                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-270-CV


GARY DEAN BROOKS                                                    APPELLANT

                                        V.

DANA LEDON BROOKS                                                     APPELLEE

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          FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                                   OPINION

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                                  Introduction

      In this appeal, we determine whether a party to a mediated settlement

agreement meeting the requirements of family code section 6.602 is estopped

from enforcing the agreement after he has agreed to set it aside and go to trial.

T EX. F AM. C ODE A NN . § 6.602 (Vernon 2006). In two issues, appellant Gary

Dean Brooks contends that the trial court erred by failing to render judgment in

accordance with the mediated settlement agreement and by awarding appellee
Dana Ledon Brooks spousal maintenance under family code section 8.053(b).

Id. § 8.053(b). We affirm.

                                Background Facts

         Appellant Gary Dean Brooks and appellee Dana Ledon Brooks were

married for over thirty years. On March 6, 2003, Dana filed for divorce; Gary

answered and counterpetitioned for divorce on March 12, 2003. On May 20,

2004, Dana and Gary entered into a mediated settlement agreement (MSA)

dividing their property 1 in accordance with section 6.602 of the Texas Family

Code. The MSA was filed in the court record. Both parties and their attorneys

signed the agreement.

         Over a year later, on November 15, 2005, Dana’s and Gary’s attorneys,

but not Dana and Gary, signed a letter, which they also filed in the court record,

stating, “Pursuant to our conversation today it is agreed that the mediated

settlement agreement dated May 20, 2004 is void and this matter will be

mediated again at a time mutually agreed upon by the parties and attorneys.”

The parties subsequently tried the case on December 18, 2006, over a year

later.




         1
       … Although the couple had three children, none of them were minors at
the time of the divorce.

                                        2
      At trial, both Gary and Dana presented proposed property divisions to the

court for consideration, which were both admitted into evidence. They also

stipulated that Gary’s retirement benefits were separated into two tiers, that

Tier 1 was an annuity that was not divisible, and that Gary would not interfere

with any award of the divisible part (Tier 2) to Dana.

      Dana testified first, asking the court (1) to sell a tract of real property on

Eagle Mountain Lake that the couple owned and to give each of them one-half

of the proceeds, (2) to award her one-half of the equity and mineral interest in

the parties’ residence, and (3) to divide Gary’s Tier 2 retirement benefits equally

because the parties had been married for all but one of the thirty-four years

Gary has worked for Burlington Northern. 2 Dana also testified that at the time

of trial she was fifty-two, was primarily a stay at home mother while the parties

were married, and that she had worked for only about seven years during the

marriage:   as a receptionist, doctor’s assistant, an auctioneer, and at a

convenience store. Dana had only a high school diploma. Dana also testified

that she had osteoporosis and disc problems with her back; she cannot work

because the osteoporosis is so severe that she is at risk of breaking bones.




      2
       … This testimony is consistent with Dana’s proposed property division,
except that she asks for both properties to be sold and the proceeds to be
divided equally between them.

                                         3
      Gary testified next on his own behalf.          When asked whether he

understood that a portion of his Tier 2 retirement benefit could be given to

Dana, Gary answered, “Yes, I do.” Gary never asked the judge not to award

any retirement to Dana but merely asked him to take into consideration that she

had lived away from him for nine years of the marriage. 3 He also asked the

judge to award him the residence, including the debt on it, and all of the mineral

interest associated with it. He wanted the Eagle Mountain Lake property to be

awarded to Dana.

      On February 16, 2007, before the decree was signed, Gary filed a motion

for substitution of counsel, which the trial court granted. Gary’s new counsel

filed a motion for new trial, in which he contended that “[t]he mediated

settlement agreement should have been the basis of the [trial] Court’s ruling in

this case,” and that “there was no evidence or insufficient evidence for the

[trial] Court to order maintenance to be paid . . . to Dana.” The trial court heard

and denied the motion on July 2, 2007. On July 10, 2007, the trial court

signed a final decree. Gary timely filed a notice of appeal.




      3
      … In his proposed property division, under “Property to Wife,” Gary listed
“Spousal portion of railroad retirement benefits.”

                                        4
           Did Trial Court Have Duty to Render Judgment on MSA?

      In his first issue, Gary contends that the trial court erred by failing to

render judgment in accordance with the parties’ agreement in the MSA.

Applicable Law

      Texas has a public policy of encouraging the peaceful resolution of

disputes, particularly those involving the parent-child relationship, and the early

settlement of pending litigation through voluntary settlement procedures. T EX.

C IV. P RAC. & R EM. C ODE A NN. § 154.002 (Vernon 2005); Boyd v. Boyd, 67

S.W.3d 398, 402 (Tex. App.—Fort Worth 2002, no pet.). Trial and appellate

courts are charged with the responsibility of carrying out this public policy.

T EX. C IV. P RAC. & R EM. C ODE A NN. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d

at 402; Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 715 (Tex.

App.—Houston [1st Dist.] 1988, writ denied) (op. on reh’g). The Texas Family

Code also furthers this policy by providing that a mediated settlement

agreement is binding on the parties 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.


                                        5
T EX. F AM. C ODE A NN. §§ 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007).

Mediated settlement agreements are binding in suits affecting the parent-child

relationship, as well as suits involving only marital property.        Id. §§

6.602(b)–(c), 153.0071(d)–(e); Boyd, 67 S.W .3d at 402; Spinks v. Spinks,

939 S.W.2d 229, 230 (Tex. App.—Houston [1st Dist.] 1997, no writ). Here,

because there are no conservatorship and possession issues to be determined,

only section 6.602 is applicable. See Boyd, 67 S.W.3d at 402.

      Ordinarily, settlement agreements arising from mediation are not binding

when one party timely withdraws consent to the agreement, unless the other

party successfully sues to enforce the settlement agreement as a contract that

complies with rule 11 of the Texas Rules of Civil Procedure. See T EX. C IV.

P RAC. & R EM. C ODE A NN. § 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907

S.W.2d 454, 461–62 (Tex. 1995); Boyd, 67 S.W.3d at 402.              Unilateral

withdrawal of consent does not, however, negate the enforceability of a

mediated settlement agreement meeting the requirements of 6.602(b), and a

separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d

at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.—Eastland 1997,

writ denied).   Rather, section 6.602 creates a procedural shortcut for the

enforcement of mediated settlement agreements in divorce cases. Boyd, 67

S.W.3d at 402; Cayan v. Cayan, 38 S.W .3d 161, 166 (Tex. App.—Houston

                                      6
[14th Dist.] 2000, pet. denied).   Thus, a mediated settlement agreement that

meets the requirements of section 6.602(b) is binding, and a party is entitled

to judgment on the agreement notwithstanding rule 11 or another rule of law.

T EX. F AM. C ODE A NN. § 6.602(b)–(c); Boyd, 67 S.W.3d at 402.

      The phrase “notwithstanding rule 11 or another rule of law” does not,

however, require a trial court to enforce a mediated settlement agreement

simply because it complies with section 6.602(b), irrespective of what the

agreement provides for or how it was procured. Boyd, 67 S.W.3d at 403. For

example, a trial court may properly refuse to enforce a mediated settlement

agreement that otherwise complies with section 6.602(b) if a party procures

the agreement by intentionally failing to disclose material information. See id.

at 404–05.

Applicable Facts

      The parties did not rely on the MSA at the final divorce trial on December

18, 2006. In fact, it was not discussed nor was it admitted into evidence.

      At the motion for new trial, Gary testified that he signed the MSA on May

20, 2004, that he did not know whether trial had proceeded on the MSA but

he thought it did, and that he had seen a one-page letter purporting to be the




                                       7
trial judge’s ruling in the case and it did not follow the MSA. 4 He then asked

the trial court to set aside its letter ruling and enter a judgment based on the

MSA. However, Gary also testified that some of the real property 5 had already

been divided and that Dana was paid $20,500 as a result.

      On cross-examination, Gary admitted that at the mediation where the

MSA was signed, he told the attorneys, based on information he received at

two railroad retirement seminars, that his Tier 2 benefits were not divisible in

a divorce. When asked whether he had agreed to remediate, the following

colloquy occurred:

      [Gary]:                     . . . I’ve told y’all from the first I was
                                  willing to talk about anything.

      ....

      [Dana’s counsel]:           So you agreed? You went back to the
                                  second mediation; is that correct? You
                                  went back and we mediated this case
                                  again; is that correct?

      [Gary]:                     “Yes, ma’am, that is correct.”

      ....




      4
          … This letter is not included in the clerk’s record.
      5
       … The proposed property distributions refer to the property on Eagle
Mountain Lake; Gary referred to the property at the motion for new trial hearing
as the Saginaw property.

                                           8
[Dana’s counsel]:   So you did agree to go back to mediation
                    to try to settle this case; is that correct?

[Gary]:             Yes, ma’am, that is correct.

[Dana’s counsel]:   So you knew that this case was going to
                    be not based on the prior Mediated
                    Settlement Agreement?

[Gary]:             No, ma’am, I didn’t know that.

....

[Dana’s counsel]:   Then why did you agree to go back to
                    mediation to settle it?

[Gary]:             Ma’am, I don’t want - - I didn’t want it to
                    go to trial. I didn’t want a bunch of
                    accusations and everything brought out.
                    I didn’t want - - I wanted us - - I wanted
                    us to just go our separate ways.

[Dana’s counsel]:   Okay. But you knew that that wasn’t
                    going to happen until we had an
                    agreement on the case, isn’t that correct,
                    so that’s why you mediated again? Didn’t
                    you know that - - your attorney told you
                    we had to remediate this case, didn’t he?

[Gary]:             He said that y’all wanted to remediate. I
                    said, “We’ll talk. Let’s go.”

[Dana’s counsel]:   And you said okay?

[Gary]:             Yes, ma’am, that’s correct.

[Dana’s counsel]:   Okay. And then when we didn’t settle it
                    there, your attorney told you we had to
                    have a trial, didn’t he?

                            9
      [Gary]:                  Yes, ma’am.

      [Dana’s counsel]:        And you came to trial, didn’t you?

      [Gary]:                  Yes, ma’am.

Analysis

      Gary contends that neither the trial judge nor the attorneys were entitled

to set aside the MSA because there is no evidence that he intentionally or

fraudulently withheld information about the divisibility of his Tier 2 retirement

benefits; he contends that an MSA is irrevocable regardless of the parties’

mistaken beliefs as to the facts underlying the agreement. See Cayan, 38

S.W.3d at 166.      However, we need not decide whether an otherwise

irrevocable MSA under family code section 6.602 may be voided on mutual

mistake grounds because we hold that, regardless of the enforceability of the

MSA, Gary is estopped from seeking judgment in accordance with the terms of

the MSA.

      Quasi-estoppel   precludes    a   party   from   asserting,   to   another’s

disadvantage, a right inconsistent with a position previously taken. Lopez v.

Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); Atkinson

Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex. App.—Corpus Christi 1994,

writ denied). The doctrine applies when it would be unconscionable to allow

a person to maintain a position inconsistent with one to which he acquiesced,

                                        10
or from which he accepted a benefit. Lopez, 22 S.W.3d at 864; Atkinson Gas

Co., 878 S.W.2d at 240; Vessels v. Anschutz Corp., 823 S.W.2d 762,

765–66 (Tex. App.—Texarkana 1992, writ denied).              Thus, quasi-estoppel

forbids a party from accepting the benefits of a transaction or statute and then

subsequently taking an inconsistent position to avoid corresponding obligations

or effects. Atkinson Gas Co., 878 S.W.2d at 240; Mexico’s Indus., Inc. v.

Banco Mex. Somex, S.N.C., 858 S.W.2d 577, 581 n.7 (Tex. App.—El Paso

1993, writ denied); Turcotte v. Trevino, 499 S.W.2d 705, 712–13 (Tex. Civ.

App.—Corpus Christi 1973, writ ref’d n.r.e.).          Moreover, unlike equitable

estoppel,   quasi-estoppel   requires   no   showing    of   misrepresentation   or

detrimental reliance. Atkinson Gas Co., 878 S.W.2d at 240; Vessels, 823

S.W.2d at 765.

       Here, Gary’s position at trial was clearly inconsistent with his later

position in his motion for new trial that the MSA was enforceable and that

judgment should have been rendered in accordance with the MSA.               Gary

admitted that he agreed to remediate and that he knew he would have to go to

trial if the second mediation failed. At trial, Gary presented his own proposed

property division as evidence, which differed from the property division in the

MSA.    And Gary never objected at trial on the basis that Dana’s proposed

property division differed from the property division in the MSA. See T EX. R.

                                        11
A PP. P. 33.1(a)(1) (requiring that objection in trial court be timely); T EX. R. E VID.

103; Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g); Hoxie

Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex. App.—Amarillo 2001, pet.

denied) (holding that objection is considered timely if asserted when the

potential error becomes apparent).         In addition, according to Gary’s own

testimony, by the time the motion for new trial was heard, the Eagle Mountain

Lake property had already been sold, and the parties had divided the proceeds

equally.6

      Moreover, a trial court judgment in accordance with the MSA would be

to Dana’s disadvantage because she would lose her equity in the parties’

residence—which is greater than Gary’s share of the equity in the Eagle

Mountain Lake property—as well as her court-ordered spousal support.

Additionally, the MSA is unclear on the division of Gary’s retirement benefits,

stating that Gary is entitled to “[a]ll of his portion of the railroad retirement” and

that Dana is entitled to the “[s]pousal portion of railroad retirement benefits as

provided by law.” In contrast, the divorce decree awards Dana one-half of the

Tier 2 benefits. For these reasons, we conclude and hold that it would be


      6
       … Although Gary states in his brief that he obviously wanted to enforce
the MSA, the only evidence in the record is that he did not want to enforce it
until the trial court indicated that it would enter a decree that was not as
advantageous to him.

                                          12
unconscionable to allow Gary to enforce the MSA after taking the clearly

inconsistent position that it is unenforceable by participating in a second

mediation and in trial and proposing his own property division at trial that differs

from the terms of the MSA.7 We overrule Gary’s first issue.

          Did Trial Court Properly Award Spousal Maintenance to Dana?

      In his second issue, Gary claims that the trial court erred in awarding

Dana spousal maintenance based on her testimony that she suffered an

incapacitating physical disability.     According to Gary, Dana’s testimony

alone—without any supporting medical records—is insufficient to support the

trial court’s finding that she has an incapacitating physical disability.

Applicable Law and Standard of Review

      When a marriage has lasted ten years or more, a spouse in a divorce

proceeding is eligible to seek spousal maintenance if that spouse lacks sufficient

property to meet minimum reasonable needs and cannot support herself due to

an incapacitating physical or mental disability. See T EX. F AM. C ODE A NN. §

8.051(2)(a) (Vernon 2006); In re Green, 221 S.W .3d 645, 647 (Tex. 2007);




      7
       … After hearing the motion for new trial, the trial court concluded, “I’ll
deny the Motion for New Trial both because, number one, . . . we went to trial
with two attorneys, same attorneys representing them when mediated and
signed. . . . And with the approval of the parties, we all went to trial on it [the
divorce] with both parties and the same attorneys.” [Emphasis added.]

                                        13
Hackenjos v. Hackenjos, 204 S.W.3d 906, 908–09 (Tex. App.—Dallas 2006,

no pet.).

      Section 8.054(a)(1) of the Texas Family Code generally limits a trial

court’s award of spousal maintenance to no more than three years. See T EX.

F AM. C ODE A NN. § 8.054(a)(1); In re Green, 221 S.W.3d at 647; Hackenjos,

204 S.W.3d at 909; Crane v. Crane, 188 S.W.3d 276, 279 (Tex. App.—Fort

Worth 2006, pet. denied). But under section 8.054(b), if the spouse seeking

maintenance is unable to support herself through appropriate employment

because of an incapacitating physical or mental disability, the trial court may

order spousal maintenance for an indefinite period of time as long as the

disability continues. T EX. F AM. C ODE A NN. § 8.054(b); In re Green, 221 S.W.3d

at 647; Hackenjos, 204 S.W.3d at 909; Crane, 188 S.W.3d at 279.

Additionally, section 8.056 provides that the obligation to pay future

maintenance terminates on the death of either party, the remarriage of the

obligee, or if, after a hearing, the trial court determines that the obligee

“cohabits with another person in a permanent place of abode on a continuing,

conjugal basis.” T EX. F AM. C ODE A NN. § 8.056; In re Green, 221 S.W .3d at

647; Hackenjos, 204 S.W.3d at 909.

      A trial court’s award of spousal maintenance is subject to an abuse of

discretion review. Chafino v. Chafino, 228 S.W.3d 467, 474 (Tex. App.—El

                                       14
Paso 2007, no pet.); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.

App.—Dallas 2001, pet. denied). The trial court may exercise its discretion to

award spousal maintenance if the party seeking maintenance meets specific

eligibility requirements. Crane, 188 S.W.3d at 278; Pickens, 62 S.W.3d at

214–15. Under the abuse of discretion standard, legal and factual sufficiency

of the evidence are not independent grounds for asserting error, but they are

relevant factors in assessing whether the trial court abused its discretion. Dunn

v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005,

pet.denied); Pickens, 62 S.W.3d at 214.

Applicable Facts

      Here, the trial court awarded indefinite maintenance under section

8.054(b), subject only to the statutory limitations set forth in section 8.056.

Dana did not introduce any medical records into evidence, nor did she offer any

expert testimony at trial.   However, she did testify that her health started

deteriorating about three years before trial and that she had three discs on her

back “that were out.” She began taking epidural steroid injections, which she

takes every six months for about six weeks. The injections affect her ability to

work. In addition, while she was being treated for her back, she had a bone

density test that revealed osteoporosis. According to Dana, the osteoporosis

prevents her from working because her bones are “so brittle that . . . if [she]

                                       15
step[s] wrong, [she] can break [her] back . . . leg . . . [or] foot.” She has

trouble with the medications used to treat osteoporosis.         In addition, the

doctors had discovered a mass on her right hip, and she was awaiting the MRI

results. Dana testified that her parents had supported her for the past six years

before trial, while she was living apart from Gary, and that her only job during

that time was assisting an elderly woman with running errands and going to the

doctor.

Analysis

      Gary contends that there is insufficient medical evidence to support the

trial court’s finding that Dana suffers from an incapacitating physical disability.

In Pickens v. Pickens, the Dallas Court of Appeals held that

      testimony on incapacity need not be limited to experts; a fact finder
      may reasonably infer incapacity from circumstantial evidence or the
      competent testimony of lay witnesses. The question of the extent
      and duration of incapacity is an issue that can be answered by lay
      opinion and does not require medical testimony. In fact, the
      testimony of the injured party will support a finding of incapacity
      even if directly contradicted by expert medical testimony.

62 S.W.3d at 215–16 (citations omitted). Gary acknowledges this holding in

Pickens but contends that the case is distinguishable because there was

medical evidence in that case supporting the trial court’s ruling. We disagree.

      In Lopez v. Lopez, the Corpus Christi Court of Appeals held that the trial

court did not abuse its discretion in awarding spousal support for an

                                        16
incapacitating disability—diabetes—based on the testimony of the wife even

though the husband testified that he did not think his wife’s diabetes was

incapacitating. 55 S.W.3d 194, 199 (Tex. App.—Corpus Christi 2001, no

pet.). And in Smith v. Smith, the same court, relying on Pickens, held that the

trial court did not abuse its discretion in awarding spousal maintenance based

on the husband’s testimony that an aneurysm had left him incapacitated,

despite the wife’s testimony that she did not think the disability was

incapacitating. 115 S.W.3d 303, 308–09 (Tex. App.—Corpus Christi 2003,

no pet.).    We agree with the holding and reasoning of these courts.

Accordingly, we conclude and hold that there is sufficient evidence to support

the trial court’s conclusion that Dana’s disability is incapacitating and, thus,

that the trial court did not abuse its discretion in awarding her monthly spousal

maintenance. We overrule Gary’s second issue.

                                  Conclusion

      Having overruled Gary’s two issues, we affirm the trial court’s judgment.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL B:    LIVINGSTON, HOLMAN, and GARDNER, JJ.

DELIVERED: June 5, 2008


                                       17
