      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00341-CV



                                  Bobby Dale Barina, Appellant

                                                   v.

                                Kathleen Person Barina, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
        NO. 223,145-B, HONORABLE ROBERT G. DOHONEY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Bobby Dale Barina (“Barina”) seeks review of the trial court’s judgment

entering a final decree of divorce from appellee Kathleen Person Barina (“Person”) based on the

parties’ mediated settlement agreement. In four issues, Barina contends that the trial court erred and

abused its discretion in entering the final divorce decree contrary to the express terms of the parties’

mediated settlement agreement and contrary to section 153.0071 of the family code. See Tex. Fam.

Code Ann. § 153.0071 (West Supp. 2008). Because we conclude there was error in the trial court’s

judgment and that the trial court abused its discretion in failing to enter a final divorce decree

consistent with the terms of the parties’ mediated settlement agreement and section 153.0071 of the

family code, we modify the trial court’s judgment to conform to the parties’ agreement and affirm

the judgment as modified.
                                          BACKGROUND

                The record reflects that the parties entered into a mediated settlement agreement as

authorized in section 153.0071 of the family code to effectuate the terms of their divorce, including

the terms of possession of their child J.J.B., the only child born of their marriage. The trial court

held a hearing on Person’s motion to enter an order of final divorce decree and considered the

parties’ mediated settlement agreement.

                During the hearing, Barina objected to the entry of the proposed final divorce decree

on the grounds that it was inconsistent with the terms of the parties’ mediated settlement agreement.

Relevant to the appeal now before us, Barina challenged the language in the proposed final divorce

decree regarding weekend possession periods of the child J.J.B. as contrary to the terms of the

parties’ mediated settlement agreement. The mediated settlement agreement provided:


               Mother shall have alternating weekends, beginning at 8:00a.m. on Friday, or
        when school starts and ending on the following Monday at 8:00a.m. beginning May
        11, 2007.

               Father shall have alternating weekends, beginning at 8:00a.m. on Friday, or
        when school starts and ending on the following Monday at 8:00a.m. beginning May
        18, 2007.


The mediated settlement agreement also addressed the issue of possession of J.J.B. on certain

holidays, including Thanksgiving, Christmas, Mother’s Day, Father’s Day, Spring Break, and J.J.B.’s

birthday, and stated that “[t]he parent not in possession at the end of the holiday shall have the first

weekend period of possession following the holiday.”




                                                   2
               After hearing the arguments of counsel, the trial court entered a final divorce decree

providing that Person shall have J.J.B. on the first, third, and fifth weekends, and that Barina shall

have J.J.B. on the second and fourth weekends. In two paragraphs, the final divorce decree provided:


       3.      [Person] shall have possession of the child by alternating weekends having
               the 1st, 3rd, and 5th weekends of the month, beginning at 8:00 a.m. on Friday,
               or when school starts[,] and ending on the following Monday at 8:00 a.m.

       4.      [Barina] shall have possession of the child by alternating weekends having
               the 2nd and 4th weekends of the month, beginning at 8:00 a.m. on Friday, or
               when school starts[,] and ending on the following Monday at 8:00 a.m.


It is this portion of the final divorce decree that Barina appeals.


                                           DISCUSSION

               In four issues, Barina complains that the trial court erred and abused its discretion by

entering provisions in the final divorce decree that were inconsistent with the parties’ mediated

settlement agreement and section 153.0071 of the family code. Person counters that the trial court

reasonably interpreted the parties’ mediated settlement agreement and did not abuse its discretion

by entering a final divorce decree consistent with that reasonable interpretation. Person further

argues that Barina has failed to preserve error for this Court’s review.


Preservation of Error

               As a preliminary matter, we consider Person’s claim that Barina failed to preserve

error because Barina failed to timely object to the trial court’s entry of the final divorce decree.

While we agree with Person that Barina did not use the magic words “I object” or “objection” during



                                                   3
the hearing before the trial court on the entry of judgment, the rules of appellate procedure do not

require the use of magic words to preserve error. See Tex. R. App. P. 33.1. In order to preserve an

error for review on appeal, Rule 33.1 requires the record to show (i) that the complaint was made

to the trial court by a timely request, objection or motion that stated the grounds for the complaint

with sufficient specificity to make the trial court aware of the complaint; and (ii) that the trial court

expressly or implicitly ruled on the request, objection or motion. Id. 33.1(a)(1)-(2); cf. Taylor

v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (where record is clear that trial court

understood objection and legal basis therefore, error is preserved despite appellant’s failure to state

magic words “I object”); Pardue v. State, 252 S.W.3d 690, 699 (Tex. App.—Texarkana 2008,

no pet.) (although defendant did not use magic words “due process,” error was preserved because

objection was sufficient to make trial court aware of nature of complaint).

                 The record in this case demonstrates that Barina made the trial court aware of

his complaint that the proposed final divorce decree was inconsistent with the parties’ mediated

settlement agreement. The following exchange between Barina’s counsel and the trial court occurred

at the hearing below:


        Counsel:        The other concern that I have deals with - - if you’ll look at page 8 of
                        the proposed decree.

        Court:          Okay.

        Counsel:        Numbers 3 and 4 on page 8 deal with the weekend periods of
                        possession by the parents. What Mr. Barnhill [Person’s counsel] has
                        done is arbitrarily assigned particular weekends to each parent and
                        alternate the fifth weekend; unfortunately, that’s not what our
                        Mediated Settlement Agreement says. Our Mediated Settlement
                        Agreement indicates that they’ll have alternating weekends, and then

                                                   4
                       it goes further and says that “the parent not in possession at the end
                       of a holiday shall have the first weekend period of possession
                       following that holiday.” So never did we contemplate in this
                       Mediated Settlement Agreement that the first, third weekend would
                       be assigned to one parent and the second fourth to the other. We
                       intended it to alternate and we intended it to give the parent, after a
                       holiday, the weekend period of possession for the parent that hadn’t
                       had that holiday. So, we believe that numbers 3 and 4 are in direct
                       controversy with what the parties agreed in the Mediated Settlement
                       Agreement.

                                                 ***

       Counsel:        And, Judge, my position is that simply we’re entitled to a judgment
                       consistent with the Mediated Settlement Agreement . . . I think that
                       we’re entitled to have the divorce decree reflect what was agreed to
                       by the parties. I don’t think [Person] can come in here today and tell
                       you, well, it doesn’t do exactly what I thought it was going to do, so
                       I want to change it. And I think that’s what they’re trying to do.

                                                 ***

       Court:          As to the [first, third], and fifth weekend as to [Person], that will stay
                       in the decree; as to [Barina] second and fourth only. Anything
                       further?


                On this record, we conclude Barina has preserved error because counsel’s statements

made the trial court aware of Barina’s complaint that the proposed divorce decree was inconsistent

with the parties’ mediated settlement agreement and that Barina was entitled to judgment based on

the parties’ agreement. Counsel’s statements were sufficiently specific to apprise the trial court of

Barina’s complaint, and the trial court’s entry of the proposed divorce decree with terms that were

inconsistent with the parties’ agreement implicitly, if not expressly, overruled Barina’s complaint.

Were we to accept Person’s argument that Barina was required to utter magic words such as “I

object” or “objection” we would impose a burden not contemplated under the rules of appellate

                                                   5
procedure. See Tex. R. App. P. 33.1 (record need only demonstrate that trial court was made

aware of nature of complaint). We reject Person’s claim that Barina has failed to preserve error for

our review, and we now turn to the merits of Barina’s issues on appeal.


Mediated Settlement Agreement

               Barina’s primary complaint1 on appeal is that he was entitled to judgment based on

the terms of the parties’ mediated settlement agreement, see Tex. Fam. Code Ann. § 153.0071(e),

and that the trial court erred, or otherwise abused its discretion, in rendering judgment inconsistent

with the parties’ agreement. We agree.

               Section 153.0071 of the family code provides in relevant part:


       (c)     On the written agreement of the parties or on the court’s own motion, the
               court may refer a suit affecting the parent-child relationship to mediation.

       (d)     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.

       (e)     If a mediated settlement agreement meets the requirements of Subsection (d),
               a party is entitled to judgment on the mediated settlement agreement
               notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of
               law.


       1
           Although Barina raises four issues on appeal, we construe all of these issues to be
variations of the same complaint—namely, that the trial court’s final judgment is inconsistent with
the terms of the parties’ mediated settlement agreement. We address Barina’s issues together.

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       (e-1)   Notwithstanding Subsections (d) and (e), a court may decline to enter a
               judgment on a mediated settlement agreement if the court finds that:

               (1)     a party to the agreement was a victim of family violence, and that
                       circumstance impaired the party’s ability to make decisions; and

               (2)     the agreement is not in the child’s best interest.


Tex. Fam. Code Ann. § 153.0071(c)-(e-1). Where a mediated settlement agreement satisfies

the requirements of subsection 153.0071(d), all parties are bound by the agreement and are entitled

to judgment on the terms of the agreement. See In re Marriage of Joyner, 196 S.W.3d 883, 889

(Tex. App.—Texarkana 2006, pet. denied). Unless there is an allegation of family violence, a

section 153.0071 agreement may be ruled on without a determination by the trial court that the terms

of the agreement are in the best interest of the child. See Tex. Fam. Code Ann. § 153.0071(e-1)

(trial court may decline to enter judgment on mediated settlement agreement if the court finds “a

party to the agreement was a victim of family violence . . . and the agreement is not in the

child’s best interest.” (emphasis added)); see also Cayan v. Cayan, 38 S.W.3d 161, 165

(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (trial court may rule on section 6.6022

agreement without determination that property division is just and right). This is consistent with

the public policy and purpose of mediation and letting the parties settle their affairs “as they see

fit” and thereby keeping those matters out of the courtroom. See In re Marriage of Joyner,

196 S.W.3d at 889.


       2
          Section 6.602 of the family code allows parties to enter binding mediated agreements
regarding the dissolution of marriage and the division of property between the parties. Tex. Fam.
Code Ann. § 6.602 (West 2006). Section 153.0071 of the family code has identical language
allowing parties to enter binding mediated agreements regarding the parent-child relationship,
including the terms of child conservatorship, possession, access, child support, and related matters.
Id. § 153.0071 (West Supp. 2008).

                                                  7
               There is no dispute that the mediated settlement agreement before us satisfies

the requirements of subsection 153.0071(d). See Tex. Fam. Code Ann. § 153.0071(d). Paragraph

seven of the agreement states in underlined capital letters, “THIS AGREEMENT IS NOT SUBJECT

TO REVOCATION.” See id. § 153.0071(d)(1). Barina and Person signed the agreement. See id.

§ 153.0071(d)(2). The respective attorneys for Barina and Person also signed the agreement. See

id. § 153.0071(d)(3).

               The statute expressly provides that, so long as the agreement satisfies the

requirements of the statute, a party is entitled to judgment on the agreement notwithstanding Rule 11

of the Texas Rules of Civil Procedure or “another rule of law.” Tex. Fam. Code Ann. § 153.0071(e).

The statute does not authorize the trial court to substitute its judgment for the mediated settlement

agreement entered by the parties unless the requirements of subsection 153.0071(e-1) are met.3 See

id. § 153.0071(e-1); In re Marriage of Joyner, 196 S.W.3d at 890.

               Under the express terms of the mediated settlement agreement entered by the parties

before us, Barina and Person agreed to possession of the child J.J.B. on alternating weekends

beginning May 11, 2007. The agreement further provided that the parent not in possession at the end

of a holiday period “shall have the first weekend period of possession following the holiday.” These

provisions fully expressed the parties’ agreement regarding the terms of weekend possession,

and they were binding on the parties once the agreement was signed. See Tex. Fam. Code Ann.

§ 153.0071. Therefore, Barina was entitled to judgment based on these terms of the mediated

settlement agreement. Id. § 153.0071(e).


       3
          There is no evidence that the requirements of subsection 153.0071(e-1) have been met in
this case. See Tex. Fam. Code Ann. § 153.0071(e-1).

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               At the hearing on the motion to enter judgment, Person argued that the parties did not

agree to weekend possession as stated in the mediated settlement agreement. Person claimed that

the parties’ agreement was in accordance with the standard possession order in the family code and

was designed to allow the child J.J.B. to spend more time with his sibling—Person’s child from a

previous marriage—who was also subject to the terms of court-ordered possession under Person’s

previous divorce decree.4 That she later interpreted the provisions of the mediated settlement

agreement between herself and Barina to mean something different than the plain language of

those terms does not authorize the trial court to render judgment on terms different than those

provided in the mediated settlement agreement. See id.; Garcia-Udall v. Udall, 141 S.W.3d 323,

332 (Tex. App.—Dallas 2004, no pet.) (trial court lacked authority to enter judgment that varies from

terms of mediated settlement agreement).

               Barina was entitled to judgment based on the terms of the parties’ mediated settlement

agreement. See In re Marriage of Joyner, 196 S.W.3d at 890; Garcia-Udall, 141 S.W.3d at 332

(same); In re Circone, 122 S.W.3d at 406-07 (same); Cayan, 38 S.W.3d at 167 (same). The

trial court’s judgment awarding possession of the child J.J.B. to Person on the first, third, and fifth

weekends of each month and to Barina on the second and fourth weekends of each month is contrary

to the parties’ mediated settlement agreement. We therefore conclude that the trial court erred in

rendering judgment that varied from the terms set forth in the parties’ mediated settlement

agreement. See Garcia-Udall, 141 S.W.3d at 332. We further conclude that the trial court abused


       4
          Person’s possession of J.J.B.’s sibling under the terms of that divorce decree was more
consistent with the standard possession order in the family code allowing for possession on the first,
third and alternating fifth weekends of each month.

                                                  9
its discretion in rendering judgment contrary to the terms of the parties’ mediated settlement

agreement. Id.

                 We sustain Barina’s issues on appeal. Accordingly, we render judgment that the

divorce decree be modified to comport with the terms of the parties’ mediated settlement agreement

as follows:


              Mother shall have alternating weekends, beginning at 8:00a.m. on Friday, or
       when school starts and ending on the following Monday at 8:00a.m. beginning May
       11, 2007; and

              Father shall have alternating weekends, beginning at 8:00a.m. on Friday, or
       when school starts and ending on the following Monday at 8:00a.m. beginning May
       18, 2007.


We likewise modify the divorce decree to provide that “[t]he parent not in possession at the end of

a holiday period shall have the first weekend period of possession following the holiday.” With

these modifications, we affirm the trial court’s judgment. See id. (rendering judgment modifing

divorce decree to comport with mediated settlement agreement and affirming judgment as modified).


                                         CONCLUSION

                 Having sustained Barina’s issues on appeal, we modify the trial court’s judgment

to comport with the terms of the parties’ mediated settlement agreement and affirm the judgment

as modified.




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                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Modified and, as Modified, Affirmed

Filed: November 21, 2008




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