Affirmed in Part and Reversed and Remanded in Part and Opinion filed
August 25, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00366-CV

                  IN THE INTEREST OF L.T.H., A CHILD


                   On Appeal from the 309th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-70308

                                OPINION


      In this appeal from a suit to modify the parent-child relationship, a mother
challenges the trial court’s rendition of judgment on a mediated settlement
agreement between mother and father, the purpose of which was to resolve
disputes between them relating to father’s periods of possession of their child. On
appeal, mother contends that the trial court’s judgment is inconsistent with the
mediated settlement agreement. Because we conclude that the disputed provision
of the mediated settlement agreement is ambiguous and the mediator is the proper
authority to resolve the dispute, we reverse that portion of the judgment concerning
possession and access and remand the case to the trial court for further
proceedings.

                                   Factual Background

       L.T.H. is a child born in November 2012. In June 2013, the trial court signed
a “Reformed Agreed Order in Suit Affecting the Parent-Child Relationship” based
on a mediated settlement agreement between mother and father, adjudicating the
child’s parentage and establishing a parenting plan. The order addressed issues
including conservatorship, possession and access, and child support.

       In June 2014, father filed a petition to modify the parent-child relationship.
Father claimed a material and substantial change in the circumstances of the child
or the parties and sought to revise and expand his possessory rights under the
reformed agreed order. Mother answered and later filed a counter-petition.

       On August 22, 2014, the trial court signed temporary orders providing that
father would have possession of and access to the child pursuant to a modified
standard possession order, which expanded father’s periods of possession until the
child reached the age of three. After the child reached the age of three, the
temporary orders provided that father would have possession and access pursuant
to a standard possession order.

       In February 2015, father amended his petition to seek possession and access
pursuant to a “fully expanded Standard Possession Order.” Father requested that,
until the child begins “actual school,”1 the trial court award father “the right to
possession of his son when his mother is at work and the child would normally be

       1
          In the temporary orders, “school” is defined as “the daycare, primary or secondary
school in which the child is enrolled or, if the child is not enrolled in a primary or secondary
school, the public school district in which the child primarily resides.”

                                               2
at daycare” and “the right of first refusal to have possession of the child if [mother]
will be out of town overnight and unable to keep the child personally.”
Additionally, father requested that the trial court order mother to surrender the
child on Thursdays at 3:00 p.m., until the child begins “actual school.” Father also
requested specified periods of possession of the child during the summer of 2015.

       The trial court referred the parties to mediation with mediator Alice O’Neill.
On February 6, 2015, mother and father reached a settlement and executed a
mediated settlement agreement (MSA). The MSA recited in boldfaced, capitalized,
and underlined letters that it was not subject to revocation, and it was signed by the
parties and their attorneys. The terms of the parties’ agreement were contained in
an attached Exhibit A incorporated into the MSA,2 which provided in relevant part:




The MSA also provided that the parties “shall” submit to binding arbitration with
O’Neill “regarding all (a) drafting disputes, (b) issues regarding interpretation of
this [MSA] and (c) issues regarding the intent of the parties as reflected in this
[MSA].”

       On February 27, in a hearing which mother did not attend, the trial court

       2
          The relevant portion of Exhibit A is reproduced as it appears in the clerk’s record. Ms.
Levi is father’s attorney.

                                                3
orally granted the relief agreed to in the MSA. Less than a month later, the trial
court held another hearing to address a dispute that had arisen concerning the
language of the proposed order on the MSA as drafted by father’s attorney. At the
hearing, mother took the position that the parties had agreed to an order
incorporating the August 22, 2014 temporary orders as modified in Exhibit A to
the MSA, and that—as in the temporary orders—the standard possession order
would apply once the child reached the age of three. Mother complained that,
contrary to the parties’ agreement, the proposed order extended father’s periods of
possession after the child turned three beyond what was contemplated in the
temporary orders.3 The trial court disagreed, concluding that “the MSA is clear.”

       On March 20, 2015, the trial court signed an “Agreed Order in Suit to
Modify Parent-Child Relationship” based on the MSA. This final order made
several modifications to father’s periods of possession, including granting father
certain possessory rights after the child reached the age of three that differed from
that portion of the temporary orders providing for a standard possession order after
the child reached the age of three. This appeal followed.

                                   ISSUES AND ANALYSIS

       In one issue, mother contends that the trial court abused its discretion by
granting judgment on an order that is inconsistent with the MSA. Father responds
that mother waived her complaint by inaction in the trial court and in this court.



       3
          For example, mother’s attorney argued at one point: “we will agree to the temporary
orders as written with the understanding of knowing that once the child was no longer three that
this time of keeping the child an extra day on Fridays was going to go away. We made an
agreement based on what was written in the temporary orders.” Toward the end of the hearing,
mother’s attorney again argued, “[W]hat we are disputing is what happens after the child turns
three. In the temporary orders it says, after the child turns three, they go back to a standard
possession order.”

                                               4
                                        Waiver

      We begin with father’s multiple complaints that mother has waived any right
to appellate relief. Father argues that mother (1) failed to file any post-judgment
motion apprising the trial court of the complaints she raises in this appeal, (2)
failed to cite to the record, (3) failed to provide any legal authorities addressing the
specific issue presented, (4) failed to provide any legal analysis pertaining to the
specific issue presented, (5) cited and relied on documents in an appendix not
contained in the record, and (6) requested incorrect relief in her brief. Father also
argues that, even if mother had preserved her sole issue for appeal, her failure to
request findings of fact and conclusions of law has “created an insurmountable
procedural obstacle to appellate relief.”

      1.     Mother did not waive her right to appeal by inadequate briefing.

      As an initial matter, we agree that we may not consider documents contained
in the appendix to mother’s brief which are not in the record (complaint 5). See
WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied) (“[W]e cannot consider documents
attached as appendices to briefs and must consider a case based solely upon the
record filed.”). But father cites no authority to support his argument that attaching
such documents to a party’s appellate brief waives their right to appeal, and we
decline to so hold.

      Father also complains that mother has waived her appellate issue by briefing
waiver. Father alleges that mother failed to provide citations to either the clerk’s or
reporter’s records, identify controlling legal authorities and analysis, or include the
subject matter of her issue in the table of contents, in violation of Texas Rules of
Appellate Procedure 38.1(b), (d), (g), (h), and (i) (complaints 2, 3, and 4). See Tex.
R. App. P. 38.1.
                                            5
      We acknowledge that mother’s brief is not a model of clarity and that she
has not provided citations to the record. But mother identifies the order that is the
subject of her appeal and the operative documents, the dates and the substance of
two hearings in the trial court, and the specific provisions of the order that she
contends are inconsistent with the MSA. The documents discussed in mother’s
brief are easily located in the relatively short clerk’s record, and the reporter’s
records of the two hearings each contain less than ten pages of transcription to
compare to the assertions in mother’s brief. Mother also cites to Family Code
section 153.0071 and supporting legal authorities for the general proposition that a
trial court abuses its discretion in granting a judgment inconsistent with the terms
of a mediated settlement that satisfies the statutory formalities. See Tex. Fam. Code
§ 153.0071; In re Lee, 411 S.W.3d 445, 455 (Tex. 2013); In re S.A.D.S., 413
S.W.3d 434, 438 (Tex. App.—Fort Worth 2010, no pet.). Further, in response to
father’s complaints, mother filed a reply brief in which she responded to father’s
arguments with citations to the record and additional relevant authorities.

      The Supreme Court of Texas has repeatedly made clear that “[d]isposing of
appeals for harmless procedural defects is disfavored.” Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012) (citing Perry v. Cohen, 272 S.W.3d 585,
587 (Tex. 2008) (per curiam)). Instead, appellate briefs are to be construed
reasonably, yet liberally, so that the right to appellate review is not lost by waiver.
Id. Appellate courts must treat the statement of an issue “as covering every
subsidiary question that is fairly included.” Id. (citing Tex. R. App. P. 38.1(f)). “An
appellant can preserve error ‘in the body of their appellate brief,’ even if it is not
separately listed in the notice of appeal or presented as an issue in the brief.” Id.
(quoting Perry, 272 S.W.3d at 586). We decline to hold, on this record, that mother
has waived her appellate issue by inadequate briefing.


                                          6
       Finally, father complains that mother waived any right to appellate relief
because the only relief she requested was a reversal and remand to the trial court
“to enter a judgment that conforms to the parties’ mediated settlement agreement”
(complaint 6). According to father, mother failed to comply with the requirement
of Rule 38.1(j) that an appellant’s brief contain “a short conclusion that clearly
states the nature of the relief sought,” see Tex. R. App. P. 38.1(j), because mother
failed to “specif[y] what that judgment should include and exclude.”

       Mother’s brief makes clear that her complaint is that the trial court’s order
does not accurately reflect the terms of the MSA and she requests that this court
correct that perceived error. Further, in reply to father’s complaints, mother more
specifically asserts that she is requesting that this court order the case remanded to
the trial court with an instruction to refer the parties back to mediation to resolve
the parties’ disputes as provided in the MSA or, alternatively, to modify the trial
court’s order and affirm as modified. Father cites no authority that would require
this court to reject mother’s request for appellate relief because she failed to strictly
comply with Rule 38.1(j), and we reject father’s argument as inconsistent with the
Supreme Court’s directive that we construe appellate briefs reasonably, yet
liberally. See Weeks Marine, 371 S.W.3d at 162. We conclude that mother has
substantially complied with Rule 38.1 and reject father’s assertion that mother has
waived her right to appellee review on this basis.

       Having rejected father’s complaints of briefing waiver by mother, we next
turn to his allegation that mother failed to preserve her appellate issue by her
inaction in the trial court.

       2.     Mother preserved her complaint in the trial court.

       Father contends that mother waived any complaint about the trial court’s
order because she did not preserve her complaint below, either by filing a motion
                                           7
for new trial; a motion to modify, correct, or reform the judgment; a motion for
judgment as a matter of law; or some other means. See Tex. R. App. P. 33.1(a)(1);
Brantley v. Brantley, No. 14-11-00583-CV, 2012 WL 727700, at *3 (Tex. App.—
Houston [14th Dist.] Mar. 6, 2012, no pet.) (mem. op.) (holding that mother’s post-
judgment motion failed to alert trial court to specific appellate complaint). Mother
responds by citing to the record of the March 20, 2015 hearing and arguing that
that she made the trial court aware of her objection to the proposed order’s
inconsistency with the parties’ MSA by disputing its provisions at that hearing.4

       As discussed above, mother asserted in her opening brief that she objected to
the proposed order at the hearing, and the record reflects that mother articulated
her objections with sufficient specificity to make the trial court aware of the
complaint. Further, the trial court ruled on mother’s objection by expressing its
disagreement with mother’s interpretation of the MSA and signing the order
drafted by father’s attorney. Therefore, mother satisfied the preservation
requirements of the appellate rules. See Tex. R. App. P. 33.1(a); Barina v. Barina,
No. 03-08-00341-CV, 2008 WL 4951224, at *2–3 (Tex. App.—Austin Nov. 21,
2008, no pet.) (mem. op.) (holding that counsel’s statements at hearing were
sufficient to make trial court aware of mother’s complaint that proposed divorce
decree was inconsistent with the parties’ mediated settlement agreement
concerning father’s periods of possession). Further, as mother points out, in a
nonjury case, a motion for new trial is a prerequisite to a complaint on appeal only
in certain circumstances not applicable here. See Tex. R. Civ. P. 324. We hold that
mother did not waive her complaint by failing to raise it in the trial court.


       4
          In a sur-reply brief, father complains that mother “cites to literally the entirety of the
reporter’s record” without pointing out any specific language where she raises the complaints
asserted in her brief. The entirety of the reporter’s record is nine pages of text.

                                                 8
                                 Analysis of Mother’s Issue

       In her sole issue, mother contends that the trial court abused its discretion by
failing to render a judgment consistent with the parties’ MSA. A trial court abuses
its discretion if it reaches a decision that is arbitrary and unreasonable, or if it fails
to analyze or apply the law correctly. See Walker v. Packer, 827 S.W.2d 833, 839–
40 (Tex. 1992).

       Under the Texas Family Code, mediated settlement agreements are governed
by sections 6.602 and 153.0071, respectively. See Tex. Fam. Code §§ 6.602,
153.0071; Milner v. Milner, 361 S.W.3d 615, 618–19 (Tex. 2012); In re Lee, 411
S.W.3d 445, 451–52 (Tex. 2013). Section 6.602 applies to property division, while
section 153.0071 applies to suits affecting the parent-child relationship. See
Barina, 2008 WL 4951224, at *4 n.2.

       Relevant here, section 153.0071(e) unambiguously provides that a party is
entitled to judgment on an MSA that meets the statutory formalities
“notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.”
See Tex. Fam. Code § 153.0071(e); Lee, 411 S.W.3d at 453.5 It is undisputed that
the MSA in this case complies with Family Code section 153.0071(d) and that the
parties are entitled to judgment in the form of a modification order based on the
MSA.6 See Tex. Fam. Code § 153.0071(d); Lee, 411 S.W3d at 458–59.

       5
         Though not relevant here, section 153.0071 provides an exception to the statutory
mandate in circumstances involving family violence. See Tex. Fam. Code § 153.0071(e-1); Lee,
411 S.W.3d at 453.
       6
           Section 153.0071(d) provides:
             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;

                                                 9
      In rendering judgment on an MSA, trial courts may include terms necessary
to effectuate and implement the parties’ agreement, so long as they do not
substantively alter it. In re Lee, 411 S.W.3d at 458 n.17. The Family Code does not
authorize a court to modify an MSA before incorporating it into a decree. Diggs v.
Diggs, No. 14-11-00854-CV, 2013 WL 3580424, at *10 (Tex. App.—Houston
[14th Dist.] July 11, 2013, no pet.) (mem. op.).

      According to mother, the trial court’s final order substantially differs from
the parties’ MSA because it awards father additional time with the child that he did
not have under the temporary orders after the child reached the age of three, and
changes the child’s pick-up and return times, resulting in father having more
possession time than that awarded in the parties’ MSA. Among other things,
mother complains that in the section of the final order providing for a standard
possession order after the child reached the age of three, father’s periods of
possession included the following for Thursdays and Fridays:

      Thursdays – On Thursday of each week during the regular school
      term, beginning at the time the child’s school is regularly dismissed,
      or at 3:00 pm if the child is enrolled in daycare, and ending at the time
      the child’s school/daycare resumes on Friday. It is further ORDERED
      that [father], at his own election, may keep the child home from
      daycare on Fridays that follow a Thursday period of possession as
      long as [father] notifies [mother] in writing via text message or email
      ahead of time of whether the child will be in daycare on a particular
      Friday or not and, if the child will not be in daycare, provide a general
      itinerary of the child’s whereabouts during the time the child might
      have otherwise been in daycare.7


               (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 153.0071(d).
      7
          This provision substantially mirrors the corresponding provision in the August 22, 2014
                                                 10
In contrast, the section of the temporary orders applicable after the child reached
the age of three gave father the right to possession of the child only on Thursdays
as follows:

       Thursdays – On Thursday of each week during the regular school
       term, beginning at the time the child’s school is regularly dismissed
       and ending at the time the child’s school resumes on Friday.

Mother points out that the fourth line of Exhibit A to the MSA reflects the parties’
agreement to “Dad’s periods of possession: Per Temporary Orders: Expanded
SPO” and argues that the language in the trial court’s final order is inconsistent
with the temporary orders. Mother also argues that nothing in the temporary orders
entitles father to a full day of possession of the child on Fridays after the child
reaches three years of age.

       In her reply brief, Mother more specifically argues that the phrase “Per
Temporary Orders: Expanded SPO” in the MSA “informs us that an expanded
standard possession order is set forth in the parties’ temporary orders.” But, mother
argues, the final order provides for possessory rights inconsistent with the terms of
the temporary orders contained in the section providing for a standard possession
order applicable after the child turns three. The crux of mother’s argument, as we
understand from both her opening brief and her reply brief, is that the trial court
erred by concluding that the terms of the expanded standard possession order were
to continue after the child turned three, contrary to the temporary orders.8


temporary orders concerning the modified possession order applicable before the child reached
the age of three, with the exception of the 3:00 p.m. start time. As she does on appeal, Mother
pointed out this specific provision to the trial court at the March 20 hearing.
       8
         In a sur-reply, father contends mother’s arguments in her reply brief are new arguments
that may not be raised for the first time in a reply brief. See Tex. Ear Nose & Throat Consultants,
PLLC v. Jones, 470 S.W.3d 67, 84 n.15 (Tex. App.—Houston [14th Dist.] 2015, no pet). We
disagree. As we have explained, the substance of mother’s complaint was discernable from her
opening brief. To the extent that mother provided additional argument in reply to father’s
                                                11
       Father disputes mother’s interpretation, arguing that mother fails to explain
why her interpretation “is necessarily the most correct interpretation of that
language” and asserts that “[a] better interpretation” is that “[father’s] periods of
possession are per the temporary orders but with rights that are expanded beyond
the standard possession order.” Father further argues that “there is no evidence in
the record that [mother’s] interpretation of the language in question is more correct
than [father’s] interpretation of it, or, more importantly, that the trial court’s
interpretation of it constitutes a clear abuse of discretion under the circumstances
presented.” According to father, both mother and the record fail to provide any
explanation as to what the term “Expanded SPO” was intended to mean. Father
posits that the term “could very well refer to rights of possession that are more
generous to [father] than as set forth in the standard possession order.”

       We apply the rules of contract interpretation to the MSA. See Milner, 361
S.W.3d at 619 (concluding that parties’ dispute over interpretation of mediated
settlement agreement concerning property division was a matter of contract
interpretation); Diggs, 2013 WL 3580424, at *10–11 (concluding that mother’s
complaints that the divorce decree did not properly reflect the terms of the property
division in parties’ mediated settlement agreement was an issue of contract
interpretation). If the MSA’s language can be given a certain and definite meaning,
the agreement is not ambiguous, and its construction is a matter for the court. See
Milner, 361 S.W.3d at 619. If the MSA is susceptible to more than one reasonable
interpretation, then it is ambiguous, which creates a fact issue on the parties’ intent.
See id.; Diggs, 2013 WL 3580424, at *10.

       Although mother and father provide conflicting interpretations of the


response, Rule 38.3 permits an appellant to file a reply brief “addressing any matter in the
appellee’s brief,” which is what occurred here. See Tex. R. App. P. 38.3.

                                            12
meaning of “Per Temporary Orders: Expanded SPO,” neither expressly argues that
the terms of the MSA are ambiguous. The parties’ failure to raise the issue of
ambiguity is not determinative, however, because whether a contract is ambiguous
is a question of law. See Milner, 361 S.W.3d at 619.

      Viewing Exhibit A to the MSA in its entirety and in conjunction with the
temporary orders of August 22, 2014, it is apparent that, under the MSA, father is
entitled him to pick up the child at 3:00 p.m. during his periods of possession, and
the parties are required to communicate with each other concerning the child’s
whereabouts during those periods as specified. The MSA also provides that
father’s periods of possession are those contained in the temporary orders’
“Expanded SPO.” Presumably, the “Expanded SPO” is a reference to the modified
standard possession order contained in the temporary orders, which are applicable
until the child reaches the age of three. On this record, however, we are unable to
discern from the terms of the MSA or any other record evidence whether—as
father argues—father’s periods of possession under the modified standard
possession order continue to apply after the child reaches the age of three, or—as
mother argues—father’s periods of possession return to a standard possession
order after the child reaches the age of three as provided in the temporary orders.

      Although conflicting interpretations alone do not establish ambiguity, see id.
at 620, we conclude that the meaning of the phrase “Per Temporary Orders:
Expanded SPO,” is ambiguous because it is susceptible to more than one
reasonable interpretation, creating a fact issue on the parties’ intent. See id. at 622;
Diggs, 2013 WL 3580424, at *11.

      Father agrees that a “factual dispute” exists concerning what the parties
intended by the term “Expanded SPO,” and argues that, absent findings of fact and
conclusions of law, this court must presume that the trial court resolved the dispute

                                          13
in favor of the trial court’s ruling on the final order. See Aduli v. Aduli, 368 S.W.3d
805, 813 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (stating that when a trial
court does not issue findings of fact or conclusions of law, the appellate court
presumes that all factual disputes were resolved in favor of the trial court’s ruling).
But the MSA provides that in the event of in the event of drafting disputes, issues
regarding the interpretation of the MSA, or issues regarding the parties’ intent as
reflected in the MSA, the parties must submit to binding arbitration. Because we
have concluded that a fact issue exists regarding the interpretation of the MSA and
the parties’ intent concerning father’s periods of possession, the trial court erred by
resolving the dispute and determining the periods of possession to be awarded to
father. See Milner, 361 S.W.3d at 622; Diggs, 2013 WL 3580424, at *11.
Consistent with the MSA, the parties should be ordered to return to mediator
O’Neill for binding arbitration to resolve this dispute.

                                    CONCLUSION

       We sustain mother’s issue, reverse that portion of the trial court’s agreed
order of March 20, 2015 concerning Possession and Access, and remand the case
for further proceedings consistent with this opinion. We affirm the remainder of
the trial court’s order.




                                        /s/    Ken Wise
                                               Justice



Panel consists of Justices Busby, Donovan, and Wise.




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