Affirmed and Opinion Filed June 28, 2016




                                            Court of Appeals
                                                              S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-15-00960-CV


                                      IN THE INTEREST OF C.W.W., A CHILD


                                 On Appeal from the 302nd Judicial District Court
                                              Dallas County, Texas
                                     Trial Court Cause No. DF-14-01264-U


                                           MEMORANDUM OPINION
                                      Before Justices Myers, Stoddart, and Whitehill
                                              Opinion by Justice Whitehill

           This case involves the interpretation of a mediation settlement agreement (MSA) in a suit

affecting parent–child relationship as that agreement concerns the child’s education. In a single

issue, the father argues that the trial court abused its discretion by entering an order adjudicating

parentage (OAP) that deviates from the parties’ unambiguous MSA on that topic.1 For the

reasons discussed below, we conclude that the OAP tracks the MSA’s unambiguous terms on

that issue and affirm the trial court’s order.


     1
        The portion of the record containing the OAP was filed here under seal. Placing critical parts of an appellate record under seal potentially
complicates our opinions because by statute and rule we must decide each case with a publicly released written opinion describing the case and
explaining our decisions. See TEX. R. APP. P. 47.1 (all opinions are open to the public and must be made available to public reporting services);
TEX. GOV’T CODE § 552.022(a)(12) (“final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of
cases” are “public information”). But, in this case, the appellant included both the MSA and a redacted copy of the OAP in the Appendix to its
appellant’s brief without filing that brief under seal or asking us to treat those materials as being under seal. And the appellee did not object to
those materials not being filed under seal. Consistent with the parties’ positions regarding confidentiality as shown by their briefing, we have
tried to eliminate from our opinion information that we believe the parties would have deemed confidential.
                                         I. Background

       We take these undisputed facts from the record and the parties’ briefs:

       Father and mother began living together in 2003. Their relationship produced one child,

who was born in 2005.

       Father and mother separated in 2014 when mother sued father for divorce, alleging that

they had been informally married. Father answered with a general denial and a request for

attorneys’ fees. The trial court entered temporary orders. Later that year, mother filed her “first

amended original petition for divorce and petition to establish paternity” in which she denied the

existence of a marriage and nonsuited her request for a divorce.

       The parties participated in a mediation conducted pursuant to family code § 153.0071(c).

That mediation produced the MSA at issue. Among other things, that MSA (i) stipulated that the

parties were not married, (ii) stipulated to father’s paternity, (iii) addressed typical managing

conservator issues, and (iv) disposed of certain personal property items. More specifically, the

MSA has several parts addressing the child’s education at Dallas Christian Academy (DCA).

       The parties endeavored to reduce the MSA to an agreed order adjudicating parentage.

But a sticking point was the child’s DCA attendance beyond the 2015/2016 school year.

       The record does not reflect a motion to enter an order based on the MSA. But the parties

agree that the trial court held a hearing to address mother’s proposed OAP. They further agree

that father at that hearing objected to the proposed language requiring the child’s future DCA

attendance, absent the parties’ contrary agreement.

       Nonetheless, the trial judge signed and entered its OAP on April 3, 2015. The OAP

provides that, unless the parties agree otherwise, (i) the child is to continue attending DCA, (ii)

the parties would share that cost equally, but (iii) father’s share of the tuition for the 2015–2016

school year was limited to $4,000.00.


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       Father timely moved for a new trial, complaining that the OAP misinterprets and thus

misapplies the MSA. According to father, the MSA required that the child would remain at

DCA for only the 2015–2016 school year and for which father would be required to pay half of

the tuition not to exceed $4,000.00.

       The new trial motion was denied, and father appealed. For the reasons discussed below,

we conclude that the trial court did not abuse its discretion as father claims because the OAP

correctly embodies the MSA terms regarding the child’s education.

                                           II. Analysis

A.     Applicable Standards

       With certain exceptions not implicated here, a party is entitled to a judgment on mediated

settlement agreement that complies with family code § 153.0071(d)’s requirements. See TEX.

FAM. CODE § 153.0071(e); In re Lee, 411 S.W.3d 445, 453 (Tex. 2013) (orig. proceeding);

Milner v. Milner, 361 S.W.3d 615, 618–19 (Tex. 2012).

       We review a trial court’s judgment on a mediated settlement agreement for an abuse of

discretion. R.H. v. Smith, 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no pet). Although a

final judgment rendered pursuant to a mediated settlement agreement must be in strict or literal

compliance with that agreement, we will not reverse that judgment unless it adds terms to, or

significantly alters, the agreement’s original terms or undermines the parties’ intent. Id.

       When applying these standards to this dispute regarding whether the OAP comports with

the MSA’s terms, we construe the MSA using ordinary contract construction rules. See 361

S.W.3d at 619.

       In construing a written contract, we must ascertain and give effect to the parties’

intentions as expressed in the document. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d

310, 311–12 (Tex. 2005) (per curiam); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229


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(Tex. 2003); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205

S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet denied). We consider the entire writing and attempt

to harmonize and give effect to all of the contract’s provisions by analyzing them with reference

to the whole agreement. Frost Nat’l Bank, 165 S.W.3d at 312; Webster, 128 S.W.3d at 229.

“No single provision taken alone will be given controlling effect; rather, all the provisions must

be considered with reference to the whole instrument.” Webster, 128 S.W.3d at 229.

       The parties’ intent is governed by what is written in the contract, not by what one side

contends they intended but failed to say. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s

London, 327 S.W.3d 118, 126 (Tex. 2010). Thus, “it is objective, not subjective, intent that

controls.” Matagorda Cty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per

curiam) (citing City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.

1968)). A court must therefore give terms their plain and ordinary meaning unless the contract

indicates that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship. v.

Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). And, as a secondary construction rule, courts

give effect to written (or typewritten) provisions over printed provisions. Southland Royalty Co.

v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 57 (Tex. 1964); see Alba Tool & Supply Co., Inc. v.

Indus. Contractors, Inc., 585 S.W.2d 662, 665 (Tex. 1979).

       If we cannot harmonize the provisions and give effect to all its clauses, the contract is

susceptible to more than one reasonable interpretation and is thus ambiguous. United Protective

Servs., Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d 430, 432 (Tex. App.—Dallas 2005, no pet.)

(citing Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 347 (Tex. App.—Dallas 2004,

pet. denied)).

       If after applying the pertinent rules of construction the contract can be given a definite or

certain legal meaning, it is unambiguous and the courts should construe it as a matter of law.

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Frost Nat’l Bank, 165 S.W.3d at 312. Whether a contract is ambiguous is a question of law for

the court to decide by looking at the contract as a whole in light of the circumstances existing

when the contract was entered into. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.

1987). A court may conclude that a contract is ambiguous even absent such a pleading by either

party. Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).

B.     Applying the Rules of Construction to the MSA and the OAP

       1.      The MSA’s Unambiguous Terms Regarding The Child’s Education

       Here, neither party pled nor contends that the MSA is ambiguous, and we determine that

it is not. Furthermore, after applying the above contract construction rules to the MSA, we

conclude that the OAP accurately reflects the MSA’s terms regarding the child’s continued

education at DCA for the following reasons:

       First, the MSA provides that each parent is to be named a joint managing conservator

with the rights and duties specified on an attached schedule:




       Second, the attached schedule, captioned “Form 15-11 Allocation of Parental Rights and

Duties,” provides that each parent has the “Right to confer with the other parent, to the extent

possible, before making a decision concerning the health, education, and welfare of the child.”

That same schedule further provides that the “Right to make decisions concerning the child’s

education” is, as indicated by the check-mark, to be exercised “By agreement” after the parents

confer with each other. And that provision has a handwritten interlineation stating that that the

child’s education is to “Continue with DCA”:



Giving the handwritten portion emphasis over the typed text, the meaning is that the child will

continue at DCA unless the parents agree otherwise after conferring with each other.
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          Third, the MSA adds that (i) mother and father are to share equally in child’s DCA

tuition; (ii) they are to make their payments in time to receive the discounted tuition; but (iii)

father is only obligated to pay $4,000.00 in tuition for the 2015–2016 school year:




          The OAP comports with the above MSA terms. For example, as with the MSA, the OAP

gives each parent the right to participate in deciding the child’s education, subject to the other

parent’s agreement.              Similarly, consistent with the above MSA excerpts, the OAP further

provides that the child will continue his education at “Dallas Christian School”2 unless the

parents agree otherwise:

          IT IS FURTHER ORDERED that the child shall attend school at Dallas Christian
          School for the balance of his education or until the parents mutually agree to
          enroll the child in a different school.

          The OAP additionally provides that:

                  For the 2015–2016 academic year, [father] shall pay $4,000.00 toward the
          child’s private school tuition. In all future years, [mother] shall pay 50% and
          [father] shall pay 50% of the cost of private school tuition. IT IS FURTHER
          ORDERED that all payments shall be made on or before the tuition discount
          deadline.

          Comparing the MSA’s terms, read as a whole and applying the relevant rules of

construction, with their OAP counterparts, read as a whole, we conclude that the OAP’s terms

concerning the child’s education fairly and accurately match what the parties agreed to on that

topic as stated in the MSA. Thus, the trial court did not abuse its discretion as father contends.




     2
       “Dallas Christian School” appears to be a misnomer as the parties’ briefs refer to the school as “Dallas Christian Academy” and neither
party complains about the name in the trial court’s order.



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       2.      Father’s Contra Arguments

       Notwithstanding the documents’ terms shown above, father relies on only isolated MSA

paragraph “8” excerpted above to argue that:

       The handwritten sentence of the MSA clearly and unequivocally limits [father’s]
       obligation for tuition to $4,000.00 while the provision in the Order Adjudicating
       Parentage imposes a continuing obligation on [father] to pay for subsequent
       school years. The version adopted by the trial court also subsumes that the child
       will attend private school after the 2015/2016 school year. This is outside the
       scope of the provision and clearly not agreed to by the parties. Further, the
       exclusion of DCA (Dallas Christian Academy) from the tuition provision is an
       omission of a material term in the MSA.

We disagree for the reasons stated above.

       Moreover, paragraph 8’s text itself contradicts father’s argument.         Specifically, the

$4,000.00 cap on father’s 2015–2016 school year tuition liability implies that the cap does not

apply in other years. Thus, paragraph 8 contemplates that the child will attend DCA in years

beyond the 2015–2016 school year and that the $4,000.00 cap will not apply in those years.

                                         III. Conclusion

       For the above reasons, we conclude that father has not shown that the trial court abused

its discretion in the OAP regarding the parties’ rights and duties concerning the child’s

education. Accordingly, we overrule father’s sole issue and affirm the trial court’s order.




                                                     /Bill Whitehill/
                                                     BILL WHITEHILL
                                                     JUSTICE
150960F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF C.W.W., A CHILD                   On Appeal from the 302nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-15-00960-CV                                   Trial Court Cause No. DF-14-01264-U.
                                                     Opinion delivered by Justice Whitehill.
                                                     Justices Myers and Stoddart participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Cheryl Rene Williams recover her costs of this appeal
from appellant Carl William Whitacre.


Judgment entered June 28, 2016.




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