Frances Moreno LeBlanc v. Larry Jules LeBlanc Jr. ( 2022 )


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  •                                       In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ________________
    NO. 09-20-00028-CV
    ________________
    FRANCES MORENO LEBLANC, Appellant
    V.
    LARRY JULES LEBLANC JR., Appellee
    ________________________________________________________________________
    On Appeal from the 317th District Court
    Jefferson County, Texas
    Trial Cause No. C-233,639
    ________________________________________________________________________
    MEMORANDUM OPINION
    Frances Moreno LeBlanc appeals from a judgment entitled Agreed Final
    Divorce signed on January 14, 2020, in her divorce from Larry Jules LeBlanc Jr.1
    Frances and Larry have two minor children. In one issue on appeal, Frances argues
    the trial court erred in rendering a decree of divorce that does not strictly comply
    1
    As both parties have the last name LeBlanc, we will refer to them by their
    first names.
    1
    with the Meditated Settlement Agreement (MSA) they reached in settling the terms
    of their divorce. 2 Specifically, Frances complains the trial court’s order “adds terms
    and incorporates an entirely different holiday visitation schedule than in the MSA
    and violates the ‘Holidays Every Year’ MSA provision that ‘[m]other has possession
    at all times not specifically awarded to father.’” As explained below, we reverse the
    order of the trial court and remand.
    Background
    Both Frances and Larry were represented by counsel during their divorce.
    Frances filed for divorce in 2018. Temporary orders were issued in the divorce in
    February 2019. In October 2019, Frances asked the trial court to order the parties to
    mediation. On October 23, 2019, the parties filed an Irrevocable Mediated
    Settlement Agreement with the clerk’s office. The MSA is signed and initialed on
    each page by the parties, and their counsel signed the agreement’s last page. The
    MSA contains the following information on holiday visitation.
    Holidays Every Year:
    Thanksgiving:
    Father 3:00 pm – 8:00 pm on Thanksgiving Day
    Mother 8:00 am – 3:00 pm on Thanksgiving Day
    Christmas:
    Father December 24 8:00 am – 10:00 pm
    Mother [December 24] 10:00 pm – [December 26] 8:00 am
    Father’s Day, Mother’s Day, Child’s Birthday:
    Per Family Code
    2
    Larry was not represented by counsel on appeal and did not file a pro se
    brief.
    2
    Easter Sunday: Mother every year
    Mother has possession at all times not specifically awarded to father.
    On January 14, 2020, the trial court held a hearing to consider signing a final
    decree. Frances and Larry filed different versions of the decree and the holiday
    schedule. After hearing the arguments of counsel, the trial court announced he was
    changing the decree as follows:
    Well, I will note Easter Sunday mother -- every year mother has
    possession at all times not specifically awarded to the father. There is
    no statement like that having to do with Christmas. Usually the Easter
    holidays are longer. The ones that are -- say per the Family Code are
    usually one day or shorter. It’s Father’s Day, Mother’s Day, and child’s
    birthday. Those are very short holidays. The other holidays are longer.
    Like I said, Easter says, mother shall have possession at all times
    specifically awarded; and Christmas holiday says specific times and
    doesn’t – for the mother it’s 12-24, 10:00 p.m., to 12-26 at 8:00 a.m. It
    doesn’t have the clause, mother has possession at all times not
    specifically awarded to the father.
    It would appear that he should have – that each one of them
    would have -- other than this carved out time, which gives basically
    every Christmas Day and -- 10:00 p.m. Christmas Eve through
    Christmas Day to the next morning to mother. But it doesn’t, as I said,
    contain language that says, mother shall have possession at all times not
    specifically awarded to the father.
    Therefore, I believe that [Larry’s] decree is correct; and I’m
    going to sign it. That’s my interpretation of the decree -- I mean, of the
    settlement agreement.
    …
    It doesn’t make any difference what she thought or was doing. I
    mean, that’s my interpretation of it and I -- like I said, [Frances’s
    attorney] says it doesn’t say standard. Well, it can’t say standard. It’s
    not standard because there’s specific times cut out.
    3
    But it also doesn’t say, mother gets all times that the father
    doesn’t get which is a specific statement that will cut him out of the
    time that he might ordinarily have.
    The trial court signed the version of the decree Larry filed with the court. As
    to the holiday schedule, it provides:
    (e) Holiday Schedule
    Notwithstanding the above ordered periods of possession for LARRY
    JULES LEBLANC, JR., FRANCES MORENO LEBLANC and
    LARRY JULES LEBLANC, JR. shall have the right to possession of
    the child as follows:
    1. Christmas Holidays in Even-Numbered Years–In even-numbered
    years, LARRY JULES LEBLANC, JR. shall have the right to
    possession of the child beginning at the time the child’s school is
    dismissed for the Christmas school vacation and ending at noon on
    December 28, and FRANCES MORENO LEBLANC shall have the
    right to possession of the child beginning at noon on December 28 and
    ending at 6:00 P.M. on the day before school resumes after that
    Christmas school vacation.
    Notwithstanding the above ordered Christmas holiday period of
    possession for LARRY JULES LEBLANC, JR., in even-numbered
    years FRANCES MORENO LEBLANC shall have the right to
    possession of the child beginning at 10:00 P.M. on December 24 and
    ending at 8:00 A.M. on December 26, provided that FRANCES
    MORENO LEBLANC picks up the child from LARRY JULES
    LEBLANC, JR.’s residence and returns the child to that same place.
    2. Christmas Holidays in Odd-Numbered Years–In odd-
    numbered years, FRANCES MORENO LEBLANC shall have the right
    to possession of the child beginning at the time the child’s school is
    dismissed for the Christmas school vacation and ending at noon on
    December 28, and LARRY JULES LEBLANC, JR. shall have the right
    to possession of the child beginning at noon on December 28 and
    ending at 6:00 P.M. on the day before school resumes after that
    Christmas school vacation.
    4
    Notwithstanding the above ordered Christmas holiday visitation
    for FRANCES MORENO LEBLANC, in odd-numbered years LARRY
    JULES LEBLANC[, Jr.] shall have the right to possession of the child
    beginning at 8:00 A.M. on December 24 and ending at 10:00 P.M. on
    that day, provided that LARRY JULES LEBLANC, JR. picks up the
    child from FRANCES MORENO LEBLANC’s residence and returns
    the child to that same place.
    3. Thanksgiving in Odd-Numbered Years–In odd-numbered
    years, LARRY JULES LEBLANC, JR. shall have the right to
    possession of the child beginning at the time the child’s school is
    dismissed for the Thanksgiving holiday and ending at 6:00 P.M. on the
    Sunday following Thanksgiving, except that FRANCES MORENO
    LEBLANC shall have the right to possession of the child on
    Thanksgiving Day beginning at 8:00 A.M. and ending at 3:00 P.M. on
    that day, provided that FRANCES MORENO LEBLANC picks up the
    child from LARRY JULES LEBLANC, JR.’s residence and returns the
    child to that same place.
    4. Thanksgiving in Even-Numbered Years–In even-numbered
    years, FRANCES MORENO LEBLANC shall have the right to
    possession of the child beginning at the time the child’s school is
    dismissed for the Thanksgiving holiday and ending at 6:00 P.M. on the
    Sunday following Thanksgiving, except that LARRY JULES
    LEBLANC, JR. shall have the right to possession of the child on
    Thanksgiving Day beginning at 3:00 P.M. and ending at 8:00 P.M. on
    that day, provided that LARRY JULES LEBLANC, JR. picks up the
    child from FRANCES MORENO LEBLANCs residence and returns
    the child to that same place.
    5. Child’s Birthday–If a conservator is not otherwise entitled
    under this Possession Order to present possession of a child on the
    child’s birthday, that conservator shall have possession of the child and
    the child’s minor siblings beginning at 6:00 P.M. and ending at 8:00
    P.M. on that day, provided that that conservator picks up the children
    from the other conservator’s residence and returns the children to that
    same place.
    6. Father’s Day–Father shall have the right to possession of the
    child each year, beginning at 6:00 P.M. on the Friday preceding
    5
    Father’s Day and ending at 6:00 P.M. on Father’s Day, provided that if
    Father is not otherwise entitled under this Possession Order to present
    possession of the child, he shall pick up the child from the other
    conservator's residence and return the child to that same place.
    7. Mother’s Day–Mother shall have the right to possession of the
    child each year, beginning at the time the child’s school is regularly
    dismissed on the Friday preceding Mother’s Day and ending at 6:00
    P.M. on Mother’s Day, provided that if Mother is not otherwise entitled
    under this Possession Order to present possession of the child, she shall
    pick up the child from the other conservator's residence and return the
    child to that same place.
    8. Easter Sunday Every Year–FRANCES MORENO LEBLANC
    shall have the superior right to possession of the child beginning at 8:00
    A.M. on Easter Sunday and ending at 6:00 P.M. that same day.
    (f) Undesignated Periods of Possession
    FRANCES MORENO LEBLANC shall have the right of possession of
    the child at all other times not specifically designated in this Possession
    Order for LARRY JULES LEBLANC, JR.
    Frances timely filed this appeal.
    Issue One
    In her sole issue, Frances argues that the trial court erred when it signed
    Larry’s version of the proposed divorce decree, complaining that it does not comply
    with the MSA. She contends the decree the trial court signed adds terms and
    incorporates schedules for holidays that differ from those in the MSA and complains
    it violates the parties’ settlement agreement by changing the holidays Frances
    bargained for in the MSA, an agreement that provides she is to have all time in the
    holidays the MSA addresses unless that time is specifically awarded to Larry.
    6
    Standard of Review
    A. Law Pertaining to MSAs
    An MSA meeting the statutory requirements in the Texas Family Code “is
    binding on the parties and requires the rendition of a divorce decree that adopts the
    parties’ agreement.” Milner v. Milner, 
    361 S.W.3d 615
    , 618 (Tex. 2012) (citing 
    Tex. Fam. Code Ann. § 6.602
    (b)–(c)). The relevant section of the Family Code provides:
    (b) 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.
    (c) If a mediated settlement agreement meets the requirements of this
    section, a party is entitled to judgment on the mediated settlement
    agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
    another rule of law.
    
    Tex. Fam. Code Ann. § 6.602
    (b)–(c). Several of our sister courts of appeals have
    interpreted these provisions to mean that a trial court is not required to enforce an
    MSA if it is illegal or procured by fraud, duress, coercion, or other unlawful means.
    See Morse v. Morse, 
    349 S.W.3d 55
    , 56 (Tex. App.—El Paso 2010, no pet.); Spiegel
    v. KLRU Endowment Fund, 
    228 S.W.3d 237
    , 242 (Tex. App.—Austin 2007, pet.
    denied); In re Marriage of Joyner, 
    196 S.W.3d 883
    , 890 (Tex. App.—Texarkana
    2006, pet. denied); Boyd v. Boyd, 
    67 S.W.3d 398
    , 403–05 (Tex. App.—Fort Worth
    7
    2002, no pet.); In re Kasschau, 
    11 S.W.3d 305
    , 312 (Tex. App.—Houston [14th
    Dist.] 1999, orig. proceeding). That said, the Texas Supreme Court has not addressed
    whether the exceptions recognized by these intermediate courts in cases where the
    MSA has been procured by duress, fraud, coercion or by unlawful means renders an
    otherwise statutorily compliant MSA unenforceable. See Milner, 361 S.W.3d at 619
    (noting in an MSA case, the Court would “leave the applicability of those defenses
    for another case”); see also Highsmith v. Highsmith, 
    587 S.W.3d 771
    , 777 n.5 (Tex.
    2019) (“As in Milner, we need not and do not address whether an MSA that complies
    with the statutory formalities may nevertheless be set aside on the ground that it is
    illegal or was procured by fraud, duress, or coercion.”).
    We further note that section 153.0071(b) does not give trial courts the
    authority to reject an MSA on the grounds that the settlement is not in the best
    interest of the child. See In re Lee, 
    411 S.W.3d 445
    , 455 (Tex. 2013) (holding that
    section 153.0071(e) “encourages parents to peaceably resolve their child-related
    disputes through mediation by foreclosing a broad best interest inquiry with respect
    to entry of judgment on properly executed MSAs”).
    [S]ection 153.0071(e) reflects the Legislature’s determination that it is
    appropriate for parents to determine what is best for their children
    within the context of the parents’ collaborative effort to reach and
    properly execute an MSA. This makes sense not only because parents
    are in a position to know what is best for their children, but also because
    successful mediation of child-custody disputes, conducted within
    statutory parameters, furthers a child’s best interest by putting a halt to
    potentially lengthy and destructive custody litigation.
    8
    Id. at 454. In Lee, the Texas Supreme Court determined that the MSA statute was
    written for parents to determine their children’s best interest and the trial court must
    defer to the parents and their agreement. See id. at 455; see also In re Marriage of
    Harrison, 
    557 S.W.3d 99
    , 138 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
    (“[A] trial judge has no discretion to refuse to enter judgment on an MSA based
    solely on the court’s determination that the agreed custody terms are not in the child's
    best interest because Family Code section 153.0071 does not grant trial courts the
    option to deny judgment on that basis.”).
    Since an MSA is a contract, general contract-interpretation principles
    determine its meaning. Loya v. Loya, 
    526 S.W.3d 448
    , 451 (Tex. 2017). The
    question of whether a contract is ambiguous is one of law for the court. Coker v.
    Coker, 
    650 S.W.2d 391
    , 393 (Tex. 1983). “A contract is ambiguous when its
    meaning is uncertain and doubtful or is reasonably susceptible to more than one
    interpretation.” See Heritage Res., Inc. v. NationsBank, 
    939 S.W.2d 118
    , 121 (Tex.
    1996) (citing Coker, 650 S.W.2d at 393).
    The Court’s task is to “‘ascertain the true intentions of the parties as expressed
    in the writing itself.’” Loya, 526 S.W.3d at 451 (quoting Italian Cowboy Partners,
    Ltd. v. Prudential Ins. Co. of Am., 
    341 S.W.3d 323
    , 333 (Tex. 2011)). We begin with
    the contract’s express language, and “‘examine and consider the entire writing in an
    effort to harmonize and give effect to all the provisions of the contract so that none
    9
    will be rendered meaningless.’” Murphy Expl. & Prod. Co.—USA v. Adams, 
    560 S.W.3d 105
    , 108 (Tex. 2018) (quoting Seagull Energy E & P, Inc. v. Eland Energy,
    Inc., 
    207 S.W.3d 342
    , 345 (Tex. 2006)). In our analysis, “[w]e give terms their plain,
    ordinary, and generally accepted meaning unless the instrument shows that the
    parties used them in a technical or different sense.” Loya, 526 S.W.3d at 451
    (quoting Heritage, 939 S.W.2d at 121). Our presumption is that “the parties to a
    contract intend every clause to have some effect.” Heritage, 939 S.W.2d. at 121,
    (quoting Ogden v. Dickinson State Bank, 
    662 S.W.2d 330
    , 331 (Tex.1983)). An
    unambiguous contract will be enforced as written. 
    Id.
     (citations omitted).
    Analysis
    No party has asserted that the MSA was procured by “fraud, duress, coercion,
    or other dishonest means.” See Morse, 
    349 S.W.3d at 56
    . The MSA is signed by both
    parties and their attorneys, and it has a prominently displayed statement, in boldface
    and capitalized letters, stating the MSA is “an AGREEMENT NOT SUBJECT TO
    REVOCATION” and is a “BINDING Mediated Settlement Agreement.” See In re
    Lee, 411 S.W.3d at 458-59 (explaining the trial court abused its discretion by not
    complying with the MSA because the MSA was signed by the parties, contained
    bold, capitalized, underlined language it was irrevocable, and no testimony showed
    there was family violence); see also 
    Tex. Fam Code Ann. § 153.0071
    .
    10
    Larry did not file a brief in the appeal, and while he was in the trial court, he
    never claimed the MSA is ambiguous. While the MSA could have been more
    detailed than it is as to the holiday schedule, its terms are not ambiguous.
    The MSA is a combination of changes the parties placed in the agreement by
    writing on a document someone prepared as a draft, which the parties then finalized
    without retyping it and by placing their initials by the language they changed in the
    draft. The parties then approved the document by signing the last page. Counsel
    signed that page too.
    Exhibit B to the MSA is the section of the agreement at issue here. It sets out
    possession and access the parties bargained for in a hand-written schedule, which is
    unlike standard visitation schedules typically contained in final decrees. Exhibit B
    is written by using brief descriptive fragmented sentences. The various holidays,
    including summers and spring breaks, provide periods of visitation inconsistent with
    the holiday schedule suggested when a trial court orders standard visitation
    schedules to be followed in regard to the parent’s right to their children under the
    Texas Family Code. Each holiday is underlined and indented from the left margin,
    setting it apart as a different period of possession. At the end of the holiday period
    and in marginalia the left margin of the agreement, the agreement states: “Mother
    has possession at all times not specifically awarded to father.”
    11
    The trial court interpreted the last provision in Schedule B of the MSA to
    apply to Easter only and not to any of the other holidays. However, a plain reading
    of the document indicates the parties intended the “not specifically awarded to
    father” provision in the holiday schedule to apply to all holidays. Thus, under the
    terms of the MSA, the bargain Mother and Father struck gave Mother greater rights
    than those the trial court gave her in the final decree. See In re C.W.W., No. 05-15-
    00960-CV, 
    2016 WL 3548036
    , at *3 (Tex. App.—Dallas June 28, 2016, no pet.)
    (mem. op.) (analyzing a handwritten provision of MSA emphasis and meaning in
    regard to the other terms of the MSA); see also Nassar v. Liberty Mut. Fire Ins. Co.,
    
    508 S.W.3d 254
    , 258 (Tex. 2017) (citations omitted) (explaining that in contract
    interpretation “‘[n]o one phrase, sentence, or section [of a contract] should be
    isolated from its setting and considered apart from the other provisions’”). Because
    the Agreed Final Decree of Divorce rendered by the trial court does not track the
    terms of the MSA, we hold the trial court abused its discretion by signing a final
    decree that is inconsistent with terms of the MSA. We sustain Frances’s sole issue.
    Conclusion
    Having sustained Frances’s argument, we reverse the trial court’s judgment
    as it relates to the Holiday Schedule, and remand the case to the trial court with
    instructions that it issue a final decree that complies with the parties’ MSA as to the
    Holiday Schedule in Exhibit B to the MSA the parties signed on October 21, 2019.
    12
    REVERSED AND REMANDED.
    ________________________________
    CHARLES KREGER
    Justice
    Submitted on April 13, 2021
    Opinion Delivered January 27, 2022
    Before Golemon, C.J., Kreger and Johnson, JJ.
    13
    

Document Info

Docket Number: 09-20-00028-CV

Filed Date: 1/27/2022

Precedential Status: Precedential

Modified Date: 1/28/2022