Affirmed and Memorandum Opinion filed February 28, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00436-CV

                     DONNA JOANN TORRES, Appellant
                                        V.

                     FRANK ROLON TORRES, Appellee

                   On Appeal from the 387th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 10-DCV-183759

                  MEMORANDUM OPINION

      In this appeal from an agreed final decree of divorce, appellant Donna Joann
Torres asserts that the trial court erred by denying her motion for new trial.
Specifically, she alleges that appellee Frank Rolon Torres defrauded her by failing
to disclose during mediation his intention to seek to ―transform‖ his military
retirement benefits into VA disability benefits. We affirm.
                                   BACKGROUND

      In 2010, Donna filed for divorce from Frank. Frank filed an answer and
counter-petition later that year. The parties attended mediation, represented by
counsel, in January 2012. Following mediation, Donna and Frank entered into a
Non Revocable Settlement Agreement, pursuant to section 154.071 of the Texas
Civil Practice & Remedies Code and section 6.60 of the Texas Family Code (the
―settlement agreement‖).       The settlement agreement specifically provided as
follows regarding Frank’s Military Retirement:

      Wife is award[ed] 40% of the community portion of husband’s
      disposable military retired pay (wife’s portion of disposable retired
      pay is an amount after a pro-rata reduction for any amount of
      husband’s military retirement determined to be a [Veteran’s
      Administration] disability benefit and after a pro-rate reduction for
      any repayment of a [Special Separation Benefit] previously received
      by the parties during marriage).1
The agreed final decree of divorce, signed by both parties and their counsel,
incorporated the terms of this portion of the settlement agreement into the property
division. The divorce was rendered on January 20, 2012, but signed on February
8, 2012.

      About a week after the divorce papers were signed, Frank sent a vague email
to Donna indicating that she would only be getting a percentage of ―zero.‖ On
February 17, 2012, he sent another email to her that ―more financial surprises‖
would be coming her way. In early March, he sent an email to her stating, ―Good
news, the VA says that with all my various body damage, I should be able to
eventually get a 100% disability rating. But don’t worry, you’ll still get your
29.8% percent [sic] of zero.‖ That same day, he sent her a text message, stating

      1
         Frank’s military retirement benefits were detailed in ―Exhibit B‖ attached to the
settlement agreement, which appears to be initialed by Donna.

                                            2
that he was ―[o]ff to the VA, working on disability now. Be nice to convert all
[his] retirement into disability.‖

      On March 12, 2012, Donna filed a motion for new trial or motion to modify,
correct, or reform the agreed final divorce decree. In this motion, Donna asserted
that the language excerpted above from the settlement agreement ―significantly
alters‖ the agreement between her and Frank. She stated she was unaware that the
language in the settlement agreement, which was incorporated into the agreed final
decree of divorce, allowed Frank to ―not only significantly reduce the amount of
the military retired pay awarded to [her], but potentially reduce the amount of
military retired pay awarded to [her] to zero.‖       She claimed that during the
mediation process she had no knowledge or any reason to know that Frank had the
ability to reduce his military retired pay by qualifying for and electing to take
Veteran’s Administration (―VA‖) disability benefits in lieu of his military retired
pay or reduce his military retired pay for any repayment of a Special Separation
Benefit (―SSB‖) received. Donna asserted that Frank fraudulently induced her to
enter into the settlement agreement.

      The trial court heard Donna’s motion for new trial on April 5, 2012. Donna
testified that no one explained to her what the language in the clause regarding
Frank’s military retirement benefits meant. She explained her recent discovery
that if Frank were able to convert his military retirement benefits into VA disability
benefits, she would not receive any portion of them. Donna stated, ―I feel like I’m
getting gypped out of whatever his percentage from the V.A. would be.‖

      Donna acknowledged that she attended the mediation with counsel, she
reviewed the settlement agreement before signing it, and that there are no
inconsistencies between the settlement agreement and the final divorce decree.
She agreed that, at the time that the settlement agreement was entered into, she was

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given forty percent of Frank’s community portion of his disposable retired pay
after a pro rata reduction for any amount of his military retirement determined to
be a VA disability benefit. Her complaint was that she believed that any disability
benefit that Frank might be entitled through the VA would be concurrent with his
military retirement and would not impact her portion of the community estate.

      After hearing her testimony, the trial court denied her motion for new trial.
This appeal timely ensued.

                                    ANALYSIS

      In a single issue, Donna asserts that the trial court erred by denying her
motion for new trial. We review a trial court’s denial of a motion for new trial for
an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). A mediated
settlement agreement meeting the requirements of Texas Family Code section
6.602, as the settlement agreement here does, must be enforced unless, as is
relevant here, it was procured by fraud. In re Joyner, 196 S.W.3d 883, 889–90
(Tex. App.—Texarkana 2006, pet. denied); Boyd v. Boyd, 67 S.W.3d 398, 403
(Tex. App.—Fort Worth 2002, no pet.).

      As discussed above, Donna’s motion for new trial rests on her claim that
Frank fraudulently induced her to enter the settlement agreement by failing to
disclose that he intended to attempt to reclassify his military retirement benefits as
VA disability benefits. Specifically, Donna asserts that Frank committed fraud by
nondisclosure; i.e., Frank failed to disclose to Donna that ―he had the ability to
convert [his military retirement] benefits to disability.‖       But the settlement
agreement clearly states that Donna’s forty percent award of the community
portion of Frank’s disposable military retirement pay consists of ―an amount after
a pro-rata reduction for any amount of [Frank]’s military retirement determined to
be a VA disability benefit.‖ (emphasis added).
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       Both Donna and Frank were represented by counsel during mediation and
when they signed this irrevocable settlement agreement.                      Donna had the
opportunity to question her counsel about the legal ramifications of this language
prior to signing the settlement agreement; Frank, as her adversary, had no duty to
explain the ―law‖ to her. Cf. Toles v. Toles, 113 S.W.3d 899, 916–18 (Tex. App.—
Dallas 2003, no pet.) (affirming summary judgment dismissing negligence and
fraud claims because no duty existed between spouses in contested divorce
proceedings where each spouse was represented by counsel). In fact, the very
information that Donna complains that Frank failed to disclose to her actually was
disclosed in the language of the settlement agreement.2

       The trial court did not abuse its discretion in denying Donna’s motion for
new trial. We overrule her sole issue.

                                      CONCLUSION

       Having overruled Donna’s issue, we affirm the trial court’s judgment.


                                            /s/       Adele Hedges
                                                      Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.




       2
          Donna relies on Boyd v.Boyd to support her fraud-by-nondisclosure argument.
67 S.W.3d 398, 404–506 (Tex. App.—Fort Worth 2002, no pet.). In Boyd, the husband failed to
disclose substantial community assets, including monetary bonuses he earned during the
marriage but failed to disclose during mediation. Id. at 403. Here, there was no nondisclosure of
material information; instead, Donna purportedly did not understand the legal ramifications of
the disclosure made. Thus, Donna’s reliance on Boyd is unavailing.

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