Interpretation of disputed provision of MSA in divorce case left to discretion of mediator, given the parties agreement to that effect

  
Houston Court of appeals reverses trial court for deciding dispute over a specific provision of a mediated stettlement agreement in a divorce case based on parties' agreement to have the mediator decide such dispute and - in effect - act as arbitrator. Court would ordinarily have role in construction of mediated settlement agreement (MSA) as a contract, but not where - as here - the parties put the mediator in charge of arbitrating subsequent disagreements.

Entry of Judgment on the Mediated Settlement Agreement
 
Texas public policy encourages the peaceable resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2011).
  
The Family Code furthers this policy by providing alternative dispute resolution procedures through which parties may settle a suit for dissolution of a marriage. See, e.g., Tex. Fam. Code Ann. §§ 6.601-.604 (West 2006). One such procedure is mediation. See id. § 6.602.
  
A mediated settlement agreement is binding under section 6.602 of the Family Code if the agreement:
 
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and

(3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

Id. § 6.602(b).

Settlement agreements complying with section 6.602 are immediately enforceable, not subject to repudiation by a party, and, with certain limited exceptions, binding on the trial court without approval or determination of whether the agreement’s terms are just and right. See In re Joyner, 196 S.W.3d 883, 889 (Tex. App.—Texarkana 2006, orig. proceeding); Cayan v. Cayan, 38 S.W.3d 161, 164-66 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App.—Austin 2007, pet. denied) (noting that when MSA meets section 6.602’s requirements, “it must be enforced in the absence of allegations that the agreement calls for the performance of an illegal act or that it was ‘procured by fraud, duress, coercion, or other dishonest means.’”) (quoting Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex. App.—Fort Worth 2002, no pet.). “After all, the purpose of mediation is to let parties settle their property as they see fit, keeping those matters out of the courtroom.” Joyner, 196 S.W.3d at 889. A trial court has no authority to enter a judgment that varies from the terms of a mediated settlement agreement. Cf. Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.—Dallas 2004, no pet.) (concluding that trial court abused its discretion under Tex. Fam. Code Ann. § 153.0071 (West 2002) by entering judgment not conforming with MSA in suit affecting parent-child relationship).
 
Neither WIFE nor HUSBAND disputes that the MSA here meets the requirements of section 6.602. Likewise, they do not dispute that the MSA is enforceable; there is no allegation that the agreement requires the performance of an illegal act or was procured by fraud, duress, or coercion. Rather, the parties’ only dispute is with respect to the meaning of that part of the MSA dividing HUSBAND’s “future retirement disbursements” equally and whether future distributions from HUSBAND’s ESOP are included within its scope.
  
Ordinarily, if the terms of the MSA could be given a certain or definite meaning, we would construe the agreement as a matter of law to determine whether WIFE’s or HUSBAND’s construction is correct. See Garcia-Udall, 141 S.W.3d at 328. But, this case presents a unique circumstance in that the parties agreed in the MSA to submit “(a) all drafting disputes[,] (b) all issues regarding the interpretation of [the MSA,] and (c) all issues regarding the intent of the parties as reflected in the [MSA]” to the mediator and to make his decision on these matters binding. Thus, by their agreement, WIFE and HUSBAND removed the resolution of their dispute from the province of the courts and assigned that responsibility to the mediator. Absent some allegation that the MSA requires an illegal act or was procured by fraud, duress, coercion, or other dishonesty, the trial court was obligated to enforce their agreement. See id. at 332; Spiegel, 228 S.W.3d at 242.
  
We reject HUSBAND’s contention that the mediator’s “flip-flopping” somehow nullifies his decision regarding the parties’ intended division of HUSBAND’s “future retirement disbursements.” HUSBAND has offered no reason why a mediator should not have the same discretion afforded trial courts to reconsider a ruling. See generally Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (noting that trial court has power to set aside interlocutory orders at any time before a final judgment is entered). The record we have of the parties’ dispute before the mediator is limited, consisting only of the MSA, counsels’ representations at the hearing on the entry of judgment, and the three letters issued by the mediator. We will not speculate about the reasons for the mediator’s reconsideration of his initial determination nor the arguments presented to him by the parties. We note only that the mediator acknowledged the parties’ continuing dispute and professed an understanding of their “concerns and the practical effect that certain language may or may not have” in his third letter. We conclude that letter, being the last of the mediator’s communications, constitutes the final expression of his decision with respect to the division of HUSBAND’s “future retirement benefits.”
  
Moore v. Moore, No. 01-11-00163-CV (Tex.App.- Houston [1st Dist.] Dec. 8, 2011)
 
Click below to read the opinion (names of parties replaced by designations HUSBAND and WIFE)

Arbitration of Family Law Disputes: Arbitrator's Decision in SAPCR Modification Proceeding Confirmed & Affirmed on Appeal

ARBITRATING CHILD CUSTODY & VISITATION MODIFICATION ISSUES AFTER DIVORCE A recent appeal from an order confirming (the opinion says "affirming") an arbitration award in a post-divorce SAPCR dispute in a Houston family court raises a number of interesting issues, including the appropriateness of ADR in a child custody matter when domestic violence is alleged, a potential conflict of an ADR professional serving in the dual role of mediator and arbitrator, the recusal of an arbitrator for perceived bias, etc. The underlying divorce decree incorporated a mediated settlement agreement (MSA) that covered some issues, but not others. Unfortunately, the various arguments were not fully developed, or not appropriately preserved for appellate review, in this case. The 14th Court of Appeals rejected all challenges against the arbitration award, the arbitration process, and the arbitrator, and affirmed the family court's order confirming the decision of the arbitrator - a former judge. 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 “motions," (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 “de 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 “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." 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 “all issues other than enforcement." On May 3, 2006, Lynn filed an “Opposed 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 “documents, 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, “The 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 “motions" 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, “the 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.- Houston [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 “erred 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.- Houston [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 “was 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 “Motion to Recuse for Bias" and alleged additional incidents had “occurred to further the bias of the arbitrator." The gravamen of her complaint was the arbitrator's continuing “to 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 “documents, 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 “continuance." Under the Texas Arbitration Act, “[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, “And 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: “I 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 “would 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, “My 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 “be 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 -------------------------------- [footnotes omitted] CASE DETAILS AND LINKS: In Interest of EBLG et al (Tex.App.- Houston [14th Dist.] Sep. 29, 2009)(Seymore) (family court mediation and arbitration, numerous challenges to arbitration and arbitrator's decision, attempted recusal of arbitrator, consideration of family violence, appropriateness of mediation) DISPOSITION ON APPEAL: Trial Court's Order/Judgment Affirmed Panel opinion by Justice Charles Seymore Panel members: Chief Justice Adele Hedges, Justices Charles Seymore and Kent Sullivan Appellate case number and link to appellate docket: 14-06-01095-CV Case style on appeal: In the Interest of E.B.L.G, H.L.L.G, and N.L.G. Appeal from 257th District Court of Harris County (Harris County Family Law Center, Houston TX) Trial Court Judge: Hon. Judy L. Warne RELATED SEARCH TERMS: domestic relations, family court case arbitration, arbitrating child custody and visitation issues, conservatorship and possession of child/children submitted to and decided by arbitrator, best interest consideration when SAPCR issues are subject to binding arbitration based on mediated settlement agreement providing for arbitration of subsequent disputes, arbitration vs. mediation in family court cases, mediator also serving as arbitrator, partiality and bias allegations, conflict of interest, challenging the arbitrator, grounds to challenge arbitration award, decision under the Texas Arbitration Act (TAA).

Failure to appear for arbitration results in default judgment

Pro se appellant fails to convince court of appeals that default judgment should be set aside in child custody modification suit; no motion for new trial was filed in the court below. Llorance v. Sohi No. 01-07-00840-CV (Tex.App.- Houston [1st Dist.] Apr. 17, 2008)(Higley) (family law SAPCR modification, default judgment arbitration order affirmed) Opinion by Justice Higley Before Justices Nuchia, Hanks and Higley Full case style: Leezet Llorance v. Farhad Safavi Sohi Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne Disposition: Family district court's judgment affirmed MEMORANDUM OPINION [Note: Footnotes omitted; to see full opinion, click on case name above] In this suit affecting the parent-child relationship, pro se appellant, Leezat Llorance, appeals the trial court’s default modification order, which modifies an earlier order establishing the parent-child relationship between Llorance’s minor child, F.P.L.S., and appellee, Farhad Safavi Sohi. Raising what we construe to be one issue, Llorance complains that the default modification order should be set aside because she was unable to attend the arbitration hearing, from which the modification order emanated, because F.P.L.S. was ill. We affirm. Background On September 28, 2004, the trial court signed an “Agreed Order Establishing the Parent Child Relationship” (“the agreed order”) in which Farhad Safavi Sohi was adjudicated to be the father of F.P.L.S. The agreed order appointed Llorance as F.P.L.S.’s sole managing conservator and named Sohi as possessory conservator. With respect to possession, the agreed order provided that, until F.P.L.S.’s fifth birthday on July 15, 2008, Sohi was entitled to supervised visitation with F.P.L.S. every Saturday. The agreed order further provided that, beginning July 15, 2008, Sohi would be entitled to visitation under a standard possession order, as set forth in Family Code sections 153.311 through 153.317. Sohi was also ordered to pay Llorance monthly child support in the amount of $256.00. On March 16, 2006, Sohi filed a petition seeking modification of the agreed order. Sohi requested that he immediately be given possession of F.P.L.S. pursuant to a standard possession order. He also requested that his monthly child-support payments be decreased. Llorance answered and filed a counter-petition in which she requested an increase in child support and alleged that Sohi should not be given possession of F.P.L.S. pursuant to a standard possession order. Llorance alleged that Sohi did not seek the modification in the best interest of F.P.L.S., rather he sought modification to “retaliate” against her and to cause her “financial ruin.” The modification action was tried by an arbitrator on August 31, 2007. Sohi and his counsel attended the arbitration hearing; however, Llorance did not attend. On that same day, the arbitrator signed an order entitled “Arbitrator’s Binding Order in Suit to Modify Agreed Order Establishing the Parent-Child Relationship” (“the default modification order”) in which the arbitrator noted that Llorance had not appeared at the arbitration hearing. In the default modification order, the arbitrator removed Llorance as F.P.L.S.’s sole managing conservator and appointed Sohi and Llorance as joint managing conservators. Llorance retained the right to establish F.P.L.S.’s primary place of residence with a geographic restriction. With respect to visitation, the arbitrator incorporated the statutory standard possession order. The modification order also increased Sohi’s monthly child support to $300.00. The trial court signed and adopted the modification order on September 27, 2007. Llorance did not file a motion for new trial. On October 2, 2007, Llorance filed a pro se notice of appeal in which she challenged the default modification order. In the notice of appeal, Llorance admitted she had received notice of the arbitration hearing, but alleged that she had been unable to attend because she had taken F.P.L.S. to the emergency room in the early morning hours of August 31, 2007, the day of arbitration. Llorance asserted that, on that morning, she had spoken to the arbitrator’s assistant and had repeatedly called and left messages for the arbitrator to inform the arbitrator that she could not attend arbitration because she had to take F.P.L.S. to the emergency room. Llorance claimed that the arbitrator never returned her calls. Llorance stated that F.P.L.S. was admitted to the hospital on August 31, 2007 and remained hospitalized until September 2, 2007. In the notice of appeal, Llorance further alleged that, on September 2, 2007, she faxed a letter to the arbitrator in which she explained why she had not attended trial and questioned why her telephone messages to the arbitrator had not been returned. Llorance also attached a copy of F.P.L.S.’s hospital discharge record. Llorance contended that the first response from the arbitrator came on September 27, 2007, when Llorance received a letter from the arbitrator informing her of the default modification order. In her notice of appeal, Llorance asked for a hearing date and requested that the original agreed order remain in effect until the appeal is determined. In support of the allegations in the notice of appeal, Llorance attached copies of her telephone records to show that she had made numerous attempts to contact the arbitrator, the September 2, 2007 letter that Llorance faxed to the arbitrator with the appended medical record, and the letter from the arbitrator notifying Llorance of the default modification order. Although not shown in the record, Llorance also asserts that arbitration had originally been set on April 11, 2007. On that date, Llorance claims that she and her then attorney had attended arbitration but that Sohi and his counsel had not appeared. According to Llorance, the arbitrator had contacted Sohi and rescheduled the arbitration. Llorance questions why Sohi was given an opportunity to reschedule arbitration and relies on this perceived inequitable treatment in challenging the default modification order on appeal. Llorance also questions why the arbitrator signed the default modification order, which was prepared by Sohi’s counsel, on the same date as the hearing. Llorance concludes her appellate brief by requesting that the default modification order be set aside and that the agreed order be reinstated. Analysis We begin by acknowledging that the same prerequisites for setting aside a “no-answer” default also apply to a “post-answer” default, such as the one at issue here. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Harris v. Burks, No. 01-06-00128-CV, 2007 WL 1776048 at *1 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (mem. op.). When, as here, extrinsic evidence is necessary to challenge a default judgment, a motion for new trial is a prerequisite to complaining on appeal that it should be set aside. In re J.D.K., No. 02-06-280-CV, 2007 WL 2792487 at *1 (Tex. App.—Fort Worth Sept. 27, 2007, no pet.) (mem. op.) (citing, in part, Tex. R. Civ. P. 324(b)(1); Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)). As mentioned, Llorance did not file a motion for new trial. Even if we construe her notice of appeal as a motion for new trial under the limited facts of this case, see J.D.K., 2007 WL 2792487 at *2, Llorance failed to show that the default modification order should be set aside and a new trial ordered. A trial court should set aside a default judgment and grant a new trial if (1) the failure to appear was not intentional or the result of conscious indifference but rather was due to accident or mistake; (2) the defendant sets up a meritorious defense; and (3) the granting of a new trial would not cause delay or otherwise injure the prevailing party. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); see In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006). Though she makes allegations pertinent to the first Craddock prong in her notice of appeal, Llorance neither sets up a meritorious defense nor asserts that granting a new trial would not cause delay or injure Sohi. Accordingly, we overrule Llorance’s complaint that the trial court improperly signed a default judgment against her for her failure to appear at arbitration. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Nuchia, Hanks, and Higley.

Family Code trumps CPRC provision permitting interlocutory appeal of order confirming arbitration award

Houston Court of Appeals rules that prohibition of temporary order appeals in family cases extends to order confirming an arbitration award arising from an agreement to mediate/arbitrate temporary orders issues in a pending divorce case involving children. Finding it lacks jurisdiction, the appellate court declines to reach the merits and dismisses the attempted interlocutory appeal. O P I N I O N This is an attempted appeal from an interlocutory order signed October 31, 2007, confirming an arbitration award on temporary orders entered in a pending divorce and suit affecting the parent-child relationship (SAPCR). Because we lack jurisdiction over this interlocutory appeal, we dismiss. Texas strongly encourages alternative dispute resolution, particularly in family law matters. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.002 (Vernon 2005).[1] The Family Code expressly permits binding arbitration in divorce and SAPCR cases. See Tex. Fam. Code Ann. '' 6.601, 153.0071 (Vernon 2005 & Supp. 2007).[2] The parties agreed to mediate before Judge Maryellen Hicks and reached an agreed binding mediated settlement agreement (MSA) as to temporary orders pending conclusion of the divorce. The agreement provided that if any dispute arose as to the entry of the temporary orders, the dispute would be resolved in binding arbitration before Judge Hicks. Specifically, the MSA provided as follows: Said Arbitrator may decide what constitutes substantial compliance with all terms, and any omitted terms, of this Agreement that were discussed and agreed upon in the mediation. Maryellen W. Hicks may make disposing decisions concerning the language of this Order and submit the draft approved by her to the Court for signature and entry. Appellant was ordered to pay certain fees, including attorney's fees, as part of the MSA, and the parties returned to arbitration when a dispute arose over compliance with these orders. It is from the confirmation of the arbitration award ordering compliance with the temporary orders that this appeal arises.[3] Generally, appeals may be taken only from final judgments. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only when expressly permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding ). Texas courts strictly construe statutes authorizing interlocutory appeals. America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.CHouston [14th Dist.] 1997, no writ). The Texas Family Code specifically precludes the interlocutory appeal of temporary orders, except those appointing a receiver. See Tex. Fam. Code Ann. ' 6.507 (Vernon 2006); see also Tex. Fam. Code Ann. ' 105.001(e) (Vernon 2006) (stating temporary orders in suits affecting the parent‑child relationship are not subject to interlocutory appeal). Because it appeared to this court that appellant is attempting to appeal temporary orders, which the Family Code expressly prohibits, notification was transmitted to the parties of this court's intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal. See Tex. R. App. P. 42.3(a). Appellant filed a response to our notice, asserting that the appeal is permitted by Section 171.098 of the Texas Civil Practice & Remedies Code, which provides for an appeal of an order confirming an arbitration award. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.098(a) (Vernon 2005). Section 311.026 of the Texas Government Code provides that when two statutes are in conflict with each other, the specific statute "prevails as an exception to the general" statute. Tex. Gov't Code Ann. ' 311.026(b) (Vernon 2005). Applying this principle, Texas courts of appeals have held that the specific Family Code provision limiting temporary order appeals controls over the general statute in the Civil Practice and Remedies Code permitting interlocutory appeals from temporary injunctions. See, e.g., Marley v. Marley, No. 01-05-00992-CV, 2006 WL 3094325, at *2 (Tex. App.- Houston [1st Dist.] 2006, pet. denied) (mem. op.) (holding section 51.014(4) of the Civil Practice and Remedies Code permitting appeals from temporary injunctions did not control over prohibition in section 6.502 of interlocutory appeals from temporary orders in divorce proceedings); Cook v. Cook, 886 S.W.2d 838, 839 (Tex. App.- Waco 1994, no writ) (rejecting argument that section 51.014(4) allowed an interlocutory appeal from temporary orders issued under Family Code section 3.58, the identical former version of section 6.502). Because sections 6.507 and 105.001(e) of the Family Code apply specifically to divorce and SAPCR proceedings, they prevail over the application of the general arbitration statute, section 171.098 of the Civil Practice and Remedies Code. Appellant also asserts that the Family Code prohibition on appeals from temporary orders does not apply because the order being appealed is not an order entered under Title 1, Subchapter F of the Family Code, governing Temporary Orders, but is instead under Subchapter G, providing for alternative dispute resolution, including arbitration. This argument ignores the fact that the arbitration in this case concerned temporary orders entered during the pendency of the divorce. We hold that the trial court's order confirming a binding arbitration order entered during the pendency of a divorce and SAPCR proceeding may not be challenged by interlocutory appeal. Therefore, we lack jurisdiction over this appeal. Accordingly, the appeal is ordered dismissed. PER CURIAM Judgment rendered and Opinion filed May 15, 2008. Panel consists of Chief Justice Hedges and Justices Fowler and Boyce. [1] "It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent‑child relationship, including the mediation of issues involving conservatorship, possession and support of children, and the early settlement of pending litigation through voluntary settlement procedures." Tex. Civ. Prac. & Rem. Code Ann. ' 154.002 (Vernon 2005). [2] "On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration. The agreement must state whether the arbitration is binding or nonbinding." Tex. Fam. Code Ann. ' 6.601 (Vernon 2005); see also Tex. Fam. Code Ann. ' 153.0071 (Vernon Supp. 2007) (same for a SAPCR). [3] "If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award.)." Tex. Fam. Code Ann. ' 6.601(b) (Vernon 2005). "If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award unless the court determines at a non-jury hearing that the award is not in the best interest of the child." Tex. Fam. Code Ann. ' 153.0071(b) (Vernon Supp. 2007) Mason v. Mason, No. 14-07-00991-CV (Tex.App.- Houston [14th Dist.] May 15, 2008)(per curiam) (family court mediation and arbitration, no interlocutory appeal of order on motion to confirm arbitration award in suit affecting the parent-child relationship, divorce case) Full case style: Jason S. Mason v. Patricia A. Mason Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster