Opinion issued May 17, 2012.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-11-00126-CV
                           ———————————
                       RONALD C. TOLER, Appellant
                                       V.
        VICKY LYNN SANDERS, F/K/A VICKY TOLER, Appellee


                   On Appeal from the 312th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-80785


                                 OPINION

      After eleven years of marriage, Ronald C. Toler (Ron) and Vicky Lynn

Sanders (Vicky) began divorce proceedings. They decided to resolve any conflicts

relating to their division of community property with a mediator’s assistance and

entered into a mediated settlement agreement (MSA). See TEX. FAM. CODE ANN.
§ 6.602 (West 2006). After signing the MSA, however, Ron claimed that the

writing did not reflect the parties’ agreed division of the retirement benefits earned

during the marriage. Ron fought to have the MSA set aside and to have the issue

returned to the mediator, but the trial court entered judgment on the MSA and

denied Ron’s motion for new trial. In his appeal, Ron contends that the trial court

erred in doing so because the MSA provision apportioning the retirement benefits

contains an ambiguity and a mutual or unilateral mistake renders the provision

unenforceable as written.     Ron also contends that the trial court abused its

discretion in awarding Vicky her attorney’s fees for defending the MSA’s

enforcement in the post-judgment proceedings. Finding no error, we affirm.

                                    Background

      Ron’s main complaints concern the meaning of the MSA provision granting

a portion of Ronald’s retirement benefits to Vicky. That provision recites:

      Parties agree to award wife 50% of the community property of Ron’s
      Rail Road Retirement benefits, with a stop date of September 27,
      2010.

Documentation produced by Ron before mediation explains that his monthly

railroad retirement benefits derive from two sources: (1) “Tier I,” the railroad

retirement benefit component,” constituting about 57% of the total monthly

benefit, and “Tier II,” the “[d]ivisible railroad retirement benefit components,”

further described as “supplemental annuity, dual benefits,” constituting about 43%

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of the total monthly benefit. A handwritten insertion adds “Retirement” to the

provision, and both parties’ handwritten initials appear at the bottom of the page.

      The first page of the MSA recites in boldfaced print, “THIS AGREEMENT

IS NOT SUBJECT TO REVOCATION, AND MEETS THE REQUIREMENTS

OF SECTION 154.071, TEXAS FAMILY CODE TX CIVIL PRACTICE

REMEDIES CODE [sic].” This recital is followed by the divorcing spouse’s

initials and another boldfaced notice declaring “A PARTY TO THIS

AGREEMENT IS ENTITLED TO JUDGMENT ON THIS MEDIATED

SETTLEMENT AGREEMENT [sic],” again followed by the parties’ initials.

Following the text on the last page, the MSA states “APPROVED,” followed by

the parties’ full signatures, as well as the signatures of the mediator and the parties’

attorneys.

      A week after the MSA’s execution, Ron noticed that the provision did not

reflect his understanding of the agreement. The parties addressed this issue with

the mediator but were unable to reach a resolution. Before the final hearing for

entry of the decree, Ron moved to set aside the MSA and refer the matter back to

the mediator. The trial court denied the motion, and Ron renewed his request to set

aside the MSA and decree in a motion for new trial. Vicky opposed the motion

and requested that she be awarded $3,390 for attorney’s fees and expenses incurred




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in responding to the motion. The trial court denied the motion for new trial and

awarded Vicky $1,500 for fees and expenses.

                                    Discussion

Mediated Settlement Agreement

      Relying on his own sworn statement recounting the events at mediation,

Ronald maintains that the MSA provision at issue should have limited the award to

his “Tier I Rail Road Retirement Benefits,” and, because it does not, it results in a

different, larger award than he intended.

      Resolution of this issue turns on the nature of the MSA and its interpretation.

Texas law provides divorcing spouses various ways to handle an agreed division of

their community property. Section 7.006 of the Family Code prescribes one such

method: it allows the parties to a execute settlement agreement that “may be

revised or repudiated before rendition of the divorce” and that must be approved by

the judge presiding over the divorce case. TEX. FAM. CODE ANN. § 7.006 (West

2006).   Alternatively, divorcing spouses may choose to execute a settlement

agreement that

      (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;




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      (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.

TEX. FAM. CODE ANN. §§ 6.602(b), 6.603(d), 6.604(b), 153.0071(d) (West 2006).

When the agreement complies with these three requirements, it “is binding on the

parties” as soon as it is executed, and a party is “entitled to judgment on the

agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another

rule of law.”     TEX. FAM. CODE ANN. §§ 6.602(b(c), 6.603(d); 6.604(c),

153.0071(e); Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.—Houston [14th

Dist.] 2000, pet. denied); see In re Joyner, 196 SW 3d 883, 890–91 (Tex. App.—

Texarkana 2006, pet. denied) (noting that, by complying with requirements, “the

parties elect to make their agreement binding at the time of execution rather than at

the time of rendering, thus creating a procedural shortcut for the enforcement of

those agreements”). The Family Code does not authorize a court to modify an

MSA, to resolve ambiguities or otherwise, before incorporating it into a decree.

See TEX. FAM. CODE ANN. § 6.604(9b)–(d); see also Beyers v. Roberts, 199 S.W.3d

354, 362 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (observing that trial

court’s modifications to settlement agreements are grounds for reversal where

modifications “add terms, significantly alter the original terms, or undermine the

intent of the parties”). A mediated settlement agreement under section 6.602 is

“more binding than a basic written contract” because, except when a party has

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procured the settlement through fraud or coercion, nothing either party does will

modify or void the agreement “once everyone has signed it.” Joyner, 196 S.W.3d

at 888; see Boyd v. Boyd 67 S.W.3d 398, 404–05 (Tex. App.—Fort Worth 2002, no

pet.) (upholding trial court’s judgment setting aside MSA where husband failed to

disclose substantial community assets); see also Mullins v. Mullins, 202 S.W.3d

869, 876 (Tex. App.—Dallas 2006, pet. denied) (“Unilateral withdrawal of consent

does not negate the enforceability of a mediated settlement agreement in divorce

proceedings.”).

      The MSA at issue in this case meets the requirements of section 6.602 of the

Family Code. Mindful of the unique attributes the Family Code confers on the

MSA, we apply contract principles to interpret its meaning. Chapman v. Abbot,

251 S.W.3d 612, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Shanks v.

Treadway, 110 S.W.3d 444, 449 (Tex. 2003). We construe the entire writing in an

effort to harmonize and give effect to the decree as a whole. Shanks, 110 S.W.3d

at 447; Chapman, 251 S.W.3d at 616. We accord contract language its plain,

grammatical meaning unless it definitely appears that the intention of the parties

would thereby be defeated. Chapman, 251 S.W.3d at 616.

      If the words used in the written instrument can be given a certain or definite

legal meaning or interpretation, then it is not ambiguous and the court will construe

the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983);

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Chapman, 251 S.W.3d at 616. Courts must enforce an unambiguous contract as

written and may not consider extrinsic evidence, such as Ron’s sworn statement,

for the purpose of creating an ambiguity or giving the contract a meaning different

from that which its language imports. David J. Sacks, P.C. v. Haden, 266 S.W.3d

447, 450 (Tex. 2008) (per curiam), cited in Tellepsen Builders, L.P. v.

Kendall/Heaton Assocs., Inc., 325 S.W.3d 692, 695 (Tex. App.—Houston [1st

Dist.] 2010, pet. denied); Dyer v. Cotton, 333 S.W.3d 703, 718 (Tex. App.—

Houston [1st Dist.] 2010, no pet.).

      Ambiguity

      Ronald contends that the trial court should have set aside the MSA because

it is ambiguous. If a divorce decree’s terms are ambiguous, the court may consider

evidence in the record along with the decree to aid in its interpretation. Chapman,

251 S.W.3d at 617. A mere disagreement about the proper interpretation of an

agreement, however, does not make an agreement ambiguous; the instrument is

ambiguous only if, after application of the rules of construction, the agreement is

reasonably susceptible to more than one meaning or if its meaning is uncertain or

doubtful. Id.




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      The term “50% of the community property of Ron’s Rail Road Retirement

Benefits” is not reasonably susceptible to more than one meaning: it

unambiguously entitles Vicky to that share of all of the retirement benefits earned

for the specified period under the railroad retirement plan. Ronald clearly would

have preferred to have limited Vicky’s share to 50% of the Tier I benefits under the

plan, but his urged construction does not emerge from the provision as written; to

convey that meaning would require additional language that would substantively

alter the provision’s plain meaning. A party’s request for an order altering or

modifying a property division in a final decree constitutes an impermissible

collateral attack. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009). The trial

court, therefore, properly denied Ron’s request.

      Mistake

      Ron also contends that the trial court should have set aside the MSA based

on a mutual or unilateral mistake. Mutual mistake occurs when the parties to an

agreement have a common intention, but the written instrument does not reflect

that intent. Dyer, 333 S.W.3d at 718. Ron asserts “that the MSA does not reveal

the intent of both parties,” but absent from this assertion—and the record as a

whole—is any showing that the mistake was mutual. Notably, Vicky nowhere

indicated that she, too, meant to limit her share of Ron’s railroad retirement

benefits to the Tier I benefits. Ron’s sworn statement concerning the events at

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mediation, therefore, was not properly before the trial court. Under the parol

evidence rule, courts may not consider extrinsic evidence that varies or contradicts

the express or implied terms of the written agreement absent a showing of fraud,

accident, or mutual mistake. See id.; DeClaire v. G&B McIntosh Fam. Ltd. P’ship,

260 S.W.3d 34, 45 (Tex. App.—Houston [1st Dist.] 2008, no. pet.).

      In a footnote in his brief, Ron also alludes to the rule that a court may set

aside a contract based on unilateral mistake if the party shows that (1) the mistake

is of so great a consequence that to enforce the contract would be unconscionable;

(2) the mistake relates to a material feature of the contract; (3) the mistake

occurred despite ordinary care; and (4) setting aside the contract does not prejudice

the other party except for the loss of the bargain. See Ledig v. Duke Energy Corp.,

193 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.] 2006, no pet.).              Ron,

however, cannot make the required showing. “A party who signs a document is

presumed to know its contents . . . .” In re Lyon Fin’l Servs., Inc., 257 S.W.3d

228, 232 (Tex. 2007).      Ron initialed the bottom of the page containing the

retirement benefits provision—which has a handwritten revision—and signed off

on the MSA as a whole. He cannot avoid the provision by alleging that he simply

failed to notice it until after signing. See In re U.S. Home Corp., 236 S.W.3d 761,

764 (Tex. 2007). Based on Ron’s failure to adduce any proof of a mistake, the trial




                                         9
court thus properly refused to consider Ron’s extra-contractual statements in

upholding the plain meaning of the MSA provision.

      The language apportioning a share of Ron’s railroad retirement benefits to

Vicky is unambiguous, and Ron has not shown a mutual or unilateral mistake. We

therefore hold that the trial court properly denied Ron’s motion to set aside the

MSA. For the same reasons, we further hold that the trial court was entitled to

construe the MSA as a matter of law and thus did not err by denying Ron’s request

to refer this dispute to the mediator.1

Attorney’s fees award

      Ron complains that the trial court abused its discretion in awarding Vicky

her attorney’s fees on the basis the trial court’s underlying decision on the merits is

erroneous. Because we have upheld the trial court’s ruling, this complaint lacks

merit, and Ron does not advance any other ground for reversing the attorney’s fee

award. As a result, we leave the attorney’s fee award undisturbed.




1
      Ron points to language in the MSA that, according to his reading, required
      that the trial court refer the dispute to the mediator for resolution. See
      Milner v. Milner, 361 S.W.3d 615, 622 (Tex. 2010). The record shows the
      mediator already attempted to assist the parties in resolving this dispute, but
      does not contain any document from the mediator following that attempt.
      We do not agree that the language he relies on requires the trial court to refer
      every dispute over the MSA’s interpretation to the mediator. This case
      differs from Milner in that the challenged language is unambiguous, and in
      that the mediator did not resolve the dispute when presented with it.
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                                   Conclusion

      We hold that the trial court did not err in denying Ronald Toler’s motion for

new trial or in awarding Vicky Sanders her attorney’s fees. We therefore affirm

the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Sharp. Justice Sharp concurs in the
judgment only.




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