Texas Cases February 22, 2023: In re I.M.D.

Case Description

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012CI18096 Honorable Tina Torres, Judge Presiding

Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Lori I. Valenzuela, Justice.

MEMORANDUM OPINION

LUZ ELENA D. CHAPA, JUSTICE.

Appellant Joelie Villarreal challenges the trial court's entry of judgment on the mediated settlement agreement between her and appellee Arthur DeLeon. She argues the mediated settlement agreement does not comply with Texas Family Code Section 153.0071 and the trial court erred by entering judgment on the mediated settlement agreement because it did not finally resolve the dispute between the parties. We affirm.

Background

Appellant Joelie Villarreal and appellee Arthur DeLeon were married for twenty-one years before divorcing in 2015. Five years after their divorce, Villarreal filed a petition to modify the child custody arrangement. After the trial court entered certain temporary orders, DeLeon moved

2

for mediation. The trial court entered an agreed order for mediation on October 22, 2021 ordering "[c]ounsel and the parties shall proceed in a good faith effort to try [and] resolve this case." The mediation took place on November 4, 2021. At the mediation, the parties reach a mediated settlement agreement (MSA). In February 2022, Appellant Villarreal filed a motion for child custody evaluation seeking to evaluate the circumstances and conditions of the children, the parties to the suit, and the residences of the conservators. In response to the motion, appellee DeLeon filed an objection to the motion, a motion for sanctions, and a motion to enter the final order on the MSA. DeLeon also filed the fully-executed MSA. Villarreal did not file an objection or any other pleading in opposition to the motion.

After a hearing one week later, the trial court entered an order incorporating the MSA. This appeal followed.

The Mediated Settlement Agreement

Villarreal does not dispute the validity of the MSA. Instead, she disputes the "applicability of [Texas Family Code Section 153.0071]" to it. She further argues she opposed DeLeon's motion to enter judgment on the MSA because it was not the intent of the parties that the MSA finally resolve all issues between the parties.

A. Whether the MSA Complies with Section 153.0071

We begin by determining whether the MSA complies with the statutory requirements of section 153.0071. "Whether a mediated settlement agreement complies with the Texas Family Code's requirements is a question of law reviewed de novo." Choksi v. Choksi , No. 09-19-00183-CV, 2020 WL 6787410, at *3 (Tex. App.-Beaumont Nov. 19, 2020, pet. denied) (mem. op.). Section 153.0071 "was enacted with the intent that, when parents have agreed that a particular arrangement is in their child's best interest and have reduced that agreement to a writing complying with section 153.0071, courts must defer to them and their agreement." Id. at 455; see also id.

3

("Allowing courts to conduct such an inquiry in contravention of the unambiguous statutory mandate in section 153.0071 has severe consequences that will inevitably harm children."). A mediated settlement agreement is binding on the parties if the agreement: (1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party's attorney, if any, who is present at the time the agreement is signed. Tex. Fam. Code § 153.0071(d); see, e.g. , In re A.C. , 560 S.W.3d 624, 632 (Tex. 2018) (stating same).

"If a mediated settlement agreement meets [those] requirements . . ., a party is entitled to judgment on the mediated settlement agreement." Id. § 153.0071(e) (emphasis added); e.g. , Highsmith v. Highsmith , 587 S.W.3d 771, 773 (Tex. 2019). The statute enumerates a narrow exception: "a court may decline to enter a judgment on a mediated settlement agreement if the court finds": (1) the agreement is not in the child's best interest and (2)(a) "a party to the agreement was a victim of family violence," (b) "family violence impaired the party's ability to make decisions," (c) a person subject to the agreement is required to register as a sex offender, or (d) a person subject to the agreement has a history or pattern of physical or sexual abuse. Id. § 153.0071(e-1) (emphasis added).

"Stated another way, '[t]he statute does not authorize the trial court to substitute its judgment for the mediated settlement agreement entered by the parties unless the requirements of subsection 153.0071(e-1) are met.'" In re Lee , 411 S.W.3d 445, 453 (Tex. 2013) (alteration in original) (quoting Barina v. Barina , No. 03-08-00341-CV, 2008 WL 4951224, at *4 (Tex. App.- Austin Nov. 21, 2008, no pet.) (mem. op.)) (internal quotation marks omitted); see Lee , 411 S.W.3d at 453 ("Subsection (e) goes even further, providing that a party to an MSA is 'entitled to judgment' on the MSA if it meets subsection (d)'s requirements." (citing Tex. Fam. Code

4

§ 153.0071(e))); see also Highsmith v. Highsmith , 587 S.W.3d 771, 775 (Tex. 2019) (citing Lee in interpretation of identical statutory language in context of divorce suits and providing "[u]nlike with other settlement agreements in the family law context, the trial court is not required to determine if the agreed property division is 'just and right' before approving an MSA that satisfies the statutory requirements, nor may the court conduct an independent best-interest inquiry regarding conservatorship."); A.C. , 560 S.W.3d at 632 ("we held in In re Lee that section 153.0071(e) requires trial courts to enforce a properly executed MSA without conducting a broad best-interest inquiry"). "[W]hile a hearing to prove up an MSA may often be uneventful, . . . judgment on an MSA is not automatic. Parties challenging an MSA may still avail themselves of applicable statutory defenses or otherwise argue that the agreement should be set aside." Highsmith , 587 S.W.3d at 778 (providing lack of notice for hearing on MSA violated basic principles of due process).

In a prominently displayed statement on page three, the MSA provides: " THIS AGREEMENT IS NOT SUBJECT TO REVOCATION ." It is signed by both parties and their attorneys. The MSA therefore meets the statutory requirements described in subsection (d) of Section 153.0071, making it binding on the parties. See id. Because Villarreal does not invoke one of the narrow exceptions to entering judgment on the MSA set forth in subsection (e-1) of section 153.0071, DeLeon was entitled to judgment on the MSA by the trial court. See Lee , 411 S.W.3d at 453.

B. Whether the Final Order Complies with the MSA

Next, we consider Villarreal's contention the trial court erred by granting judgment on the MSA because it was never the parties' intent the MSA finally resolve all issues between them.

5

a. Applicable Law

We review the trial court's ruling on a motion to enter judgment in connection with a mediated settlement agreement for an abuse of discretion. See Rudolph v. Jamieson , No. 03-17-00693-CV, 2018 WL 2648514, at *4 (Tex. App.-Austin June 5, 2018, pet. denied); see also Shanks v. Treadway , 110 S.W.3d 444, 447 (Tex. 2003). "An abuse of discretion requires something more than that the trial court should have reached a different result." Bradshaw v. Bradshaw , 555 S.W.3d 539, 546 (Tex. 2018). "Instead, an abuse of discretion occurs when the trial court acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Id. (internal quotation marks omitted).

"A final judgment rendered pursuant to an MSA must be in strict or literal compliance with that agreement." In re M.E.H. , 631 S.W.3d 244, 256 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (citing Kramer v. Kastleman , No. 03-13-00133-CV, 2017 WL 5119211, at *7 (Tex. App.-Austin Nov. 3, 2017, pet. denied) (mem. op.)). "Parties need not agree to all terms necessary to effectuate the purposes of the agreement, but they must agree on all material terms." Id. "A judgment is not in 'strict or literal compliance' with the terms of the agreement if it improperly removes or adds material terms." Id. (quoting Kramer , 2017 WL 5119211, at *7). "Nonetheless, a trial court does not reversibly err in modifying the terms of an MSA if those modifications do not add terms, significantly alter the original terms, or undermine the parties' intent." Id. "Further, in entering judgment on an MSA, trial courts may include '[t]erms necessary to effectuate and implement the parties' agreement' so long as they do not substantively alter it." Lee , 411 S.W.3d at 458 n.17. "Thus, to the extent there is no dispute about the parties' intent, the trial court has discretion to provide clarification of this or any other provision. In the unlikely event

6

the parties disagree on the intent of this provision, that dispute may be resolved in accordance with the terms of the MSA." Id.

In order to determine whether the trial court abused its discretion by entering judgment with respect to the MSA, we must first determine whether the order was not in strict or literal compliance with the MSA. M.E.H. , 631 S.W.3d at 256. However, whether the order was in strict or literal compliance with the MSA depends on whether, as Villarreal argues, the MSA was not intended as a final resolution of all the issues between the parties. Id.

"Mindful of the unique attributes the Family Code confers on the MSA, we apply contract principles to interpret its meaning." Toler v. Sanders , 371 S.W.3d 477, 480 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see Tex. Civ. Prac. & Rem. Code § 154.071(a) ("If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract"). "We construe the entire writing in an effort to harmonize and give effect to the decree as a whole." Toler , 371 S.W.3d at 480. "We accord contract language its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated." Id. "If the words used in the written instrument can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law." Id. (citing Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983)). "Courts must enforce an unambiguous contract as written and may not consider extrinsic evidence, such as [a] sworn statement, for the purpose of creating an ambiguity or giving the contract a meaning different from that which its language imports." Id. at 480-81.

b. Analysis

The MSA provides the parties "agree to compromise and settle the claims and controversies between them" via the MSA. It further provides the provisions of the MSA "are intended to be

7

incorporated into a final court order" The MSA adds it is "not subject to revocation" and "[a]ll other relief requested and not granted is denied." Because the parties agreed to compromise and settle their claims via the MSA (incorporated into a final court order), and because the MSA is irrevocable and the mediator denied all relief not granted in it, the parties' intent is plain: the MSA was intended to finally resolve the dispute between them. See Toler , 371 S.W.3d 477, 482-83.

Turning to whether the judgment is in strict or literal compliance with the MSA, Exhibit A of the MSA provides its substantive provisions. It states, in pertinent part:

1. The parents remain Joint Managing Conservators of the children.

2. Villarreal [is] given the exclusive right to establish the primary residence of [I.M.D.] in Bexar & contiguous counties, the exclusive right to receive and disburse child support for the benefit of the child, and the right to register the child in school. [DeLeon] [is] given the exclusive right to establish the primary residence of the [I.M.D., I.M.D., and M.V.D.], in Bexar & contiguous counties, the exclusive right to receive and disburse child support for the benefit of these children, and the right to register these children in school. The children will be registered in school based on the address of the parent.

3. All other rights of the conservators are independent after notice to the other conservator.

4. [Villarreal] is granted an expanded Standard Possession Order with all elections for [I.M.D., I.M.D., and M.V.D.]. Father is granted a Modified Expanded Standard Possession order with [I.M.D.] on the second & fourth Fridays of each month from when school is dismissed to the following Monday when school resumes, and he shall every Monday during the school year. When children not in school all possessions shall begin and end at 6:00 p.m. Holidays to each party per Expanded Standard Possession Order with all four children except for Birthdays during the school year will begin when school is dismissed and end at 8:00 p.m. any birthdays not during the school year will begin at 5:00 p.m. and end at 8:00 p.m., parent not in possession shall have possession of all 4 children during birthday possession. Summer possession will be modified for each parent to have a two week vacation period with all four children. [DeLeon] designates his two week period by April l in even years, and [Villarreal] designates her two week period by April 15 in even years, and then the order of designation will switch in odd years. [Villarreal] may not designate her period to include any po[r]tion of Father's Day weekend or [M.V.D.'s] birthday. [DeLeon] may not designate his period to include any portion of [Villarreal's] birthday or [M.V.D.]'s birthday.

8

9. Electronic communication as per the language in the [then-]current temporary orders.

10.A Loving & Caring Order and a Children's Bill of Rights will be included in the final court order.

The MSA further provides "[t]he terms of the temporary orders that are not in conflict with this Mediated Settlement Agreement remain in effect, and are discharged as of the date of the signing of the final order in this case."

Villarreal did not file any opposition to DeLeon's motion to enter judgment on the MSA. At the February 9, 2022 hearing on the motion, she contended the MSA was not intended to finally resolve the dispute between the parties. However, Villarreal did not identify any portion of the proposed order as a substantial deviation from the MSA or otherwise demonstrate the MSA was not intended to finally resolve the dispute. Cf. M.E.H. , 631 S.W.3d at 256 (rejecting appellant's contention of twelve instances in which SAPCR order substantially deviated from MSA). After hearing argument on DeLeon's motion to enter judgment, the trial court granted the motion. The trial court's order incorporates each provision set forth in the MSA and does not otherwise substantially deviate from it. See M.E.H. , 631 S.W.3d at 256.

Villarreal nevertheless argues the MSA was not intended to resolve: (1) cellphone and telephone communication and access, (2) the right to first refusal, and (3) the coparenting plan with regard to extracurricular activities. But this is not consistent with the MSA. The MSA plainly provides electronic communications would remain as ordered under the March 2021 temporary orders entered by the trial court, which provide among other things, the "conservators shall have

9

electronic communication with the children to supplement their periods of possession." Electronic communications include communications by telephone. The language on electronic communications in the March 2021 temporary orders is incorporated word-for-word into the February 2022 order entering judgment on the MSA. No right of first refusal is set forth in the MSA, but its absence does not necessarily invalidate the MSA because it provides for possession and access to the children. See M.E.H. , 631 S.W.3d at 256 ("Parties need not agree to all terms necessary to effectuate the purposes of the agreement, but they must agree on all material terms."). Moreover, the temporary orders also provided for each parent to notify the other with respect to extracurricular activities and, like electronic communications, was also incorporated word-for-word into the February 2022 order on the MSA.

Villarreal specifically points to actions taken by Villarreal's then-counsel after the parties entered into the MSA as further proof Villarreal did not intend the MSA to finally resolve outstanding issues. Those actions are: an e-mail communication with opposing counsel, statements made at the hearing by Villarreal's counsel, and because Villarreal filed a "Motion for Child Custody Evaluation." However, "[c]ourts must enforce an unambiguous contract as written and may not consider extrinsic evidence . . . for the purpose of creating an ambiguity or giving the contract a meaning different from that which its language imports." Toler , 371 S.W.3d at 482-83. Here, the plain language of the MSA as incorporated into the final order establishes the MSA was intended to finally resolve the issues between the parties and is a final resolution of those issues.

Villarreal also cites Lehmann v. Har-Con Corp. , to support her contention that this court should determine finality in the MSA based on the parties' intent. See 39 S.W.3d 191, 205 (Tex. 2001).

10

However, Villarreal presents no authority in support of the proposition that a mediated settlement agreement is itself subject to complex finality considerations applied to judgments as established by Lehmann . See Tex. R. App. P. 38.1(i). We must interpret the language of an MSA pursuant to contract principles, not principles addressing the finality of judgments. Compare Toler , 371 S.W.3d at 480-81 (providing mediated settlement agreements are interpreted pursuant to traditional contract principles), with In re R.R.K. , 590 S.W.3d 535, 543 (Tex. 2019) (determining whether Order in Suit to Modify Parent-Child Relationship was final order).

Because the MSA was intended to finally resolve the dispute between the parties, and because the judgment was in strict or literal compliance with the MSA, we cannot conclude the trial court abused its discretion by granting the motion to enter judgment on the MSA.

2. Villarreal's Other Contentions

Villarreal further argues the trial court erred by failing to return the case back to the mediator to resolve (1) cellphone and telephone communication and access, (2) the right to first refusal, and (3) coparenting plan with regard to extracurricular activities. The MSA does provide "[i]f any dispute arises with regard to the interpretation or performance of this agreement or any of its provisions, including the necessity and form of closing documents, the parties agree to try to resolve the dispute by phone conference with the mediator who facilitated this settlement." However, Villarreal never objected to any provision of the MSA or performance under the MSA, the motion to enter judgment on the MSA, or otherwise moved the trial court to hold the motion for judgment on the MSA in abeyance while the parties return to the mediator to resolve outstanding issues. As explained above, the MSA resolves these issues, and the judgment entered by the trial court incorporates the MSA's resolution of them. Accordingly, we cannot conclude the trial court abused its discretion in entering judgment on the MSA.

11

Lastly, Villarreal asks this court to determine the three issues raised by Villarreal are not subject to claim preclusion if this court affirms the trial court's order. In other words, Villarreal asks this court to decide a question of law-the validity of a defense of res judicata-with respect to a potential future controversy. We are constitutionally prohibited from rendering advisory opinions. See, e.g. , Patterson v. Planned Parenthood of Houston & Se. Texas, Inc. , 971 S.W.2d 439, 443 (Tex. 1998); Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993) ("The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties."); see also Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.").

Conclusion

The trial court's judgment is affirmed.