Reverse and Remand and Opinion Filed July 8, 2014




                                                      S  In The
                                                   Court of Appeals
                                            Fifth District of Texas at Dallas

                                                    No. 05-11-00253-CV

                   IN THE INTEREST OF S.K.D AND J.E.D., MINOR CHILDREN

                                On Appeal from the 256th Judicial District Court
                                             Dallas County, Texas
                                      Trial Court Cause No. 05-19830-Z

                                           MEMORANDUM OPINION
                                       Before Justices Bridges, Lang, and Richter1
                                               Opinion by Justice Bridges
            Katherine Duncan appeals the trial court’s order modifying the parent-child relationship

appointing John Duncan as joint managing conservator of S.K.D. and J.E.D. with the exclusive

right to designate both children’s residence and ordering Katherine to pay $800 per month in

child support. In four issues, Katherine argues the trial court erred in not entering an order

consistent with a mediated settlement agreement between the parties, failing to make specific

findings regarding child support, awarding attorney’s fees against Katherine, and not conducting

a jury trial as requested. We reverse the trial court’s order and remand for further proceedings.

          As an initial matter, we note this Court’s opinion on original submission was withdrawn

on the Court’s own motion. However, before the Court was John’s motion to withdraw opinion

and dismiss the appeal in which John stated Katherine had died during the pendency of the


   1
       The Hon. Martin Richter, Justice, Assigned
appeal.     Katherine’s counsel filed a response urging this Court to uphold the Mediated

Settlement Agreement in this case. Neither party provided proof of Katherine’s death. Further,

both parties urge this Court to address the merits of the trial court’s action in entering its order

modifying the parent-child relationship by either affirming the trial court’s order or reversing and

remanding for further proceedings, respectively.          Accordingly, we address Katherine’s

arguments on appeal.

          In May 2006, John and Katherine divorced. John and Katherine were named joint

managing conservators of their two children, S.K.D. and J.E.D., with John having primary

custody and the right to determine the residence of the children. The divorce decree further

obligated Katherine to pay $100 per month in child support and required John to maintain health

insurance for the children. In June 2006, Katherine filed a petition to modify the parent-child

relationship seeking to have herself appointed sole managing conservator with the exclusive right

to designate the primary residency of the children. In November 2007, the trial court referred the

case to mediation, and a mediated settlement agreement (MSA) was reached in March 2008.

Under the terms of the MSA, John and Katherine remained joint managing conservators of

S.K.D. and J.E.D., but Katherine was given primary of S.K.D., their daughter, with the exclusive

right to establish her residence. John retained primary possession of their son, J.E.D. The MSA

further required John to pay $1050 per month in child support and continue to provide health

insurance for the children.

          On November 11, 2008, Katherine filed an emergency petition to modify the parent-child

relationship in which she sought modification of the divorce decree “and/or” the MSA. The

same day, the trial court entered an order dismissing the case for want of prosecution. On

November 18, 2008, John filed a motion to reinstate the case, but he non-suited the motion to

reinstate on December 15, 2008. The next day, the trial court dismissed the case without

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prejudice. On December 22, 2008, John filed a first amended counter-petition to modify the

parent-child relationship in which he sought to be named sole managing conservator of S.K.D.

and J.E.D. with the exclusive right to designate the children’s primary residence, consent to their

medical treatment, and manage certain financial matters. Further, the motion requested that

Katherine’s access to the children be restricted and that she be ordered to submit to a

psychological evaluation and six months of drug testing.

       In November 2009, the trial court conducted a trial before the court at which Katherine

represented herself pro se. Nearly a year after trial, on November 1, 2010, the trial court entered

an order containing the court’s findings that the circumstances of the children, a conservator, or

other party had materially and substantially changed and that the requested modification was in

the best interest of S.K.D. and J.E.D. The order provided that John and Katherine would remain

joint managing conservators, but John was given the exclusive right, among other things, to

designate the primary residence of S.K.D. and J.E.D. and to consent to psychological and

psychiatric treatment. Katherine’s possession of J.E.D. was roughly equal to John’s but her

access to S.K.D. was restricted to two hours of supervised access per week at Hannah’s House

Supervised Visitation and Exchange Center. During the first six months following the entry of

the order, Katherine was ordered to submit to random drug testing three times at a time and

location determined by John. Finally, the order awarded John $50,000 in attorney’s fees against

Katherine. This appeal followed.

       In her first issue, Katherine argues the trial court erred by not entering an order in

accordance with the parties’ March 2008 MSA.           Specifically, Katherine relies on section

153.0071 of the family code in arguing that a mediated settlement agreement in a suit affecting

the parent-child relationship is “enforceable,” and an “MSA cannot be repudiated to prevent




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judgment on the matter.” Essentially, Katherine argues the MSA entitled her to an order in strict

accordance with the terms of the MSA, and the trial court erred in failing to enter such an order.

       Section 153.0071 of the family code provides that, if an MSA meets the requirements of

that section, “a party is entitled to judgment on the [MSA] notwithstanding Rule 11, Texas Rules

of Civil Procedure, or another rule of law.” TEX. FAM. CODE ANN. § 153.0071(d), (e) (West

2008). It is clear that the MSA statute was enacted with the intent that, when parents have

agreed that a particular arrangement is in their child’s best interest and have reduced that

agreement to a writing complying with section 153.0071, courts must defer to them and their

agreement. In re Lee, 411 S.W.3d 445, 455 (Tex. 2013). Section 153.0071 encourages parent to

peaceably resolve their child-related disputes through mediation by foreclosing a broad best

interest inquiry with respect to entry of judgment on properly executed MSAs, ensuring that the

time and money spent on mediation will not have been wasted and that the benefits of successful

mediation will be realized. Id. A trial court may not deny a motion to enter judgment on a

properly executed MSA under section 153.0071 based on a broad best interest inquiry. Id. We

sustain Katherine’s first issue. Because of our disposition of Katherine’s first issue, we need not

address her remaining issues.

       We reverse the trial court’s order and remand for further proceedings consistent with this

opinion.




110253F.P05                                          /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF S.K.D AND J.E.D.,                On Appeal from the 256th Judicial District
MINOR CHILDREN, Appellant                           Court, Dallas County, Texas
                                                    Trial Court Cause No. 05-19830-Z.
No. 05-11-00253-CV                                  Opinion delivered by Justice Bridges.
                                                    Justices Lang and Richter participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion..

       It is ORDERED that appellant Katherine Duncan recover her costs of this appeal from
appellee John Duncan.


Judgment entered July 8, 2014




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