Opinion issued October 18, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00476-CV
                            ———————————
                        BRIAN A. WILLIAMS, Appellant
                                         V.
                            DEVINAH FINN, Appellee


                    On Appeal from the 257th District Court
                             Harris County, Texas
                       Trial Court Case No. 2008-56659


                MEMORANDUM OPINION ON REHEARING

      Devinah Finn filed a petition to modify the parent-child relationship, seeking

enforcement of an earlier mediated settlement agreement between her and Brian

Williams. Brian filed a notice of withdrawal of consent of the mediated settlement

agreement. The trial court ordered the parties to arbitration pursuant to the mediated
settlement agreement and later signed the arbitration award as its judgment. In three

issues on appeal, Brian argues (1) the arbitration award judgment is void for lack of

plenary jurisdiction, (2) the trial court erred by enforcing the mediated settlement

agreement because the mediated settlement agreement expired by its own terms and

Brian repudiated the agreement, and (3) the arbitration award exceeded the scope of

the order compelling arbitration.

      On July 10, 2018, we issued our original opinion in this case. On August 9,

2018, Williams filed a motion for rehearing. We deny the motion for rehearing,

withdraw our prior opinion and judgment, and issue this opinion and a new judgment

in their place. Our disposition remains the same.

      We affirm.

                                    Background

      The trial court signed the parties’ agreed divorce decree in 2009. About two

years later, Devinah filed a petition to modify the parent-child relationship. The

parties reached a settlement agreement in April 2012. Further agreements were

reached in December 2014. In February 2015, the parties sought to have the trial

court render their agreements into a judgment. Both parties filed motions to enter

an agreed final order. The parties’ proposed orders, however, were different from

each other.




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      The trial court signed Brian’s proposed judgment on March 6, 2015. Devinah

filed a motion for new trial on March 30, 2015, arguing the judgment did not comport

with their settlement agreement and, accordingly, was not agreed as represented.

Brian filed a response, opposing the motion.

      While the motion was pending, the parties attended another mediation. They

signed a new settlement agreement on May 14, 2015. Devinah and Brian agreed

that the settlement agreement was not subject to revocation and that each was entitled

to judgment on it. They further agreed to submit “all provisions of this [agreement]

. . . and any and all issues between the parties in the future related to the Decree or

any modification thereto” to binding arbitration.

      The next day, on May 15, 2015, Devinah filed a notice of the settlement

agreement. On May 29, 2015, a proposed order was filed. The proposed order

granted Devinah’s motion for new trial and vacated the March 6 judgment so the

parties could submit an order based on the settlement agreement. The trial court did

not sign this proposed order.

      On September 16, 2015, Devinah filed another petition to modify the parent-

child relationship. In it, she sought the enforcement of the 2015 mediated settlement

agreement. Brian filed a notice of withdrawal of consent from the mediated

settlement agreement. Devinah filed a motion to compel arbitration pursuant to the




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2015 mediated settlement agreement. The trial court granted the motion. The

arbitrator issued an award, and the trial court rendered the award in a judgment.

                Validity of 2015 Mediated Settlement Agreement

      In his first two issues, Brian challenges the validity of the 2015 mediated

settlement agreement. In his first issue, Brian argues the arbitration award judgment

is void for lack of plenary jurisdiction. In his second issue, Brian argues the 2015

mediated settlement agreement cannot be enforced because it expired by its own

terms and he repudiated it. Under both issues, Brian argues the trial court lacked the

authority to order them to arbitration because the agreement was no longer

enforceable.

A.    Standard of Review

      When a party to a suit affecting the parent-child relationship challenges an

application to compel arbitration on the ground that the contract containing the

agreement is not valid or enforceable, the trial court must rule on the issue. TEX.

FAM. CODE ANN. § 153.00715(a) (West 2014).1 Enforcement of an arbitration



1
      Subsection (c)(3) provides that section 153.00715 does not apply to a mediated
      settlement agreement. TEX. FAM. CODE ANN. § 153.00715(c)(3) (West 2014). By
      its inclusion between “(1) a court order” and “(5) any other agreement between the
      parties that is approved by a court,” we construe this to mean the section does not
      apply to a mediated settlement agreement that has been approved by a court. See
      Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 61 (Tex. 2015) (“The canon of
      statutory construction known as noscitur a sociis —‘it is known by its associates’—
      holds that the meaning of a word or phrase, especially one in a list, should be known
      by the words immediately surrounding it.”). At the time Devinah sought
                                            4
agreement is a question of law for the court that we review de novo. In re Labatt

Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009).

B.    Analysis

      Texas law allows parties in a divorce proceeding or in a suit affecting the

parent-child relationship to enter into binding, irrevocable settlement agreements

and to obtain a judgment on the agreement. See TEX. FAM. CODE ANN. § 6.602 (West

2006), § 153.0071 (West Supp. 2018).            To qualify as mediated settlement

agreements, the agreement must meet certain qualifications.           Id. §§ 6.602(b),

153.0071(d).

      On May 13, 2015, Devinah and Brian signed an agreement. No one disputes

that, when it was signed, the agreement met the requirements of a mediated

settlement agreement. See id. § 153.0071(d). Accordingly, it was binding on

Devinah and Brian. See id. As a result, they were entitled to judgment on the

agreement. See id. § 153.0071(e).

      Brian points out that, although the agreement was filed with the trial court

before the trial court’s plenary power expired over the first petition to modify the

parent-child relationship, the trial court did not sign the agreement. While the parties

filed an agreed proposed order granting a new trial and vacating the court’s existing




      enforcement of the arbitration agreement within the 2015 mediated settlement
      agreement, the agreement had not yet been approved by a court.
                                           5
judgment so that a judgment conforming to the mediated settlement agreement could

be rendered, the trial court never signed the agreed proposed order. As a result, Brian

asserts that Devinah was required to file an appeal challenging the trial court’s failure

to rule and that, by failing to do so, Devinah lost her right to have the agreement

rendered into a judgment. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009)

(“Errors other than lack of jurisdiction over the parties or the subject matter render

the judgment voidable and may be corrected only through a direct appeal.”). Brian

concludes that Devinah’s second petition to modify the parent-child relationship thus

constitutes a collateral attack on the trial court’s earlier denial of rendering judgment

on the agreement.

      The flaw with Brian’s reasoning is that the mediated settlement agreement

was not timely presented as a motion for new trial. As a result, it was not overruled

by operation of law or otherwise. Because it was not ruled on, Devinah could not

have sought appellate review.

      A motion for new trial must be filed within 30 days of the trial court’s

judgment. TEX. R. CIV. P. 329b(a). Filing a motion for new trial extends the trial

court’s plenary power, but it does not extend the time within which a party can file

an amended motion for new trial. See TEX. R. CIV. P. 329b(b)–(c), (e); Moritz v.

Preiss, 121 S.W.3d 715, 719 (Tex. 2003) (holding amended motion for new trial

must be filed within 30 days of judgment and before trial court overrules earlier


                                           6
motion). Any motion outside that period is untimely. Moritz, 121 S.W.3d at 720.

Even when a trial court formally overrules an untimely motion, nothing is preserved

for review. Id. at 721; see also Lamb v. Green, No. 01-02-00026-CV, 2002 WL

31771268, at *3 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (mem. op., not

designated for publication) (holding untimely motion to modify judgment in family

law case preserved nothing for review).

      The trial court signed its judgment in this case on March 6, 2015. The latest

time to file a motion for new trial and any amendments, then, was April 5. See TEX.

R. CIV. P. 329b(b). The parties signed the mediated settlement agreement at issue

on May 13, 2015. The notice of settlement and the proposed order were filed after

this date. Even construing the notice and proposed order as amended motions for

new trial, they were untimely. See Moritz, 121 S.W.3d at 719. Accordingly, the

expiration of the trial court’s plenary power and Devinah’s failure to file a notice of

appeal did not have a preclusive effect on her ability to have the agreement rendered

as a judgment. See id. at 720; Hagen, 282 S.W.3d at 902. For this reason, Brian’s

argument that Devinah’s second petition to modify the parent-child relationship thus

constitutes a collateral attack on the trial court’s earlier judgment must fail.

      We overrule Brian’s first issue.

      Brian argues in his second issue that the mediated settlement agreement

expired on its own terms. Specifically, Brian argues that the agreement could only


                                           7
be rendered as a judgment before the trial court’s plenary power expired for the first

petition to modify the parent-child relationship.

      For support, Brian relies on Highsmith v. Highsmith, No. 07-15-00407-CV,

2017 WL 4341466 (Tex. App.—Amarillo Sept. 28, 2017, pet. filed) (mem. op.). In

Highsmith, the court interpreted the statute governing mediated settlement

agreements for divorce proceedings. See FAM. § 6.602. In that case, the parties

reached a settlement agreement before suit was ever filed. Highsmith, 2017 WL

4341466 at *1. The husband filed a petition for divorce and obtained a judgment

based on the agreement. Id. at *2. The wife then revoked her consent. Id.

      The court held the agreement was not an irrevocable mediated settlement

agreement because it was not reached during the pendency of a divorce proceeding.

Id. at *4. The court observed that subsection (a) of the statute provides that “the

court may refer a suit for dissolution of marriage to mediation.” Id. (quoting FAM.

§ 6.602(a)). Based on a plain-language interpretation of the statute, the court

reasoned that, because subsection (a) allowed a trial court to refer the parties to

mediation when a suit is pending, a suit being pending must be a prerequisite to

obtaining the agreement. See id.

      Other courts have held to the contrary. See Cojocar v. Cojocar, No. 03-14-

00422-CV, 2016 WL 3390893, at *2 (Tex. App.—Austin June 16, 2016, no pet.)

(mem. op.) (holding subsection (a) is discretionary and is not requirement for


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mediated settlement agreement to be irrevocable under subsection (b)); In re

J.A.W.–N., 94 S.W.3d 119, 121 (Tex. App.—Corpus Christi 2002, no pet.) (holding,

for section 153.0071, obtaining court order to mediate is not prerequisite to obtaining

mediated settlement agreement).

      The corollary to section 6.602(a) for suits affecting the parent-child

relationship is section 153.0071(c). It provides, “On 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.” FAM. § 153.0071(c). Brian urges us to adopt

Highsmith’s reasoning.

      We do not need to weigh in on the conflict among the courts, however,

because Highsmith is distinguishable from this case. Here, there was a suit affecting

the parent-child relationship pending during the mediation. As Brian acknowledges,

the trial court still had plenary power over the first petition to modify the parent-

child relationship, and the parties still could have appealed the trial court’s

judgment.2 Assuming without deciding, then, that Highsmith was correctly decided,

Devinah and Brian’s agreement remains irrevocable under its analysis.


2
      In his motion for rehearing, Brian argues that the reasoning in this holding is
      inconsistent with the reasoning in our earlier holding that Devinah could not have
      appealed the trial court’s failure to rule on her untimely amended motion for new
      trial. In this opinion we have held that Devinah or Brian were still within the time
      to file a notice of appeal after their mediation and that Devinah could not have
      complained about the trial court’s failure to sign the untimely amended motion for
      new trial had she elected to file a notice of appeal. These are not inconsistent.
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      Brian argues that, by the same reasoning in Highsmith, the mediated

settlement agreement lost its irrevocable character once the trial court’s plenary

power expired in the first modification proceeding. Highsmith, does not stand for

this proposition, however. Highsmith is based on a plain–language interpretation of

the statute. 2017 WL 4341466, at *4. The court reasoned that, because subsection

(a) contemplated a suit for divorce being pending before a court could refer the

parties to mediation, this must be a prerequisite to obtaining the agreement. See id.

      In contrast, neither section 6.602 nor section 153.0071 mention any effect if

the suit comes to an end during or after the mediation. Instead, section 153.0071

provides that the agreement is binding once it contains an appropriate irrevocable

clause, is signed by the parties to the agreement, and is signed by any attorneys

present. FAM. § 153.0071(d). Nothing in the plain language of the statute places

any further restrictions. Accordingly, Highsmith does not support Brian’s argument.

      In S.K.D., the parents reached a mediated settlement agreement during the

pendency of a petition to modify the parent-child relationship. In re S.K.D., No. 05-

11-00253-CV, 2014 WL 3058452, at *1 (Tex. App.—Dallas July 8, 2014, no pet.)

(mem. op.). The wife later sought enforcement of the agreement. Id. The same day,

the trial court dismissed the case for want of prosecution. Id. About a month later,

the husband initiated a new suit, seeking a judgment different from the agreement.

Id.


                                         10
      The wife complained on appeal that the trial court was required to render

judgment on the agreement, not the husband’s new claims for a modification. Id. at

*2. The Dallas Court of Appeals agreed. Id. It held that the wife was entitled to

judgment on the agreement in the new proceeding. Id.

      Brian also suggests the 2015 mediated settlement agreement expired on its

own terms because one term of the agreement was that “the lawyers shall sign an

Agreed Order granting Devinah’s Motion for New Trial for purposes of entry of an

order pursuant to this [agreement] only.” Brian argues this indicates the parties’

intention that the agreement would expire if the trial court did not sign the agreed

order during the pendency of the first modification suit.

      This Court has held that determining whether a variation between a trial

court’s judgment and the terms of a mediated settlement agreement is material “is

not a mechanical examination.” Davis v. Davis, No. 01-12-00701-CV, 2014 WL

890899, at *9 (Tex. App.—Houston [1st Dist.] Mar. 6, 2014, no pet.) (mem. op.).

Instead, “the inquiry is whether variances by the trial court significantly alter the

parties’ written agreement in a way that deviates from the parties’ intent as

manifested in that agreement. If the decree merely adopts mechanisms to enforce

the parties’ agreement while remaining consistent with their intent, it is

enforceable.” Id.




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      Here, there was no variance. The parties and their lawyers did, in fact, file an

agreed order with the trial court. The trial court did not sign that order. Nothing in

the agreement prevented the parties from seeking other ways of obtaining judgment

on the agreement. The agreement explicitly provided that it was effective on the day

it was signed, that it was a settlement of all of the parties’ claims and disputes, and

that it was irrevocable. Devinah’s seeking judgment on the agreement in a new

proceeding was consistent with the parties’ stated intent. See id.; Fischer v. CTMI,

L.L.C., 479 S.W.3d 231, 239 (Tex. 2016) (holding courts must construe contract

together in its entirety and evaluate its overall agreement to determine purposes

parties had in mind at time of signing).

      We overrule Brian’s second issue.

                         Scope of Arbitration Agreement

      In his third issue, Brian argues the arbitration award exceeded the scope of the

order compelling arbitration.

A.    Standard of Review

      Brian asserts that the standard of review for this issue is de novo. For

authority, he relies on a case holding that determining whether a claim falls within

the scope of an arbitration agreement is reviewed de novo. See Hilms v. Hilms, No.

04-07-00631-CV, 2008 WL 859218, at *2 (Tex. App.—San Antonio April 2, 2008,

no pet.) (mem. op.). Brian is not complaining, however, about the award exceeding


                                           12
the scope of the arbitration agreement. Instead, he is complaining about the award

exceeding the scope of the trial court’s order compelling arbitration. We have found

no case that states a standard of review for this situation.

      We do not need to decide which standard of review applies in this case

because, even assuming without deciding that we apply a de novo standard of

review, Brian still cannot prevail.

B.    Analysis

      As Brian points out, the parties agreed in the 2015 mediated settlement

agreement to arbitrate “disputes that arise in the drafting and execution of [the]

agreement” as well as “all provisions of the [agreement], any issue related to family

therapy, and any and all issues between the parties in the future related to the Decree

or any modification thereto.” The order compelling arbitration required the parties

to arbitrate “any disputes that arise in the drafting and execution of the Order

stemming from the May 13, 2015 Mediated Settlement Agreement” as well as “all

provisions of the May 13, 2015 Mediated Settlement Agreement, any issue related

to family therapy and any and all issues between the parties in the future related to

the Agreed Final Decree of Divorce dated November 16, 2009 or any modification

thereto, including enforcements and emergencies.”

      Brian argues in his brief, “Devinah’s petition to modify, filed September 16,

2015, predated the trial court’s order compelling arbitration. . . . Therefore, the trial


                                           13
court’s order approving the arbitration award, which purports to grant her

modification, is reversible.” (Internal citation omitted.) In his reply brief, Brian

argues, “Devinah agrees that the language of the trial court’s order compelling

arbitration does not cover disputes that predate that order. Nevertheless, she asks

this Court to look to the 2015 Agreement to find that the trial court’s order

compelling arbitration means something that it does not say.”

      Brian’s complaint in this issue stems from the fact that the order compelling

arbitration required the parties to arbitrate “any and all issues between the parties in

the future related to the Decree or any modification thereto.” Brian argues that,

because the order references “issues . . . in the future,” the trial court intended the

parties to arbitrate only disputes that had not yet arisen and not disputes that already

had. Based on this reasoning, Brian argues that, because the 2015 agreement

predated the order compelling arbitration, it could not be a part of the arbitration

award.

      Assuming without deciding that, under this portion of the order, the trial court

intended for the parties to arbitrate only disputes that had not yet arisen at the time

of the order, the trial court also ordered the parties to arbitrate disputes arising from

the execution of the 2015 mediated settlement agreement. Considering that Brian

had attempted to withdraw his consent to the agreement and prevent its execution as




                                           14
a result, it is consistent with this provision of the trial court’s order for the arbitration

award to execute the agreement as a judgment.

       We overrule Brian’s third issue.

                                       Conclusion

       We affirm the judgment of the trial court.




                                                  Laura Carter Higley
                                                  Justice

Panel consists of Justices Higley, Brown, and Caughey.




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