in Re: E. B.

NO. 12-17-00214-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
E.B., § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
Relator E.B. filed this petition for writ of mandamus, contending that the trial court erred
by denying his right to revoke consent to an agreement between the parties and entering temporary
orders based on that agreement. We conditionally grant the petition in part and deny it in part.1
BACKGROUND
The underlying suit is a divorce proceeding between E.B. and M.B. On June 2, 2016, E.B.
filed an original petition for divorce in Smith County, Texas, stating that the parties were married
on January 15, 2011, and have two children, Z.D.B. and D.M.B. He requested that the parents be
appointed joint managing conservators and that he should be appointed as the conservator with the
exclusive right to designate the children’s primary residence. On the same day, M.B. filed an
application for a protective order against E.B. in Travis County, Texas. In her affidavit supporting
the application, she alleged that while in a Dallas, Texas, hotel, E.B. pushed her on the bed,
slapped her twice, and “karate chopped” her on the nose. She stated that her nose was fractured in
two places and that he tried to prevent her from calling the police. M.B. stated that criminal
charges were filed against E.B. On August 1, 2016, the trial court in Smith County, Texas,
appointed Cynthia Stevens Kent as the amicus attorney for the parties’ children.
On January 22, 2017, the parties, pursuant to Rule 11 of the Texas Rules of Civil
Procedure, Article 6.604 of the Texas Family Code, an “informal settlement conference,” and
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The real party in interest is M.B. The respondent is the Honorable Jason Ellis, Judge of the County Court at
Law, Smith County, Texas.
“further discussions,” made a written agreement entitled “Rule 11/Informal Settlement Conference
Agreement.” The Agreement was signed by the parties and their respective attorneys. This
Agreement included the following language on its first page, capitalized and in bold-faced print:
IT IS AGREED AND UNDERSTOOD THAT THIS SETTLEMENT, ONCE
SIGNED AND FILED WITH THE COURT, IS NOT SUBJECT TO
REVOCATION.
Further, the Agreement included provisions relating to visitation and possession of the
children, holiday possession, possession of passports and ability to transport the children out of the
country, appointment of the parties as joint managing conservators, behavior of the parties during
possession, and designation of the party with the exclusive right to make educational decisions for
the children, to determine the children’s primary residence, and to receive child support. The
agreement also made provisions for the payment of child support, tuition, fees, extracurricular
activities, and health insurance. Finally, the agreement stated that all other issues related to the
children would be pursuant to Kent’s recommendations.
However, the agreement also included provisions relating to temporary spousal support,
civil injunctions against E.B., payment of attorney’s fees, and payments for the amicus attorney
and mediator. The agreement stated that the former protective order was dismissed with prejudice,
that the property division, spousal maintenance, attorney’s fees, and other property related issues
would be determined by the court or by agreement, and that M.B. agreed to cooperate with E.B.’s
counsel in requesting that criminal charges be dismissed against E.B.
On March 31, 2017, E.B. filed a petition to modify the Agreement, stating that a material
and substantial change of circumstances had occurred. Shortly thereafter, M.B. filed a notice of
filing the Agreement, referring to it as a “[s]ection 6.604, Texas Family Code” written settlement
agreement. On April 25, 2017, E.B. formally revoked his consent to the Agreement. After a
hearing on E.B.’s revocation, the trial court denied E.B.’s right to withdraw his consent to the
Agreement, denied the modification he requested, and entered temporary orders reflecting the
Agreement. This original proceeding followed.
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MEDIATION UNDER THE TEXAS FAMILY CODE
In his sole issue, E.B. contends that the trial court erred by denying his right to revoke
consent to the Agreement, and entering temporary orders based on that Agreement. The Real
Party in Interest, M.B., disagrees, arguing that the Agreement was the result of mediation, that it
constituted a mediated settlement agreement and, under the Texas Family Code, was irrevocable.
Moreover, M.B. contends that E.B. was estopped from challenging the Agreement because he
accepted the benefits of it to her detriment.
Availability of Mandamus
Mandamus relief is available when, under the circumstances of the case, the facts and law
permit the trial court to make but one decision—and the trial court has refused to make that
decision—and remedy by appeal to correct the ruling is inadequate. Proffer v. Yates, 734 S.W.2d
671, 673 (Tex. 1987). Mandamus is allowed under the Texas Family Code under these
circumstances. See In re Knotts, 62 SW.3d 922, 923 n.1 (Tex. App.–Texarkana 2001, orig.
proceeding). Because temporary orders are not appealable, mandamus is an appropriate remedy
when a trial court abuses its discretion in issuing temporary orders in a SAPCR. See In re
Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding).
To be entitled to mandamus relief, E.B. must establish a trial court clearly abused its
discretion and he lacks an adequate remedy by appeal. In re Green, 385 S.W.3d 665, 668 (Tex.
App.–San Antonio 2012, orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135–36 (Tex. 2004) (orig. proceeding)). An abuse of discretion with respect to factual
matters occurs if the record establishes the trial court could reasonably have reached only one
decision. Id. at 668–69 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding)).
Applicable Law
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(d) (West 2014). If a mediated settlement agreement meets the
requirements of [Texas Family Code subsection 153.0071(d)], a party is entitled to judgment on
the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
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another rule of law. Id. § 153.0071(e). The unilateral withdrawal of consent does not negate the
enforceability of a mediated settlement agreement in a suit affecting the parent-child relationship.
In re Circone, 122 S.W.3d 403, 406-07 (Tex. App.—Texarkana 2003, no pet.); see Mullins v.
Mullins, 202 S.W.3d 869, 876 (Tex. App.—Dallas 2006, pet. denied) (interpreting identical
language in section 6.602 of the Texas Family Code addressing mediated settlement agreements in
divorce action). Moreover, a mediated settlement agreement necessarily requires mediation and a
mediator. Lee v. Lee, 158 S.W.3d 612, 614 (Tex. App.—Fort Worth 2005, no pet.).
A written settlement agreement reached at an informal settlement conference is binding on
the parties if the agreement (1) provides, in a prominently displayed statement that is in boldfaced
type or in 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. § 6.604(b) (West 2006). If a written
settlement agreement meets the requirements of [Texas Family Code subsection 6.604(b)], a party
is entitled to judgment on the settlement agreement notwithstanding Rule 11, Texas Rules of Civil
Procedure, or another rule of law. Id. § 6.604(c).
Unlike agreements concerning the dissolution of marriage, which by statute are not
revocable, the statutes concerning unmediated agreements on child support, conservatorship, and
possession of children lack similar language stating they are irrevocable. In re M.A.H., 365
S.W.3d 814, 820 (Tex. App.—Dallas 2012, no pet.). Parties to a divorce proceeding may enter a
written agreement concerning conservatorship and possession of a child. See TEX. FAM. CODE
ANN. § 153.007 (West 2014). Additionally, a party may revoke his consent to a Rule 11
agreement at any time before judgment is rendered. See ExxonMobil Corp. v. Valence Operating
Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); S & A Restaurant
Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). An agreed judgment rendered after one of the
parties revokes his consent is void. See Leal, 892 S.W.2d at 857; Padilla v. LaFrance, 907
S.W.2d 454, 461 (Tex. 1995) (“court cannot render a valid agreed judgment absent consent at the
time it is rendered”); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983)
(holding that when trial court has knowledge that party does not consent to judgment, trial court
should refuse to sanction agreement by making it the judgment of the court).
The definition of “mediation” is a method of nonbinding dispute resolution involving a
neutral third party who tries to help the disputing parties reach a mutually agreeable solution.
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BLACK’S LAW DICTIONARY 1130 (10th ed. 2014). A “mediator” is a neutral person who tries to
help disputing parties reach an agreement. Id. The role of a mediator is to facilitate negotiations
between the parties in an unbiased manner, not to liaise with the court. Cook Children’s Med. Ctr.
v. The New England PPO Plan of Gen. Consol. Mgmt., Inc., 491 F.3d 266, 276 (5th Cir. 2007).
As a result, mediators “usually deal[ ] directly with the parties” during mediation and need not
communicate with the court at all. See id. at 276-277. In addition, because the discussions in
mediation are frequently confidential, it is questionable whether a mediator could ethically
communicate an opinion to a court at all. See id. at 277.
In contrast, an “amicus attorney” means an attorney appointed by the court in a suit, other
than a suit filed by a governmental entity, whose role is to provide legal services necessary to
assist the court in protecting a child’s best interests rather than provide legal services to the child.
TEX. FAM. CODE ANN. § 107.001(1) (West Supp. 2016). In other words, an amicus attorney is
appointed specifically to assist the court. O’Connor v. O’Conner, 245 S.W.3d 511, 515 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). Some of an amicus attorney’s statutory duties include
participating in the conduct of the litigation to the same extent as an attorney for a party,
encouraging settlement and the use of alternative forms of dispute resolution, and to review and
sign, or decline to sign, a proposed or agreed order affecting the child. TEX. FAM. CODE ANN.
§ 107.003(a)(1)(F), (H), (I) (West Supp. 2016). Further, the amicus attorney shall advocate the
best interests of the child after reviewing the facts and circumstances of the case. Id. § 107.005(a)
(West 2014).
Analysis
Here, the question is whether the Agreement constituted a mediated settlement agreement.
According to the face of the Agreement, it was the result of an informal settlement conference and
further discussions. See id. § 6.604(b). At the hearing, the evidence showed that the parties
attempted mediation with a mediator, Ric Freeman. According to E.B.’s attorney, however, no
mediation settlement agreement was signed at that time. M.B.’s attorney also stated that the parties
and the amicus attorney attempted to resolve their differences in a telephone conference. A series
of emails between the parties and the amicus attorney were admitted as evidence at the hearing.
These emails revealed settlement discussions between the parties and the amicus attorney.
Moreover, the Agreement stated that it was made pursuant to section 6.604 (informal settlement
conference), not section 153.0071 (mediation settlement agreement). Compare id. § 6.604(b) with
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id. § 153.0071(d). Further, the trial court stated that it was “going to enforce the Rule 11.” From
this evidence, we cannot state that the Agreement was a mediated settlement agreement on its face.
However, M.B.’s attorney argues that the Agreement was a mediated settlement agreement
because the parties mediated the case with both Freeman and Kent, the amicus attorney.
Regarding the mediation with Freeman, there is no evidence that the mediation resulted in a signed
mediated settlement agreement or that Freeman facilitated future discussions that resulted in an
agreement. He did not participate in, and was not copied on, any of the emails admitted at the
hearing. Nor is there any memorialization in the Agreement that it was the result of mediation.
Thus, there is a lack of evidence to support M.B.’s argument that the Agreement was the result of a
mediation with Freeman. See Lee, 158 S.W.3d at 614 (stating that a mediated settlement
agreement necessarily requires mediation and a mediator).
Nonetheless, M.B. contends that Kent acted as a mediator in the case. As noted above, a
“mediator” is a neutral person who tries to help disputing parties reach an agreement. See
BLACK’S LAW DICTIONARY 1130. A mediator’s role is not to liase with the court. See Cook
Children’s Med. Ctr., 491 F.3d at 276. An amicus attorney, by contrast, provides legal services to
assist the court in protecting a child’s best interest. See TEX. FAM. CODE ANN. § 107.001(1). In
the trial court’s order appointing Kent, she was ordered to participate in the conduct of litigation to
the same extent as an attorney for a party, to “encourage settlement and the use of alternative
forms of dispute resolution,” and to review and sign, or decline to sign, a proposed or agreed order
affecting the children. The trial court also ordered Kent to advocate the best interests of the
children after reviewing the facts and circumstances of the case. Kent did so in this case when she
discussed the Agreement with the court and opined that it was a parenting plan. Because of Kent’s
role and duties as the amicus attorney, she cannot be a neutral third party in this case as required of
a mediator. See id. Thus, the Agreement is not the result of a mediation with Kent. See Lee, 158
S.W.3d at 614.
Because the Agreement was not the result of a mediation with a mediator, we conclude that
the Agreement was not a mediated settlement agreement pursuant to section 153.071(d). See TEX.
FAM. CODE ANN. § 153.0071(d). Moreover, unmediated agreements on child support,
conservatorship, and possession of children lack language stating they are irrevocable. See In re
M.A.H., 365 S.W.3d at 820. Thus, E.B. was permitted to revoke his consent to the Agreement at
any time before judgment was rendered. See ExxonMobil Corp., 174 S.W.3d at 309; Leal, 892
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S.W.2d at 857. In this case, E.B. revoked his consent to the Agreement before the trial court
rendered its orders on the Agreement. Therefore, when the trial court rendered its temporary
orders, there was no longer an agreement in place. See In re M.A.H., 365 S.W.3d at 820.
Accordingly, the trial court could not enter temporary orders on provisions regarding child
support, conservatorship, possession, and other terms involving the children in accordance with the
Agreement based solely on that agreement. See id.
However, our discussion is not complete. Although the Agreement did not meet the
requirements of a mediated settlement agreement, it appears to meet the requirements of Section
6.604 of the Texas Family Code governing an informal settlement conference on issues concerning
the dissolution of marriage. See TEX. FAM. CODE ANN. § 6.604(a), (b). The Agreement provided
(1) in a prominently displayed statement that was in boldfaced type and capital letters, that the
agreement was not subject to revocation; (2) was signed by each party to the agreement; and (3)
was signed by both party’s attorneys who were present at the time the agreement was signed. See
id. § 6.604(b). Because the Agreement met these requirements, M.B. was entitled to judgment on
the Agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.
See id. § 6.604(c). However, M.B. was only entitled to judgment regarding those portions of the
Agreement pertaining to the dissolution of marriage, i.e., temporary spousal support, civil
injunctions against E.B., and payment of attorney’s fees, mediator, and amicus attorney.
Therefore, the trial court did not abuse its discretion in entering temporary orders on provisions
regarding the dissolution of the marriage in accordance with the Agreement. See id.
Finally, M.B. argues that E.B. is estopped from challenging the Agreement because he
accepted the benefits of it to her detriment. The acceptance-of-benefits doctrine is based on
estoppel and rooted in equity. Kramer v. Kastleman, 508 S.W.3d 211, 227 (Tex. 2017). Thus, a
party who accepts the benefits of a judgment is estopped from challenging the benefits of the
judgment on appeal. In re M.A.H., 365 S.W.3d at 818; Waite v. Waite, 150 S.W.3d 797, 803
(Tex. App.-Houston [14th Dist.] 2004, pet. denied). This doctrine often arises in divorce cases
when one spouse accepts some of the benefits of the judgment and then tries to appeal the
judgment. In re M.A.H., 365 S.W.3d at 818. M.B. has the burden of proving the acceptance-of-
benefits doctrine. See id.
Here, we have determined that the property provisions in the Agreement are irrevocable.
As such, the benefits accepted involve provisions in the Agreement pertaining only to the children.
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We must determine whether M.B. proved E.B. is estopped from challenging the Agreement, and
whether M.B. will be unfairly prejudiced. See Kramer, 508 S.W.3d at 227; In re M.A.H., 365
S.W.3d at 818. Several nonexclusive factors inform this inquiry, including the presence of actual
or reasonably certain prejudice, and whether any prejudice is curable. See Kramer, 508 S.W.3d at
229.
In her reply brief, M.B. asserts that E.B. has already received all of his benefits under the
Agreement including dismissal of the pending Travis County protective order with prejudice and
dismissal of the Travis County criminal proceeding. M.B. argues that she gave up significant
advantages as a result of the Agreement including the ability to fully litigate issues concerning the
party’s access to the children and the ability to rebut the presumption that joint managing
conservatorship is in the best interest of the children.2 We do not agree.
Any prejudice that M.B. will suffer as the result of granting the writ pertaining to
provisions regarding the children is curable. See id. M.B. has the ability to fully litigate issues
concerning the party’s access to the children in the current case. See TEX. FAM. CODE ANN.
§ 153.001-153.317 (West 2014 & Supp. 2016). The vacating of the temporary orders regarding
issues pertaining to the children will not prevent her ability to do so. Regarding M.B.’s ability to
rebut the presumption that joint managing conservatorship is in the best interest of the children, a
finding by the trial court of a history of family violence involving a parent removes the
presumption. See id. § 153.131(b) (West 2014); see also Stallworth v. Stallworth, 201 S.W.3d
338, 347 (Tex. App.—Dallas 2006, no pet.). If credible evidence supports a history or pattern of
past or present abuse, then the trial court may not appoint joint managing conservators. See TEX.
FAM. CODE ANN. § 153.004(b) (West 2014).3 Moreover, a history of family violence can be
established by a single incident. See id. § 153.004(b); In re Marriage of Stein, 153 S.W.3d 485,
489 (Tex. App.—Amarillo 2004, no pet.). Thus, any prejudice that M.B. suffers from dismissal of
the protective order is curable by credible evidence of even a single incident of abuse leading to a
finding of family violence by the trial court. See In re Marriage of Stein, 153 S.W.3d at 489.
Because we cannot conclude that M.B. will be unfairly prejudiced and any prejudice she might
2
“It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators
is in the best interest of a child. A finding of a history of family violence involving the parents of a child removes the
presumption under this subsection.” See TEX. FAM. CODE ANN. § 153.131(b) (West 2014).
3
In determining whether there is credible evidence of a history or pattern of past or present abuse, the trial
court shall consider whether a protective order was rendered against the parent during the two year period preceding
the filing of the suit or while the suit was pending. See TEX. FAM. CODE ANN. § 153.004(f) (West 2014).
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suffer is curable, we conclude that M.B. failed to prove that E.B. is estopped from challenging the
Agreement. See Kramer, 508 S.W.3d at 227-29.
CONCLUSION
The trial court issued temporary orders based on a Rule 11/Informal Conference
Agreement between the parties. However, we have held that the Agreement did not meet the
requirements of a mediated settlement agreement and that E.B. was permitted to revoke his
consent before the judgment was rendered. Therefore, the provisions regarding child support,
conservatorship, possession, and other terms involving the children are void, and the trial court
abused its discretion in entering temporary orders based on the Agreement. Accordingly, we
conditionally grant the writ of mandamus as to the provisions regarding child support,
conservatorship, and possession in the temporary orders. However, we deny the petition as to the
provisions in the temporary orders pertaining to the dissolution of marriage. The Agreement met
the requirements of a written settlement agreement pursuant to Section 6.604(d) of the Texas
Family Code, and M.B. was entitled to judgment on the settlement agreement. We are confident
that, within fifteen days of this opinion and order, Respondent will issue an order vacating the
temporary order insofar as they pertain to the provisions relating to child support, conservatorship,
possession, and other terms involving the children. The writ will issue only if he fails to do so.
Our stay is lifted.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 18, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
ORDER
OCTOBER 18, 2017
NO. 12-17-00214-CV
E. B.,
Relator
V.
HON. JASON ELLIS,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by E.B.;
who is the relator in Cause No. 16-1151-E, pending on the docket of the County Court at Law of
Smith County, Texas. Said petition for writ of mandamus having been filed herein on July 7,
2017, and the same having been duly considered, because it is the opinion of this Court that the
said petition for writ of mandamus be, and the same is, hereby conditionally granted in part as
to provisions relating to child support, conservatorship, possession, and other terms involving the
children.
And because it is further the opinion of this Court that the trial judge will act
promptly and vacate his temporary order insofar as they pertain to the provisions relating to child
support, conservatorship, possession, and other terms involving the children, the writ will not
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issue unless the HONORABLE JASON ELLIS fails to comply with this Court’s order within
fifteen (15) days of this order.
It is further ORDRED that the writ of mandamus regarding the provisions in the
temporary orders pertaining to the dissolution of marriage are denied. All costs incurred in this
appeal are assessed against the party incurring same.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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