Opinion
No. 05-09-00556-CV
Opinion Filed June 8, 2010.
On Appeal from the 255th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF-04-04122-S.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Robbie Streety appeals the trial court's order rendered pursuant to a mediated settlement agreement modifying possession of his child with appellee Hue Thi and directing him to reimburse Thi for the child's monthly insurance coverage premiums. On appeal, Streety contends the trial court erred in signing the order because (1) the mediated settlement agreement failed to display the statutorily-required statement that the agreement was not subject to revocation; (2) Streety withdrew his consent to the agreement before the order was signed; and (3) the order varied from the agreement signed by the parties at mediation. Streety also complains the trial court erred in denying his motion for new trial. We reverse the trial court's order and remand this case to the trial court for further proceedings.
BACKGROUND
Streety and Thi were divorced in 2004, when their daughter, A.B.S., was seven. In June 2008, Streety filed a petition to modify the parent-child relationship, in which he alleged there had been a material and substantial change in circumstances since the entry of the final divorce decree. In the petition, Streety sought the exclusive right to designate A.B.S.'s primary residence and alternatively, for Streety and Thi to be named joint managing conservators.
In November 2008, the parties participated in mediation and signed a settlement agreement. As reflected in the mediated settlement agreement, the parties agreed to modify the periods of Streety's possession of A.B.S., attend a co-parenting class, and dismiss all prior contempt motions upon payment of any past due child support and medical reimbursements. The parties also agreed Thi would maintain insurance coverage for A.B.S. and Streety would reimburse Thi for the premium.
The settlement agreement was signed by Streety, Thi, Thi's attorney, and the mediator. In bold, capital letters immediately above the parties' signatures, the settlement agreement recited:
THE PARTIES TO THIS AGREEMENT FULLY UNDERSTAND IT AND ACKNOWLEDGE THAT THIS AGREEMENT IS THE FINAL SETTLEMENT OF THE DISPUTE BETWEEN THEM OVER THE MATTERS MENTIONED HEREIN. THEY INTEND FOR THE AGREEMENT TO BE ENFORCEABLE ACCORDING TO ITS TERMS IN ANY COURT OF COMPETENT JURISDICTION. FURTHER, THE PARTIES AGREE THAT SHOULD ANY DISPUTE ARISE OUT OF THE PERFORMANCE OR INTERPRETATION OF THIS AGREEMENT, THEY WILL APPEAR AT [DISPUTE MEDIATION SERVICES, INC.], EACH AT THE REQUEST OF THE OTHER PARTY, FOR AN ADDITIONAL MEDIATION SESSION, BEFORE SEEKING JUDICIAL REVIEW.
The settlement agreement also provided that any provision of the prior order not modified by the parties would remain in full force and effect. The parties agreed Streety's attorney would prepare the final order and present a draft to Thi's attorney for review by a certain date. The settlement agreement further instructed that the final order was to be entered no later than January 5, 2009. On January 23, 2009, Thi moved for entry of the mediated settlement agreement. At the hearing, Thi's attorney argued Streety's attorney not only failed to draft an order within the deadlines set by the mediated settlement agreement, but also failed to draft an order that reflected the parties' agreement. Thi's attorney asserted she was "forced to correct" the order, calling the order prepared by Streety's counsel a "sham draft," and file the motion for entry of the order. Thi's attorney asked the trial court to sign the order based on the mediated settlement agreement.
Streety appeared at the hearing on Thi's motion to enter without his attorney present and objected to the signing of the order. Specifically, Streety complained there were numerous "errors or inaccuracies" in the order prepared by Thi's counsel, as well as "some other issues in the orders that [were] not correct." He also explained he "thought these were temporary orders" and that the mediator said "if there is any dispute over the interpretation . . . [he] would be provided an additional session." He further alleged he was never told the agreement was irrevocable and he was not fully informed of what he was signing. Streety asserted the "order [he had] and reviewed yesterday [was] different from the one [Thi's counsel] has today," and asked the trial court for additional time to hire another attorney and "make sure things get done right."
At the conclusion of the hearing, the trial court announced it would sign the order based on the mediated settlement agreement. The trial court found "the order presented [was] in due form and complie[d] with the Mediated Settlement Agreement. . . ." The trial court also ordered Streety's attorney to pay the attorney's fees for Thi's counsel. Thereafter, the trial court signed an order permitting Streety's counsel to withdraw.
On March 30, 2009, the trial court heard argument on Streety's pro se motion for new trial. Streety, represented by new counsel, argued the form used for the mediated settlement agreement did not say it is irrevocable. Rather, the form says the agreement "can be enforceable," but it also allows the parties to participate in an additional mediation session should a dispute arise. Streety further argued the order signed by the trial court did not comply with the mediated settlement agreement. The trial court denied Streety's motion for new trial. This appeal followed. Thi did not file a brief on appeal.
DISCUSSION
In his first issue, Streety contends the trial court erred in signing the order based on the mediated settlement agreement because the agreement does not comply with Texas Family Code section 153.0071(d), which requires the agreement to state it is not subject to revocation. See Tex. Fam. Code Ann. § 153.0071(d)(1) (Vernon Supp. 2009). Streety also maintains Thi was not entitled to judgment on the mediated settlement agreement because he withdrew his consent to the agreement before the trial court signed the order.
Texas has a policy of encouraging "the peaceable resolution of disputes," particularly in disputes involving the parent-child relationship. Tex. Civ. Prac. Rem. Code Ann. § 154.002 (Vernon 2005); Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App.-Fort Worth 2008, pet. denied). In furtherance of that policy, Texas Family Code section 153.0071 permits a trial court to refer a suit affecting the parent-child relationship to mediation and provides that 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 Ann. § 153.0071(c), (d)(1)-(3).
Generally, a party may revoke his or her consent to a settlement agreement arising from mediation at any time before the judgment is rendered on the agreement. See S A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). Once consent is withdrawn, the settlement agreement must be enforced through the same methods for enforcement of other contracts. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (per curiam); Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995).
In suits affecting the parent-child relationship, however, unilateral withdrawal of consent does not negate the enforceability of a mediated settlement agreement meeting the requirements of section 153.0071(d). In re L.M.M., 247 S.W.3d 809, 812 (Tex. App.-Dallas 2008, pet. denied). Nor is a separate suit for enforcement of the agreement necessary. Id.; Brooks, 257 S.W.3d at 422 (interpreting identical language in family code section 6.602). That is because the procedures in section 153.0071 require a trial court to render a judgment based on the mediated settlement agreement if the statutory requirements are met. Tex. Fam. Code Ann. § 153.0071(e) ("If a mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law."); In re Calderon, 96 S.W.3d 711, 718 (Tex. App.-Tyler 2003, orig. proceeding [mand. denied]) (explaining that rule 11, Texas Civil Practice and Remedies Code section 154.071, and general contract law "do not apply to the enforcement of a mediated settlement agreement in a SAPCR if the agreement meets the requirements of section 153.0071(d)"). The express language of the family code "requires the court to enter judgment based on the mediation agreement." In re Circone, 122 S.W.3d 403, 406 (Tex. App.-Texarkana 2003, no pet.).
Under section 153.0071(e-1), however, a trial court may properly decline to render a judgment on a mediated settlement agreement if the court finds "(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." Tex. Fam. Code Ann. § 153.0071(e-1).
In this case, Streety and Thi, both represented by counsel, agreed to mediate the matters in dispute related to Streety's petition to modify the parent-child relationship. The agreement reached and signed by the parties was handwritten on a form provided by the mediator, Dispute Mediation Services, Inc. The form included a typewritten portion, appearing above the parties' signatures, which stated in bold, capital letters that the agreement was "the final settlement of the dispute between them" and that they intended for the agreement to be "enforceable." Streety urges this language is insufficient to meet the requirements of section 153.0071(d). We agree.
Nowhere in the mediated settlement agreement is there a "prominently displayed statement" that the agreement is not subject to revocation. See Tex. Fam. Code Ann. § 153.0071(d)(1). Despite the language of the agreement indicating the parties intended for their agreement to be "enforceable," there is no language signaling the parties could not otherwise repudiate the agreement. To the contrary, the mediated settlement agreement states "the parties agree that should any dispute arise out of the performance or interpretation of this agreement, they will appear . . . for an additional mediation session. . . ." This language implies the door remains open for the parties to go back to mediation should a dispute arise out of the agreement.
In Spinks v. Spinks, our sister court held that if a mediated settlement agreement does not strictly comply with the requirements of section 153.0071(d)(1), a party could repudiate the agreement before rendition of the judgment. Spinks v. Spinks, 939 S.W.2d 229, 230 n. 2 (Tex. App.-Houston [1st Dist.] 1997, writ denied) (stating "the requirement in section 153.0071(d)(1) is clear" and "we do not interpret the legislature's intent to require anything other than strict compliance"). Here, the mediated settlement agreement contains no language indicating the agreement is not subject to revocation. Nor does it contain any language from which one could infer that further disputes on the agreement are foreclosed. We therefore conclude the mediated settlement agreement does not meet the statutory requirements of family code section 153.0071(d)(1). See Tex. Fam. Code Ann. § 153.0071(d)(1).
A settlement agreement generally is enforceable in the same manner as other written contracts. Tex. Civ. Prac. Rem. Code Ann. § 154.071(a). But if one party withdraws his consent before rendition of the judgment on the agreement, a separate claim for enforcement is required. Mantas, 925 S.W.2d at 658; In re Calderon, 96 S.W.3d at 718. "An action to enforce a settlement agreement, where consent is withdrawn, must be based on proper pleading and proof." Padilla, 907 S.W.2d at 462.
Based on the record before us, we conclude Streety withdrew his consent to the mediated settlement agreement before the trial court signed the order based on the agreement. At the hearing on the motion to enter, Streety informed the trial court he thought there were "errors or inaccuracies" in the order, that the order did not agree with the mediated settlement agreement, and he wanted to make changes. He further complained that he was not fully informed of what he was signing at mediation and that he wanted to hire another attorney and go back to mediation. The trial court acknowledged Streety's lack of consent to the agreement, asking him "[w]hat is not included in the mediated settlement agreement that you don't agree to?"
Because Streety withdrew his consent, Thi was required to present and prove the mediated settlement agreement as a contract. Mantas, 925 S.W.2d at 658. Thi did not meet her burden. See Padilla, 907 S.W.2d at 462. Accordingly, the trial court erred in rendering a judgment on the mediated settlement agreement. Spinks, 939 S.W.2d at 230. We sustain Streety's first issue. We reverse the trial court's order based on the mediated settlement agreement and remand this case to the trial court for further proceedings. Because of our disposition on Streety's first issue, we do not reach his remaining issues. Tex. R. App. P. 47.1.