Opinion issued August 22, 2013




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                              ————————————

                               NO. 01-10-00368-CV
                            ———————————
                   MELANIE LEIGH WALLACE, Appellant
                                         V.
                 GREGORY ANGUS MCFARLANE, Appellee



                    On Appeal from the 312th District Court
                             Harris County, Texas
                       Trial Court Case No. 2005-27517



                        MEMORANDUM OPINION

      Melanie Leigh Wallace appeals the trial court’s final decree of her divorce

from Gregory Angus McFarlane, complaining that the trial court (1) effectively

granted her motion for new trial and motion to vacate the December decree when it

ordered the parties to arbitration in March 2010; (2) erred and abused its discretion
by signing over her objections, a final divorce decree which contradicted and

exceeded the scope of the mediated settlement agreement (MSA); (3) erred and

abused its discretion by failing to order a stay of the judicial proceedings when it

signed the order granting her motion to compel arbitration; and (4) erred by

denying her motion to vacate or modify the final divorce decree and her motion for

new trial on the basis that both motions were too general and unclear. For the

reasons stated herein, we affirm as modified.

                                   Background

      McFarlane filed for divorce on April 27, 2005, and Wallace counter-filed on

May 12, 2005. After over four years of acrimonious divorce proceedings, Wallace

and McFarlane eventually entered into a binding, mediated settlement agreement

(MSA) on November 4, 2009. At a hearing on November 25, 2009, the trial court

approved the MSA and asked McFarlane’s counsel to prepare a draft of the decree

based its terms. McFarlane and Wallace’s respective counsels exchanged at least

five drafts of the proposed decree over the course of the next month. Although the

parties disagreed about some of the terms included in the initially-circulated drafts

of the decree, no attempt was made to arbitrate any of these disputes prior to the

entry hearing.

      The trial court held an entry hearing on December 29, 2009. At that hearing,

the parties informed the trial court that they were generally in agreement with


                                         2
respect to the terms of the proposed decree, with three or four exceptions that they

wanted to discuss. According to Wallace, the latest draft decree circulated by

McFarlane contained numerous unauthorized changes to the parties’ MSA.

Attorneys for both parties and the amicus attorney representing the children

discussed the challenged portions of the decree with the trial court and made hand-

written changes to McFarlane’s latest draft.

      During one such discussion, Wallace informed the trial court that the parties

had agreed to arbitrate any disputes regarding the drafting and execution of the

MSA and that she was reserving her right to arbitrate these disputes. Wallace did

not, however, ask for a continuance or ask the trial court to refrain from signing a

final divorce decree pending such arbitration. On the contrary, Wallace’s counsel

advised the court that a final decree could still be signed that day and that if the

arbitrator later determined that the decree differed from the terms agreed to in the

MSA, he would simply file a motion for judgment nunc pro tunc to correct the

error.1 At the end of the hearing, counsel for Wallace, McFarlane, and the children

initialed each page of the decree with the hand-written interlineations, and signed

that version of the decree “approved as to form.” The trial court signed the decree

that same day (December decree).


1
      We note that a judgment nunc pro tunc is one rendered to correct non-substantive
      clerical errors after the court loses its plenary power. See TEX. R. CIV. P. 316
      (allowing correction of clerical errors in the judgment).
                                          3
      On January 21, 2010, Wallace filed a “Motion to Vacate and Alternative

Motion for Additional Orders” in which she argued that the December decree

contained a misstatement of the MSA and included injunctions that had not been

agreed to at mediation. Wallace asked the trial court to either modify the existing

decree or vacate the decree and enter a new decree correcting certain errors. One

week later, on January 28, 2010, Wallace filed a motion for new trial asking the

trial court to set the December decree aside and order a new trial because the

evidence was legally and factually insufficient to support the trial court’s finding

that the decree conformed to the terms of the MSA.

      On March 2, 2010, Wallace filed a Motion to Compel Arbitration over

whether the MSA required the children to attend therapy or counseling. Her

motion did not challenge the validity of the December decree, nor did it raise any

issues concerning any other provisions of the December decree—only the absence

of an express provision requiring the children to attend therapy or counseling.

After a hearing on March 9, 2010—for which there is no reporter’s record—the

trial court granted the motion and ordered the parties to “mediate and/or arbitrate”

before Maryellen W. Hicks, the mediator responsible for the drafting of the MSA.

The trial court signed the order granting Wallace’s motion to compel on March 15,

2010—the same day Wallace’s motion for new trial and motion to vacate were

overruled by operation of law. TEX. R. CIV. P. 329b(c) (stating motions for new


                                         4
trial and motions to modify, correct, or reform judgment that have not been ruled

on are overruled by operation of law 75 days after judgment signed).            The

arbitration, which was held on March 29, 2010, was unsuccessful. Notably, March

29, 2010 was also Wallace’s deadline to file her notice of appeal. TEX. R. APP. P.

26.1(a)(1) (stating that notice of appeal is due by 90th day from date final

judgment signed if any party timely files motion for new trial, motion to modify

judgment, or motion to reinstate).

      On April 13, 2010, the trial court held a final hearing in this case. This was

also the last day the trial court had plenary power and the 15th day after the

deadline to file a notice of appeal in the case. At that hearing the trial court

reconsidered and then denied Wallace’s motion for new trial. The trial court

further stated that it was also denying Wallace’s motion to modify or vacate the

judgment because, having denied Wallace’s motion for new trial, her only remedy

was a motion to modify the judgment. See TEX. FAM. CODE ANN. § 156.001 (West

2008) (providing that court with continuing exclusive jurisdiction may modify

order providing for conservatorship of, support of, possession of, or access to

child), 156.101 (West Supp. 2012) (providing grounds for modifying order

establishing conservatorship or possession and access).

      Wallace filed her notice of appeal later that same day. Wallace later filed a

motion to extend time to file her notice of appeal in which she offered some


                                         5
explanation for her tardy filing. See Jones v. City of Hous., 976 S.W.2d 676, 677

(Tex. 1998) (stating that, under Verburgt rule, appellants must reasonably explain

their need for an extension); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)

(holding that motion to extend time is “necessarily implied” if appellant files

notice of appeal within fifteen-day extension period). 2

                                      Discussion

A.    Effect of Order Granting Post-Judgment Motion to Compel Arbitration

      In her first issue, Wallace argues that the trial court intended to vacate or set

aside its December decree when it ordered the parties to arbitration in March 2010,

and thus, it effectively granted her motion for new trial and motion to vacate the

December decree at that time. Wallace is also asking this Court to hold that,

because the trial court effectively granted her motion for new trial and vacated the

December decree, there is no final judgment in this case, and we should order “that

the arbitration process should continue until it reaches a binding, final result.” 3




2
      This Court previously dismissed Wallace’s appeal for want of jurisdiction based
      upon her failure to offer a reasonable explanation for her untimely appeal.
      Unbeknownst to the Court, Wallace had filed a motion for extension of time in
      which she explained her need for an extension, but the Court had not been made
      aware of it before it dismissed the appeal. The Court granted Wallace’s motion
      for rehearing, withdrew our previous opinion and we set aside our previous
      judgment. TEX. R. APP. P. 49.3.
3
      If, as Wallace argues, there is no final judgment in this case, we would have no
      choice but to dismiss her interlocutory appeal for want of jurisdiction.
                                            6
      First, the order compelling arbitration did not, as Wallace argues, direct the

parties to essentially mediate or arbitrate the entire divorce proceeding again.

Wallace’s motion for arbitration only asked the trial court to compel the parties to

arbitrate the question of whether the MSA required the children to attend therapy

or counseling; she did not challenge any other aspect of the December decree. The

effect of the trial court’s “Order on Motion to Compel Arbitration” was merely to

grant Wallace’s motion to compel arbitration on this one, discrete issue.

      Second, Wallace argues that it is clear from the record that the trial court

intended to vacate or set aside its December decree when it granted her motion to

compel arbitration based upon a statement the trial court made at the April 13,

2010 hearing. The record, however, does not support such a reading. Indeed, at

hearing the trial court stated, “I didn’t set aside that decree. . . .” The children’s

amicus attorney agreed stating, “That has not been set aside. That decree is a

decree in full force and effect right now. . . .” Wallace did not express any

disagreement with the trial court and the amicus attorney’s statements.

      We overrule Wallace’s first issue.

B.    Denial of Arbitration Rights due to Trial Court’s Failure to Stay
      Judicial Proceedings

      In her third issue, Wallace contends that the trial court erred and abused its

discretion by failing to order a stay of the judicial proceedings when it signed the

order granting her motion to compel arbitration. According to Wallace, the trial

                                           7
court’s inaction on this issue deprived her of her right to arbitration. Wallace

further argues that if a trial court finds that a claim falls within the scope of a valid

arbitration agreement, the court has no discretion but to compel arbitration and stay

its own proceedings. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex.

2008). Thus, the trial court could only have erred in this respect if a valid

arbitration agreement existed and the parties’ dispute fell within the scope of that

agreement.

      Whether there is a valid and enforceable agreement to arbitrate is a matter of

contract interpretation, and as such, is a legal question subject to de novo review.

See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009). Wallace

argues that the arbitration agreement included in the MSA required the parties to

arbitrate their disputes regarding the drafting and execution of the MSA even after

the trial court signed the final decree on December 29, 2009. McFarlane, on the

other hand, contends that the MSA’s arbitration agreement is inapplicable post-

judgment.

      The two-paragraph arbitration agreement included in the MSA provides in

pertinent part that the parties agree to use mediator, Hicks, “as binding Arbitrator

for any dispute that arises in the drafting and execution of this Agreement” and “to

notify Hicks, in writing, of their request for her services at least ten days prior to a

Court entry date. . . .” The agreement further provides that all arbitration fees are


                                           8
due “on or at the time of entry.” Based upon these provisions, and considering the

arbitration agreement as a whole, it is evident that the agreement to arbitrate only

applies prior to the signing of a final divorce decree. Cf. In re Provine, 312

S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding)

(concluding that MSA’s arbitration agreement “plainly contemplates post-divorce

disputes, as it includes matters related to the ‘performance’ of the agreement.”)

Unlike in Provine, McFarlane and Wallace did not agree to arbitrate any disputes

over the “performance” of their respective obligations under the MSA, nor does

their arbitration agreement contain any other indicia that post-judgment arbitration

was contemplated and agreed to by the parties.

      We further note that, although Wallace attempted to invoke the arbitration

agreement at the December 29, 2009 entry hearing, her attempt to reserve her right

to arbitration was insufficient. Instead of asking for a continuance in order to

arbitrate her disputes prior to the signing and entry of judgment, Wallace’s counsel

informed the trial court: “I’m not trying to delay the Court today. I just need to

reserve my client’s right to arbitrate a disagreement in the mediated settlement

agreement.” Wallace’s counsel later reiterated at that hearing: “Judge, what I

would think then is that you can enter a final order today. Judge Hicks can

determine if that is in any way different than the mediated settlement agreement,

then we would file a motion nunc pro tunc. That’s what I would suggest.” The


                                         9
trial court signed the final decree that day, as Wallace suggested, and the

arbitration agreement expired by its own terms. Thus, by the time Wallace moved

to compel arbitration in March 2010, there was no valid arbitration agreement.

        Because there was no valid arbitration agreement in existence when Wallace

moved to compel arbitration in March 2010, the trial court could not have abused

its discretion by refusing to stay its own proceedings. Forest Oil Corp., 268

S.W.3d 51, 56.

        We overrule Wallace’s third issue.

C.      December Decree Contradicted and Exceeded Scope of MSA

        In her second issue, Wallace argues that the trial court erred and abused its

discretion by signing, over her objections, a final divorce decree that contradicted

and exceeded the scope of the MSA, thereby violating her right to due process

under the U.S. and Texas Constitutions, her right to an equitable division of the

martial estate under Family Code section 7.001, and her property rights.

Specifically, Wallace argues that the decree deviates from the MSA in numerous

respects, which she sets forth in a detailed list attached as an appendix to her

appellant’s brief. In particular, Wallace argues on appeal that the decree:

     (1) gives McFarlane exclusive rights with respect to the children’s medical and
         mental health care, including the right to determine whether the children
         need mental health care;
     (2) prohibits her from seeking medical treatment for the children while they are
         in her possession (with the exception of extended periods of possession);

                                          10
    (3) omits the MSA’s requirement that the children are to attend therapy;
    (4) requires Wallace and McFarlane to comply with the recommendations of Dr.
        Laval as set forth in his November 11, 2009 letter, as opposed to complying
        with Dr. Laval’s October 2009 oral recommendations, as contemplated by
        the MSA; and
    (5) omits the MSA’s language prohibiting the dissemination of Dr. Laval’s
        recommendations under most circumstances;
    (6) awards McFarlane community property not addressed in the MSA (i.e., three
        E*trade accounts);
    (7) includes passport language that varies significantly from the language
        required by the MSA (i.e., “language per the Family Code and Family
        Practice Manual”); and
    (8) adds terms and provisions which were never agreed to by the parties, or
        addressed by the MSA, including:
          a. injunctions prohibiting Wallace4 from
                 i. making disparaging remarks or allowing others to make
                    disparaging remarks about McFarlane or his family in the
                    children’s presence;
                ii. calling, texting, or instant messaging McFarlane in “an
                    offensive and repetitious manner” or “without a legitimate
                    purpose”; and
               iii. engaging in any act or speech reasonably calculated to provoke
                    or excite McFarlane during any exchange of the children;
          b. provisions regarding air travel;
          c. specifying a specific location for the surrender and return of the
             children after periods of possession;
          d. allocating tax liabilities between Wallace and McFarlane for 2005–
             2009;
          e. dismissing with prejudice all pending protective orders and effectively
             prohibiting her from “testifying about all prior physical abuse;”
          f. extinguishing any claims for emotional abuse;

4
       The decree enjoins both Wallace and McFarlane from engaging in such conduct,
       but Wallace is complaining about the provisions only as they apply to her.

                                         11
           g. ordering the survival of pending obligations for temporary support;
              and
           h. lifting the agreed geographical restriction placed on the children’s
              residence by the MSA under specific circumstances.

Wallace also argues that McFarlane’s failure to disclose to Wallace during

mediation the existence of the three E*trade accounts awarded to him in the decree

amounted to fraud-by-nondisclosure.

      1.      Preservation of Error

      Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides that, as a

prerequisite for presenting a complaint on appeal, the record must demonstrate that

the complaining party made his complaint to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling sought with sufficient

specificity to make the trial court aware of the complaint. TEX. R. APP. P.

33.1(a)(1)(A); see also Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A,

249 S.W.3d 380, 387 (Tex. 2008) (“[T]he cardinal rule for preserving error is that

an objection must be clear enough to give the trial court an opportunity to correct

it.”); Ricks v. Ricks, 169 S.W.3d 523, 527–28 (Tex. App.—Dallas 2005, no pet.)

(overruling complaint regarding discrepancy between MSA and final divorce

decree because complaining party failed to make trial court aware of objection); In

re T.M.G.R., 164 S.W.3d 851, 855–56 (Tex. App.—Beaumont 2005, no pet.)

(overruling complaints regarding discrepancies between MSA and trial court’s

order because complaints were contradicted by record and argument that portions
                                        12
of order were unenforceable had not been presented to trial court). In order to

preserve error, the party’s complaint on appeal must comport with the argument it

raised in the trial court. Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—

Texarkana 2010, pet. denied); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40

(Tex. App.—Houston [14th Dist.] 2005, pet. denied).

      The record before us on appeal reflects that the discrepancies raised in

numbers 7 and 8(a), (c)-(g) were never specifically brought to the trial court’s

attention at the December 29th hearing, the April 13th hearing, or in any post-

judgment motion.      Although Wallace contends that she raised at least ten

objections during a March 9, 2010 hearing on her motion to compel, there is no

record of that proceeding. Regardless of what may have transpired at the March

9th hearing, the record before this Court (i.e., transcripts of the December 29, 2009

and April 13, 2010 hearings and the clerk’s record) does not demonstrate that

Wallace ever presented these issues to the trial court. See TEX. R. APP. P. 33.1

(requiring party seeking appellate review to show that complaint was preserved);

accord Shelton v. Standard Fire Ins., 816 S.W.2d 552, 553 (Tex. App.—Fort

Worth 1991, no writ) (noting that appellant has burden to bring up record on

appeal showing error that would require reversal). Accordingly, none of these

objections have been preserved for our review. See TEX. R. APP. P. 33.1(a)(1)(A);

Arkoma Basin Exploration, 249 S.W.3d at 387.


                                         13
          (1) Provisions Regarding Air Travel

      Wallace’s complaint about the inclusion of new provisions regarding air

travel (number 8(b)) is moot. While this appeal has been pending, the matter was

transferred to Montgomery County on a motion of the parties, and that court

modified the provisions of the decree regarding the surrender and return of the

children and the provisions relating to the children’s air travel. Consequently, we

need not address this issue. See TEX. R. APP. P. 47.1 (“The court of appeals must

hand down a written opinion that is as brief as practicable but that addresses every

issue raised and necessary to final disposition of appeal.”).

          (2) Fraud-by-Nondisclosure

      Wallace’s fraud-by-nondisclosure argument, which was raised for the first

time at the April 13, 2010 hearing, was not preserved for appellate review either.

Wallace’s counsel argued at the April hearing that he had only just discovered a

few days before that the decree awarded three E*trade accounts to McFarlane that

were not included in the inventory of assets that McFarlane submitted during

mediation the previous November.          Although she argued that McFarlane’s

omission amounted to fraud-by-nondisclosure, Wallace did not offer any sworn

testimony or documentary evidence of any kind in support of her allegation of

fraud (e.g., a copy of the inventory list McFarlane submitted at mediation). More

importantly, Wallace did not amend her motion for new trial to include this newly


                                          14
discovered allegation. Therefore, Wallace has failed to preserve this issue for our

review. See TEX. R. CIV. P. 324(b)(1) (stating that point in motion for new trial is

prerequisite to complaint regarding newly discovered evidence).

         (3) Dr. Laval’s Recommendations

      Wallace also argues that the December decree orders the parties to comply

with the recommendations of Dr. Laval as set forth in his November 11, 2009

letter, as opposed to complying with Dr. Laval’s prior oral recommendations, as

contemplated by the MSA signed on November 4, 2009. Dr. Laval’s letter is not

included in the appellate record. In fact, the record is silent as to any of Dr.

Laval’s recommendations.

      It is possible that Dr. Laval’s November 11 letter merely memorializes his

earlier-stated oral recommendations, and, if that is the case, then the language in

the decree would be consistent with the MSA and the intent of the parties. If not,

the inclusion of this language in the decree could constitute reversible error. In

fact, Wallace’s counsel informed the trial court at the entry hearing: “Just for the

record, Dr. Laval did write a letter on November 11, 2009. My client does not

agree with—my client does not agree that his recommendations are consistent with

everything that we talked about in mediation and possibly also with the phone

conference that we had with him back in early November.” Without Dr. Laval’s

recommendations before us, however, we have no way to make this determination.


                                         15
Accordingly, this issue has not been preserved for our review. See Shelton, 816

S.W.2d at 553 (noting that appellant has burden to bring up record on appeal

showing error that would require reversal).

         (4) Wallace’s Right to Access Medical Care for the Children

      Wallace argues that the December decree (1) gives McFarlane exclusive

rights with respect to the children’s medical and mental health care, including the

right to determine whether the children need mental health care, even though that

was not agreed to in the MSA; (2) prohibits her from seeking medical treatment for

the children while they are in her possession (with the exception of extended

periods of possession); and (3) omits the MSA’s requirement that the children are

to attend therapy.

      Wallace argued to the trial court that the provision of the draft decree

authorizing her to take the children to see a doctor for non-emergency care was

incorrectly limited to her extended summer possession, Christmas holiday, or

spring break, and that it should be modified to allow her to do so during any period

of possession. McFarlane responded that the parties agreed in the MSA to follow

Dr. Laval’s recommendations. McFarlane and the children’s attorney agreed that

the provision in question was consistent with the “specific parameters” that Dr.

Laval set forth in his November 11, 2009 letter. As previously discussed, Dr.

Laval’s letter is not included in the appellate record. Without Dr. Laval’s letter


                                         16
before us, we have no way to tell if this provision is consistent with Dr. Laval’s

recommendations as McFarlane and the children’s attorney contend. Accordingly,

this issue has not been preserved for our review. See Shelton, 816 S.W.2d 552,

553 (noting that appellant has burden to bring up record on appeal showing error

that would require reversal).

      Wallace’s remaining complaints (numbers 1–3, 5–6, and 8(h)) were

preserved for our review and we will address them accordingly.

      2.     Law Applicable to MSA and Final Divorce Decree

      In suits affecting the parent-child relationship or suits for the dissolution of

marriage, an MSA is binding on the parties and irrevocable 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)-(c), 153.0071(d)-(e). If an MSA meets these statutory requirements,

then the parties are entitled to judgment on that MSA “notwithstanding Rule 11,

Texas Rules of Civil Procedure, or another rule of law.” TEX. FAM. CODE ANN.

§§ 6.602(c), 153.0071(e); see also Garcia–Udall v. Udall, 141 S.W.3d 323, 327

(Tex. App.—Dallas 2004, no pet.). Accordingly, a trial court must enforce an

MSA that meets these requirements unless a party demonstrates that the MSA was


                                         17
illegal or was procured by fraud, duress, coercion, or other dishonest means. Boyd

v. Boyd, 67 S.W.3d 398, 403 (Tex. App.—Fort Worth 2002, no pet.).

      A final judgment founded upon an MSA must be in “strict or literal

compliance” with that agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d

292, 292 (Tex. 1976); Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied); see also Garcia-Udall, 141 S.W.3d at 332

(concluding that trial court abused its discretion under Family Code section

153.0071 by entering judgment not conforming with MSA in suit affecting parent-

child relationship). A trial court may modify the terms of an MSA, however, so

long as those modifications do not add terms, significantly alter the original terms,

or undermine the parties’ intent.       Beyers, 199 S.W.3d at 362–63 (stating

modifications to MSAs only constitute reversible error if they “add terms,

significantly alter the original terms, or undermine the intent of the parties”); see

also Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App.—El Paso 1997, no pet.)

(finding reversible error when trial court added provision requiring husband to pay

$3,500 of wife’s attorney’s fees); In the Matter of the Marriage of Ames, 860

S.W.2d at 592–93 (holding trial court erred when it added terms which “differed

significantly from the settlement agreement”).

         (1) Prohibition against Distribution of Dr. Laval’s Recommendations

      The MSA states in pertinent part, “Dr. Laval’s recommendations shall be


                                         18
followed by both parties as to their individual situations. These recommendations

shall be made a part of the [agreement incident to divorce] and held by each lawyer

and not be released unless an emergency action [is] filed with Court *including

enforcement action is filed.”    Wallace argues that this language prohibits the

parties from sharing Dr. Laval’s recommendations with anyone, unless there is an

emergency. On the contrary, the language of the MSA only prohibits the parties’

counsel from disseminating the information. Because the MSA does not prohibit

McFarlane from divulging Dr. Laval’s recommendations, the trial court did not

abuse its discretion when it failed to include such a provision in the December

decree.

          (2) Provisions Regarding the Children’s Medical and Mental Health
              Care

      Wallace argues that the December decree (1) gives McFarlane exclusive

rights with respect to the children’s medical and mental health care, including the

right to determine whether the children need mental health care, even though that

was not agreed to in the MSA; and (2) omits the MSA’s requirement that the

children are to attend therapy. The MSA states, “Exclusive to Dad on education

after confer and consult with mom as well as psychological and psychiatric mom

shall select therapist after dad gives her a list of three therapists.” Contrary to

Wallace’s position, this language does not require the children to attend therapy. It

gives McFarlane the exclusive right to make decisions with respect to the

                                         19
children’s mental health needs, after he confers and consults with Wallace. In the

event McFarlane decides that the children need either psychological or psychiatric

care, the MSA also gives Wallace the right to choose the children’s therapist from

a list of three compiled by McFarlane.

      Because the MSA does not require the children to attend counseling or

therapy, the trial court did not abuse its discretion when it declined to include such

a provision in the December decree. Likewise, the provisions in the December

decree addressing McFarlane’s rights with respect to the children’s medical and

mental health care are entirely consistent with the terms of the MSA, and thus,

their inclusion does not constitute an abuse of discretion either.

          (3) Community Property

      Wallace argues that the December decree improperly awards McFarlane

community property that was not addressed in the MSA (i.e., three E*trade

accounts).   The MSA awarded each party “his or her own bank accounts,

retirement, real estate, vehicles, and personal property.” The December decree

goes a step further and specifically lists those items. This type of modification

does not, however, add terms, significantly alter the original terms, or undermine

the parties’ intent, and thus, does not constitute reversible error. See Beyers, 199

S.W.3d at 362–63.




                                          20
          (4) Geographical Restriction

      Wallace argues that, although both the MSA and draft decree limit the

children’s primary residence to specific counties in the Houston and Dallas metro

areas, page 6 of the draft decree also includes a provision lifting that restriction if

Wallace moves from her current residence or outside the 250-mile radius of the

312th District Court of Harris County. Wallace argues that the MSA did not

address when (or if) the geographical restriction could be lifted. This provision

lifting the geographical restriction on the children’s residence in certain

circumstances was not addressed in the MSA. The trial court abused its discretion

by adding this new term to the December decree. See Beyers, 199 S.W.3d at 362–

63 (stating modifications to MSAs only constitute reversible error if they “add

terms, significantly alter the original terms, or undermine the intent of the parties”).

      We overrule Wallace’s third issue, except as it pertains to her complaint

regarding language in the December decree lifting the geographical restriction

placed on the children’s residence.

D.    Denial of Motion for New Trial and Motion to Vacate or Modify Decree

      In her fourth issue, Wallace contends that the trial court erred by denying her

motion to vacate or modify the final divorce decree and her motion for new trial on




                                          21
the basis that both motions were too general and unclear. 5 The denial of such

motions is generally reviewed under an abuse of discretion standard. See Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial court abuses its

discretion when its action is arbitrary, unreasonable, or “without reference to any

guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985). A trial court does not abuse its discretion if it reaches

the right result, even for the wrong reason. Luxenberg v. Marshall, 835 S.W.2d

136, 141–42 (Tex. App.—Dallas 1992, orig. proceeding).

      1.    Motion for New Trial

      In her motion, Wallace argued that she was entitled to a new trial because

the evidence was legally and factually insufficient to support the trial court’s

finding that the decree conformed to the terms of the MSA. According to Wallace,

the MSA was not “accurately represented” in the decree. Wallace further alleged

that the decree contained unspecified “substantial clerical and substantive errors.”

Wallace’s motion for new trial did not specifically identify the portions of the

December decree that she contended failed to conform to the terms of the MSA.

      From the face of the motion, there was no way for the trial court to know if


5
      The record reflects that the trial court denied Wallace’s motion for new trial
      because the motion was too general and unclear. The record also reflects that the
      trial court denied her motion to vacate or modify the decree because, having
      denied Wallace’s motion for new trial, her only remedy was a motion to modify
      the judgment.

                                          22
Wallace was requesting a new trial based on all, some, or even none of the

challenges she raised to the decree at the entry hearing. 6       Given the lack of

specificity in her motion, we hold that the trial court did not abuse its discretion

when it denied Wallace’s motion for new trial. See TEX. R. CIV. P. 321 (stating

that each point in motion for new trial or motion in arrest of judgment must refer to

complaint “in such a way that the objection can be clearly identified and

understood by the court”); TEX. R. CIV. P. 322 (prohibiting consideration of

grounds for objection “couched in general terms”). We further note that even if

Wallace’s motion had complied with Rules 321 and 322, the trial court was,

nevertheless, correct in denying her motion because, although she alleged that the

decree did not strictly comply with the MSA, she failed to demonstrate that the

decree contained any reversible error (i.e., added new terms or significantly altered

the terms of the MSA, or undermined the intent of the parties). See Beyers, 199

S.W.3d at 362–63 (stating modifications to MSAs only constitute reversible error

if they “add terms, significantly alter the original terms, or undermine the intent of

the parties”).




6
      As previously discussed, Wallace attempted to challenge the conformity of several
      provisions on appeal that she never argued to the trial court at any hearing, or
      specifically raised in a post-judgment motion.

                                          23
      2.     Motion to Vacate or Modify Decree

      Wallace also filed a “Motion to Vacate and Alternative Motion for

Additional Orders” in which she argued that the December decree contained a

misstatement of the MSA and included injunctions not agreed to at mediation.

Wallace asked the court to either modify the existing decree or vacate the decree

and enter a new decree correcting certain errors. Specifically, Wallace argued that

the December decree improperly omitted provisions, (1) requiring court-ordered

therapy for the children, and (2) enjoining McFarlane from distributing Dr. Laval’s

recommendations. 7 She also argued that the decree included ambiguous provisions

on air travel that required clarification and that the decree it needed to be modified

“to reflect the MSA which contain[ed] no injunctions against [Wallace].”

      Regardless of the reason given, the trial court did not abuse its discretion

when it denied Wallace’s motions. See Luxenberg, 835 S.W.2d at 141–42 (stating

trial court does not abuse its discretion if it reaches right result, even for wrong

reason). As previously discussed, the MSA neither requires the children to see a

therapist or counselor nor enjoins McFarlane from distributing Dr. Laval’s

recommendations to others, and her complaint regarding air travel is moot.




7
      Wallace also complained in her motion to vacate that the December decree
      improperly omitted language addressing telephone contact. Wallace does not
      complain about the omission of this language on appeal.
                                         24
      Wallace’s remaining allegation that the decree needed be modified “to

reflect the MSA which contain[ed] no injunctions against [Wallace]” is an

incorrect statement of the MSA and does not entitle her to relief. The MSA clearly

and unequivocally enjoined Wallace from taking the children to see mental health

professionals. (“Mom shall not be permitted to take children to mental health

professionals.”)

      We overrule Wallace’s fourth issue.

                                    Conclusion

      We reform the judgment to delete the language lifting the geographical

restriction on the children’s residence under certain circumstances, and we affirm

the trial court’s judgment as modified.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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