in the Interest of C.W.W., a Child ( 2016 )

Affirmed and Opinion Filed June 28, 2016
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-15-00960-CV
IN THE INTEREST OF C.W.W., A CHILD
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-14-01264-U
MEMORANDUM OPINION
Before Justices Myers, Stoddart, and Whitehill
Opinion by Justice Whitehill
This case involves the interpretation of a mediation settlement agreement (MSA) in a suit
affecting parent–child relationship as that agreement concerns the child’s education. In a single
issue, the father argues that the trial court abused its discretion by entering an order adjudicating
parentage (OAP) that deviates from the parties’ unambiguous MSA on that topic.1 For the
reasons discussed below, we conclude that the OAP tracks the MSA’s unambiguous terms on
that issue and affirm the trial court’s order.
1
The portion of the record containing the OAP was filed here under seal. Placing critical parts of an appellate record under seal potentially
complicates our opinions because by statute and rule we must decide each case with a publicly released written opinion describing the case and
explaining our decisions. See TEX. R. APP. P. 47.1 (all opinions are open to the public and must be made available to public reporting services);
TEX. GOV’T CODE § 552.022(a)(12) (“final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of
cases” are “public information”). But, in this case, the appellant included both the MSA and a redacted copy of the OAP in the Appendix to its
appellant’s brief without filing that brief under seal or asking us to treat those materials as being under seal. And the appellee did not object to
those materials not being filed under seal. Consistent with the parties’ positions regarding confidentiality as shown by their briefing, we have
tried to eliminate from our opinion information that we believe the parties would have deemed confidential.
I. Background
We take these undisputed facts from the record and the parties’ briefs:
Father and mother began living together in 2003. Their relationship produced one child,
who was born in 2005.
Father and mother separated in 2014 when mother sued father for divorce, alleging that
they had been informally married. Father answered with a general denial and a request for
attorneys’ fees. The trial court entered temporary orders. Later that year, mother filed her “first
amended original petition for divorce and petition to establish paternity” in which she denied the
existence of a marriage and nonsuited her request for a divorce.
The parties participated in a mediation conducted pursuant to family code § 153.0071(c).
That mediation produced the MSA at issue. Among other things, that MSA (i) stipulated that the
parties were not married, (ii) stipulated to father’s paternity, (iii) addressed typical managing
conservator issues, and (iv) disposed of certain personal property items. More specifically, the
MSA has several parts addressing the child’s education at Dallas Christian Academy (DCA).
The parties endeavored to reduce the MSA to an agreed order adjudicating parentage.
But a sticking point was the child’s DCA attendance beyond the 2015/2016 school year.
The record does not reflect a motion to enter an order based on the MSA. But the parties
agree that the trial court held a hearing to address mother’s proposed OAP. They further agree
that father at that hearing objected to the proposed language requiring the child’s future DCA
attendance, absent the parties’ contrary agreement.
Nonetheless, the trial judge signed and entered its OAP on April 3, 2015. The OAP
provides that, unless the parties agree otherwise, (i) the child is to continue attending DCA, (ii)
the parties would share that cost equally, but (iii) father’s share of the tuition for the 2015–2016
school year was limited to $4,000.00.
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Father timely moved for a new trial, complaining that the OAP misinterprets and thus
misapplies the MSA. According to father, the MSA required that the child would remain at
DCA for only the 2015–2016 school year and for which father would be required to pay half of
the tuition not to exceed $4,000.00.
The new trial motion was denied, and father appealed. For the reasons discussed below,
we conclude that the trial court did not abuse its discretion as father claims because the OAP
correctly embodies the MSA terms regarding the child’s education.
II. Analysis
A. Applicable Standards
With certain exceptions not implicated here, a party is entitled to a judgment on mediated
settlement agreement that complies with family code § 153.0071(d)’s requirements. See TEX.
FAM. CODE § 153.0071(e); In re Lee, 411 S.W.3d 445, 453 (Tex. 2013) (orig. proceeding);
Milner v. Milner, 361 S.W.3d 615, 618–19 (Tex. 2012).
We review a trial court’s judgment on a mediated settlement agreement for an abuse of
discretion. R.H. v. Smith, 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no pet). Although a
final judgment rendered pursuant to a mediated settlement agreement must be in strict or literal
compliance with that agreement, we will not reverse that judgment unless it adds terms to, or
significantly alters, the agreement’s original terms or undermines the parties’ intent. Id.
When applying these standards to this dispute regarding whether the OAP comports with
the MSA’s terms, we construe the MSA using ordinary contract construction rules. See 361
S.W.3d at 619.
In construing a written contract, we must ascertain and give effect to the parties’
intentions as expressed in the document. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d
310, 311–12 (Tex. 2005) (per curiam); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229
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(Tex. 2003); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205
S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet denied). We consider the entire writing and attempt
to harmonize and give effect to all of the contract’s provisions by analyzing them with reference
to the whole agreement. Frost Nat’l Bank, 165 S.W.3d at 312; Webster, 128 S.W.3d at 229.
“No single provision taken alone will be given controlling effect; rather, all the provisions must
be considered with reference to the whole instrument.” Webster, 128 S.W.3d at 229.
The parties’ intent is governed by what is written in the contract, not by what one side
contends they intended but failed to say. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s
London, 327 S.W.3d 118, 126 (Tex. 2010). Thus, “it is objective, not subjective, intent that
controls.” Matagorda Cty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per
curiam) (citing City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.
1968)). A court must therefore give terms their plain and ordinary meaning unless the contract
indicates that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship. v.
Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). And, as a secondary construction rule, courts
give effect to written (or typewritten) provisions over printed provisions. Southland Royalty Co.
v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 57 (Tex. 1964); see Alba Tool & Supply Co., Inc. v.
Indus. Contractors, Inc., 585 S.W.2d 662, 665 (Tex. 1979).
If we cannot harmonize the provisions and give effect to all its clauses, the contract is
susceptible to more than one reasonable interpretation and is thus ambiguous. United Protective
Servs., Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d 430, 432 (Tex. App.—Dallas 2005, no pet.)
(citing Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 347 (Tex. App.—Dallas 2004,
pet. denied)).
If after applying the pertinent rules of construction the contract can be given a definite or
certain legal meaning, it is unambiguous and the courts should construe it as a matter of law.
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Frost Nat’l Bank, 165 S.W.3d at 312. Whether a contract is ambiguous is a question of law for
the court to decide by looking at the contract as a whole in light of the circumstances existing
when the contract was entered into. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.
1987). A court may conclude that a contract is ambiguous even absent such a pleading by either
party. Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).
B. Applying the Rules of Construction to the MSA and the OAP
1. The MSA’s Unambiguous Terms Regarding The Child’s Education
Here, neither party pled nor contends that the MSA is ambiguous, and we determine that
it is not. Furthermore, after applying the above contract construction rules to the MSA, we
conclude that the OAP accurately reflects the MSA’s terms regarding the child’s continued
education at DCA for the following reasons:
First, the MSA provides that each parent is to be named a joint managing conservator
with the rights and duties specified on an attached schedule:
Second, the attached schedule, captioned “Form 15-11 Allocation of Parental Rights and
Duties,” provides that each parent has the “Right to confer with the other parent, to the extent
possible, before making a decision concerning the health, education, and welfare of the child.”
That same schedule further provides that the “Right to make decisions concerning the child’s
education” is, as indicated by the check-mark, to be exercised “By agreement” after the parents
confer with each other. And that provision has a handwritten interlineation stating that that the
child’s education is to “Continue with DCA”:
Giving the handwritten portion emphasis over the typed text, the meaning is that the child will
continue at DCA unless the parents agree otherwise after conferring with each other.
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Third, the MSA adds that (i) mother and father are to share equally in child’s DCA
tuition; (ii) they are to make their payments in time to receive the discounted tuition; but (iii)
father is only obligated to pay $4,000.00 in tuition for the 2015–2016 school year:
The OAP comports with the above MSA terms. For example, as with the MSA, the OAP
gives each parent the right to participate in deciding the child’s education, subject to the other
parent’s agreement. Similarly, consistent with the above MSA excerpts, the OAP further
provides that the child will continue his education at “Dallas Christian School”2 unless the
parents agree otherwise:
IT IS FURTHER ORDERED that the child shall attend school at Dallas Christian
School for the balance of his education or until the parents mutually agree to
enroll the child in a different school.
The OAP additionally provides that:
For the 2015–2016 academic year, [father] shall pay $4,000.00 toward the
child’s private school tuition. In all future years, [mother] shall pay 50% and
[father] shall pay 50% of the cost of private school tuition. IT IS FURTHER
ORDERED that all payments shall be made on or before the tuition discount
deadline.
Comparing the MSA’s terms, read as a whole and applying the relevant rules of
construction, with their OAP counterparts, read as a whole, we conclude that the OAP’s terms
concerning the child’s education fairly and accurately match what the parties agreed to on that
topic as stated in the MSA. Thus, the trial court did not abuse its discretion as father contends.
2
“Dallas Christian School” appears to be a misnomer as the parties’ briefs refer to the school as “Dallas Christian Academy” and neither
party complains about the name in the trial court’s order.
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2. Father’s Contra Arguments
Notwithstanding the documents’ terms shown above, father relies on only isolated MSA
paragraph “8” excerpted above to argue that:
The handwritten sentence of the MSA clearly and unequivocally limits [father’s]
obligation for tuition to $4,000.00 while the provision in the Order Adjudicating
Parentage imposes a continuing obligation on [father] to pay for subsequent
school years. The version adopted by the trial court also subsumes that the child
will attend private school after the 2015/2016 school year. This is outside the
scope of the provision and clearly not agreed to by the parties. Further, the
exclusion of DCA (Dallas Christian Academy) from the tuition provision is an
omission of a material term in the MSA.
We disagree for the reasons stated above.
Moreover, paragraph 8’s text itself contradicts father’s argument. Specifically, the
$4,000.00 cap on father’s 2015–2016 school year tuition liability implies that the cap does not
apply in other years. Thus, paragraph 8 contemplates that the child will attend DCA in years
beyond the 2015–2016 school year and that the $4,000.00 cap will not apply in those years.
III. Conclusion
For the above reasons, we conclude that father has not shown that the trial court abused
its discretion in the OAP regarding the parties’ rights and duties concerning the child’s
education. Accordingly, we overrule father’s sole issue and affirm the trial court’s order.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
150960F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF C.W.W., A CHILD On Appeal from the 302nd Judicial District
Court, Dallas County, Texas
No. 05-15-00960-CV Trial Court Cause No. DF-14-01264-U.
Opinion delivered by Justice Whitehill.
Justices Myers and Stoddart participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Cheryl Rene Williams recover her costs of this appeal
from appellant Carl William Whitacre.
Judgment entered June 28, 2016.
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