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Click here for the full text of this decision FACTS: Lynn and Billy Kilroy divorced in 2003. Billy was named sole managing conservator of the couple’s one child, and Lynn was granted visitation rights. The divorce incorporated a Rule 11 agreement specifying that the parties would submit subsequent controversies regarding the child to binding arbitration. The agreement also provided for a specific arbitrator to be used. Seven months after the divorce, Billy initiated arbitration proceedings to terminate Lynn’s visitation rights, pending the completion of a psychiatric assessment, and to allow him to move the child out of the region delimited by the divorce decree. The arbitrator ruled that the divorce decree did not allow the move Billy sought to make. The arbitrator also ordered that arbitration would reconvene in eight days to address whether the residency restriction should be lifted and whether Lynn’s visitation rights should be terminated. Before arbitration could reconvene, Billy’s mother, Jeanie, filed a suit affecting the parent-child relationship in trial court, seeking custody of the child or else limiting Billy’s ability to move. Jeanie also filed a motion to oppose the reconvening of arbitration. The trial court questioned Jeanie’s standing to bring the SAPCR. The court, therefore, stayed the arbitration proceedings and postponed consideration of Jeanie’s claims, pending the trial court’s determination on whether Jeanie had standing. Billy appealed the ruling. Alternatively, he sought a writ of mandamus to lift the stay. HOLDING: Appeal dismissed; writ conditionally granted. The court first determines that it does not have jurisdiction over Billy’s interlocutory appeal. A trial court is authorized by Texas Civil Practice and Remedies Code �171.023(a) to stay an arbitration where there is no agreement to arbitrate, and �171.098 allows an interlocutory appeal from that stay. However, here, there is an agreement to arbitrate, so the stay was not made pursuant to �171.023(a), and there is no concomitant authority for an interlocutory appeal. The court then turns to whether mandamus is an appropriate remedy. The court finds that because the trial court’s order requires the parties to litigate Jeanie’s standing before reconvening arbitration, Billy and Lynn will have been deprived of the benefits of the arbitration clause, so a remedy through mandamus, if an abuse of discretion by the trial court is established, would be appropriate. The court determines what the applicable law is. The specific terms of the Rule 11 agreement are a written agreement that expresses the intent of the parties to submit all future legally permissible post-divorce and child issues to arbitration, thus it meets the definition of an arbitration agreement under the terms of the Texas General Arbitration Act. The designation of a specific arbitrator and the grant of authority to him does not place interpretation of the agreement solely under the Family Code. Nor does the fact that Jeanie�s motion is a SAPCR take it out of the realm of the TGAA. However, the court finds that there is nothing to indicate that the two statutes are mutually exclusive. Therefore, both the TGAA and Family Code �153.0071 govern the arbitration agreement at issue in this case. Next, the court turns to the stay itself. The court confirms that because Billy and Lynn were the only parties to the Rule 11 agreement, Jeanie was not bound by the arbitration clause in it and could bring her SAPCR suit in trial court. Furthermore, Jeanie did not have the right to intervene in the arbitration proceedings. The trial court could not have ordered Jeanie’s suit to be submitted to binding arbitration, then. Though the trial court had the authority to hear Jeanie’s case on issues identical to the ones that Billy and Lynn were arbitrating, it does not follow that the trial court had the discretion to stay the arbitration proceedings while the trial court resolved the issues before it. In the event there is a valid agreement to arbitrate, the trial court must allow the parties to it proceed with arbitration. The presence in litigation of parties not privy to an arbitration agreement does not defeat the right of a party to such agreement to have its claims arbitrated. “Thus, we conclude that the trial court lacked the discretion to stay Billy and Lynn’s arbitration proceedings, pending resolution of the issue of Jeanie’s standing.” The court acknowledges that there is no specific support for its holding under the TGAA, but the court does find support in cases decided under the Federal Arbitration Act. The court adds: “We are cognizant of Jeanie’s concern that our decision today will allow parents to circumvent the trial court’s continuing and exclusive authority to determine the”best interest’ of the child. However, this concern should be allayed by the requirement, in SAPCR matters, that the trial court determine, at a non-jury hearing, that an arbitrator’s award is in the best interest of the child before enforcing the award.” OPINION: Higley, J.; Taft, Hanks and Higley, JJ.

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