                             NUMBER 13-15-00345-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

NORMA ALICIA MARTINEZ ARAUJO,                                                Appellant,

                                            v.

MANUEL ARAUJO,                                                                Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
               Memorandum Opinion by Justice Garza
       Appellant Norma Alicia Martinez Araujo appeals from the trial court’s order denying

her motion to revoke and set aside a mediated settlement agreement (MSA) pursuant to

her divorce from appellee, Manuel Araujo. By three sub-issues, appellant contends the

trial court abused its discretion in failing to revoke the MSA because: (1) the MSA is void
and unenforceable for failure of consideration; (2) her own trial counsel coerced her to

sign it; and (3) it contains an invalid provision and is therefore unenforceable. We affirm.

                                           I.      BACKGROUND

        The parties entered into an MSA on August 6, 2014. Among other things, the

MSA: (1) awarded appellant certain property in Mission, Texas; (2) awarded appellee

certain property in Palmview, Texas; and (3) provided that appellant pay $27,000 to

appellee by October 6, 2014. The MSA stated that “[e]ach party represents that he or

she has made a fair and reasonable disclosure to the other of the property and financial

obligations known to him or her.” It further stated that the parties were “sufficiently familiar

with the assets of the community estate” and therefore waived “any right to inventory

request and accounting.”1 Appellant was represented by counsel (“Trial Counsel 1”).

Trial Counsel 1 withdrew from representing appellant in October 2014.

        Shortly thereafter, appellant’s second counsel (“Trial Counsel 2”) filed a motion to

revoke and set aside the MSA. In the motion to revoke, appellant argued that the MSA

“resulted in an unjust division of the estate because of the fraud of [appellee].”

Specifically, appellant argued that: (1) the only property she received pursuant to the

MSA was her separate property; (2) she was entitled to receive one-half of community

property awarded to appellee and valued at approximately $55,608.00; (3) she was

improperly ordered to pay appellee $27,000 as his share of the community estate by

October 6, 2014; (4) the MSA did not address or divide appellee’s retirement in the

amount of approximately $22,000; and (5) the MSA did not address or divide the parties’


         1 The MSA further stated that the parties agreed to try to resolve any dispute arising from the

interpretation or performance of the MSA “by phone conference with the mediator who facilitated this
settlement.” There is no mention in the record of whether the parties discussed the issues raised here with
the mediator.

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two vehicles, a Cadillac Escalade and a Dodge pickup.2 On December 3, 2014, the trial

court denied appellant’s motion to revoke the MSA.

       In March 2015, appellee filed a “Motion for Compliance Hearing,” noting that

appellant had failed to pay $27,000 to appellee as required by the MSA. On March 17,

2015, the trial court held a show cause hearing. At the hearing, appellee’s counsel noted

that appellant had not paid appellee the $27,000.              Appellant testified that she had

attended school up to the sixth grade in Mexico, does not speak English, and that no one

had translated the MSA into Spanish for her. She stated that she did not sign the MSA

voluntarily, but that Trial Counsel 1 “forced” her to sign by telling her that the judge would

“make [her] sign.” Appellant testified that appellee had retirement funds in the amount of

$22,000 that were not divided by the MSA. She also stated that she solely had paid the

taxes, property insurance, and utilities on the Mission properties for many years, an

amount totaling $41,000. Appellant stated that she signed the MSA because she “felt

very nervous.” At the conclusion of the hearing, the trial court found that “there was an

ability to make the payment, the payment was not made.” Trial Counsel 2 stated that she

would submit findings of fact and conclusions of law, but none appear in the record.

       The trial court signed the divorce decree on May 14, 2015. The final divorce

decree reflected the terms of the MSA, found that appellant had the ability to pay appellee

the $27,000, and ordered her to pay the $27,000 to appellee. Appellant filed a motion for

new trial. In the motion, appellant alleged that appellee failed to disclose his retirement

in the amount of $22,000. In support, appellant attached a 2007 quarterly statement

showing a balance of $12,569.46 in a 401(k) account purportedly belonging to appellee


       2The final divorce decree awarded a 2003 Dodge pickup and a 1999 Mitsubishi to appellee, and a
2003 Cadillac Escalade to appellant.

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with Rio Queen Citrus, Inc. The motion for new trial was set for hearing in August 2015,

but the record does not reflect that any hearing on the motion took place. This appeal

followed.

                            II. STANDARD OF REVIEW AND APPLICABLE LAW

         We review a trial court's decision not to set aside 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.); In re C.H., Jr., 298 S.W.3d 800, 804 (Tex. App.—Dallas 2009, no pet.). A trial

court does not abuse its discretion if there is some substantive, probative evidence to

support its decision. Granger v. Granger, 236 S.W.3d 852, 855–56 (Tex. App.—Tyler

2007, pet. denied); Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no

pet.).

         An MSA that complies with the requirements of section 6.602 of the family code

binds all parties from the date it is signed. See TEX. FAM. CODE ANN. § 6.602(b) (West,

Westlaw through 2015 R.S.).3 However, a trial court is not required to enforce an MSA if

it is illegal in nature or was procured by fraud, duress, coercion, or other dishonest means.

Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.—El Paso 2010, no pet.); Spiegel v. KLRU




         3   Section 6.602(b) 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.

         TEX. FAM. CODE ANN. § 6.602(b) (West, Westlaw through 2015 R.S.).

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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).

                                           III. DISCUSSION

         Here, appellant does not argue that the MSA does not meet the requirements of

section 6.602. See TEX. FAM. CODE ANN. § 6.602. Rather, she contends that: (1) it is void

for failure of consideration; (2) it is invalid because she was coerced to sign it; and (3) it

is unenforceable because it contained an unenforceable provision—that she remain

married until she paid appellee $27,000.

    A.       Failure of Consideration

         First, appellant argues that the MSA lacked consideration because she gained

nothing from the agreement. Specifically, she argues that the Mission property that she

was awarded was her own separate property and she received no community

reimbursement for the property awarded to appellee which was valued at $55,608. She

further complains that she was ordered to pay appellee $27,000. In her motion to revoke

the MSA, appellant asserted that the Mission property she was awarded in the MSA was

her separate property. She offered, however, no evidence in support of her assertion.

Similarly, she offered no evidence in support of this assertion at the March 17, 2015

hearing.

         “A lack of consideration occurs when a contract, at its inception, does not impose

obligations on both parties.” In re C.H.C., 396 S.W.3d 33, 45 (Tex. App.—Dallas 2013,

no pet.).4 Appellant offered no evidence in support of her claim that the Mission property



         Because we conclude appellant’s argument is unsupported by any evidence, we need not decide
         4

whether the lack-of-consideration defense applies to MSAs under section 6.602 of the family code. See In
re C.H.C., 396 S.W.3d 33, 44 (Tex. App.—Dallas 2013, no pet.).

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awarded to her in the MSA was her separate property, and we find none in the record.

We overrule appellant’s first sub-issue.

   B.         Coercion

        By her second sub-issue, appellant contends that the MSA is invalid because she

was coerced into signing it. At the March 17, 2015 hearing, appellant testified that she

did not sign the MSA voluntarily because Trial Counsel 1 “forced” her to sign. She testified

that Trial Counsel 1 told her to sign the agreement because the trial judge was going to

“make” her sign.

        A trial court is not required to enforce an MSA if it is illegal in nature or was procured

by fraud, duress, coercion, or other dishonest means. Morse, 349 S.W.3d at 56; Spiegel,

228 S.W.3d at 242; In re Marriage of Joyner, 196 S.W.3d at 890; see also Triesch v.

Triesch, No. 03-15-00102-CV, 2016 WL 1039035, at *1 (Tex. App.—Austin March 8,

2016, no pet.) (mem. op.); Davis v. Davis, No. 01-12-00701-CV, 2014 WL 890899, at *4

(Tex. App.—Houston [1st Dist.] March 6, 2014, no pet.) (mem. op.). Duress occurs when

some kind of threat renders a person incapable of exercising free agency and unable to

withhold consent. In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet.

denied). “Coercion occurs if someone is compelled to perform an act by force or threat.”

Id. at 828.

        Appellant points to her own “uncontroverted” testimony that she was coerced into

signing the MSA. “[U]ncontroverted testimony, even from a witness categorized as an

expert, may be taken as true as a matter of law if it is clear, direct and positive, and is free

from contradictions, inconsistencies, inaccuracies and circumstances tending to cast

suspicion thereon.” Abrams v. Jones, 35 S.W.3d 620, 627 (Tex. 2000) (quoting Albright,



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Inc. v. Strawder, 679 S.W.2d 81, 82 (Tex. App.—Houston 14th Dist.] 1984, writ ref’d

n.r.e.)).    However, if uncontradicted evidence is unreasonable, incredible, or

questionable, the fact finder is not required to award the relief requested. Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). The trial judge, as the

factfinder in this case, was entitled to believe all, some, or none of a witness’s testimony

if a reasonable juror could. See City of Keller v. Wilson, 168 S.W.3d 802, 819–20 (Tex.

2005).

         Here, appellant did not identify anything in her testimony that constituted a threat

or rose to a level that would render her incapable of exercising her free agency or unable

to withhold her consent. See In re D.E.H., 301 S.W.3d at 829. The trial court did not

have to accept appellant’s testimony that she signed the MSA because she felt

“pressured and coerced” into doing so. See City of Keller, 168 S.W.3d at 819–20. We

overrule appellant’s second sub-issue.

    C.      Illegal Provision

         By her third sub-issue, appellant contends the MSA is unenforceable because it

contains a provision that the parties remain married until appellant pays appellee $27,000.

Appellant complains of the trial court’s finding that she had the ability to make the $27,000

payment, but had not done so. Appellant points to her own “uncontroverted” testimony

at the March 27, 2015 hearing that she had attempted to borrow the funds but was unable

to do so. It is undisputed that appellant did not pay appellee $27,000 as required by the

MSA. Appellant argues that “[t]he trial court was not authorized to issue a final divorce

ruling in this cause because it was contrary to the MSA.”




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        Appellant testified that the Mission property she was awarded was valued by

Hidalgo County at $105,000.5 This evidence is sufficient to support the trial court’s finding

that appellant had the ability to make the payment, but had not done so. 6 We are

unpersuaded that the MSA is unenforceable because it contained an unenforceable

provision. We reject appellant’s third sub-issue.

        We conclude there was some substantive probative evidence supporting the trial

court’s decision to not set aside the MSA.                See Granger, 236 S.W.3d at 855–56.

Accordingly, the trial court did not abuse its discretion. See id.

                                           IV. CONCLUSION

        We affirm the trial court’s judgment.


                                                         DORI CONTRERAS GARZA
                                                         Justice


Delivered and filed the
1st day of September, 2016.




       5 We note that, at the March 17, 2015 hearing, trial counsel 2 stated that, of the two properties

awarded to appellant, one was worth $47,400 and the other $66,000, “but one of them is separate property.”
        6The final divorce decree finds that appellant “has the ability to pay” $27,000 to appellee, and it
orders her to do so.

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