred on July 18 and arbitration occurred on July 18 and 19.

Also on July 18, the parties signed a partial mediated settlement agreement that resolved many of the issues and filed it with the court the next day. In the agreement, the parties expressly agreed that "[e]ach signatory to this settlement has entered into this settlement freely and without duress after having consulted with the professionals of his or her choice," "[t]his stipulation is signed voluntarily," and "either party is entitled to final judgment on the terms herein." On August 2, the arbitrator signed his award, noting in the award that both parties and their counsel were present and that arbitration was conducted pursuant to the temporary orders, the family law arbitration agreement and rules, and the addendum. The next day, the arbitrator signed an amended award "to correct a mathematical error in the spreadsheet." On August 6, Sara offered the partial mediated settlement agreement and the arbitrator's amended award into evidence at a hearing, [2] it was admitted, and the trial court ruled from the bench:

[Y]our divorce is granted. Your community estate is divided in the manner found by the arbitrator pursuant to you and your ex-husband's agreement. And the children, the conservatorship, support, and visitation is awarded in the best interest of the children in the manner decided by your arbitrator.

On August 23, Osman filed a motion to modify, correct, or reform the arbitration award, disputing the factual grounds for the arbitrator's amended award. In his motion, Osman stated as background that "[t]he arbitration was conducted in accordance with the parties' agreement" and attached signed copies of the family law arbitration agreement and rules and the addendum as an exhibit. Osman did not raise any concerns with the agreement or addendum in his motion.

On October 29, new counsel for Osman appeared, and Osman moved to substitute counsel. The next day, Osman filed an application to vacate the arbitrator's amended award arguing that the award "was obtained by corruption, fraud or other undue means." See Tex. Civ. Prac. &Rem. Code § 171.088(a)(1) (providing that court shall vacate award on application of party if award "was obtained by corruption, fraud, or other undue means"). Specifically, Osman complained that on the day of arbitration-July 18-he was presented with the family law arbitration agreement and rules, which provided that "[t]he parties acknowledge that there will be no court reporter." Because he was bound by the arbitration rules pursuant to the agreed temporary orders, he claimed that "the rules presented by the Arbitrator on the day of the Arbitration constituted essentially an adhesion contract that the parties had no choice but to accept" and were "procedurally unconscionable because it deprived Osman [] of his right to have the arbitration proceedings recorded." On November 16, the court granted the motion for substitution of counsel, but did not mention or address the application to vacate.

The record indicates that little activity in the case occurred until May 2, 2019, when Osman's new counsel filed a motion to withdraw from representing Osman, and Sara requested that the court sign the final divorce decree based on the arbitrator's amended award. On May 8, the court granted the motion to withdraw and signed the final divorce decree. The final divorce decree notes that on August 6, 2018, the trial court "rendered judgment on the Partial Mediated Settlement Agreement and the Amended Award of the Arbitrator, and granted the parties a divorce"; "[t]he making of a record of testimony was governed by the Agreed Arbitration Order Regarding Family Law Arbitration agreement and Family Law Arbitration (and addendum) Rules"; and "[a] record of testimony was not taken at the arbitration." The final divorce decree does not mention or discuss Osman's application to vacate the arbitration award but does include a Mother Hubbard clause stating "that all relief requested in this case and not expressly granted is denied." See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203 (Tex. 2001) (explaining that "Mother Hubbard" clause in judgment is "the statement, 'all relief not granted is denied', or 'essentially those words'").

Osman filed a motion for a new trial, which was overruled by operation of law. In his motion, he asserted that "the evidence is legally and factually insufficient" and the court "abused its discretion in making the property division," but he did not complain about the family law arbitration agreement and rules and addendum. Osman now appeals to this Court.

DISCUSSION

On appeal, Osman raises three issues. First, he argues that the family law arbitration agreement and rules and the addendum are unconscionable because he was forced to waive his rights to "the making of a record" and to "any conflict of having the mediator act as arbitrator" or be held in contempt for violating the agreed temporary orders. Second, he asserts that the "forced waiving of a record" prevented him "from properly presenting his case" on appeal. Third, he claims that the "forced waiving of any conflict of the arbitrator first acting as mediator" prevented him "from properly presenting his case" on appeal because "[e]ven if a record was made . . . anything the arbitrator learned at mediation would continue to be confidential and not part of the appellate record, although the arbitrator could use that information in making his award."

Our rules of appellate procedure, however, require that as a "prerequisite to presenting a complaint for appellate review, the record must show that":

(1) the complaint was made to the trial court by a timely request, objection, or motion . . .; and
(2) 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). "Important prudential considerations underscore" this rule of preservation, In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003), making this rule "technical, but not trivial," USAA Tex Lloyds Co. v. Menchaca, 545 S.W.3d 479, 518 (Tex. 2018) (quoting Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014)). "This rule 'conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds,' promotes 'fairness among litigants' by prohibiting them from surprising their opponents on appeal, and furthers 'the...

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