      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-03-00303-CV



                                Sarah J. R. Durham, Appellant

                                                v.

                              Christopher M. Durham, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
       NO. 02-660-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Sarah J. R. Durham appeals from a divorce decree, arguing that it was improperly

based on a mediated settlement agreement. She contends that the district court’s judgment is

erroneous because the court (1) improperly foreclosed review of her claims that the agreement was

reached through fraud, coercion, intimidation, and duress; (2) improperly interpreted the terms of

the agreement reached; and (3) incorrectly concluded that the agreement and decree were

enforceable. We will affirm the judgment.


                                       BACKGROUND

               After a mediation, the Durhams and their attorneys signed a written mediated

settlement agreement and filed it with the district court. Mrs. Durham changed counsel and sought

to revoke the agreement. Mr. Durham then filed a motion to enforce the agreement.
               The court held a hearing at which Mrs. Durham contended that the court could not

enter a judgment based on the agreement because she revoked her consent. The court denied the

motion, concluding that the agreement stated that it was irrevocable. The court initially declined to

hear Mrs. Durham’s evidence about the overreaching and duress that compelled her to sign the

agreement. The court heard testimony from Mr. Durham to support the divorce and judgment. After

some discussion, the court then heard testimony from Mrs. Durham regarding the mediation. She

testified that the mediator was biased against her, called her a liar regarding her statements about her

job search, ignored her assertions that her husband was unfaithful, prevented her from going through

a box of documents, and pressured her by asserting that she would not win or get a better deal at trial

than she was getting at the mediation. She stated that the mediator incorrectly told her she was not

entitled to spousal maintenance and also told her that she would not be able to maintain custody and

move to Chicago; she said that he did not respond to her questions about the possibility of her

moving to Dallas or Houston. Mrs. Durham said that the mediator yelled at her and at her attorney,

who apologized for being unprepared for the mediation.

               At the end of the hearing, the court granted the motion to enforce the agreement. The

court stated that there was no evidence to overcome the express irrevocability of the mediation

agreement, no evidence of any assets not disclosed during the mediation or distributed by the

agreement, and no evidence of any specific alternative values for the family home not used by the

mediator. The court also opined that the mediator correctly advised Mrs. Durham that a domicile

restriction was likely. The court expressly found, based on listening to the parties, that there was no




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overreaching, fraud, or duress during the mediation. The court found that the divorce was warranted

and that the agreement by its nature represented a just and right distribution of the marital estate.

                Mrs. Durham filed a motion for new trial, and testified at the hearing thereon about

the mediator’s behavior and inconsistencies between the facts, the agreement, and the judgment. She

testified that the mediator used vulgar language in conversation with her and repeatedly told her that

the agreement was better than she could expect at court. She said that the mediator refused to listen

to her claims regarding infidelity and incompleteness or inconsistency of financial records relating

to an investment account. She asserted that she learned for the first time at the mediation that her

401(k) account was used to secure the purchase of the Durhams’ house. She also asserted that the

decree did not distribute a joint account. She further alleged that, when the proposed distribution

mentioned her getting credit for $20,000 as her interest in the house and the mediator discussed her

getting $62,500 for her equity in the house, she believed that she would receive both amounts.

                The court denied the motion for new trial and awarded Mr. Durham’s attorney $1000

in attorney’s fees.


                                           DISCUSSION

                Mrs. Durham contends on appeal that the district court erred by rendering judgment

in accordance with the settlement agreement. She contends that the court erred by improperly

foreclosing review of her claims that the settlement agreement was wrongfully induced, by

improperly interpreting the settlement agreement, and by improperly finding that the settlement

agreement was enforceable.




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               Mrs. Durham argues that the district court improperly foreclosed consideration of

whether she entered the settlement agreement due to fraud, coercion, intimidation, and duress. She

contends that the district court disregarded her uncontroverted evidence that the mediation process

was tainted and biased against her and enforced the agreement simply because it met the facial

requirements for enforceability.

               Mediated settlement agreements are subject to being invalidated if they are illegal or

procured by fraud, duress, coercion, or other dishonest means. See Boyd v. Boyd, 67 S.W.3d 398,

405 (Tex. App.—Fort Worth 2002, no pet.). Parties can ordinarily withdraw from mediated

settlement agreements before they are incorporated into judgments, subject to having the agreement

enforced as a contract that complies with Texas Rule of Civil Procedure 11. See id. at 403.

However, a mediated settlement agreement concerning dissolution of marriages and suits affecting

the parent-child relationship (“SAPCR”) is binding 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. See Tex. Fam. Code Ann.

§§ 6.602(b), 153.0071(d) (West 2002 & Supp. 2004). If a mediated settlement agreement meets

these requirements, a party is entitled to judgment on the agreement notwithstanding Rule 11, Texas

Rules of Civil Procedure, or another rule of law. Id. §§ 6.602(c), 153.0071(e). But, like other

contracts, such a mediated settlement agreement can be set aside if a party was induced to enter the

agreement through unacceptable conduct like duress, fraud, or other dishonest or unfair tactics. See

Boyd, 67 S.W.3d at 404-05. In Boyd, the court affirmed the district court’s invalidation of a



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settlement agreement on grounds that the husband failed to disclose all relevant assets of which he

was aware despite swearing that he had. Id. at 404. The court held that a catchall phrase dividing

equally all property not expressly disposed of by the agreement did not ameliorate the effect of the

intentional nondisclosure of a $230,000 bonus earned during the marriage. Id. at 405. The court

held that the husband’s nondisclosure so undermined the adequacy of the negotiations as to render

the settlement unenforceable. Id.

               Mrs. Durham argues that the duress of her financial circumstances, the coercion of

the mediator, and Mr. Durham’s failure to disclose fully his assets combined to subvert her will and

taint the negotiations sufficiently to render the settlement agreement unenforceable. Although she

was an engineer by training, she had not worked since the birth of their child in 1996. Her only

source of income at the time was the $1500 that Mr. Durham was paying her as child support. She

testified that she had applied for work, but had not been hired. She testified that the mediator yelled

at her five different times, refused to allow her to go through a box of documents showing infidelity

and unaccounted-for financial transactions involving $63,500, accused her of lying about seeking

work, discouraged her from going to trial by telling her that Mr. Durham would fare better there,

prevented her from making telephone calls, and spoke with her lawyer separately without telling her

what the conversations entailed. She testified that she felt intimidated and signed the agreement

because the mediator convinced her it was the best she could get. She testified that she did not

voluntarily sign the agreement or read the language warning that it was irrevocable. She testified

that she believed that she had no choice but to sign the agreement.




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                The district court stated on the record at the end of the hearing on the motion to

enforce the settlement agreement that the court did not find Mrs. Durham’s testimony regarding these

claims credible. After rejecting a claim regarding stock division that is not raised on appeal, the

court stated:


        I find as a matter of fact that there was no evidence of any home appraisal so that I
        can determine whether or not the home appraisal used in the mediation was wrong.

        . . . . And I find as a matter of fact and conclusion of law that if the mediator gave
        her the advice that in this court a domicile restriction was a very likelihood, then the
        mediator gave her solid, sound advice.

        I do not find as a matter of fact based on my view of the evidence listening to the
        witnesses, the mannerism of the parties and the credibility of the witnesses that there
        was overreaching or fraud on any part, nor do I find that there was any duress as a
        finding of fact. Therefore there is no basis for fraud or overreaching claim to set
        aside the mediated settlement agreements.


The court then granted the motion to compel and signed the divorce decree.1

                Although Mrs. Durham’s testimony regarding her state of mind is uncontroverted,

we do not find that the record supports overturning the district court’s decision. The supreme court

has cited with approval a holding that “uncontroverted testimony, even from a witness categorized

as an expert, may be taken as true as a matter of law if it is clear, direct and positive, and is free from

contradictions, inconsistencies, inaccuracies and circumstances tending to cast suspicion thereon.”

Abrams v. Jones, 35 S.W.3d 620, 627 (Tex. 2000) (quoting Allright, Inc. v. Strawder, 679 S.W.2d




        1
           Although Mrs. Durham requested findings of fact and conclusions of law, the appellate
record contains neither findings and conclusions nor a notice of late findings and conclusions. The
failure to file is not, however, an issue in this appeal.

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81, 82 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.)). However, if uncontradicted

evidence is unreasonable, incredible, or questionable, the fact finder is not required to award the

relief requested. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). The

trial court acting as fact-finder is the sole judge of the credibility of the witnesses and is permitted

to believe or disbelieve any evidence. Burtch v. Burtch, 972 S.W.2d 882, 888 (Tex. App.—Austin

1998, no pet.). We may not substitute our conclusions for that of the trier of fact, see Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), nor may we pass on the credibility of the witnesses

or the weight to be given their testimony. See Benoit v. Wilson, 239 S.W.2d 792, 796-97 (Tex.

1951). While Mr. Durham might have called a witness to rebut the objective aspects of Mrs.

Durham’s testimony (i.e., whether the mediator yelled or prevented her from looking at discovery),

her testimony about how she felt is essentially irrebuttable; thus, the court did not have to accept her

testimony even though it was not controverted. The district court expressly found Mrs. Durham’s

testimony regarding duress and coercion not credible.

               We conclude that the district court did not reject Mrs. Durham’s attempt to revoke

the agreement simply because of the statement of irrevocability and did not foreclose consideration

of the grounds for revocation of her consent to the judgment. Instead, the court heard her testimony

about the circumstances of the mediation, but expressly rejected the attempt to revoke because the

court did not find her claims of improper inducement credible.

               Mrs. Durham also claims that the district court improperly interpreted the terms of

the agreement. She complains that the plain terms of the agreement show conflict that exposes the

absence of actual agreement. She claims that the disposition of property described in paragraph 8



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of the agreement conflicts with the disposition described in an exhibit attached to the agreement,

showing the absence of a meeting of the minds and rendering the agreement unenforceable.

Paragraph 8, a handwritten paragraph in the agreement, provides as follows regarding the property

to be awarded to Mrs. Durham, “W & H will divide all household items w/in 30 days, W awarded

all her checking & savings acts, the 2000 Lexus, 50% of H & W stocks, bonds, 401K (see Exhibit

“A” for distribution) W awarded $62,500 w/in 90 days as her reimbursement for community

residence.” Exhibit A, which was entitled “Proposed Property Division” before it was retitled

“Exhibit A” states the fair market value of various community assets including stocks, 401(k)

accounts, cars, and the community residence. It lists the value of the residence at $350,000, of which

$250,000 is secured debt; Exhibit A lists the equity as being divided between Mrs. Durham

($20,000) and Mr. Durham ($80,000). In the divorce decree, the court awarded Mr. Durham the

residence in exchange for his paying Mrs. Durham $62,500. Mrs. Durham contends that no evidence

supports the conclusion that she forewent the $20,000 in equity listed on Exhibit A in exchange for

the $62,500 payment listed in Paragraph 8 of the settlement; she contends that the agreement can

easily be read to award her both the $20,000 in equity and the $62,500 payment. She argues that the

district court lacked the power to decide that she agreed to receive only the payment.

               We do not find the conflict that Mrs. Durham contends exists within the agreement.

A court cannot disregard or insert terms into a settlement agreement. In re Marriage of Ames, 860

S.W.2d 590, 593 (Tex. App.—Amarillo 1993, no writ). The court is bound to accept the agreement

of the parties. Id. In this case, the judgment reflects the statement in paragraph 8 of the agreement

that Mr. Durham pay Mrs. Durham $62,500 “as her reimbursement for community residence.” The



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plain meaning of the term “reimbursement” indicates that the $62,500 is provided in exchange for

Mrs. Durham’s interest in the house, which was awarded to Mr. Durham. Exhibit A does not

contradict that view. Under a plain reading of paragraph 8 of the agreement, Exhibit A illustrates

only the disposition of the stocks, bonds, and 401(k) assets; the parenthetical “see Exhibit A” appears

only after 401(k) and precedes the language regarding the reimbursement, indicating that the

parenthetical does not apply to the residence reimbursement. Even if the agreement could be read

to make Exhibit A relevant to the disposition of the residence, it indicates only the amount of Mrs.

Durham’s share of the equity interest ($20,000). Nothing in the agreement, Exhibit A, or the

judgment indicates that the $20,000 value of Mrs. Durham’s share of the equity interest in the house

is an amount she is to receive in addition to the agreed-upon $62,500 “reimbursement for community

residence.” Exhibit A shows the value of her interest in the residence, while paragraph 8 of the

agreement shows the amount she was awarded in exchange for surrendering that interest. If her

equity in the house was listed on Exhibit A as $20,000 and the later-written paragraph 8 awards her

$62,500, she received more than three times her share of the equity set forth on Exhibit A. Rather

than supplying a missing term or imposing a resolution of ambiguity on the parties, the judgment

simply effectuates the agreement.

               Mrs. Durham finally complains that the agreement and the decree are not enforceable

because the decree differs materially from the agreement. She asserts that the decree fails to address

the disposition of the marital residence, that Exhibit A distributes to her $20,000 that is not

accounted for in the decree, and that the decree fails to account for $37,500 that is distributed under

the agreement. Contrary to her contention, the decree disposes of the residence as follows:



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       IT IS ORDERED AND DECREED that the residence located at 2600 Brunston
       Court, in Round Rock Texas 78681 is awarded to Respondent in return for him
       paying to Petitioner the sum of $62,500.00 within 90 days from the date of the
       signing of this decree. IT IS ORDERED AND DECREED that upon delivery of the
       said $62,500.00 to Petitioner that she will execute a Special Warranty Deed
       conveying her interest in the property to Respondent.


As discussed above, Exhibit A to the agreement does not address the disposition of the residence,

and the $20,000 interest listed there is not an additional amount she is owed; the award in the

agreement and the decree of $62,500 compensates her for her $20,000 interest described in Exhibit

A. Finally, we cannot address her claims that $37,500 in assets are divided by the agreement but not

by the decree because she does not tell us what those assets are or provide record citations showing

these missing assets, either in her brief or in response to the statement in Mr. Durham’s brief

pointing out her failure to name the allegedly missing assets. Further, we find no assets missing

from the decree.


                                         CONCLUSION

               Having resolved all issues raised on appeal without finding error, we affirm the

judgment.




                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: March 25, 2004

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