Terminology: Referral to mediation | agreement to mediate | mediated settlement agreement | MSA | arbitration law | Texas Arbitration Act | Texas Family Code | Binding and Nonbinding Family Court Arbitration | Alternative Dispute Resolution | ADR | settlement agreement | breach of settlement agreement Rule 11 Agreement Tex. R. Civ. P. 11 | Recent Cases from Houston | Also see --> Texas ADR and Arbitration Law Blog Court of Appeals Affirms Confirmation of Arbitration Award in Post-Divorce SAPCR Dispute In Interest of EBL et al (Tex.App.- Houston [14th Dist.] Sep. 29, 2009)(Seymore) (family court mediation and arbitration, numerous challenges to arbitration award, attempted recusal of arbitrator, appropriateness of mediation, ADR when domestic violence alleged, preservation of error) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-06-01095-CV In the Interest of E.B.L.G, H.L.L.G, and N.L.G. Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne Can a Mediated Settlement Agreement be Revoked? Mallia v. Mallia (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Yates)(judgment on mediated settlement agreement MSA, revocation of consent, rescission, rescinding agreement prior to judgment) AFFIRMED: Opinion by Justice Brock Yates 14-07-00695-CV Sharon Fountain Mallia and Charles Christopher Mallia v. Sharon Biering Mallia Before Justices Brock Yates, Seymore and Boyce Trial Court Judge: Russell P. Austin Family Code Trumps CPRC: Immediate appellate review of arbitration award on TOs in SAPCR divorce proceeding not available, Court of Appeals rules Mason v. Mason (Tex.App. Houston [14th Dist.] May 15, 2008)(per curiam) (family court arbitration, temporary orders, no interlocutory appeal of motion to confirm arbitration award in family law case; citing Marlew v. Marlew (Tex.App.- Houston [1st Dist.] 2006) DISMISSED: Per Curiam 14-07-00991-CV Jason S. Mason v. Patricia A. Mason Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster Appeal of Default Arbitration Order modifying visitation and child support fails Llorance v. Sohi (Tex.App.- Houston [1st Dist.] Apr. 17, 2008)(Higley) (family law SAPCR modification, default arbitration order affirmed) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Nuchia, Hanks and Higley 01-07-00840-CV Leezet Llorance v. Farhad Safavi Sohi Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne Validity of Mediation Clause in Final Decree Affirmed Swaab v. Swaab (Tex.App.- Houston [14th Dist.] Apr. 24, 2008)(Guzman) (divorce SAPCR appeal, requirement to attempt ADR prior to future modifications) AFFIRMED: Opinion by Justice Eva M. Guzman Before Justices Brock Yates, Fowler and Guzman 14-06-00593-CV David Lawrence Swaab v. Janie Guerra Swaab Appeal from 246th District Court of Harris County Trial Court Judge: Jim York In his seventh issue, David contends the trial court abused its discretion by requiring mediation prior to modification of the final divorce decree. "In rendering an order appointing joint managing conservators, the court shall . . . if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency." Tex. Fam. Code Ann. Section 153.134(b)(5). David asserts that the trial court exceeded its authority, however, because rather than recommending alternative dispute resolution prior to seeking enforcement or modification, the divorce decree here mandates it. The divorce decree provides, in pertinent part: The parties agree that preference shall be given to carrying out the Standard Possession Order, standard conservatorship provisions and coverage for child support and medical insurance contained in the Final Decree of Divorce. If a dispute between the parties arises out of this Final Decree of Divorce, the parties agree that before setting any hearing or initiating any discovery in a suit for modification of the terms and conditions of conservatorship, possession, or support of the child, except in an emergency, the parties shall mediate the controversy in good faith. This requirement does not apply to actions brought to enforce the Final Decree of Divorce or to enforce any subsequent modification of this decree. It is agreed that the party wishing to modify the terms and conditions of conservatorship, possession, or support of the child shall give written notice to the other party of a desire to mediate the controversy. If, within ten days after receipt of the written notice, the parties cannot agree on a mediator or the other party does not agree to attend mediation or fails to attend a scheduled mediation of the controversy, the party desiring modification shall be released from the obligation to mediate and shall be free to file suit for modification. (emphasis added). In support of his contention that the trial court improperly required mediation, David cites Dennis v. Smith. 962 S.W.2d 67, 74 (Tex. App.- Houston [1st Dist.] 1997, pet. denied). In Dennis, the First Court of Appeals determined that a trial court lacked authority to require mediation as a prerequisite to filing a motion to modify the parent-child relationship. Id. There, the divorce decree explicitly provided, "Mediation is a prerequisite to filing a Motion to Modify." Id. In addition, the divorce decree ordered the parties to attend three mediation sessions to see if they could resolve their differences. Id. Construing Texas Family Code sections 153.0071 and 153.134, the appellate court concluded that "the legislature intended that >suits, - not >disputes - be subject to mandatory mediation." Id. Here, however, rather than requiring mediation, the divorce decree requires that the parties attempt to mediate. As indicated above, the clause at issue here provides that if the parties cannot agree on a mediator, or refuse or fail to attend mediation, the party seeking modification is free to file a modification suit. Further, the mediation clause contains an exception in the case of an emergency. David has provided no argument or authority that a trial court lacks authority to require parties to attempt to mediate prior to filing suit. In addition, the Legislature has required the trial court to recommend that parties use alternative dispute resolution methods prior to requesting enforcement or modification of a joint conservatorship. See Tex. Fam. Code Ann. Section 153.134(b)(5). Under these circumstances, we cannot say the trial court abused its discretion by requiring the parties to attempt to mediate. We therefore overrule David's seventh issue. Halla v. Halla (Tex.App.- Houston [14th Dist.] Aug. 21, 2007)(Hedges) (SAPCR, MTM, mediated settlement agreement) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Guzman) 14-06-01126-CV Keith James Halla v. Dina Marie Halla Appeal from 306th District Court of Galveston County (Janis Louise Yarbrough) Divorce Decree based on MSA and Arbitration Award Affirmed Engineer v. Engineer No. 14-06-01099-CV Tex.App.- Houston [14th Dist.] Mar. 20, 2008)(Superseding opinion by Seymore) (family law arbitration, divorce, property division, mediated settlement agreement, arbitration award) AFFIRMED: Opinion by Justice Seymore Katy Engineer v. Mike Engineer Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern) In this divorce action, Katy Engineer appeals the amended divorce decree on the grounds that the decree does not accurately reflect the mediated settlement agreement and the arbitration award. Court concludes that the final divorce decree does not vary from the terms of the mediated settlement agreement or the arbitration award. Accordingly, the court of appeals affirms the judgment of the trial court. Also see case from Austin Court of Appeals --> Mediated Settlement Agreement Stands S U B S T I T U T E M E M O R A N D U M O P I N I O N Appellant's motion for rehearing is overruled. This court's opinion issued January 15, 2008 is withdrawn and the following memorandum opinion is substituted therefor. In this divorce action, Katy Engineer appeals the amended divorce decree on the grounds that the decree does not accurately reflect the mediated settlement agreement and the arbitration award. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Katy and Mike Engineer were divorced on September 16, 2002. Katy appealed the final divorce decree on the grounds that the decree did not incorporate all of the provisions of the mediated settlement agreement and arbitration award. In an opinion issued January 31, 2006, this court found the alimony provision in the decree differed from language in the agreement and the December 4, 2001 arbitration award that was incorporated into the decree did not address the alimony provision. Engineer v. Engineer, 187 S.W.3d 625, 626 (Tex. App.- Houston [14th Dist.] 2006, no pet.). This court sustained Katy's challenge to the alimony provision in the decree and further determined that it did not need to address her other challenges. Id. at 627. The case was remanded to the trial court for further proceedings. Id. On remand, the trial court signed a document entitled, "Final Decree of Divorce After Remand." In that document, the trial court amended the parties= divorce decree to conform to the December 4, 2001 arbitration award as it pertained to contractual taxable alimony. In this appeal, Katy contends the trial court erred in failing to further amend the divorce decree to address other portions of the arbitration award, specifically provisions relating to gold coins, savings bonds, and the place where alimony payments should be sent. II. Scope of Remand Initially, Katy argues the trial court failed to follow this court's mandate because the trial court corrected only the alimony provision in the decree. Mike responds that the trial court did not err in failing to address the provisions, which are the subject of Katy's complaints, because this court remanded the case only to permit the trial court to amend the decree with regard to the contractual alimony. In our first opinion, we reversed and remanded "for proceedings in accordance with the court's opinion." When an appellate court reverses and remands a case for further proceedings, and the mandate is not limited by special instructions, the effect is to remand the case to the lower court on all issues of fact, and the case is reopened in its entirety. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 465 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Neither our opinion nor mandate, provide special instructions to the trial court upon remand; therefore, the case was reopened in its entirety. See Manon v. Solis, 142 S.W.3d 380, 386 (Tex. App.- Houston [14th Dist.] 2004, pet. denied). The issue before us, therefore, is whether the decree of divorce after remand accurately incorporates the arbitration award. III. Arbitration Award Katy argues that the final arbitration award is the proposed "Final Decree of Divorce" submitted to the trial court by the arbitrator on July 23, 2002. Mike argues that the final arbitration award is a document entitled, "Final Arbitration Award" signed by the arbitrator on December 4, 2001. In its conclusions of law, the trial court found that the arbitrator's "proposed final decree of divorce submitted on July 23, 2002 was not considered an arbitration award, implicating the procedures of Chapter 171 of the Texas Civil Practice and Remedies Code."[1] In remanding the case to the trial court, this court referred to the December 4, 2001 arbitration award as the operative document. Therefore, in order to address Katy's issues, we will determine whether the final divorce decree incorporates the provisions of the December 4, 2001 arbitration award. IV. Provisions of the Decree The trial court must make a just and right division of marital property in a divorce proceeding. Tex. Fam. Code Ann. ' 7.001 (Vernon 1998). To promote the amicable settlement of disputes in a suit for divorce, spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. Tex. Fam. Code Ann. ' 7.006 (a)-(c) (Vernon 1998). If the court finds that the terms of such an agreement are just and right, those terms are binding on the court. Tex. Fam. Code Ann. ' 7.006(b). If the trial court approves the agreement, the court may set forth the agreement in full or incorporate it by reference in the final decree. Id. Conversely, if the court finds that the terms of the agreement are not just and right, it may either request the spouses to submit a revised agreement or set the case for a contested hearing. Tex. Fam. Code Ann. ' 7.006(c). Therefore, a court may either enter a property division agreement in its entirety or decline to enter it all, but has no discretion to change the agreement before entering it. See Engineer, 187 S.W.3d at 626; Reppert v. Beasley, 943 S.W.2d 172, 174 (Tex. App.- San Antonio 1997, no pet.). In this case, the agreement provided that disputes concerning interpretation or performance of the agreement would be submitted to binding arbitration. In unchallenged conclusions of law, the trial court found that the decree incorporates the agreement as modified and clarified in arbitration and as thereafter corrected and/or modified by the court upon proper pleadings and proof. Katy complains that the trial court erred in failing to accurately incorporate the agreement into the divorce decree. Specifically, Katy argues the provisions addressing allocation of the gold coins and savings bonds were inaccurately incorporated. Further, Katy complains that provisions in the decree regarding the place for alimony payments do not reflect the arbitration award. A. Gold Coins Attached to the arbitration award are three exhibits listing the community property awarded to each spouse and the property awarded to Katy as custodian for the parties' son. The gold coins are listed in the property awarded to Mike and are described as the "[g]old coins purchased and stored in the family safety deposit box." The final divorce decree awards the following property to the husband: "All household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of the husband or subject to his sole control, including but not limited to any gold coins purchased and stored in the family safety deposit box . . . said coins to be delivered to Mike Engineer by (6/5/03) to M. Carden's office." Katy first argues that the trial court erred in the divorce decree by not including a provision that she was to relinquish the gold coins "should they be in existence." Katy bases her argument on the arbitrator=s proposed final decree submitted to the court on July 23, 2002. As stated earlier, that document was not recognized by the trial court as an arbitration award. The arbitration award used by the trial court in preparing the final divorce decree did not establish a procedure or qualify the distribution of the gold coins. Second, Katy complains of the trial court's inclusion of specific terms requiring her to deliver the gold coins to Mike, contending that this language improperly imposes an affirmative obligation that the arbitrator did not impose. The Family Code does not require parties to agree to all of the provisions to be contained in the divorce decree. The law only requires the parties to reach an agreement as to all material terms and prohibits the trial court from supplying additional terms. Haynes v. Haynes, 180 S.W.3d 927, 930 (Tex. App.- Dallas 2006, no pet.). Terms necessary to effectuate and implement the parties' agreement do not affect the agreed substantive division of property and may be left to future articulation by the parties or consideration by the trial court. Id. In this case, the terms requiring Katy to deliver the gold coins on a date certain to a specific location are properly denominated as essential to effectuate and implement the agreement that Mike will receive the gold coins. Therefore, with regard to the gold coins, the arbitration award was accurately incorporated in the decree. B. Savings Bonds Katy alleges that the decree varies from the arbitration award in the distribution of savings bonds. In the December 4, 2001 document, the arbitrator awarded AU. S. Series EE Savings Bonds Approximate value $18,608.00" to Katy. The arbitrator further awarded AEE Series Savings Bonds Approximate value $25,000.00" to Katy as custodian for the parties' child. In the corrected final divorce decree, the AUS Series EE Savings Bonds" were awarded to the parties' child "with Katy Engineer trustee." The decree then listed the bonds by number. The decree did not award any savings bonds to Katy individually. On October 23, 2002, the trial court signed a final decree of divorce, which awarded "US Series EE Savings Bonds B approximate value of $18,608.00" and "EE Series Savings Bonds No. M39388208EE to M39388216EE & M39531538EE" to Katy. The October 23, 2002, decree failed to award any savings bonds to Katy as custodian for the child. Katy thereafter filed a motion to modify the decree, which included a request that the trial court correct the decree as to the bonds awarded to her, and the bonds awarded to her as custodian for the child. On January 22, 2003, the trial court signed an order modifying the divorce decree. The order recites that a hearing was held on December 18, 2002, but no record of the hearing appears in our appellate record. A letter from the trial court signed on December 27, 2002, reflects that as a result of the hearing, the parties agreed to certain changes in the decree. One of the referenced changes is, "[S]eries EE bonds should be awarded to [the child], with Wife as Trustee." The trial court's January 22, 2003 order reflects that agreement. On appeal, Katy contends that the decree incorrectly awarded all the bonds to the parties' child with her as trustee. Katy does not assert that the trial court's recitation of an agreement is incorrect, but argues that even if she agreed to the change, the trial court was without authority to change the arbitrator's award. Section 7.006(a) of the Family Code specifically provides that the parties' agreement "may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law." While the trial court has no authority to supply terms, provisions, or conditions not previously agreed to by the parties, conversely, the parties are bound by their agreements. See McLendon, 847 S.W.2d at 610. Katy cannot agree to a change in the agreement, then complain on appeal about that change. See Keith v. Keith, 221 S.W.3d 156, 163 (Tex. App.- Houston [1st Dist.] 2006, no pet.) (appellant may not complain on appeal of an action or ruling to which she agreed). Therefore, with regard to the savings bonds, the divorce decree accurately reflects the parties' agreement. C. Alimony Payments Katy argues that the final decree varies from the arbitration award in that the decree permits Mike to pay alimony at her residence instead of depositing the amount in her checking account. Katy further argues that the decree does not provide security for the alimony as required by the arbitration award. Again, Katy relies on the July 23, 2002 document, which is not an arbitration award. The December 4, 2001 arbitration award is silent with regard to alimony. However, the parties' mediated settlement agreement provides that "child support [and] alimony to be obligation of H[usband]'s estate. The "Final Divorce Decree After Remand" provides that Mike is to pay contractual alimony of $4000 per month to Katy at her residence. The decree further provides that alimony is to be secured by Mike's 401(k) plan. Although the mediated settlement agreement required Mike to pay Katy alimony, the parties did not agree to the manner and place of payment. The trial court was authorized to include terms in the decree to implement the parties' agreement, specifying the manner and place of payment of alimony. See McLendon v. McLendon, 847 S.W.2d 601, 606 (Tex. App.- Dallas 1992, writ denied). Further, contrary to Katy's assertion, the decree provided that alimony payments would be secured by Mike's 401(k) plan. Therefore, the trial court did not err by including delivery instructions pertaining to alimony in the decree. In conclusion, the final divorce decree does not vary from the terms of the mediated settlement agreement or the arbitration award. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Substitute Memorandum Opinion filed March 20, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. -------------------------------------------------------------------------------- [1] Chapter 171 of the Texas Civil Practice and Remedies Code generally prescribes the necessary requirements for a valid arbitration agreement. |
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