in Re Mariam Ayad

          Supreme Court of Texas
                            ══════════
                             No. 22-0078
                            ══════════

                         In re Mariam Ayad,
                                 Relator

   ═══════════════════════════════════════
           On Petition for Writ of Mandamus
   ═══════════════════════════════════════

                             PER CURIAM

      This mandamus proceeding concerns a premarital agreement to
resolve disputes by binding arbitration under religious law. Because the
trial court ordered arbitration before determining whether the
agreement is valid and enforceable as required by Sections 6.6015 and
153.00715 of the Family Code, we conditionally grant relief.
      Relator Salma Mariam Ayad married real party in interest Ayad
Hashim Latif in 2008. In connection with their marriage, they signed
two documents entitled “Marriage Contract” and “Islamic Pre-Nuptial
Agreement” (the Agreement). The former is not at issue here, but Ayad
resists enforcement of the latter on a variety of grounds.
      In the Agreement, the parties recite their “belief that Islam . . . is
binding on [them] in all spheres of life.” As relevant here, the Agreement
provides that “[a]ny conflict which may arise between the husband and
the wife will be resolved according to the Qur’an, Sunnah, and Islamic
Law in a Muslim court, or in [its] absence by a Fiqh Panel.”          The
Agreement then explains how the members of the three-person panel
will be selected and provides that the panel “will not represent the
parties in conflict, but rather, serve as impartial arbitrators and judges,
guided by Islamic Law and [its] principles.”           According to the
Agreement, “the majority decision of the Fiqh Panel will be binding and
final.”
          Although Ayad’s signature appears on the Agreement, she alleges
that she did not become aware of its contents—or even see it—until she
and Latif began experiencing marital difficulties in 2020. This, Ayad
asserts, is when she learned she had been “defrauded” into signing a
premarital agreement that violates her fundamental rights. According
to Ayad, she received the two documents in a stack with the Marriage
Contract on top, and she thought the Agreement was another copy of the
Marriage Contract.
          In January 2021, Ayad sued for divorce and sought to be
appointed joint managing conservator of the couple’s six-year-old son.
Latif filed his own counterpetition for divorce and moved to enforce the
Agreement. Ayad raised multiple challenges to enforcement, including
that: the term “Islamic Law” was too indefinite; the Agreement was void
because it violated public policy; Latif’s previous breaches of the
Agreement had excused Ayad from performing; and the Agreement was
unconscionable.
          The trial court held a hearing on Latif’s motion to enforce,
focusing on whether the reference to Islamic law was sufficiently
ambiguous to render the Agreement unenforceable. An imam testified




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as an expert on Latif’s behalf, but the trial court refused to allow Ayad
to testify on the term’s ambiguity, which it concluded was a “legal
question.” 1 Shortly thereafter, the trial court concluded it would order
the parties to arbitrate under the Agreement.
       Ayad then filed a motion to vacate or reconsider the court’s ruling
on Latif’s motion to enforce, as well as a motion for separate trial of her
challenges to the enforcement and validity of the Agreement. The court
held a second hearing in which it gave each party twenty minutes to
address solely whether the Agreement was entered into voluntarily.
Both Ayad and Latif testified, as well as an expert for Ayad.
       Without addressing whether the Agreement was valid and
enforceable, the trial court concluded that it “ha[d] no discretion” under
the Texas General Arbitration Act “but to enforce the [A]greement . . .
and refer the parties to arbitration per the terms of their [A]greement.”
In its referral order, the court observed that if an eventual arbitration
award was based on foreign law, it would review the award under Texas



       1 Generally, an expert may not give testimony to a trier of fact regarding
a pure question of law. See TEX. R. EVID. 702-704; Carr v. Radkey, 

 (Tex. 1965); Greenberg Traurig of N.Y., P.C. v. Moody, 

 (Tex. App.—Houston [14th Dist.] 2004, no pet.). When the substance of the
law of a foreign jurisdiction is in dispute, however, that law is proven to the
court under Texas Rule of Evidence 203 through a process that “resembles the
presentment of evidence but which ultimately is decided as a question of law.”
Long Distance Int’l, Inc. v. Telefonos de Mexico, S.A. de C.V., 

 (Tex. 2001). The parties disagree about whether the Islamic law to which
the Agreement refers is the law of a foreign jurisdiction or should be treated as
analogous to such law in applying our statutes and rules. But neither that
question nor the propriety of the trial court’s refusal to allow Ayad to testify
have been fully briefed in this Court. We therefore express no view on those
matters, which the parties remain free to litigate further in the trial court.




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Rule of Civil Procedure 308b “to determine whether the award violates
constitutional rights or public policy.” The court also noted that “upon
proper application of a party” under Section 153.0071 of the Family
Code, it would hold a hearing to determine whether the arbitration
award was not in the best interest of the parties’ child. The trial court
stayed all proceedings pending arbitration in June 2021, and it declined
to hold a hearing on the parties’ requests for temporary orders. The
court of appeals denied Ayad’s request for mandamus relief in a
nonsubstantive opinion. ___ S.W.3d ___, 

, at *1 (Tex.
App.—Dallas Jan. 5, 2022).
      Ayad now seeks mandamus relief from this Court. Because we
agree with Ayad that the trial court was statutorily required to hear and
determine her challenges to the Agreement’s validity and enforceability
before referring the parties’ disputes to arbitration, we conditionally
grant her petition for writ of mandamus. We do not reach the merits of
her challenges to the validity and enforceability of the Agreement, which
the trial court should try in the first instance.
      The Family Code provides that a trial court “may” refer suits for
dissolution of marriage and suits affecting the parent-child relationship
to either binding or nonbinding arbitration based on the parties’ written
agreement.    TEX. FAM. CODE §§ 6.601(a), 153.0071(a).      This general
principle is subject to certain limits both before and after arbitration,
however.
      Before arbitration, if a party to a suit for dissolution of marriage
or suit affecting the parent-child relationship “asserts that the contract
containing the agreement to arbitrate is not valid or enforceable,” then




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“notwithstanding any provision of the contract to the contrary, the court
shall try the issue promptly and may order arbitration only if the court
determines that the contract containing the agreement to arbitrate is
valid and enforceable against the party seeking to avoid arbitration.”
Id. §§ 6.6015(a), 153.00715(a) (emphases added). 2           Notably, these
unique statutes alter the ordinary rule regarding who decides certain
disputes that arise in motions to compel arbitration. Under the ordinary
rule, challenges to the validity or enforceability of the contract
containing the agreement to arbitrate are decided by the arbitrator. Cf.
In re Morgan Stanley & Co., 

 (Tex. 2009).
       After arbitration, “the court shall render an order reflecting the
arbitrator’s award” as to issues regarding the dissolution of the
marriage, TEX. FAM. CODE § 6.601(b), and it shall do likewise for issues
regarding the parent-child relationship “unless the court determines at
a non-jury hearing that the award is not in the best interest of the child,”
id. § 153.0071(b).   In addition, if the arbitration award is based on
foreign law, a party may oppose enforcement of the award on the ground
that it “violates constitutional rights or public policy.” TEX. R. CIV. P.
308b(d)(2); see also TEX. GOV’T CODE § 22.0041. Regardless of whether
enforcement is opposed, the court must hold a hearing and issue findings

       2  On rehearing, Latif argues that Sections 6.6015 and 153.00715,
enacted in 2011, are inapplicable to the parties’ 2008 agreement. See Act of
May 27, 2011, 82d Leg., R.S., ch. 1088, § 3, 

, 2825.
Ayad responds, in part, that we would have reached the same result even
without those two statutory provisions. We need not resolve these questions
arising for the first time on rehearing because throughout this litigation the
parties’ positions regarding the two provisions have assumed their application.
Accordingly, the trial court should apply those provisions in further
proceedings in this case.




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of fact and conclusions of law regarding whether to enforce the award.
TEX. R. CIV. P. 308b(f).
       Here, the trial court recognized that Section 153.0071 and Rule
308b would be relevant after arbitration. But the court incorrectly
concluded in its order that it “must refer parties to arbitration when it
is contracted by the parties,” and that it had “no discretion but to enforce
the [A]greement.” As explained above, Sections 6.6015 and 153.00715
provide otherwise: the court “shall try the issue” and “may order
arbitration only if [it] determines that the contract . . . is valid and
enforceable.”    TEX. FAM. CODE §§ 6.6015(a), 153.00715(a).           The trial
court’s legal error was a clear abuse of discretion. See Walker v. Packer,

 (Tex. 1992).
       In the trial court, Ayad raised multiple challenges to the validity
and enforceability of the Agreement. During the hearing on Latif’s
motion to enforce, the trial court did receive testimony from Latif’s
expert witness regarding Ayad’s contention that the Agreement’s
reference to Islamic law was ambiguous and thus unenforceable. And
during the hearing on Ayad’s motion to reconsider, the trial court gave
each party twenty minutes to present arguments and evidence on the
sole issue of voluntariness.
       The trial court did not determine either issue in its order
compelling arbitration, however, because it incorrectly concluded it was
without discretion to do so. 3 Nor is there any indication in the record



       3Because the order was expressly based on a legal error, we do not
imply that the trial court made findings in support of its order on these issues.




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that the court tried Ayad’s additional challenges that the Agreement
itself was void as against public policy and unconscionable. Instead, the
court indicated that it would determine following arbitration whether
the terms of any award made under the Agreement violate public policy.
       This procedure runs afoul of Sections 6.6015 and 153.00715,
which are expressly designed to avoid subjecting parties in divorce cases
to arbitration when the contract containing the agreement to arbitrate
is invalid or unenforceable. To comply with these statutes, a trial court
must: (1) try the issue by giving each party an opportunity to be heard
on all validity or enforceability challenges to the contract containing the
arbitration clause, as well as an opportunity to offer evidence concerning
any factual disputes or questions of foreign law material to the
challenges; and (2) decide the challenges before ordering arbitration.
       In sum, when a party to a divorce or child-custody proceeding has
challenged the validity or enforceability of an agreement containing an
arbitration provision, the trial court cannot order binding arbitration
without first “try[ing]” the issues of validity or enforceability and
“determin[ing]” that the agreement is valid and enforceable. TEX. FAM.
CODE §§ 6.6015(a), 153.00715(a). Because the trial court did not comply
with Sections 6.6015 and 153.00715, it clearly abused its discretion.
       Latif contends that Ayad is not entitled to mandamus relief,
however, because she has another adequate remedy. See In re Murrin
Bros. 1885, 

, 56 (Tex. 2019). In particular, he emphasizes




See Burford v. Pounders, 

 (Tex. 1947); Jones v. Smith, 

 (Tex. App.—Houston [14th Dist.] 2009, no pet.).




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that Rule 308b provides for post-arbitration challenges to arbitration
awards based on foreign law. See TEX. R. CIV. P. 308b(d)(2).
      It is not clear, however, that Rule 308b provides a post-arbitration
mechanism for considering all of Ayad’s validity and enforceability
challenges to the Agreement. For example, even if Ayad could use Rule
308b to challenge the enforceability of a future arbitration award on
public policy grounds, the challenge Ayad brings here is different: she
contends that the Agreement containing the arbitration clause itself
violates public policy.
      Moreover, the Legislature expressly provided in Sections 6.6015
and 153.00715 that validity and enforceability challenges to agreements
containing an arbitration clause must be determined prior to
arbitration. In the divorce context, a post-arbitration proceeding is not
an adequate substitute for this statutory pre-arbitration remedy, as
illustrated by the trial court’s refusal to hold a temporary orders hearing
pending the completion of arbitration.
      We have long held that an adequate remedy for a trial court’s
error in compelling the parties to arbitrate is available through an
eventual appeal from a final judgment enforcing an arbitration award.
See, e.g., In re Gulf Expl., LLC, 

 (Tex. 2009); In
re Palacios, 

 (Tex. 2006). But the error here is not
that the trial court reached the wrong conclusion regarding whether to
compel arbitration. Rather, the error is that the trial court did not follow
a statutory command—unique to the divorce context—that it try issues
of validity and enforceability prior to ordering arbitration, and thus it
reached no conclusion on those issues at all. Cf. In re Poly-Am., L.P.,




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 (Tex. 2008) (granting mandamus relief from
order compelling arbitration under agreement that eliminated statutory
remedies).
      More importantly, we have recognized that a significant factor in
evaluating the adequacy of an appellate remedy in divorce cases is that
“[j]ustice demands a speedy resolution of child custody and child support
issues.” Proffer v. Yates, 

 (Tex. 1987). Thus, in
Proffer, we granted mandamus relief to enforce a right to mandatory
venue in a suit affecting the parent-child relationship even though an
eventual appellate remedy was available. See 

 Similarly, the trial
court’s error here in ordering arbitration without first determining the
validity and enforceability of the parties’ Agreement containing the
arbitration clause has delayed resolution of child custody and support
issues that the parties first sought to address through temporary orders
over one year ago. In light of the trial court’s decision to reserve setting
any hearing on temporary orders and to stay all proceedings pending
arbitration, we conclude that an eventual appeal from a final judgment
would be an inadequate remedy.
       Accordingly, without hearing oral argument, see TEX. R. APP. P.
52.8(c), we conditionally grant Ayad’s petition for writ of mandamus.
We direct the trial court to withdraw its order referring the parties’
disputes to arbitration and to conduct further proceedings required by
Sections 6.6015 and 153.00715 of the Family Code in accordance with
this opinion. Our writ will issue only if the trial court does not comply.



OPINION DELIVERED: September 23, 2022




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