ATTACKING AND ENFORCING MEDIATED SETTLEMENT AGREEMENTS

Transcription

1 ATTACKING AND ENFORCING MEDIATED SETTLEMENT AGREEMENTS HEATHER L. KING Koons Fuller, PC 181 Grand Avenue, Suite 225 Southlake, Texas (817) JESSICA HALL JANICEK Koons Fuller, PC 181 Grand Avenue, Suite 225 Southlake, Texas (817) State Bar of Texas 35 th ANNUAL MARRIAGE DISSOLUTION INSTITUTE April 26-27, 2012 Dallas CHAPTER 17

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3 Heather L. King KoonsFuller 181 Grand Avenue, Suite 225 Southlake, Texas (817) / fax [email protected] Education/License B.A., Texas Christian University, 1987 J.D., Texas Tech University School of Law, 1995 Board Certified Family Law, Texas Board of Legal Specialization, December of 2000 Re-Certified Family Law, Texas Board of Legal Specialization, December of 2005 Re-Certified Family Law, Texas Board of Legal Specialization, December of 2010 Professional Activities Director, Officer & President, Tarrant County Bar Association Director, Officer & President, Tarrant County Family Law Bar Association Director/Officer & President, Texas Academy of Family Law Specialists, 2003 to Present Member and Officer, Family Law Council, State Bar of Texas, 2004 to Present Fellow, American Academy of Matrimonial Lawyers, 2005 to Present Member and Fellow, College of the State Bar of Texas, 1999 to Present Member, Tarrant County Young Lawyers Association, 1996 to 2002 Associate Member, Barrister & Officer, Eldon B. Mahon Inn of Court, , , , 2010 to Senior Counsel, American College of Barristers, 2001 to Present Member and/or Chairperson, Fee Arbitration Committee, Tarrant County Bar Association, 2001 to 2005 Member, State Bar of Texas, Family Law Section Checklist Committee, , Amicus Committee, , Parenting Plan Committee , Membership Committee , Legislative Committee , Awards and Scholarships Committee , Budget & Finance Committee , Publications Committee , Section History Committee , Mentoring Committee Fellow, Texas Bar Foundation 2002 to Present Fellow, Texas Family Law Bar Foundation 2004 to Present Fellow, Tarrant County Bar Foundation 2004 to Present Awards/Recognition Friend of the Inn for outstanding contributions to Eldon B. Mahon Inn of Court, 2002 President s Certification of Outstanding Achievement from Tarrant Co. Bar Assoc., 2003 Texas Super Lawyer, Texas Monthly Magazine 2003 to Present Who s Who in Executives and Professionals 2003 Top Attorneys featured in Fort Worth, Texas Magazine 2003 to Present Top Fifty Female Attorneys in Texas, Texas Monthly Magazine 2004 to 2011 Top Fifty Female Super Lawyers, Texas Monthly Magazine 2006 to Present Top 100 Lawyers in Dallas Fort Worth, Texas Monthly Magazine 2006 to Present The Best Lawyers In America 2007to present Top Women Lawyers, D Magazine, 2010 Law Related Seminar Publications & Participation Author, An Attorney Ad Litem Is Really A Lawyer, Attorney Ad Litem Training Seminar Author, Trial Preparation & Planning, Nuts & Bolts Protective Order Seminar Author, Challenging Characterization Issues: Characterizing Trusts, Employee Stock Options, Workman s Compensation Claims, And Intellectual Property, Advanced Family Law Course Author, Some Changes In The Texas Family Code, Blackstone Seminar Author/Speaker, Uncontested Divorce Outline, Pro Bono Family Law Seminar 1998.

4 Author, Factors Affecting Property Division & Alimony, Family Law Basics From the Bench, Tarrant County Bar Association Brown Bag Seminar Speaker, Practice Tips On Procedures At The Courthouse and Communicating With Court Personnel, Advanced Family Law Trial Skills Seminar Author, The Potential Effect of The New Texas Family Law Legislation Regarding Proportional Ownership, Equitable Interests, Division Under Special Circumstances, & A Look At New Legislative Provisions For Transmutation Agreements, Advanced Family Law Course Speaker, Recent Cases in Child Support, Possession & Access, 1999 Annual TADRO Conference Speaker, Filing Pleadings, Obtaining Settings, and Interacting With Court Coordinators and Clerks, Family Law Trial Skills Seminar, West Texas Legal Services PAI Program, Author, Discovery In Property Cases Under The New Rules, Advanced Family Law Course Author/Speaker, Drafting Family Law Pleadings: It s Almost All In The Manual, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills Author, Deciding When You Need A Jury & Conducting Voir Dire, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills Author/Speaker, Proper Drafting and Filing of Pleadings, 26 th Annual Advanced Family Law Course, Boot Camp Author, Discovery Gotta Haves: Essential Ideas for Discovery in Property and SAPCR s, Marriage Dissolution Institute Author, Discovery, Advanced Family Law Trial Skills, West Texas Legal Services PAI Program Author/Trainer, Proper Drafting and Filing of Pleadings, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program Trainer, Why Lawyers Lie, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program Presenter, Winning Trial Techniques in Property Cases, Texas Academy of Family Law Specialists Annual Trial Institute Author/Trainer, Proper Drafting and Filing of Pleadings, 2002 Family Law Seminar, West Texas Legal Services PAI Program. Trainer, Why Lawyers Lie, 2002 Family Law Seminar, West Texas Legal Services PAI Program. Author/Speaker, Discovery & Mediation, 28 th Annual Advanced Family Law Course, Family Law Boot Camp Panel Member, Use and Abuse of Legal Assistants, 28 th Annual Advanced Family Law Course Speaker, Use and Abuse of Legal Assistants, Panhandle Family Law Bar Association November Luncheon, Author/Speaker, Drafting Trial Documents With An Eye Toward Winning, Advanced Family Law Drafting Course Author/Speaker, Discovery: Tools, Techniques & Timebombs, Texas Academy of Family Law Specialists Annual Trial Institute Author/Player, Associate Judge Do s & Don t s, Tarrant County Family Law Bar Association Author/Speaker, Evaluating A Custody Case, 26 th Annual Marriage Dissolution Institute Co-Director, Family Law Boot Camp, 29 th Annual Advanced Family Law Seminar Author, Discovery in Hard Places, 29 th Annual Advanced Family Law Seminar Speaker, Practicing Law For Fun & Profit, 29 th Annual Advanced Family Law Seminar Author/Speaker, Internet Searches for Financial & Personal Information Useful in Family Law Litigation, Texas Academy of Family Law Specialists Annual Trial Institute Moderator, Effective Courtroom Advocacy, Tarrant County Bench Bar Seminar 2004 Author/Speaker, Internet Investigation of Personal Information & Assets, Marriage Dissolution Institute Director, Family Law Boot Camp, State Bar of Texas Annual Meeting Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, State Bar of Texas Annual Meeting Author/Speaker, Investigation of Personal Information & Assets, Tarrant County Family Law Bar Association, Summer Bar Seminar 2004.

5 Author/Speaker, Investigation of Personal Information & Assets, State Bar College Summer School Author, The Life of a Grievance & The New Disciplinary Rules, What You Don t Know Can Hurt You, 30 th Annual Advanced Family Law Seminar Director, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar Author/Speaker, Investigation of Personal Information & Assets, Legal Assistant s University 2004 Author, Advanced CYA For The Family Law Attorney, Family Law Ultimate Trial Notebook 2004 Author/Speaker, Divorce Planning, Representing Small Business 2004 Assistant Director, Texas Academy of Family Law Specialists Annual Trial Institute 2005 Instructor, Marital Property, The People s Law School, Fort Worth 2005 Author/Speaker, Marital Property 101, State Bar of Texas Spring Training, Fort Worth 2005 Author/Speaker, Effective Use of Psychologists and Psychistrists, 28 th Annual Marriage Dissolution Institute Panelist/Moderator, Evidence and Discovery Workshop, 30 th Annual Advanced Family Law Seminar, Dallas 2005 Author/Speaker, Internet Investigation of Personal Information and Assets, Tarrant County Bar Association September 2005 Luncheon. Director, Texas Academy of Family Law Specialists Trial Institute 2006, Reno, Nevada Author/Speaker, Avoiding Divorce Disasters, Representing Small Businesses, Dallas March 23-24, 2006 Panelist/Author, 29 th Annual Marriage Dissolution Institute Bootcamp Practical Aspects of Enhancing Your Practice, How To Lose A Paralegal In 10 Days, or Keep One for 10 Years, April 19, 2006, Austin. Moderator, 29 th Annual Marriage Dissolution Institute, Electronic Evidence, April 20-21, 2006, Austin. Speaker, Being A Family Law Attorney, Tarrant County Bench-Bar, April 27, 2006, The Woodlands. Speaker, Ethics: Evidence, Discovery and Witnesses, Tarrant County Bar Association Brown Bag Luncheon, June 23, 2006, Fort Worth. Author/Speaker, 21st Century Issues Dealing with Nontraditional Relationships, 31 st Annual Advanced Family Law Seminar, August 14-17, 2006, San Antonio. Speaker, UTCLE Parenting Plan Conference, Effective Strategies For Reaching Parenting Plan Agreements, October 13, Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Navigating the Family Code, October 20, Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Helpful Appellate References, October 20, Moderator, Texas Academy of Family Law Specialists Trial Institute 2007, Sante Fe, New Mexico, Electronic Evidence Panel. Moderator, 30 th Annual Marriage Dissolution Institute, Electronic Evidence, May 10-11, 2007, El Paso. Co-Speaker, Interesting Appellate Cases, Tarrant County Family Law Bar Luncheon, May 22, Speaker/Author, UTCLE Family Law on the Front Lines, Appellate Tips for Family Law Attorneys, Galveston, Texas June 28-29, Speaker/Author, Evidence, Keeping in In and Keeping it Out, 32 nd Annual Advanced Family Law Seminar, San Antonio. Speaker, Appellate Considerations, Texas Academy of Family Law Specialists Trial Institute 2008, Sante Fe, New Mexico. Speaker, UTCLE 8 th Annual Family Law on the Front Lines, Justice Behind Closed Doors: Protecting the Record, Your Client and Yourself In Chambers, Galveston, Texas June 19-20, Speaker/Author, SBOT Advanced Family Law Drafting, Discovery, Austin, Texas, December 3-4, Speaker/Author, UTCLE Parent-Child Relationships: Critical Thinking for Critical Issues, Discovery and Evidence, A Primer for Family Law Attorneys, Austin, Texas, January 29-30, Speaker/Author, SBOT Representing Small Business, Protecting Business Before Divorce: What Every Business Lawyer Must Know About Family Law, Dallas, Texas, March 26-27, 2009.

6 Speaker, UTCLE, 9 th Annual Family Law on the Front Lines, Electronic Evidence and Discovery, San Antonio, June 18-19, Director, 35 th Annual Advanced Family Law Seminar, Dallas, Texas, August 3-7, Speaker/Author, SBOT The Ultimate Trial Notebook: Family Law, Effective Use of Prior Testimony, San Antonio, December 3-4, Speaker/Author, UTCLE 2010 Parent-Child Relationships: Critical Thinking for Critical Issues, Discovery and Evidentiary Issues in Substance Abuse Scenarios, Austin, Texas January 28-29, Speaker/Author, SBOT Essentials of Business Law, Business Succession Planning: Protecting Business In Divorce, Dallas, Texas, April 29-30, Presiding Officer, UTCLE 10 th Annual Family Law on the Front Lines, San Antonio, Texas, July 1-2, Speaker/Author, 36 th Annual Advanced Family Law Seminar, Evidence: In or Out? San Antonio, August 9-12, Speaker/Panelist, New Frontiers in Marital Property Law, Fiduciary Litigation and Other Financial Causes of Action, Scottsdale, AZ, October Speaker/Panelist, American Bar Association Family Law Section Fall Meeting, Tech Torts and Related Difficult Evidentiary Issues, October 23, 2010, Fort Worth. Speaker/Panelist, NBI Handling Divorce Cases from Start to Finish, Exploring Custody, Visitation and Support Issues, and Ethical Perils In Divorce Practice, November 7, 2010, Fort Worth. Speaker, Tarrant County Court Coordinator s CLE, Electronic Evidence and Social Networking, February 23, 2011, Fort Worth. Speaker, Tarrant County Bench Bar, Family Law In A Nutshell, April 2, 2011, Possum Kingdom. Author/Speaker, What Every Business Attorney Needs to Know About Family Law, Essentials of Business Law, April 14-15, 2011, Houston. Author/Speaker, Modern Evidence, 34 th Annual Marriage Dissolution Institute, Austin, April 28-29, Presiding Officer, Family Law on the Frontlines, june 16-17, 2011, Austin, Texas. Author/Speaker, Electronic Evidence Issues, 2011 Family Law Seminar, Legal Aid of Northwest Texas Equal Justice Volunteer Program, July 21-22, 2011, Fort Worth. Author/Speaker, 37 th Annual Advanced Family Law Seminar, Evidence, San Antonio August 1-4, Author/Speaker, Texas Advanced Paralegal Institute, Social Networking, Fort Worth, October 6-7, Speaker, Tarrant County Court Coordinator s Luncheon, Evidence and Social Networking, Fort Worth, October 11, Moderator/Panelist, New Frontiers in Marital Property Law, Remedies in Property Cases, San Diego, October 13-14, Author/Speaker, Drafting Family Law Discovery: Basic and Electronic, Advanced Family Law Drafting 2011, December 8-9, 2011, Dallas, Texas. Panelist, Introductory Notes, Lawyer Practice Notes and Panelist, More than Sex, Drugs and Rock & Roll: Evaluating Your Custody Case from a Psychiatric, Psychological and Legal Perspective, UTCLE, AAML, 2012 Innovations Breaking Boundaries in Custody Litigation, January 19-20, 2012, Houston, Texas. Law Related Periodical/Magazine Publications Author, Beating Out The Big Firms, Texas Lawyer, Vol. 18, No. 21, July 29, Interviewed/Quoted Divorce 101, Fort Worth Magazine, July 2003 edition. Author, Basic Internet Searches for Persons and Assets, The College Bulletin, News for Members of the College of the State Bar of Texas, Summer 2006 Law Related Books Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2000). Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus on Children, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2002). Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus on Property, Heather King, Bruce Beverly, Syd Beckman & Randal Wilhite (Imprimatur Press 2004). Co-Annotator for Lexis Texas Annotated Family Code 2007-Present. Co-Author, Protecting Your Assets From A Texas Divorce 2 nd Ed. (PSG Books 2009).

7 Jessica Hall Janicek KOONSFULLER, PC 181 Grand Avenue, Suite 225 Southlake, Texas voice facsimile EDUCATION Texas Wesleyan University School of Law, J.D., Cum Laude, 2009 Graduated ninth out of 145 students; top 6 %; Law Review Executive Board Articles Editor, ; Dean s List, ; Texas Wesleyan Judicial Scholarship Recipient; Wesleyan Innocence Project. Baylor University, Bachelor of Business Administration, Marketing, 2006 Dean s List WORK EXPERIENCE KoonsFuller Associate Attorney, January 2010-Present. Practice exclusively in Family Law. Combined Law Enforcement Associations of Texas (CLEAT), Fort Worth, TX, Spring Law Clerk, January 2009-May Performed legal research, drafted motions and pleadings, conducted client interviews, and assisted in arbitration for an organization defending law enforcement officers Denton County District Attorney s Office, Denton, TX, Felony Trial Intern, August 2008-January Investigatory work for all cases including contacting witnesses, researching legal issues, assisting in discovery, making plea agreements, and attending trials and hearings. Fort Worth Medical Malpractice Law Firm, Summer Law Clerk, June 2008-August Gathered legal research, drafted pleadings and motions and assisted in hearings and trials in medical malpractice, personal injury, contract law, and general civil litigation Texas Wesleyan University School of Law, Fort Worth, TX, Summer Research Assistant, May August Performed legal research in property law, oil and gas, zone usage, and land use. General Law Practice, Fort Worth, TX, Legal Assistant/Office Manager, June 2007-January Interviewed clients, performed legal research, drafted wills and contracts, assisted in family law cases, and helped with discovery. High school colorguard director, part-time at various high schools, Lead large groups of students in state and national competitions; Choreograph routines; develop/market programs; manage all business practices relating to the program. Marketing/PR for Film, TV, Radio, Music Clients, August 2005-June Booked artists and actors, reviewed film scripts, and assisted in film production and distribution; Oversaw and revamped merchandising deals, agreements, and contracts; All public relations and marketing for new media projects.

8 PROFESSIONAL ASSOCIATIONS Ed Mahon Inns of Court Tarrant County Bar Association Tarrant County Family Law Bar Association Dallas County Bar Association Appellate Section State Bar of Texas Tarrant County Young Lawyer s Association Junior League of Fort Worth ARTICLES Exploring Custody, Visitation and Support Issues, Handling Divorce Cases from Start to Finish, National Business Institute, Co-Author, More than Sex, Drugs and Rock & Roll: Evaluating Your Custody Case from a Psychiatric, Psychological and Legal Perspective, UTCLE/AAML Innovations, 2012

9 TABLE OF CONTENTS I. INTRODUCTION... 1 A. Purpose... 1 B. Acknowledgments... 1 II. TEXAS FAMILY CODE SECTIONS AND III. ENFORCING THE MEDIATED SETTLEMENT AGREEMENT... 1 A. Strict Adherence to the TEXAS FAMILY CODE... 1 B. Consent Cannot Be Withdrawn... 2 C. Best Interest of the Child... 3 D. Just and Right Division... 3 E. Modifying and Changing the Terms... 3 IV. ATTACKING THE MEDIATED SETTLEMENT AGREEMENT... 4 A. Fraud, Failure to Disclose... 4 B. Mutual Mistake... 5 C. Failure to Strictly Comply Prominent Display Type of Mediation Timing of the MSA... 6 D. Illegal and Void Provisions... 6 E. Best Interest of the Child Best Interest of the Child under In re Lee... 7 F. Milner Proposition Meeting of the Minds and Ambiguity... 7 G. Contingencies... 8 V. OTHER CONSIDERATIONS... 9 A. Limitations on Agreements... 9 B. Death of a Party C. Attorney s Fees Awards VI. CONCLUSION i

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11 ATTACKING AND ENFORCING MEDIATED SETTLEMENT AGREEMENTS I. INTRODUCTION A. Purpose The purpose of this article is to address common issues concerning the enforceability of mediated settlement agreements (hereinafter MSA ) in relation to sections and of the TEXAS FAMILY CODE. Additionally, this article will explore creative ways to attack these agreements, using leading case law and providing explanations and updates as to new, relevant cases concerning MSA s in the family law context. B. Acknowledgments The authors want to acknowledge the work of Charla Bradshaw and Rothwell B. Pool and their article entitled Agreements Between Counsel and Parties: Rule 11, MSA s, and Other Settlement Agreements and thank them for allowing us to utilize these articles. II. TEXAS FAMILY CODE SECTIONS AND Texas has a public policy of encouraging a quick and peaceful resolution of disputes, especially those matters involving the parent-child relationship. 1 This policy extends to the early settlement of litigation through the use of voluntary settlement procedures. 2 The TEXAS FAMILY CODE has furthered this policy in its adoption of sections and , which provide that a written MSA in a suit affecting the parent-child relationship, and written MSA in a divorce suit are enforceable notwithstanding Rule 11 or other applicable law. 3 Under both sections and , a MSA is binding on the parties in a suit if it (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. 4 Sections 6.602(b) and (d) are 1 Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App. Fort Worth 2008, pet. denied). 2 Id. 3 TEX. FAM. CODE 6.602(b); TEX. FAM. CODE (d) and (e). 4 Id (b); (d) [emphasis added]. 1 virtually identical and are construed the same way. 5 Usually, settlement agreements are not binding when a party withdraws their consent prior to the entry of a judgment. 6 However, if a MSA meets all statutory requirements, a party is entitled to judgment on the MSA notwithstanding Rule 11, the TEXAS RULES OF CIVIL PROCEDURE, or another rule of law. 7 Thus, a separate suit to enforce the MSA as a contract is unnecessary, and sections and provide a procedural shortcut for the enforcement of the MSA, and the unilateral withdrawal of consent does not negate enforceability. 8 Additionally, section (e-1) provides that a court may decline to enter a judgment on an MSA if the court finds that: (1) a party to the agreement was a victim of family violence, and that circumstances impaired the party s ability to make decisions; and (2) the agreement is not in the child s best interest. 9 III. ENFORCING THE MEDIATED SETTLEMENT AGREEMENT A. Strict Adherence to the TEXAS FAMILY CODE The statutory language contained within both and is very clear if the terms of either section are complied with, a party is entitled to judgment on the MSA. However, in order to be binding on the parties, the MSA must meet all requirements contained within the TEXAS FAMILY CODE. 10 Additionally, [a] fundamental principle of statutory construction is that a more specific statute controls over a more general one. 11 Thus, sections and will control over any other general provision in regard to settlement agreements See, e.g., In re Joyner, 196 S.W.3d 83, (Tex. App. Texarkana 2006, no pet.); Beyers v. Roberts, 199 S.W.3d 354, (Tex. App. Houston [1st Dist.] 2006, no pet.); In re Calderon, 96 S.W.3d 711 (Tex. App. Tyler 2003, no pet.); Boyd v. Boyd, 67 S.W.3d 398 (Tex. App. Fort Worth 2002, no pet.). 6 Brooks, 257 S.W.3d at Id; TEX. FAM. CODE 6.602(c); (e). 8 See Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App. Fort Worth 2002, no pet.); Brooks, 257 S.W.3d at TEX. FAM. CODE (e-1). 10 See Vickery v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex. 1976) (MSA must be in strict and literal compliance to bind the parties). 11 See Horizons/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000)). 12 See id. (holding that section (d) controls over section , which deals with agreed parental plan that create joint managing conservatorships); Garcia-Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App. Dallas 2004, no pet.) (holding that section controls over ,

12 A MSA must meet all of the requirements of the TEXAS FAMILY CODE in order to bind the parties. 13 In Vickery v. American Youth Camps, Inc., the Texas Supreme Court held that a final judgment founded upon a MSA must be in strict and literal compliance with the agreement. 14 As discussed below, a MSA may be attacked on its failure to comply with the statutory requirements. B. Consent Cannot Be Withdrawn Unlike other types of settlement agreements (in particular Rule 11 agreements), what makes MSA s that comply with and unique in the family law context is the inability to unilaterally withdraw consent once an agreement has been reached. For example, in Olvera v. Olvera, Wife and Husband entered into a MSA that provided for the parties property division. 15 Wife later claimed that Husband fraudulently induced her signature, and filed a motion to set aside the MSA. 16 Husband filed a motion to enter the decree. 17 Thereafter, the trial court denied Wife s motion, and, without doing a prove-up, entered the final order. On appeal, Wife argued that the trial court abused its discretion in entering the order without a prove-up. 18 The Court of Appeals disagreed with Wife, and found that because the MSA strictly adhered to section 6.602(b) of the TEXAS FAMILY CODE, Wife s unilateral withdrawal of consent did not affect the binding and enforceable nature of the MSA. 19 Thus, the trial court did not abuse its discretion in entering the order without Wife s knowledge, and without a formal prove-up. 20 In another case, In re Circone, it was argued that the appellant should be able to withdraw consent after the requirements of the TEXAS FAMILY CODE had been because section deals specifically with mediated settlement agreements, while section deals generally with agreements for joint managing conservatorships). 13 See TEX. FAM. CODE (d), (e); Beyers, 199 S.W.3d at Vickery, 532 S.W.2d at See Olvera v. Olvera, No CV, 2008 WL , at *1 (Tex. App. Houston [1 st Dist.] 2008, no pet) (memo. op.). 16 Id. 17 Id. 18 Id. 19 Id. 20 See also Alvarez v. Reiser, 958 S.W.2d 232, (Tex. App. Eastland 1997, pet. denied). 2 met. 21 Appellant contended that the trial court erred in its application of the alternative dispute resolution procedures of the FAMILY CODE. 22 To support that position, appellant argued that the court erred when it refused to permit him to introduce evidence about the actions or inaction of the attorney ad litem who represented the children. 23 But the court pointed out that the CODE provides for this within the context of a binding arbitration proceeding under section (b), and the Circone case dealt with mediation under section (c)-(e). 24 As the requirements under that provision were met, the court held that the trial court had no authority to go behind the signed agreement of the parties, which explicitly stated in underlined capital letters that agreement was not subject to revocation. 25 In making this determination, the court noted that the language of the statute at that time differed from that which existed at the time of another case that was frequently cited and had analyzed the statute. 26 The Davis court held in that case that, if the parties reached a settlement through alternative resolution procedures and executed a written agreement pursuant to Rule 11 disposing of the dispute, the agreement was enforceable in the same manner as any other written contract. 27 The Texarkana Court noted that it had since been recognized that the Davis case did not address mediation agreements that meet the requirements of either section or of the TEXAS FAMILY CODE and so provided no guidance for those provisions. 28 The Court pointed out that two other courts had reviewed the current statute and applied it as written. The Corpus Christi court held that a trial court is required to enter judgment on a MSA even if the mediation is not under the direction of the court. 29 Likewise, the Eastland court analyzed a similar case and held that, in a MSA context under the statute, even if one party did withdraw consent, the 21 In re Circone, 122 S.W.3d 403, 404 (Tex. App. Texarkana 2003, no pet.). 22 Id. at Id. at Id. 25 Id. 26 Davis v. Wickham, 917 S.W.2d 414, 416 (Tex. App. Houston [14th Dist.] 1996, no writ). 27 Id. at Id. (citing Cayan v. Cayan, 38 S.W.3d 161 (Tex. App. Houston [14th Dist.] 2000, no pet.)). 29 In re J.A.W.-N., 94 S.W.3d 119, 121 (Tex. App. Corpus Christi 2002, no pet.).

13 trial court was required to enter judgment on the agreement. 30 C. Best Interest of the Child A best interest hearing is not required before entering an order pursuant to a MSA. 31 In the case of Beyers, the appellant contended that the TEXAS FAMILY CODE and the common law created a duty on the trial court to conduct an evidentiary hearing to determine whether the parents custody agreements were in a child s best interest in every case. 32 The court noted that nothing in the statute requires that a trial court conduct a best interest hearing before entering an order pursuant to a MSA. 33 Subsection (e) of section states that a party is entitled to a judgment on a MSA so long as it satisifies all requirements of (d). The court pointed out that (d) does not provide a trial court with the discretion to modify a proposed order in the event that the court determines it is not in the child s best interest, but nowhere does it require the court to do so. 34 The court also held that nothing in the common law creates such a duty. 35 Further, several courts have held that a trial court does not err in failing to conduct a best interest hearing where the parties waived their right to challenge best interest in a binding arbitration agreement. 36 The court in In the Interest of C.A.K. also held that allowing parties to contract away their right to challenge best interest did not violate public policy. 37 The Beyers Court stated that this provision expressly allows a trial court to conduct a best interest hearing only on its own discretion. 38 The court noted that the agreement is subject to Court s approval, but not subject to the court determining the agreement is in the children s best interest. 39 The court concluded that [i]f parties were free to repudiate their agreements, disputes would not be finally resolved and traditional litigation would recur but if a voluntary agreement that disposes of the dispute is reached, the parties 30 Alvarez, 958 S.W.2d at Beyers, 199 S.W.3d at Id. 33 Id. 34 Id. 35 Id. 36 In re T.B.H.-H., 188 S.W.3d 312, 314 (Tex. App. Waco 2006, no pet.); In the Interest of C.A.K., 155 S.W.3d 554, 560 (Tex. App. San Antonio 2004, pet. denied). 37 In the Interest of C.A.K., 155 S.W.3d at Beyers, 199 S.W.3d at Id. 3 should be required to honor the agreement. 40 However, a discussion of recent Texas case In re Lee, below, provides insight that at least one Texas court agrees that the trial court has discretion to allow parties to repudiate such an agreement based on the best interest of the child. Further, and notably, section (e-1) of provides that a court may decline to enter judgment on a MSA if it finds that a party to the agreement was a victim of family violence and that the circumstances impaired the party s ability to make decisions and the agreement is not in the child s best interest. 41 Section (e-1) and the best interest of the child are discussed in more detail below in regards to attacking the MSA. D. Just and Right Division Just as above regarding a prior best interest determination, the trial court is not required to determine if an agreed property division is just and right before it approves a MSA. 42 Just like child custody agreements, parties should be held to agreements they make concerning property. 43 E. Modifying and Changing the Terms The trial court lacks authority to include terms and provisions that significantly alter the original terms of the MSA. 44 For example, Beyers, as mentioned above, dealt, in part, with an argument that the settlement agreement specified that a child would attend Emmanual Lutheran School starting in January 2004, while the court s order provided that the child would attend his current school throughout the year, and then attend Emmanual Lutheran the next year. 45 Appellant argued that, when it was discovered that the child could not enter that school until the next year because the school was full and could not enroll more students, the MSA should have been rescinded for mutual mistake. 46 The court noted that, when mutual mistake is alleged, the party who claims relief must show what the parties true agreement was and that the instrument does not show that agreement because of the mutual mistake. 47 The 40 Id. 41 TEX. FAM. CODE (e-1)(2). 42 See In re Marriage of Joyner, 196 S.W.3d at Id. 44 In the Matter of Ames, 860 S.W.2d 590, (Tex. App. Amarillo 1993, no writ) (holding that the trial court erred where it added terms that differed significantly ). 45 Id. 46 Id. 47 Id.

14 court found no such attempt was made, but did point out that it was clearly the parties intent that the child would enroll in school at Emmanuel Lutheran as soon as possible. 48 Because the court s order correctly reflected the parties intent, the court held that the trial court did not err when it failed to rescind the entire agreement. 49 The court may abuse its discretion if it deviates from the terms of the MSA in the judgment. In Garcia- Udall v. Udall, temporary orders gave one parent the exclusive right to consent to invasive medical, dental, or surgical treatment. 50 The parties then executed a MSA under section that incorporated the temporary orders into the decree, and also provided that one parent would have the final decision in the event the parties couldn t decree on invasive medical procedures. 51 Appellant argued that the provision in the decree changed the decision on invasive treatment from appellee s exclusive right to a joint right, with appellee having authority to make the decision if the parents could not agree. 52 The Court of Appeals held that the trial court s additions in the final decree inappropriately modified the agreement in the MSA. 53 The Court reversed the trial court and modified the decree so it conformed to the MSA. 54 In the alternative, additions that do not substantially change or alter the terms of the MSA do not constitute reversible error. For example, in Haynes v. Haynes, Husband and Wife entered into a MSA and attached a spreadsheet that divided the property 60/ When the final decree was entered, it contained terms to effectuate the transfer of the property contained within the MSA. 56 Husband argued on appeal that the additional terms modified the agreement, and thus the order should not have been entered. 57 The Court of Appeals held that the terms allowing for the transfer of property did not substantially change the agreement, and thus may be added to the final agreement of the parties. 58 IV. ATTACKING THE MEDIATED SETTLEMENT AGREEMENT A. Fraud, Failure to Disclose If a party fails to exercise diligence in investigating facts or law or otherwise enters into a section agreement unadvisedly, he will not be rewarded for doing so with a reprieve from the agreement. 59 In Cayan, the husband and wife attended mediation and entered into a Rule 11 agreement and MSA. 60 Both parties and their attorneys signed the agreement and it was approved by the court. 61 The wife filed a motion for the court to sign and enter a final decree based on the agreement. 62 On the day the motion was set, the husband filed a motion to revoke the agreement alleging mistake and misrepresentation. 63 He claimed that he relied on the representations of the wife s CPA in regard to his retirement benefits. 64 The trial court entered the decree and the husband appealed, claiming that the wife could only enforce the agreement via a contract claim. 65 The court of appeals stated that, [t]he plain meaning of section could hardly be more clear, that it is an agreement that is binding, i.e., irrevocable, and a party to one is entitled to judgment based on the agreement. 66 It further reasoned that the purpose of alternative dispute measures is to keep parties out of the courtroom. 67 Where a MSA is not summarily enforceable, the trial court is then faced with litigating the merits of not only the original action, but also the enforceability of the settlement agreement, thereby generating more, not less, litigation. 68 In conclusion, the court noted that, if a party was wrongfully induced to sign a MSA that falls under section 6.602, they have the same recourse as one who discovered the same thing after the judgment was entered as a party who 48 Id. 49 Id. 50 See Garcia-Udall v. Udall, 141 S.W.3d at Id. at Id. 53 Id. at Id. 55 Haynes v. Haynes, 180 S.W.3d 927 (Tex. App. Dallas, no pet. 2006). 56 Id. 57 Id Id.; and Note, most concerns regarding inclusion of most standard terms necessary to effectuate the division, can be handled with a provision in the MSA that falls back on to the Texas Family Law Practice Manual. 59 Cayan, 38 S.W.3d at Id. at Id. 62 Id. 63 Id. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id. at 166 (citations omitted).

15 signed an agreement that did not fall under the statute. 69 A material misrepresentation by one party to an agreement can support rescission or repudiation by the other party. 70 A failure to disclose material information by one contracting party can lead to the rescission of an otherwise enforceable settlement agreement under what is essentially fraudulent inducement. 71 T0he case of Boyd v. Boyd involved undisclosed retirement accounts, stock options, and an earned, unpaid bonus. 72 After the parties entered into a MSA, the wife repudiated the agreement, contending that the husband failed to make proper disclosures. 73 The trial court denied enforcement of the agreement because it failed to include substantial assets of the parties. 74 The appellate court agreed, stating that a duty to speak exists where the parties to a mediated settlement agreement have represented to one another that they have each disclosed the marital property known to them. 75 [W]hen one voluntarily discloses information, he has a duty to disclose the whole truth rather than making a partial disclosure that conveys a false impression. 76 The court further held that inserting a catchall provision like [a]ny undisclosed property is specifically awarded in equal shares to the parties into a MSA while at the same time intentionally withholding information about substantial marital assets will not save the MSA from being held unenforceable. 77 Settlement agreements are subject to review for duress, coercion, or other dishonest actions. 78 A settlement agreement will not be invalidated, however, if the duress or coercion emanates from a disinterested third party. 79 B. Mutual Mistake A party to a MSA may rescind that agreement if there is a mutual mistake of law. 80 Additionally, a party may rescind the agreement if there is a mutual mistake of fact. 81 In order to avoid the MSA, both parties must have acted under the same misunderstanding of the same material fact. 82 A mutual mistake occurs where the parties to an agreement have a common intention, but the written contract does not reflect the intention of the parties due to a mutual mistake. 83 C. Failure to Strictly Comply 1. Prominent Display In order to be binding, the MSA must prominently display that the agreement is not subject to revocation. Sections and specifically state that in order to prominently display the irrevocability of the agreement, the statement must be either in boldfaced type, in capital letters, or it must be underlined. 84 Two Texas cases are illustrative of the strict compliance necessary for the MSA to be binding on the parties: In Spinks v. Spinks, the parties reached an agreement through court-ordered mediation. 85 The agreement was signed by both parties, their attorneys, and the mediator, and provided for custody, child support, alimony, insurance, and property division. 86 The agreement also contained a statement that the parties stipulated and agreed that the agreement was not subject to revocation. 87 Subsequently, while attending the trial to enter the judgment, one party repudiated consent to the agreement. 88 The trial court ignored the repudiation, and entered a judgment based on the agreement. 89 On appeal, the Court of Appeals held that because the stipulation by the parties that the agreement was not revocable was not underlined, 69 Id. at Boyd, 67 S.W.3d at Id. 72 Id. 73 Id. 74 Id. 75 Id. at Id. (quoting World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 670 (Tex. App. Fort Worth 1998, pet. denied). 77 Id. 78 Id. at King v. Bishop, 879 S.W.2d 222 (Tex. App. Houston [14th Dist.] 1994, no writ) See Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Burrows v. Burrows, No CV, 1998 WL , at *4 (Tex. App. Corpus Christi 1998, pet. denied). 81 See Burrows, No CV, 1998 WL at *4; See Lacy v. Ticor Title Ins. Co., 794 S.W.2d 781, 784 (Tex. App. Dallas 1990, writ denied). 82 Id. 83 See Okon v. MBank, N.A., 706 S.W.2d 673, 675 (Tex. App. Dallas 2986, writ ref d n.r.e.). 84 TEX. FAM. CODE 6.602(b); (d)-(e). 85 Spinks v. Spinks, 939 S.W.2d 229 (Tex. App. Houston [1 st Dist.] 1997, no writ). 86 Id. 87 Id. 88 Id. 89 Id.

16 which was the statutory requirement at the time, it was error to enter a judgment based on the MSA. 90 However, in another case, In re A.H., the Appellant argued that an MSA was not in strict compliance because it contained only the statement This is a binding and IRREVOCABLE agreement that was located in paragraph eight of the agreement. 91 Appellant argued this was insufficient to meet the requirements of the TEXAS FAMILY CODE. However, the Court of Appeals disagreed with Appellant, as the MSA also contained language in addition to the language complained of at the bottom of pages two and three stating THE PARTIES AGREE THAT THIS SETLEMENT AGREEMENT IS BINDING AND NOT SUBJECT TO REVOCATION. THIS AGREE- MENT MEETS THE REQUIREMENTS OF SECTION OF THE TEXAS FAMILY CODE. 92 The Court of Appeals found this statement to comply with the requirements as set forth in the CODE Type of Mediation Both sections and state that the parties can attend mediation either by court orders or on their own accord by written agreement. 94 Further, it is clear from Texas case law that whether the parties were ordered to mediation or whether they agreed does not affect the enforceability and binding effect of the MSA on the parties. 95 For example, in In re J.A. W.-N., the parties agreed to meet with a mediator to discuss their concerns regarding an agreed order in a SAPCR proceeding. 96 After the meeting, the parties signed an MSA that modified the terms of support and possession of and access to the child. The agreement strictly adhered to section s requirements for enforceability. 97 However, Appellant later repudiated the agreement. 98 Ignoring Appellant s repudiation, the trial court entered a judgment based on the MSA. 99 On appeal, Appellant argued that the MSA did not strictly comply with the TEXAS FAMILY CODE because the 90 Id. 91 In re A.H., 114 S.W.3d 750, (Tex. App. Dallas, no pet.) 92 Id. at Id. 94 TEX. FAM. CODE (c); 6.602(a). 95 See In re J.A. W.-N., 94 S.W.3d 119 (Tex. App. Corpus Christi 2002, no pet.) 96 Id. at Id. 98 Id. 99 Id. 6 court never referred the parties to mediation. 100 The Court of Appeals rejected this argument, holding that there was no authority for such a proposition and to so hold would have a chilling effect on the mediation process. 101 Thus, it makes no difference whether the parties attend mediation by agreement, or by court order. If the MSA meets all statutory requirements to be enforceable, a judgment may be rendered. 3. Timing of the MSA Just as it makes no difference as to the means to which the parties arrive at mediation, it does not matter if the dispute is in regards to a suit or a post-suit dispute. For example, In re J.A. W.-N. involved a dispute about terms and conditions surrounding a preexisting order. To address the concerns, the parties agreed to mediate the issues, and as a result of mediation, signed an MSA. 102 When Appellant refused to sign the agreed order based on the MSA, appellee filed a motion to enter the judgment, and a written order was entered. 103 On appeal, Appellant complained that section applies only to suits and did not apply to post-suit disputes over language. 104 The Court of Appeals disagreed with Appellant s argument, and held that because the MSA satisfied the elements as required by section (d), it did not matter if the MSA was created during the suit or after. 105 D. Illegal and Void Provisions It is possible that a MSA can be found unenforceable, even though it meets the requirements of sections 6.602(c) or (d). Contracts, including MSA s, can be found void if the agreement results in fraud, or if its provisions are illegal, although contracts are generally voided for illegality only when performance requires fraud or a violation of criminal law. 106 In Kasschau, a mandamus action was brought by the husband in regard to the trial court s refusal to enter judgment based upon a MSA that complied with the FAMILY CODE. 107 The appellate court denied the mandamus on multiple grounds, even though it was undisputed that all the provisions of the CODE had 100 Id. 101 Id. 102 Id. 103 Id. 104 Id. 105 Id. 106 In re Kasschau, 11 S.W.2d 305, 314 (Tex. App. Houston [14th Dist.] 1999, pet. denied). 107 Id.

17 been complied with. 108 The court noted that, because the MSA had certain contingencies, the court had discretion to review the agreement before entering the judgment. 109 The court reasoned that, although the trial court had approved the settlement agreement, it had never rendered judgment on it. 110 More importantly, the court found that particular provisions of the agreement were illegal and violated public policy. 111 On this ground, the entire agreement was found to be void. 112 In the agreement, the husband had agreed to turn over certain telephone recordings he had made of the wife, without her consent, with third parties. 113 This would constitute an illegal act. The settlement also provided that these recordings would be destroyed. 114 The trial court found, and was upheld on appeal, that these actions were illegal since it contemplated the destruction of evidence related to a possible criminal proceeding, and refused to enter judgment on the entire agreement. 115 E. Best Interest of the Child 1. Best Interest of the Child under Notwithstanding the preceding subsections of section and , a court may decline to enter a judgment on a MSA under section if the court finds that (1) a party to the agreement was a victim of family violence, and that circumstance impaired the party s ability to make decisions; and (2) the agreement is not in the child s best interest. 116 This statutory protection ensures Texas courts the ability to refuse the entry of MSA s that the Court finds meet the statutory requirements. However, at least one Texas court has held that a trial court can refuse the entry of a MSA if the court finds it not to be in the best interest of the child (discussed directly below). 2. In re Lee The case of In re Lee, currently under consideration by the Texas Supreme Court, holds for the proposition that a trial court can refuse to enter a MSA, even if the MSA strictly complies with section , solely on the basis that it is not in the best 108 Id. 109 Id. 110 Id. 111 Id. 112 Id. 113 Id. 114 Id. 115 Id. 116 TEX. FAM. CODE (e- 1) [emphasis added]. 7 interest of the child. 117 In this case, Mother and Father entered a MSA providing for custody and support of their daughter. 118 Thereafter, Mother revoked her consent. 119 Father sought to enter an order based on the MSA. 120 At the hearing on Father s motion to enter, Mother testified that Father was a registered sex offender, and that he was served with a violation of his deferred adjudication for 2009 violations. 121 The trial court refused to enter the MSA on the basis that it was not in the best interest of the child. 122 On appeal, the Court of Appeals held that the trial court did not abuse its discretion in failing to enter the MSA based on a finding that the MSA was not in the best interest of the child. 123 The Court of Appeals further held that it was not the repudiation of Mother s consent that was the basis for the trial court s refusal of judgment, but rather it was the idea that a trial court has the authority to refuse agreements that violate the public policy interest that agreements be in the best interest of the child. 124 In fact, the Court compared refusing to enter a judgment on the basis of best interest to a court s ability to refuse to enforce a MSA on the basis of illegality. 125 Thus, the Court of Appeals held that the trial court did not abuse its discretion in refusing to enforce the MSA on the basis that it was not in the best interest of the child. 126 Mandamus relief was filed in this case to the Texas Supreme Court in September 2011, and oral arguments were held on February 28, The Texas Supreme Court had not ruled at the time this article was prepared, but should rule on this issue in a matter of months. F. Milner Proposition Meeting of the Minds and Ambiguity In Milner v. Milner, a divorce case, the parties signed a MSA that transferred all of Jack Milner s beneficial interest and record title in and to a 117 See In re Lee, No CV, 2011 WL , at *2 (Tex. App. Houston [14 th Dist.] 2011) (application for mandamus filed). 118 Id. 119 Id. 120 Id. 121 Id. 122 Id. 123 Id. 124 Id. 125 Id. 126 Id.

18 partnership. 127 Vicki Milner agreed to substitute herself for Jack Milner, and the parties agreed to execute two exhibits, attached to the MSA, regarding consent to transfer ownership. 128 The entire MSA was subject to the business partnership agreement, and the approval of the other partners. 129 Although Jack Milner signed the required consents, Michael Hill, a partner, refused to sign the consent forms, thus preventing Vicki from becoming a limited partner. 130 Subsequently, Jack filed a motion to enter his proposed Final Decree of Divorce. 131 Both parties disagreed as to the meaning of the MSA. 132 Vicki argued that the MSA transferred Jack s limited partnership interest to her, while Jack argued the agreement simply required him to assign an interest to Vicki in the partnership. 133 At the hearing on the motion to enter, the trial court recognized that any misunderstandings of the MSA needed to be resolved by the mediator. 134 Regardless, the Trial Court entered Jack s proposed decree days later. 135 Vicki filed a motion for new trial, which was subsequently denied. 136 On appeal, the Fort Worth Court of Appeals overturned the trial court s holding, and set aside the MSA. 137 The Court held that the trial court abused its discretion when it entered the Final Decree of Divorce as there was no meeting of the minds at the time of the entry of the MSA. 138 The Texas Supreme Court also held that the trial court abused its discretion, but on completely separate grounds. 139 The Texas Supreme Court turned to the effect of the disagreement, and considered the ambiguous nature of the language over which both Vicki and Jack were in disagreement. 140 If a provision in a contract is susceptible to more than one reasonable 127 Milner v. Milner, No , 2012 WL , at *1 (Tex. 2012). 128 Id. 129 Id. interpretation, the agreement is ambiguous, which creates a fact issue as to intent. 141 Although the Court of Appeals seemed to state that the MSA was unambiguous, by attempting to find that the parties did not have a meeting of the minds to contract, the Court of Appeals held the MSA means one thing, while the trial court held it meant something else entirely. 142 Because the MSA did not convey assignee rights or limited partnership rights, it was ambiguous, and the Court of Appeals could not resolve a fact question by substituting its own judgment and meaning into the MSA. 143 Further, because the MSA provided that the mediator was to resolve issues of ambiguity, the appropriate action was for the mediator to resolve the dispute rather than the court system. 144 Thus, although the Texas Supreme Court criticized the Fort Worth Court of Appeals reasoning for setting aside the MSA based on no meeting of the minds, the Texas Supreme Court does not make a definitive determination whether a MSA can be attacked based on no meeting of the minds. 145 It is clear that settlement agreements are governed and interpreted by contract law. 146 Further, at least one other court has appeared to find no meeting of the minds to be sufficient reasoning for a court s rejection of an MSA. 147 A final point to make regarding the Milner decision is in regards to claims of waiver on appeal. The Texas Supreme Court noted that even though neither party raised the issue of ambiguity on appeal, either to the Court of Appeals or to the Texas Supreme Court, whether a contract is ambiguous is itself a matter of law. Thus, failure to raise the issue of ambiguity is not determinative and no waiver was made. 148 G. Contingencies As stated above, a trial court may not significantly alter or modify the terms of a MSA. 149 Further, when contingencies exist in the MSA that are impossible to perform, the trial court cannot add terms to the MSA 130 Id. 131 Id. 132 Id. 133 Id. 134 Id. at Id. 136 Id. 137 Id. at Id. 139 Id. at Id. at Id. 142 Id. at Id. at Id. 145 Id; Milner v. Milner, No CV, 2010 WL (Tex. App. Fort Worth 2010, review granted). 146 See Williams, 789 S.W.2d at See Mullins v. Mullins, 202 S.W.3d 869, 877 (Tex. App. Dallas 2006, pet. denied). 148 Id.; Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). 149 Beyers, 199 S.W.3d at 362.

19 that undermine the intent of the parties in an attempt to correct the problem. 150 Additionally, when contingencies exist in a contract, there is no final, binding judgment on which a judgment can be based unless the contingencies have been met. 151 Thus, an MSA containing contingencies that have not yet been met is not a valid, final judgment. V. OTHER CONSIDERATIONS A. Limitations on Agreements Although parties can settle their dispute by MSA, there are limitations to which parties can contract. For example, parties cannot contract around the mandatory venue requirements in the FAMILY CODE. 152 In Calderon, the parties entered into a MSA. 153 The agreement provided that jurisdiction would remain in Smith County for three years. 154 The court approved the agreement and incorporated its terms into its order. 155 Seventeen months later, the wife filed a motion to transfer venue to Bexar County and sought modification of the trial court s order. 156 The husband contended that transfer would not be proper because the agreement expressly stated that jurisdiction would remain in Smith County for three years. 157 The trial court denied the motion to transfer and the wife filed a petition for writ of mandamus asking the appeal court to order the trial court to transfer the proceedings to Bexar County. 158 Citing Cassidy v. Fuller, the court of appeals first noted that the language of the venue statute in the FAMILY CODE was mandatory in a SAPCR suit. 159 Thus, a trial court has no discretion but to transfer the proceeding if the child has resided in another county for six month or more, and there was no dispute in this case that this requirement was satisfied Id; see In re Nolder, 48 S.W.3d 432, (Tex. App. Texarkana 2001, no pet.). 151 See Pickell v. Guaranty Nat. Life Ins. Co., 917 S.W.2d 439, 442 (Tex. App. Houston [14 th Dist.] 1996, no pet.). 152 See In re Calderon, 96 S.W.3d 711 (Tex. App. Tyler 2003, no pet.). 153 Id. at Id. at Id. 156 Id. 157 Id. 158 Id. 159 Id (citing Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex. 1978)). 160 Id. at The court based its decision, in part, on Leonard v. Paxson. 161 The Leonard court held that despite an agreement to the contrary, a trial court has a mandatory duty to transfer such a proceeding. 162 It noted that the fixing of venue by contract, except in such instances as permitted by Article 1995, 5 [inapplicable here] is invalid and cannot be the subject of private contract. 163 The Calderon court found no indication in section (e) or any other FAMILY CODE provision that the legislature, by adopting a policy favoring alternative dispute resolution, intended to abrogate its longstanding policy that matters affecting the parent-child relationship be heard in the county where the child resides. 164 The Calderon court then held that any attempt to supplant the mandatory transfer provision applicable in a SAPCR is void. 165 The court further held that the mediated settlement provision did not constitute a waiver of venue because a settlement agreement attempting to change venue contrary to the statutory law of the state cannot constitute a waiver of venue. 166 If the provision were allowed to contravene the statutory scheme, it would defeat the legislature s intent that matters affecting the parent-child relationship be heard in the county where the child resides. 167 A court may also deny a motion to enforce an MSA if the agreement does not include substantial community assets. 168 In Boyd, the husband failed to disclose retirement accounts, stock options, and an earned, unpaid bonus in a MSA. 169 The husband moved to enforce the MSA based on sections and of the FAMILY CODE. 170 The trial court held a hearing on husband's motion and entered an order denying the motion. 171 The court concluded that the MSA was unenforceable and had to be set aside so the court could make a fair and just division of the marital property and enter enforceable orders for the 161 Leonard v. Paxson, 654 S.W.2d 440 (Tex. 1983). 162 Id. at Id. 164 Id at 719 (citing Leonard, 654 S.W.2d at 442). 165 Calderon, 96 S.W.3s at Id. at 720 (citing Johnson v. U.S. Indust., Inc., 469 S.W.2d 652, 654 (Tex. Civ. App. Eastland 1971, no writ)). 167 Id. (citing Leonard, 654 S.W.2d at 442). 168 Boyd, 67 S.W.3d at Id. at Id. 171 Id.

20 protection and best interest of the couple s child. 172 The trial court denied enforcement of the agreement because it did not include substantial community assets. 173 On appeal, husband argued that the trial court had no discretion to deny his motion to enforce an agreement because it complied with statutory requirements. 174 The Fort Worth Court of Appeals disagreed, holding that the phrase notwithstanding rule 11 [ ] or another rule of law does not require a trial court to enforce a mediated settlement merely because it complies with statutory requirements. 175 The court reasoned that the appellant s argument, if taken to its logical end, could require enforcement of an agreement that was illegal or that was procured by fraud or duress, coercion, or other dishonest means, which would be an absurd result and not one intended by the legislature. 176 Adopting a less restrictive interpretation, the court held that the quoted phrase means the requirements of rule 11 and common law that ordinarily apply to the enforcement of settlement agreements do not apply to mediated settlement agreements, if the agreements meet statutory requirements. 177 If the trial court enters a judgment based on a MSA, and the trial court did not have jurisdiction to do so, then that portion of the agreement judgment is void. 178 In that case, appellant filed suit in Texas although the entire family lived in Germany. 179 The parties entered into an MSA regarding custody, visitation, child support and division of property. 180 The parties agreed to have the decree registered in Germany. 181 Based on the agreement, the trial court entered an agreed final decree. 182 On appeal, the appellant contended that under the UCCJEA, the trial court did not have jurisdiction to include in its decree provisions regarding child custody because Texas was not the home state of the children. Id. The court initially noted that, although the mother agreed to the trial court s jurisdiction, subject-matter jurisdiction 172 Id. 173 Id. 174 Id. 175 Id. at Id. 177 Id. 178 Seligman-Harris v. Hargis, 186 S.W.3d 582, (Tex. App. Dallas 2006, no pet.). 179 Id. at Id. at Id. 182 Id. 10 cannot be conferred by consent, waiver, or estoppel. 183 The court then reiterated that section (a) of the UCCJEA is the exclusive jurisdictional basis for making a child custody determination by a Texas court and the trial court could not acquire jurisdiction based on those statutory provisions. 184 It then concluded that under the plain terms of the UCCJEA, a Texas court lacked subject matter jurisdiction over child custody issues in this case. As such, those provisions pertaining to child custody issues were void. 185 The court also noted that the entire agreement would be void if the contract is entire and indivisible. 186 But the court found that, in this instance, the effect the trial court s lack of jurisdiction over the child custody has on the underlying settlement agreement is an issue that has not been presented to the trial court because the Father was unable to raise them. 187 Therefore, the court of appeals reversed the provisions of the decree that dealt with the division of property and child support and remanded the case back for further development. 188 The child custody claims were dismissed for want of jurisdiction. 189 B. Death of a Party Occasionally, a divorce proceeding will be nontraditionally concluded by the death of a party. In Spiegel v. KLRU Endowment Fund, Husband filed for a divorce in Thereafter, in 2002 the parties successfully mediated all issues and appropriately memorialized and executed a MSA. 191 Wife died in 2004 before a decree had been entered by the court. The trial court granted a Declaratory Judgment upholding the provision of the MSA and Husband appealed. 192 The Court of Appeals affirmed, holding in part an MSA is enforceable under the FAMILY CODE, even in the absence of a divorce decree incorporating it. 193 While husband argued that although he and wife intended to make an MSA pursuant to section of 183 Id. (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000)). 184 Id. at Id. at Id. at 587 (citing In re Kasschau, 11 S.W.3d at 311). 187 Id. 188 Id. 189 Id. 190 Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 2007 WL (Tex. App. Austin April 26, 2007, no pet.). 191 Id. 192 Id. 193 Id.

21 the FAMILY CODE, the agreement is unenforceable because wife s death precluded any possibility that the agreement can be incorporated into a final decree of divorce as intended by the parties. 194 The Court of Appeals based their holding on the plain language of the statute and the public policy underlying it, as well as the intent of the parties as expressed in language of the agreement. 195 The Court of Appeals noted that there are multiple ways to approach the division of community property in anticipation of divorce, but that if a MSA meets section s requirements, it must be enforced in the absence of allegations that the agreement calls for an illegal act of that it was procured by fraud, duress, coercion, or other dishonest means. 196 In this case, the 2002 MSA became binding the moment it was signed and is enforceable, even in the absence of a judgment incorporating it. 197 Because the MSA was immediately binding and revoked beneficiary designations in favor of husband, the trial court did not err in holding that husband has no interest in any non-probate assets allotted to wife under the MSA, whether by beneficiary designation or otherwise. 198 as described above are both very clear examples of this. The key is to carefully review each provision in your MSA with these cases in mind, and go into your mediation with the full knowledge that each of the above described mediums for attacking a MSA is always a possibility. C. Attorney s Fees Awards In Wright v. Wright, the Court found that Wife was entitled to award of attorney fees attributable to her suit to enforce the MSA after court found husband committed fraud on the community; even though an award of attorney fees attributable to wife's claim of fraud on the community would have been outside of the MSA, husband attempted to withdraw from the MSA, forcing wife to bring suit to enforce it, and fees attributable to the suit to enforce were separate from award under the parties' MSA. 199 VI. CONCLUSION Although the TEXAS FAMILY CODE provides a procedural shortcut as to the enforceability of MSA s, remember that MSA s are very much interpreted and attacked as contracts in Texas. Additionally, although litigants should feel comfortable in their ability to enter into MSA s and achieve a judgment based on said agreement, the ability to shortcut the court system under sections and is not absolutely fool proof. Recent cases such as In re Lee and Milner 194 Id. 195 Id. 196 Id. 197 Id. 198 Id. 199 Wright v. Wright, 280 S.W.3d 901 (Tex.App.-Eastland 2009, no pet.). 11

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