In Re Mabray
2010 WL 3448198, 355 S.W.3d 16 (2010)
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Rule of Law:
A non-statutory "cooperative law" agreement for divorce is distinct from a statutory "collaborative law" agreement, and its omission of a mandatory attorney withdrawal clause does not render it void as against Texas public policy, thus its binding arbitration provision is enforceable.
Facts:
- Mary Lynn Mabray and Gary Allen Mabray, married for 35 years, sought a divorce.
- On February 12, 2009, represented by their respective attorneys, Mary and Gary signed a "Cooperative Law Dispute Resolution Agreement."
- The Agreement outlined an informal dispute resolution process, requiring good faith disclosure of financial information without formal discovery, and stipulated that if the divorce was not settled by April 30, 2009, the matter would proceed to binding arbitration.
- An agreed final divorce decree was not reached by the specified date.
- After the initially appointed arbitrator discovered a conflict, the parties subsequently agreed to a new person to act as arbitrator and submitted an agreed order to the trial court to appoint the new arbitrator and set a new arbitration date.
- Mary later terminated her attorney, Harry L. Tindall, and hired new counsel, Stephen Shoultz.
- Mary filed motions to revoke her consent to arbitration and to disqualify Gary's attorney, Brenda Keen, arguing the Agreement violated public policy and that Gary had breached it by concealing assets.
Procedural Posture:
- Mary Lynn Mabray filed for divorce in the 311th Judicial District Court of Harris County, Texas (trial court/court of first instance).
- Gary Allen Mabray filed an answer.
- The parties, through counsel, filed a "Joint Motion for Referral to Arbitration" with the trial court on March 11, 2009.
- The trial court signed an order on March 18, 2009, referring the case to arbitration if not settled by April 30, 2009.
- After the initial arbitrator identified a conflict, the parties submitted an agreed order to the trial court on July 2, 2009, to appoint a new arbitrator and set a new arbitration date, which the trial court signed on August 12, 2009.
- Mary Lynn Mabray filed a motion to revoke her consent to arbitration and a motion to disqualify Gary Allen Mabray's counsel, Brenda Keen, with the trial court.
- Gary Allen Mabray moved to enforce the Agreement and compel arbitration.
- The trial court held a hearing and on October 30, 2009, signed an order compelling arbitration and denying Mary Lynn Mabray's motions to disqualify Keen and revoke consent.
- The trial court subsequently filed additional findings of fact and conclusions of law, including that the Agreement was not governed by Tex. Fam. Code § 6.603 and did not violate Texas public policy.
- Mary Lynn Mabray (relator) filed a petition for writ of mandamus in the Court of Appeals, challenging the trial court's October 30, 2009, order.
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Issue:
Does a "cooperative law dispute resolution agreement" that lacks the mandatory attorney withdrawal provision of Texas's collaborative law statute violate Texas public policy, thereby precluding enforcement of its binding arbitration clause and requiring disqualification of counsel?
Opinions:
Majority - Laura Carter Higley
No, a "cooperative law" agreement that omits the mandatory attorney withdrawal provision of the collaborative law statute does not violate Texas public policy, and its binding arbitration clause is enforceable, meaning counsel is not automatically disqualified. The Court held that the "Cooperative Law Dispute Resolution Agreement" is distinct from a "collaborative law" agreement as defined by Texas Family Code § 6.603. The collaborative law statute is elective, not mandatory, and the parties' agreement did not incorporate the attorney withdrawal clause, which is a required element for a "collaborative law" agreement. Therefore, the statutory provisions of § 6.603, including the attorney withdrawal requirement, do not apply. The court found no reason why cooperative law agreements should violate Texas public policy, noting that Texas encourages various forms of alternative dispute resolution (ADR) and respects freedom of contract. The potential risk of confidential information disclosure in cooperative law is similar to that in collaborative law, where the opposing party (who is not disqualified) may hear such information. The arbitration provision was deemed severable and enforceable even if the cooperative law portion were found void, though the court held it was not void. "Gateway matters" like mental capacity and fraud are for the trial court to determine, but a claim of breach of the agreement, when a valid arbitration clause exists, is for the arbitrator. Mary's argument to revoke consent applied only to agreed judgments, not to the process that could lead to a judgment, and her prior requests for arbitration also precluded her later complaint.
Dissenting - Evelyn V. Keyes
Yes, a "cooperative law dispute resolution agreement" that fails to include the mandatory attorney withdrawal provision and other safeguards of Texas's collaborative law statute is void as against Texas public policy, thus its arbitration clause is unenforceable and counsel should be disqualified. Justice Keyes argued that the "cooperative law agreement" is void as against public policy because it attempts to "contract around" the safeguards of the Texas collaborative law statute (§ 6.603), which is the only statutorily recognized method for marriage dissolution without litigation that incorporates such informal disclosure. The Agreement's provisions track, but deliberately conflict with, § 6.603 by failing to provide for attorney withdrawal, mandatory court notice and status reports, and voluntary termination of the process, instead mandating binding arbitration upon failure of negotiation within a short timeframe. This contravenes the legislative intent for voluntariness and court oversight in family law matters, undermining the "stability for those entering into the marriage relationship" outlined in Tex. Fam. Code § 1.101. Without these statutory protections, parties like Mary could be disadvantaged by a lack of good faith disclosure from the opposing party while being forced into binding arbitration with the same counsel. The arbitration provision, being integral to an otherwise void agreement that violates public policy, is also unenforceable. Therefore, Gary's counsel should be disqualified.
Analysis:
This case clarifies the distinction between statutory collaborative law and non-statutory cooperative law in Texas family disputes, affirming that parties have broad contractual freedom in alternative dispute resolution. It establishes that simply omitting a statutory requirement does not render a similar non-statutory agreement void unless it contravenes explicit public policy. The decision reinforces Texas's strong policy favoring arbitration and freedom to contract, potentially encouraging the development and use of varied, non-statutory ADR methods, though parties must be aware that such agreements do not carry the specific benefits or protections of codified procedures. It leaves open the question of potential ethical concerns for attorneys involved in cooperative law regarding conflicts of interest.
