












 
 
 
 
 
 
 
                                   NUMBER
13-01-658-CV
 
                             COURT
OF APPEALS
 
                   THIRTEENTH
DISTRICT OF TEXAS
 
                                CORPUS
CHRISTI
___________________________________________________________________
 
                 IN THE INTEREST OF J.A.W.-N., A MINOR CHILD
___________________________________________________________________
 
                        On
appeal from the 347th District Court
                                  of Nueces County, Texas.
__________________________________________________________________
 
                                   O
P I N I O N
 
        Before
Chief Justice Valdez and Justices Dorsey and Rodriguez
                                Opinion
by Justice Rodriguez
 




This is an appeal from an order granting a
motion to modify the terms of an order in a suit affecting the parent-child
relationship (SAPCR).  By four issues,
appellant, the father of the minor child, contends the trial court erred in
entering a modification order because the agreement upon which it was
based:  (1) was not made pursuant to
statute; (2) was not proved up as a contract; (3)  involved disputed matters that do not
fall within the statute; and (4) was vague, contradictory, ambiguous,
inherently incomplete, and incompatible with the order.  By his fifth issue, appellant complains of
the award of attorney=s fees. 
We affirm the judgment of the trial court.
I. 
Background
 The
original agreed order in this SAPCR proceeding set out the terms and conditions
of matters involving the minor child, including but not limited to, parentage,
possession of or access to the child, and child support.  Disagreements related to certain terms and
conditions of the order arose, and appellant and appellee, the mother of the
minor child, agreed to attend a meeting with a third-party mediator to discuss
their concerns.  
Following the meeting, appellant and
appellee entered into an agreement titled AMediated Settlement Agreement@ that
modified the terms of support, as well as possession of and access to their child.  The agreement was signed by appellant,
appellee, their respective attorneys, and the mediator, and was initialed on
each page.  Furthermore, in the middle of
the title page, the agreement recited in bold-face type and with underlining:
that,
pursuant to '153.0071(d)
of the Texas Family Code, by their signatures hereto, this agreement shall be
binding on the parties and shall not be subject to revocation and they shall be
entitled to a judgment on the mediated settlement agreement notwithstanding
Rule 11, Texas Rules of Civil Procedure, or any other rule of law.




See Tex.
Fam. Code Ann. ' 153.0071(d) (Vernon 2002).  The parties also agreed that the exhibit
attached to the document set forth the agreements between them.
When appellant refused to sign an agreed
order to modify the terms of the relationship, appellee filed a motion for
judgment.  In response, appellant filed a
general denial and special denials challenging the adequacy of the pleadings
and the validity of the agreement. 
Appellant also repudiated the agreement.
Both parties appeared at the hearing on
appellee=s motion
for judgment.  Appellant=s
counsel presented arguments to the court. 
No evidence was offered by either party. 
However, appellant conceded, through counsel, that he voluntarily
attended the meeting that resulted in the agreement.  The court also took judicial notice of its
file which contained the parties= written
agreement and the proposed order.  At the
conclusion of the hearing, the trial court signed a written order on the
agreement.  Appellant
appeals from this order.
II.  Mediation Agreement




By his first issue, appellant contends the
agreement that forms the basis of the modification order is not a statutory
mediation agreement because the court did not refer the parties to mediation,
either on the written agreement of the parties or on the court=s own
motion.  See Tex. Family Code ' 153.0071(c) (Vernon 2002).  Section 153.0071(c) of the Texas Family Code
provides A[o]n 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.@  Id. 
Nothing in section 153.0071(c) requires, nor should be construed to
require, a written request or a written order of referral based on the request
of the parties or the court=s own motion as a prerequisite to parties
agreeing to mediate their differences and reducing that agreement to
writing.  Such a requirement would have a
chilling effect on the mediation process. 
Moreover, appellant has directed us to no authority, and we find none,
that precludes parties from agreeing to mediate without involving the court in
making that decision.
What is required, however, to bring the
mediation agreement within the statute and to make it binding on the parties is
set out in section 153.0071(d). 
Subsection 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;
 
    (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.
 
Id. ' 153.0071(d).  




In this case, appellant and appellee, both
represented by counsel, agreed to mediate the matters in dispute.  Furthermore, the agreement states, on its
face, that it was made pursuant to section 153.0071(d) of the Texas Family
Code, and in all respects complied with that provision.  See id.  The statement regarding revocation was on the
title page, and in boldface and underlined. 
See id.  The plain language
of this section of the agreement indicates the parties intended their agreement
to be final.  The agreement was executed
by appellant, appellee and their respective attorneys, who were present at
mediation.  See id.  Appellee took the affirmative steps necessary
to qualify for section 153.0071 treatment, and is
entitled to judgment on that agreement.  See
Tex. Fam. Code '
153.0071(e) (Vernon 2002); see also Alvarez v. Reiser, 958 S.W.2d 232,
234 (Tex. App.BEastland 1997, pet. denied) (section
153.0071(e) requires trial court to enter judgment on mediated settlement that
meets requirements of subsection (d)). 
Appellant=s first issue is overruled.
By his second issue, appellant argues that
because the agreement was a non-statutory agreement, it must have been
presented and proven as a contract in order to be reduced to a judgment.  However, having already concluded the
agreement satisfied the requirements of section 153.0071(d) of the family code,
contract law does not apply in this instance.  See Tex.
Fam. Code ' 153.0071(e) (if mediated settlement
agreement meets requirements of subsection (d), Aparty is
entitled to judgment on the mediated settlement agreement notwithstanding rule
11, civil procedure rules, or another rule of law@).  We overrule appellant=s second
issue. 
II.  Terms of Agreement




By his third issue, appellant contends the
agreement is not compatible with the order, and is so vague, contradictory,
ambiguous and inherently incomplete that it should not be enforceable by
judgment.  In support of his contention,
appellant relies on In re Marriage of Ames, 860 S.W.2d 590, 591-93 (Tex.
App.BAmarillo 1993, no pet.).  
In Ames, the parties, Raymond and
Nancy, were ordered to mediate their divorce action.  Id. at 591.  A
settlement agreement regarding the division of community was reached, and,
although Raymond attempted to withdraw his consent, the trial court entered a
decree of divorce based on that agreement. 
Id.  On appeal, Raymond
argued Aif the
agreement was not repudiated, the trial court erred in dividing the community
property because the court=s division differed significantly from the
settlement agreement.@  Id. at 592.  
Raymond urged the following terms were not in the agreement:  (1) that he was to pay all income tax
liabilities for both parties through December 31, 1990; (2) that he was not
only to execute a $320,000.00 promissory to Nancy, but was also to pay a
$320,000.00 money judgment; and (3) that he was to pledge company stock as
collateral for the promissory note.  Id. at 592-93. 
Finding the trial court added terms to the decree of divorce that were not in the settlement agreement, the appellate court
concluded the decree could not be allowed to stand.  Id. at 593.




In this instance, appellant complains that
the agreement should not be enforceable because the phrase Aexpanded
standard visitation@ used in the agreement[1]
is not explained or defined in any document. 
However, comparing the original order establishing the parent-child
relationship with the modified order, it is clear appellant=s
visitation time on Wednesdays was expanded from 6:00 p.m. to 8:00 p.m.  Thus, Aexpanded standard visitation@ time is
explained in the order.  Moreover,
appellant does not complain that this provision was added incorrectly.
Appellant also contends that the agreed
exchange of the child at the visitation center is contradicted in the
order.  We do not find a
contradiction.  It is clear that
exchanges of the child are to be at the visitation center to minimize contact
between the parents, except for Wednesday visitations during the school year
when the child is to be picked up at school. 
The fact that the order reflects some Wednesday exchanges will take
place at school rather than at the visitation center is not a contradiction,
but rather common sense.
Additionally, appellant complains that the
agreement does not explain or define Adue time, of notice of inability to
exercise possession.@ 
This phrase is not included in the mediated agreement as appellant
suggests.  Nonetheless, it is clear from
our reading of the entire modified order that the required notice of inability
to exercise possession is outlined in sufficient detail.  Moreover, again, appellant does not complain
that the notice provisions in the modified order were incorrect.




Further, appellant asserts that the amount
of the total monthly support is not specific and definite, and should not be
enforceable by judgment.  He complains
that the agreement could be interpreted as a monthly support payment of
$500.00, whereas the order reflects a $550.00 monthly payment.  We find no such uncertainty.  The agreement specifically provides for child
support in the amount of $500.00 per month beginning June 1, 2001, plus a
$50.00 monthly payment to be applied to the agreed arrearage balance of
$2,300.00, both collectable by a wage withholding order.
Without further explanation, appellant
also contends the alleged agreement regarding the dependency deduction for tax
purposes is vague and uncertain.  The
agreement provides A[the mother] will give the dependency
exemption to [the father] on an annual basis and sign necessary forms to do so,
so long as the exemption loss is not financially beneficial to [the
mother].  We cannot conclude this term is
vague and uncertain.  Furthermore,
correctly reflecting the agreement, the court ordered that the mother Ashall
give the dependency claim of the minor child . . . to [the father] each year,
and shall execute the necessary Internal Revenue Form regarding same, so long
as the loss of the dependency exemption does not harm [the mother] financially.  If [the mother] is able to benefit by using
the minor child . . . as a dependent, then the tax exemption for the child
shall belong to [the mother].@




Appellant also complains that the mutual
injunction is not properly phrased in the order to accurately reflect what
might have been the intention of the parties. 
By written agreement, the parties agreed to a Ajoint
mutual injunction prohibiting all contact between parties except for emergencies
involving [the] child.@ 
The trial court AORDERED that [the mother and father] [are]
enjoined from:  All contact with each
other except for emergencies involving the minor child. . . .@   We find nothing in the record to support any
other intent of the parties.
Finally, appellant contends the agreement
is incomplete because it does not address unresolved disputes, or disputes that
may have been resolved and barred from further litigation.  Appellant provides us with no authority, and
we find none, to support this contention. 
Nonetheless, the parties= written agreement did identify what
issues were resolved.  Nothing in the
agreement itself reserved any issue then pending between the parties, or barred
litigation of resolved issues. 
Furthermore, the order denied all other relief pleaded by either party
that was not recited therein.  We cannot
conclude that the agreement is so vague, contradictory, ambiguous and
inherently incomplete that it should not be enforceable by judgment.  Neither can we conclude that the agreement is
incompatible with the order.  The court=s
judgement did not differ significantly, if at all, from the agreement.  See Ames, 860 S.W.2d
at 591-93.  Moreover, if there are
any issues related to conservatorship, support, or possession of and access to
his child that need to be revisited, appellant=s remedy
would be further modification or clarification of his rights, incident to the
trial court=s
continuing jurisdiction, not a finding of trial court error on appeal.  See Tex.
Fam. Code Ann. ' 156.101 (Vernon 2002).  Accordingly, we overrule appellant=s third
issue.
III.  Applicability of Statute




By his fourth issue, appellant contends
section 153.0071 applies only to suits, and, therefore, does not apply to this
post-suit dispute.  Appellant is relying
on the language of section 153.007(c) which provides A[o]n
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.@  See
Tex. Fam. Code Ann. ' 153.0071(c)
(Vernon Supp. 2002) (emphasis added). 
Without interpreting this language, we have already determined that,
under the facts of this case, the parties agreed to mediate without court
intervention and came within the statute by satisfying the elements of section
153.0071(d).  Thus, section 153.0071
applies in this instance.  Appellant=s fourth
issue is overruled.
IV.  Attorney=s Fees
and Expenses
By his fifth issue, appellant complains of
an order requiring appellant to deposit $5,000.00 into the registry of the
court pending this appeal.  See Tex. Fam. Code. Ann. ' 109.001 (Vernon 2002).  Having reviewed the record, however, we find
no such order.  Therefore, appellant=s
arguments related to the payment of these attorney=s fees
are waived.  The fifth issue is
overruled.
V. 
Conclusion
Accordingly, the judgment of the trial court is affirmed.                                                                                     
NELDA
V. RODRIGUEZ
Justice
 
Publish.
Tex.
R. App. P.
47.3.
 
Opinion delivered and
filed
this 7th day of November,
2002.
 




[1]The
agreement provides Afather to have expanded standard
visitation order.@


