Opinion issued November 26, 2013.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-12-00991-CV
                           ———————————
                        REBECCA EVANS, Appellant
                                       V.
                 ROBERT RANDALL SIRES, SR., Appellee


                   On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-67562


                         MEMORANDUM OPINION

      Rebecca Evans challenges the trial court’s dismissal of her bill of review

proceeding, by which she sought to set aside the trial court’s 2004 Final Order in

the underlying SAPCR. Evans contends the trial court erred by dismissing her bill

of review without a hearing on the merits, and she also complains that the trial
court, in the 2004 Final Order (1) improperly calculated the amount of child

support payments and arrearages she owed, and (2) improperly ordered that her

visitation with the child be conducted through the Harris County SAFE program.

Because Evans entered into an MSA in which she agreed to dismiss the bill of

review and agreed to the terms of a 2012 order modifying the 2004 order, we

conclude that the trial court committed no error, and, accordingly, we affirm.

                                   Background

      On June 7, 2004, the trial court entered a default judgment in a SAPCR case

against Evans (“2004 Final Order”). The 2004 Final Order appointed Robert

Randal Sires, Sr., the child’s father, as Sole Managing Conservator and Evans as

Possessory Conservator of their child. It restricted Evans’s possession and access

to the child, reciting that Evans’s access to the child would take place “under such

terms and conditions as are mutually agreed to, in writing, in advance, by the

parent Sole Managing Conservator . . . [and] in the parent Sole Managing

Conservator’s sole discretion, may be under the supervision of the SAFE

supervised visitation program.” The 2004 Final Order required Evans to pay child

support in the amount of $575 per month and arrearages in the amount of

$3,162.50, which she was required to pay in installments of $100 per month.

Evans made no payments for the next seven years, but did make 22 payments

between September 2011 and September 2012.


                                         2
       On November 8, 2011, Evans filed a petition for bill of review of the 2004

Final Order. In it, Evans requested that the trial court vacate the 2004 Final Order,

on the basis that she received no notice of the June 7, 2004 trial setting. Sires then

moved to enforce the 2004 Final Order.

      On June 4, 2012, the parties entered into an MSA. The MSA reduced the

amount of Evans’s future monthly child support payments to $421.50 per month.

With regard to arrearages, it stated the parties’ agreement to reduce the amount

Evans owed if Evans provided Sires’s attorney, within a specified timeframe, with

certain evidence of Evans’s historical income. The MSA stated:

      The parties agree that the amount of the arrearage shall be calculated
      to reflect the amount of periodic child support Mother would have
      been ordered to pay during the relevant period had she been ordered to
      pay based on her actual income, but without calculating amounts for
      medical insurance and/or unpaid medical expenses. In this regard,
      Mother’s attorney shall provide Father’s attorney with true and correct
      copies of Mother’s Federal Income Tax information from the IRS for
      the years 2003 through 2011, and the amount of child support due
      each year shall be the Texas Family Code Guideline child support
      based on Mother’s actual gross income for each year as reflected in
      the tax information with the standard deductions for Federal Income
      Taxes, Social Security Taxes and FICA as per the TFC child support
      tax tables . . . Mother shall provide the referenced tax information
      within 75 days of this date. If said tax information is not provided to
      Father’s attorney within 75 days of this date, then Father shall have
      the option of withdrawing his consent to this agreement regarding
      arrearages.




                                          3
        In exchange, Evans agreed in the MSA to dismiss the bill of review. She

also agreed that provisions of the 2004 Final Order requiring visitation through

SAFE would not be modified.

        On August 21, 2012, Sires’s counsel wrote Evans’s counsel, contending that

Evans had failed to provide the required tax information for 2003, 2004, and 2006,

and that this constituted “a breach of the MSA requirement to furnish the Father

true and correct copies of her Federal Income Tax information from the IRS for

years 2003 through 2011.” Accordingly, Sires was “exercise[ing] his option of

withdrawing his consent to the agreement regarding arrearages.”

        On September 10, 2012, Sires moved for judgment on the MSA.            On

September 17, 2012, the trial court held a hearing on that motion. Sires sought

judgment on the MSA, except for the provision regarding the modification of

arrearages. With regard to that provision, Sires argued that Evans breached by

failing to present tax information for the years 2003 through 2011 and that Sires

was therefore entitled to revoke his agreement to reduce the amount of arrearages

owed.

        Evans responded that there was no breach because she provided information

that existed. She claimed that there was no tax information available, “there was

no filing of any type of return,” for the years for which she failed to provide

information to Sires, 2003, 2004, and 2006. Sires introduced an IRS verification of


                                         4
non-filing reflecting that the IRS “found no record of a tax return being filed for

year(s) 2004 & 2006.” With regard to 2003, however, the document stated that the

IRS was “unable to verify non-filing for tax year(s) 2003 because a return was

filed.”

          The trial court concluded that Evans failed to perform as agreed, giving Sires

the right to exercise his option to withdraw his agreement to reduce the amount of

arrearages owed. It concluded the total amount of arrearages owed under the terms

in the 2004 Final Order was $46,862.50, ordered that arrearages be paid at $100 a

month, as set out in the 2004 Final Order, and “approve[d] all the remaining

provisions of the Mediated Settlement Agreement.” The trial court dismissed the

bill of review proceeding by order dated September 19, 2012, which states that the

case was dismissed because “the parties Mediated Settlement Agreement

contemplates dismissal of the Plaintiff’s Bill of Review.” Evans appealed.

                                           Discussion

A.        Standard of Review

          Whether a party is entitled to enforcement of an MSA is a legal question,

which we review de novo. Boyd v. Boyd, 67 S.W.3d 398, 404 (Tex. App.—Fort

Worth 2002, no pet.).




                                             5
B.    Applicable Law

      In suits affecting the parent-child relationship, an MSA is binding on the

parties and irrevocable 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. TEX. FAM. CODE

§ 153.0071(d) (West 2008); In re Lee, No. 11-0732, 2013 WL 5382067, at *6

(Tex. Sept. 27, 2013). If an MSA meets these statutory requirements, “a party is

entitled to judgment on the mediated settlement agreement notwithstanding . . .

another rule of law.”    TEX. FAM. CODE § 153.0071(e); In re Lee, 2013 WL

5382067, at *6; In re L.M.M., 247 S.W.3d 809, 811 (Tex. App.—Dallas 2008, pet.

denied). A trial court must enforce an MSA that meets these requirements unless a

party demonstrates that the MSA was illegal or was procured by fraud, duress,

coercion, or other dishonest means. Boyd, 67 S.W.3d at 403.

C.    Analysis

      Evans appeals from the trial court’s order dismissing her bill of review. In

her brief, Evans argues that the trial court erred by (1) ordering that she pay $575

per month in child support in 2004; 1 (2) ordering visitation be held through the

SAFE program; and (3) failing to reduce the amount of arrearages she owed, as

1
      In the trial court’s October 26, 2012 order, the monthly child support obligation
      was reduced to $421.50 per month, per the terms of the MSA.
                                          6
contemplated by the MSA, despite the fact that she provided Sires with some tax

records to justify the reduction.

      But Evans ignores the fact that she agreed, in the MSA, to dismiss the bill of

review and that the MSA gave Sires the option to revoke the agreement to reduce

the arrearages if Evans failed to produce information reflecting her historical

income. Evans’s appeal thus turns on whether the trial court properly entered

judgment on the MSA.

      1.     The MSA is enforceable.

      An MSA affecting the parent-child relationship is binding and a party is

“entitled to judgment” on the MSA if each party and the parties’ attorneys who are

present at the mediation sign it, and the MSA states prominently and in

emphasized type that it is not subject to revocation.           TEX. FAM. CODE

§ 153.0071(d)–(e). Here, it is undisputed that the MSA meets these requirements.

Page 4 of the MSA stated in boldfaced, underlined, and capital letters that “THIS

AGREEMENT REACHED IN MEDIATION IS BINDING AND IS NOT

SUBJECT TO REVOCATION.” And the MSA is signed by each party and by

each party’s attorney. Evans does not contend and presents no evidence that the

MSA was illegal or was procured by fraud, duress, coercion, or other dishonest

means. Accordingly, we hold that the trial court did not err in enforcing the MSA.

See TEX. FAM. CODE § 153.0071(d); In re L.M.M., 247 S.W.3d at 811–12


                                         7
(concluding MSA met statutory requirements of section 153.0071(d) where MSA

stated in bold, underline, and all capital letters that MSA was binding, not subject

to revocation, and enforceable).

      2.     The trial court entered judgment in accordance with the MSA.

      The bill of review was the vehicle by which Evans sought to challenge the

provisions of the 2004 Final Order requiring (1) payment of child support at $575

per month and (2) visitation under the SAFE program. But, the MSA provided that

Evans’s bill of review would “be dismissed contemporaneously with the signing by

the Court of the Modification Order which contains the agreements reached

herein.”   Because Evans is bound by the MSA, and the MSA provides for

dismissal of the bill of review, we conclude the trial court did not err in dismissing

Evans’s bill of review pursuant to the MSA’s terms.

      Because she agreed in the MSA to dismiss that proceeding, and, with it, her

challenges to the 2004 Final Order, we do not review the propriety of the child

support and visitation provisions of the 2004 Final Order.

      3.     Arrearages

      Evans also challenges the provision of the 2012 Modified Order that requires

her to pay $46,862.50 in arrearages. She asserts that based on her actual income

from 2003 to 2011, the total amount of arrearages should be $27,634, and that the

trial court erred in failing to hold Sires to his agreement in the MSA to reduce


                                          8
arrearages. We construe this as a challenge to the trial court’s finding that Evans

breached the provision of the MSA in which she agreed to provide historical

information regarding her income. 2

      At the hearing on Evans’s motion for judgment on the MSA, Evans’s

counsel argued that Evans complied by providing an IRS form stating the IRS had

no records of Evans filing a tax return for 2004 and 2006. But, based on the same

document, which reflected that Evans did file a 2003 return—and the fact that she

failed to provide it to Sires—the trial court could have reasonably concluded that

Evans breached and had no right to enforce the contemplated reduction in

arrearages, and thus remained liable for arrearages in the amount set forth in the

2004 Final Order, which, by 2012, totaled $46,862.50.

      Accordingly, we conclude that the trial court did not err in ordering Evans to

pay arrearages in the amount of $46,862.50.




2
      Evans did not file a notice of appeal from the SAPCR case, but we address this
      issue because of the significant overlap in the two cases. See P&A Real Estate,
      Inc. v. Am. Bank of Texas, 323 S.W.3d 618, 620 (Tex. App.—Dallas 2010, no pet.)
      (concluding notice of appeal from default judgment effective when filed under
      wrong cause number).
                                         9
                                   Conclusion

      We affirm the trial court’s judgment.



                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




                                        10
