in the Interest of R.S., A.S., and L.S., Children ( 2019 )

AFFIRM in part, and VACATE and REMAND in part; Opinion Filed April 12, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00848-CV
IN THE INTEREST OF R.S., A.S., AND L.S., CHILDREN
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-13-09274
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Osborne
Mother appeals the trial court’s “agreed final decree of divorce” (agreed decree).1 Mother
raises two issues on appeal, arguing the trial court erred when it: (1) included material terms in the
agreed decree that were not included in the parties’ partial mediated settlement agreement (partial
MSA) or informal settlement agreement (ISA); and (2) denied her request to divide a previously
undivided asset. The substance of Mother’s appeal is that she did not consent to the agreed decree.
We conclude the agreed decree was not a consent judgment. We affirm the portion of the trial
1
Most of the reporter’s and clerk’s records were filed under seal. The trial court signed an agreed sealing order on July 2, 2013, and included
a sealing order in the agreed decree. However, the parties did not file their briefs under seal and cite to portions of the sealed record. To the extent
the briefs may discuss anything touching on the confidential information, this Court is required to hand down a public opinion explaining our
decision based on the record. See TEX. R. APP. P. 47.1, 47.3; In re N.G.G., No. 05–16–01084–CV, 2017 WL 655953, at *1 (Tex. App.–Dallas Feb.
17, 2017, no pet.) (mem. op.). To the extent we cannot fulfill this duty without describing some of the pleadings, evidence, findings, and judgment
in the case, “[w]e include any sensitive information in this memorandum opinion . . . only to the degree necessary to strike a fair balance between
the parties’ interest in keeping portions of the record confidential and our responsibilities to the public as an appellate court.” See In re N.G.G.,
2017 WL 655953, at *1 (quoting TMX Fin. Holdings, Inc. v. Wellshire Fin. Servs., L.L.C., 515 S.W.3d 1, 4 n.1 (Tex. App.–Houston [1st Dist.] Oct.
11, 2016, pet. abated)).
court’s agreed decree ordering the dissolution of the parties’ marriage. In all other respects, we
vacate the trial court’s agreed decree and remand the case to the trial court for further proceedings
consistent with this opinion.
I. PROCEDURAL CONTEXT
On May 10, 2013, Mother sued Father for divorce after about fifteen years of marriage.
Father counter-sued for divorce. The couple had three children, R.S., A.S., and L.S.
On June 5, 2015, Mother and Father executed a partial MSA under Texas Family Code
section 153.0071 with respect to the suit affecting the parent-child relationship. See TEX. FAM.
CODE ANN. § 153.0071 (alternative dispute resolution procedures in suits affecting parent-child
relationship). The partial MSA reflects that the parties appeared without their counsel and the
amicus attorney was also present. The partial MSA resolved disputes relating to the
conservatorship of the children, visitation, counseling, reunification therapy, extracurricular
activities, health insurance, and child support. Also, the partial MSA provided that any
disagreement about the children or other issues not determined by the partial MSA would be
submitted to binding arbitration.
Then, on December 4, 2015, during the course of arbitration, the parties executed an ISA
under Texas Family Code section 6.604 with respect to the dissolution of the marriage.2 See FAM.
§ 6.604 (informal settlement conferences in suits for dissolution of marriage). The ISA states that
the parties stipulate the agreement “shall be rendered as the final award of the arbitrator.” See
FAM. §§ 6.601 (arbitration procedures in suits for dissolution of marriage); 153.0071(a)–(b)
(arbitration procedures in suits affecting parent-child relationship). However, the record does not
include a subsequent arbitration award that incorporates the terms of the ISA and the ISA is not
2
It is not clear from the record on appeal what precipitated the arbitration in December 2015.
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signed by the arbitrator. Nevertheless, in subsequent hearings before the trial court, counsel refer
to an “arbitrator’s award.”3 The ISA states that the partial MSA continues without alteration except
as specifically set out in the ISA. Also, the ISA resolved disputes relating to, inter alia, child
support, the children’s school tuition, reunification therapy, supervised visitation and the
associated fees, visitation, financial accounts, spousal maintenance, tax burdens and the
distribution of refunds, the division of real property, the purchase of a home warranty, and payment
of the children’s medical expenses. In addition, the parties agreed that any drafting or substantive
disputes shall be submitted to arbitration.
On May 18, 2016, the trial court held a hearing.4 During the hearing, the attorneys pointed
out that the parties had several disputes relating to provisions in the partial MSA and the ISA, and
that some necessary provisions were missing from those agreements. At the conclusion of the
hearing, it was agreed that they would return for another hearing.
On June 2, 2016, the trial court held another hearing,5 during which there was testimony
about some of the provisions of the partial MSA and ISA and it was stated that those documents
had been filed with the trial court. However, neither the partial MSA nor the ISA were admitted
into evidence, and the trial court did not take judicial notice of the file. Also, although the parties
agreed in the partial MSA and the ISA that any drafting or substantive disputes must be arbitrated,
in the hearing they represented that they wanted the trial court to determine any continuing or
further disputes so they could get the final decree completed. Although the record does not reflect
3
For example, during a hearing on October 13, 2016, Mother’s counsel stated, “Then at arbitration, the parties entered into an [ISA], but
then it was made an arbitrator's award to give it even more . . . authority with the Court so that the parties couldn’t back out of it because you can
sometimes back out of an informal settlement.”
4
According to the docket sheet, the hearing was a “motions hearing” and the reporter’s record lists the hearing as a “motion to enter.”
However, it is unclear from the record what motion was being heard by the trial court as there is no written motion to enter judgment in the record
on appeal.
5
According to the docket sheet, the hearing was a “motions hearing” and the reporter’s record lists the hearing as a “divorce prove-up”.
However, it is unclear from the record what motion was being heard by the trial court.
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that a trial was held, at the conclusion of the hearing, the trial court found that “based on the
testimony, . . . [the parties’] provisions regarding [the parties’] children are in [the children’s] best
interest, that [the parties’] property division is just and right, and [granted] [the parties’] divorce.”
On July 26, 2016, Mother filed a motion to divide an undivided asset, and on October 6,
2016, Father filed a response. The trial court denied Mother’s motion to divide the undivided asset
by letter dated November 7, 2016, stating that the tax language submitted by Father’s attorney
should be used in the divorce decree.
On October 13, 2016, the trial court held another hearing, at the beginning of which it noted
that the hearing was on the parties’ “joint motion.”6 During the hearing, Father’s counsel stated
that the parties had “agreed on the record that the remainder of the disputes in this case would be
submitted to [the trial court] to the extent they could not agree amongst themselves” because
additional fees are incurred by going back to arbitration. However, Mother’s counsel responded
“if [the trial court] do[es not] have time, [Mother] would like the alternative of doing actually [sic]
what the parties agreed to do in the arbitrator’s award and go to [the arbitrator]. It’s basically a
time thing. We agreed to use [the arbitrator], we also agreed to use [the trial court].7 At the
conclusion of the hearing, counsel for both parties agreed to work together on the language of the
decree and trial court stated it would have a conference call with counsel on the following Monday.
On December 30, 2016, the trial court signed an “agreed decree” that states the trial court
heard the case on June 2, 2016. With respect to the consent of the parties, the agreed decree stated:
6
According to the docket sheet, the hearing was a “motions hearing” and the reporter’s record lists the hearing as a “motion to enter.”
However, it is unclear from the record what motion was being heard by the trial court as there is no written motion to enter judgment in the record
on appeal.
7
During the hearing, the parties acknowledged they were continuing to have disputes, the trial judge had “provided [] time to interpret [their]
differences,” some of the parties’ differences “ha[d] been framed by the [trial judge],” “the [trial judge] provided answers for [the parties],” and the
parties agreed that they wanted the trial court to resolve any further differences so they could ultimately get the final decree completed.
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Agreement of Parties
A. This Agreed Final Decree of Divorce (“decree” or “Decree”) is both a
judgment and a contract. The [trial court] finds that the parties have consented to
the terms of this Decree, and have stipulated that this is a contract. The parties
agree that the terms of this Decree are contractual in nature and are enforceable,
each against the other, as a contract. IT IS THEREFORE ORDERED AND
DECREED and the parties have stipulated that adequate consideration for these
contractual agreements has been exchanged, including but not limited to, the mutual
benefits that each will derive from their mutual promises. The adequacy of the
consideration for all agreements contained herein is stipulated, admitted and
confessed by the parties.
B. General contractual provisions. This agreement shall take effect only if and
when this Decree is signed by the parties. This agreement shall be governed by,
and shall be construed in accordance with, the laws of the State of Texas. All rights,
duties and obligations under this agreement are payable and enforceable in Dallas
County, Texas. By each party’s signature to this Decree, each party approves this
Decree as a contract and agrees that this Decree is enforceable in contract.
Though the agreed decree, was, in part, a merger of the partial MSA and ISA, it does not confirm
an “arbitrator’s award,” if there was one.8 Further, though the “agreed” decree was signed by
Father and approved by the parties’ attorneys only as to form, it was not signed by Mother.
On January 27, 2017, Mother filed a motion for new trial and motion to reconsider her
motion to divide the undivided asset. In her motion for new trial, Mother argued, in part, that the
agreed decree included language that did not appear in either the partial MSA or the ISA and a
final judgment rendered pursuant to a settlement agreement must comply with that agreement. The
motion for new trial appears to have been overruled by operation of law.
II. AGREED FINAL DECREE OF DIVORCE
In her first issue on appeal, Mother argues the trial court erred when it included material
terms in the agreed decree that were not included in the parties’ partial MSA or ISA. Specifically,
she claims that the trial court added terms or language that were not agreed on by the parties
relating to: (1) income taxes; (2) the children’s extracurricular activities; (3) the home warranty;
8
Also, the trial court found that there was no family violence in the two years preceding or during the pendency of the suit. See FAM. §
153.0071(e)(1) (trial court may decline to enter judgment on MSA in suit affecting parent-child relationship if it makes finding of family violence).
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(4) reunification therapy and the children’s possession schedules; and (5) offsets. Mother also
argues that “[t]he trial court’s [agreed] decree purports to supersede the [partial MSA] and ISA,
but [(1)] [Mother] never signed the [agreed] decree, and [(2)] such a pronouncement indicates that
the trial court ignored well-settled statutes, binding case law, and important public policy
considerations.” We understand the substance of Mother’s argument to be that she did not consent
to the agreed decree. Father responds that the parties agreed to submit their disputes about the
partial MSA and the ISA as well as other needed terms to the trial court for a “binding decision,”
so Mother is bound by the trial court’s agreed decree. We understand Father’s argument to be that
Mother waived her right to challenge the trial court’s agreed decree on appeal because she agreed
to take their disputes to the trial court rather than the arbitrator.
A. Applicable Law
An agreed final decree of divorce is a consent judgment and treated as a contract between the
parties. See Stafford v. Stafford, No. 01-13-01060-CV, 2015 WL 2265917, at *2 (Tex. App.—
Houston [1st Dist.] May 14, 2015, no pet.) (mem. op.). Accordingly, as a contract, an agreed
decree is subject to the usual rules of contract interpretation. See McCray v. McCray, 584 S.W.2d
279, 281 (Tex. 1979) (per curiam); In re C.A.T., 316 S.W.3d 202, 210 (Tex. App.—Dallas 2010,
no pet.); see also Lowery v. Lowery, No. 01-16-00147-CV, 2017 WL 6520428, at *3 (Tex. App.—
Houston [1st Dist.] Dec. 21, 2017, no pet.) (mem. op.); Hicks v. Hicks, 348 S.W.3d 281, 283 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). In general, a consent judgment has the same force as
a judgment rendered after litigation, except that the parties’ consent excuses error and operates to
end all controversy between them. See McCray, 584 S.W.2d at 281; Johnson, 2010 WL 4156459,
at *6. Excepting jurisdictional error, a party’s consent to the trial court’s entry of judgment waives
any error contained in the judgment, and that party has nothing to properly present for appellate
review. See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no pet.);
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Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no pet.); see also Gross v. Dannatt,
No. 13-15-00309-CV, 2017 WL 2705471, at *1 (Tex. App.—Corpus Christi-Edinburg June 22,
2017, pet. denied) (mem. op.), cert. denied, No. 18-7342, 2019 WL 1231849 (U.S. Mar. 18, 2019).
Accordingly, a party cannot appeal from a judgment to which it has consented or agreed absent an
allegation and proof of fraud, collusion, or misrepresentation.9 See Boufaissal, 251 S.W.3d 161–
62; Baw, 949 S.W.2d at 766.
To have a consent judgment, each party must explicitly and unmistakably give its consent.
See Baw, 949 S.W.2d at 766; see also Hicks, 348 S.W.3d at 283. A trial court cannot render a
valid agreed judgment absent consent at the time it is rendered. See Chisholm v. Chisholm, 209
S.W.3d 96, 98 (Tex. 2006) (per curiam); Padilla v. LaFrance, 907 S.W.2d 454, 461–62 (Tex.
1995); see also Vega v. Vega, No. 07-14-00208-CV, 2016 WL 735967, at *2 (Tex. App.—
Amarillo Feb. 18, 2016, no pet.) (mem. op.); Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex.
App.—Corpus Christi-Edinburg 1995, no writ). The presence of a party’s signature approving the
decree does not render the decree an agreed or consent judgment. See Durden v. McClure, 281
S.W.3d 137, 140 (Tex. App.—San Antonio 2008, no pet.). A party who approves only the form
of the judgment forfeits no right to appeal. See Baw, 949 S.W.2d at 766–67. Further, the phrase
“approved as to form and substance” standing alone does not transform a judgment into a consent
judgment. See Baw, 949 S.W.2d at 767; see also Hicks, 348 S.W.3d at 283; Durden, 281 S.W.3d
at 140; cf. Boufaissal, 251 S.W.3d at 162 (Wife’s signature signified her approval and consent to
terms of agreed decree as to both form and substance and waived her right to appeal). However,
the phrase “approved as to form and substance” may describe an agreed judgment when coupled
9
We note that a trial court may also decline to enter judgment on an MSA agreement in a suit affecting parent child relationship if it makes
a finding of family violence in the two years preceding or during the pendency of the suit. See FAM. § 153.0071(e)(1). Here, however, the trial
court has made no such finding.
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with additional recitations in the judgment. See Durden, 281 S.W.3d at 140. For example, the
body of the consent judgment must also suggest that the judgment was rendered by consent. See
Hicks, 348 S.W.3d at 283. When a consent judgment is rendered without consent or is not in strict
compliance with the terms of the parties’ agreement, the judgment must be set aside. See
Chisholm, 209 S.W.3d at 98; see also Vega, 2016 WL 735967, at *2; Sohocki, 897 S.W.2d at 424.
B. Application of the Law to the Facts
On appeal, Mother does not argue she revoked her consent to the partial MSA or the ISA.
See FAM. §§ 6.604(b) (in suit involving dissolution of marriage, ISA binding on parties if it states
agreement not subject to revocation), 153.0071(d) (in suit affecting parent-child relationship, MSA
binding on parties if it states agreement not subject to revocation). Rather, she contends that she
did not consent to the agreed decree, which is not in strict compliance with the parties’ partial
MSA and ISA, because the agreed decree added terms or language that were not agreed on by the
parties.
The record shows the parties entered into a partial MSA in the suit affecting the parent-
child relationship that did not settle all of their claims and an ISA in the suit for the dissolution of
the marriage. See FAM. §§ 6.604, 153.0071. However, when it came time to finalize the decree,
various disputes arose that the parties sought to have determined by the trial court, although the
record does not indicate that there was a trial on those matters. In addition, Mother filed a motion
to divide an undivided asset which the trial court denied stating that Father’s proposed language
should be used in the decree. After at least three hearings, the trial court signed a ninety-five page
decree styled “Agreed Decree of Divorce.” Though the body of the agreed decree contains
language suggesting that the judgment was rendered by consent, it was signed only by Father and
approved by the parties’ attorneys only as to form; it was not signed by Mother. Mother
immediately objected to the agreed decree by filing a motion for new trial that argued, in part, that
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the agreed decree added terms and language that did not appear in either the partial MSA or the
ISA and was not agreed on by the parties.
Based on the record before us, we cannot conclude that Mother consented to the agreed
decree at the time it was rendered. See, e.g., Chisholm, 209 S.W.3d at 98 (reversing decree because
it was not consent judgment as record demonstrated wife’s lack of consent to some of provisions);
Baw, 949 S.W.2d at 767 (even though husband approved as to form and substance, his objections
showed he did not explicitly and unmistakably consent to portions of decree). Accordingly, the
trial court’s agreed decree must be set aside. See Chisholm, 209 S.W.3d at 98 (consent judgment
must be set aside when rendered without consent); see also Vega, 2016 WL 735967, at *2; Sohocki,
897 S.W.2d at 424. We express no opinion as to Mother’s other arguments on appeal.
Issue one is decided in Mother’s favor. Based on our resolution of issue one, we need not
decide issue two.
III. CONCLUSION
The agreed decree was not a consent judgment.
The portion of the trial court’s agreed decree ordering the dissolution of the parties’
marriage is affirmed. In all other respects, the trial court’s agreed decree is vacated. The case is
remanded to the trial court for further proceedings consistent with this opinion.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
170848F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF R.S., A.S., AND On Appeal from the 254th Judicial District
L.S., CHILDREN Court, Dallas County, Texas
Trial Court Cause No. DF-13-09274.
No. 05-17-00848-CV Opinion delivered by Justice Osborne.
Justices Myers and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED, in part, and VACATED, in part.
We AFFIRM that portion of the trial court’s judgment that orders the dissolution of the
parties’ marriage. In all other respects, the trial court’s judgment is VACATED. We REMAND
this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant LULU SCHWARTZ recover her costs of this appeal from
appellee ROBERT SCHWARTZ.
Judgment entered this 12th day of April, 2019.
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