Affirmed in Part, Reversed and Remanded in Part, and Memorandum
Opinion filed July 11, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00854-CV

                          TIFFANY DIGGS, Appellant
                                        V.

                      RANDOLPH DIGGS, JR., Appellee

                    On Appeal from the 246th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-81634

                  MEMORANDUM OPINION

      Appellant Tiffany Diggs challenges the portion of the Final Decree of
Divorce pertaining to the division of the marital estate.       She and appellee,
Randolph Diggs, Jr. (“Randy”), entered into a mediated settlement agreement (the
“MSA”) dividing their property. In five issues, she challenges the enforceability of
the MSA by asserting (1) it was procured with the use of an unqualified mediator,
(2) the trial court erred by refusing to permit Tiffany to present evidence tha the
mediator was disqualified at the hearing on her motion for new trial, (3) the trial
court signed the divorce decree when the MSA was never made a part of the trial
court’s record, (4) the property division in the divorce decree does not properly
reflect the terms provided in the MSA, and (5) the language of the MSA is
ambiguous and Randy is prevented from using the unqualified mediator as an
arbitrator pursuant to the terms of the MSA. Because we conclude that the trial
court erred in dividing the parties’ marital estate, we reverse and remand only that
portion of the divorce decree relating to the division of property.1

                                      BACKGROUND

       Tiffany and Randy married in January 1994. In December 2009, Randy
filed his original petition for divorce. In his petition, he stated that he believed that
the dispute could be resolved amicably by using the collaborative law process as
provide in sections 6.6034 and 163.0072 of the Texas Family Code. Tiffany filed
an original counter petition for divorce in February 2010, in which she stated that
she believed she and Randy would enter into an agreement for the division of their
estate and that if they did, she requested that the court approve the agreement and
divide the estate in a manner consistent with the agreement.

       Tiffany’s original counsel moved to withdraw due to “ineffective
communication” with Tiffany in September of 2010; Tiffany opposed his
withdrawal. After a hearing conducted on October 6, 2010, the trial court signed
an order permitting Tiffany’s counsel to withdraw.                  On December 13, 2010,
Tiffany designated new counsel. Tiffany filed an amended counter petition on
January 18, 2011, in which, as is relevant here, she requested that the court make a


       1
         The parties have three children of the marriage, but there is no dispute about the portion
of the divorce decree concerning their children. We therefore affirm the remainder of the
divorce decree.

                                                2
just and right division of the marital estate.            Two days later, Randy filed an
opposed motion to compel mediation. However, at the hearing on the motion held
on January 25, counsel for Tiffany stated, “We’re not opposed to [mediation] at all.
As a matter of fact, we’ve agreed to it. . . . Absolutely, we want to go to
mediation.” Trial was scheduled for February 14, 2011.

      On January 27, Tiffany’s counsel sent a letter via facsimile to Randy’s
counsel, stating:

             We are in agreeance [sic] with your suggestion of Randy
      Wilhite to mediate this matter. We did have a discussion with him
      when we were retained by our client asking him to possibly assist out
      with a business evaluation. We did not go any further with the matter
      after one phone call discussion. After speaking with Mr. Wilhite, he
      does not feel that there is a conflict of interest in mediating the matter,
      nor do we. He is available for mediation on February 4, 2011 for a
      full day of mediation.
            Our suggested mediator is Judge Squire. He is available in the
      afternoon on February 10th, all day February 11th and in the afternoon
      on February 12th.
            Please let us know which mediator you would like to use so we
      can set up mediation immediately.

      Tiffany filed a motion for fees for mediation on January 28. In this motion,
she requested that Randy pay all fees and expenses for mediation. Tiffany noted
that she had recommended an alternative mediator, Judge Squire,2 who charges
less than the mediator selected by Randy, Randall Wilhite. Tiffany did not object
to the use of Wilhite as a mediator in this motion. The court heard this motion on
February 3, 2011.         Tiffany was present at this hearing, but did not testify.
Tiffany’s counsel stated that Randy’s counsel had contacted Mr. Whilhite’s office
and engaged him for mediation without her knowledge. She went on to state, “We

      2
          Judge Squire’s name is spelled both “Squire” and Squier” in the record.

                                                3
are requesting because my client does not have access to resources that [Randy]
has, [he] pay the mediator.          We have no problems mediating with Randall
[Wilhite]. We made that clear.” (emphasis added). Randy’s counsel stated that the
parties were scheduled to mediate with Wilhite at 9:00 the next morning. The trial
court denied Tiffany’s motion and ordered the parties to split the mediation fees
and costs equally.

       At a motions hearing held on February 10, 2011, at which both Tiffany and
Randy were present, counsel for Tiffany stated that the parties planned to mediate
with Wilhite on Saturday, February 12. The record reflects that the mediation that
had been scheduled with Wilhite on Friday, February 4, 2011 was cancelled due to
inclement weather.3 The trial court reiterated at the close of this hearing that trial
was set to begin the following Monday, February 14.

       Both Randy and Tiffany filed their inventory and appraisements and
proposed property divisions on February 11.              They, along with their counsel,
attended mediation with Wilhite on February 12. At the end of the day-long
mediation, Randy, Tiffany, and their counsel executed the MSA, pursuant to
section 6.602 of the Texas Family Code. In pertinent part, the MSA provides:

       5.     Final Documents. Attorneys for Petitioner shall prepare the
       first drafts of the Final Decree of Divorce, the Agreement Incident to
       Divorce, and all conveyancing documents or assignments necessary to
       effect the establishment of the award of all property herein awarded to
       petition. Attorneys for Respondent shall prepare the first draft of all
       conveyancing documents necessary to effect the establishment of the
       award of all property herein awarded to Respondents. Both parties
       agree to execute all other documents reasonably required to effectuate
       the provisions of this settlement agreement. . . . If requested by either
       3
         Tiffany’s affidavit attached to her motion for new trial, in which she challenges the
qualifications of Wilhite as a mediator, states that Judge Squier was the mediator scheduled for
the canceled February 4th mediation, despite the indications in the record from the hearing on
February 3rd and February 10th that Wilhite was the scheduled mediator for that date.

                                               4
      party, the Final Decree of Divorce will only refer to an Agreement
      Incident to Divorce, which will not be filed among the papers in this
      suit.
      6.     Arbitration. The parties shall submit (a) all drafting disputes,
      (b) issues regarding the interpretation of this settlement agreement,
      and (c) issues regarding the intent of the parties reflected in this
      settlement agreement to Randall B. Wilhite as an arbitrator, whose
      decision shall be binding on the parties, including decisions on the
      payment of attorney’s fees and arbitration costs incurred as a result of
      the arbitration.
      7.     Immediate Effect; Complete Agreement; Right to
      Judgment. This agreement is effective upon signing and supersedes
      and supplants all other agreements, written or otherwise, between the
      parties. This agreement constitutes the full agreement between the
      parties and no evidence shall be admissible to vary the terms of this
      agreement. A party is entitled to judgment based on this settlement
      agreement.
                                        ...
      16. Agreement Signed Freely and With Approval of Attorney.
      Each party to this settlement has entered into same freely and without
      duress after having consulted with professionals of his or her choice.
      Each party hereto has been advised by the Mediator that the Mediator
      is not the attorney or accountant for any party, hereby releases the
      mediator from any possible action or claims, and acknowledges that
      they have been advised that each party should have this agreement
      approved by that party’s attorney prior to executing same.
                                        ...
      18. THIS AGREEMENT                     IS   NOT     SUBJECT         TO
      REVOCATION
      As part of the MSA, Tiffany and Randy agreed to divide their community
assets and liabilities pursuant to an attached spreadsheet, marked as “Exhibit A.”
Exhibit A was taken directly from Randy’s Inventory and Appraisement and
Proposed Division of Community Assets and Liabilities (“Randy’s Proposed



                                         5
Division”), with some interlineations and handwritten additions.4 Both Tiffany and
Randy initialed each page of the MSA, as well as all three pages of Exhibit A.
Handwritten “Additional Terms” on page three of Exhibit A provide that Randy
was to pay Tiffany (a) $1,000,000 cash on the day the divorce decree was signed or
thirty days from the signing of the MSA, whichever was sooner, (b) $500,000 by
noon on December 31, 2011, and (c) $170,000 by noon on June 30, 2012.

      On February 16, the parties and their counsel appeared for trial. Prior to voir
dire, counsel for Randy presented a motion to re-commit the parties to mediation to
resolve the remaining parent-child issues. According to Randy’s counsel, the
parties had initially agreed to mediate these issues before Judge Squire beginning
that morning, but Tiffany’s counsel had left him a voice mail message the prior
evening canceling the mediation. Randy’s counsel sought an order from the trial
court compelling the parties to mediate the parent-child issues. Tiffany’s counsel
responded that the parties had participated in mediation with Wilhite the previous
Saturday “for over eight hours,” during which time issues concerning child custody
were also addressed. “Mr. Wilhite felt that there was an impass[e] with regards to
that issue.” The trial court denied Randy’s motion to compel the parties to return
to mediation on the parent-child issues.        Shortly after denying the motion to
compel, counsel for both Randy and Tiffany agreed that they were bound by the
MSA. Tiffany was present when her counsel acknowledged that the parties were
bound by the MSA. Tiffany and Randy proceeded to a jury trial on February 16,
17, and 18 solely on the issue of which joint managing conservator would have the
exclusive right to designate the primary residence of their children.



      4
        As discussed in more detail below, Exhibit A to the MSA is missing a page that is
contained in Randy’s Proposed Division.

                                           6
      The parties returned to court on June 6, 2011 to move forward with the
remaining issues concerning the children. At that hearing, counsel for Randy
informed the court that pursuant to the MSA, he had prepared an Agreement
Incident to Divorce (the “AID”), which incorporated the terms of the property
division of the MSA. He stated that both he and Tiffany’s counsel believed that
the AID accurately reflected the agreement of the parties, but that Tiffany refused
to sign it. He requested that the trial court order the parties to sign the AID.

      Tiffany’s counsel called her to testify at this hearing. Tiffany acknowledged
that she had signed the MSA after spending numerous hours in mediation. Tiffany
testified that she believed that she had reason to revoke the MSA because she did
not feel that it was a just and right division of the estate. She stated, “If I can
revoke it, I would like to.” She also acknowledged that she had received a copy of
the AID, but stated that there had been “too many changes” made to it and she was
“not sure” if there was any incorrect language in it. She declined to return to
mediator Randall Wilhite for decisions or changes regarding the MSA or AID.
When asked if she needed more time to review the AID, Tiffany replied that she
could not afford any more time. Finally, when asked why she refused to sign the
AID, she responded, “I never wanted a divorce in the first place.”

      The trial court informed Tiffany that once she had signed the MSA, it was
binding on her and on the court. The trial judge stated that if there were drafting
issues, he could send the parties back to the mediator, but that Tiffany had not
identified any drafting issues. The trial court then stated,

      I don’t know about an Agreement Incident to Divorce, Mr. Tindall
      [counsel for Randy]. . . . It’s okay if they agree. But when they don’t
      agree, I don’t believe the Court can order her to sign a document.
      Although the Court can sign a Divorce Decree which incorporates the
      Mediated Settlement Agreement.

                                           7
                                         ...
      [T]he Court approves and orders that the Mediated Settlement
      Agreement is approved by the Court, and will be signed by the Court
      because it is, Mom, not revocable. You cannot revoke it at this point
      without taking additional steps.
Because the parties had other issues for the trial court to determine regarding the
children, the trial court re-set the remaining issues for hearing on June 13.

      At the June 13th hearing, the trial court decided several issues concerning
the rights and duties of the parents. Tiffany testified regarding the MSA. She
again acknowledged that she had entered into the MSA. She stated that she would
like to withdraw her consent to the MSA. The trial judge simply stated that
Tiffany could request that relief, but that he could not grant it to her. Tiffany
reiterated that she never wanted a divorce and that she never agreed to the use of
“collaborative or corroborative law.” At the end of this hearing, the trial court set
the case for entry of judgment on July 1, 2011.

      The trial court signed the final decree of divorce on July 1. In a section
entitled “Agreement of Parties,” the following language regarding the MSA is
provided:

      The Court finds that the parties signed and entered into a valid and
      enforceable partition and exchange agreement as contained in the
      Mediated Settlement Agreement dated February 12, 2011. The Court
      has approved the agreement and partition and exchange agreement of
      the parties and hereby incorporates all of those provisions with regard
      to the division of property as if set out verbatim herein. The court
      finds that the Mediated Settlement provides for a just and right
      division of the parties’ marital assets and liabilities, having due regard
      for the rights of each party and the children of the marriage.

The “Division of Marital Estate” section provides as follows:



                                           8
       The Court finds that the parties entered into a partition and exchange
       agreement in accordance with the Mediated Settlement Agreement
       dated February 12, 2011. The Court has approved the agreement and
       partition and exchange agreement of the parties and hereby
       incorporates all of those provisions with regard to the division of
       property as if set out verbatim herein. The court finds that the
       Mediated Settlement provides for a just and right division of the
       parties’ marital assets and liabilities, having due regard for the rights
       of each party and the children of the marriage. IT IS THEREFORE
       ORDERED AND DECREED that all property is hereby divided as
       between the parties in accordance with the provisions of the Mediated
       Settlement Agreement signed by both parties and their respective
       attorneys on February 12, 2011.
The divorce decree also ordered each party to execute and have acknowledged
certain documents attached to the decree. As is relevant to this appeal, Tiffany was
ordered to complete the appropriate paperwork to assign her interest in several
companies, described more fully below, to Randy. Neither Tiffany nor Randy
signed the decree of divorce. Counsel for each of them signed the divorce decree,
approving it “as to form only.”5

       On August 1, 2011, Tiffany, represented by new counsel,6 filed a
“withdrawal of consent” to the MSA and a motion for new trial related only to
property issues.      In this motion, for the first time Tiffany asserted that the
mediation process was tainted by the use of a mediator who was not qualified.
Specifically, Tiffany complained that Wilhite had received a “great deal of
privileged information” from her former counsel and was going to act as co-
counsel. According to Tiffany, Wilhite was unable to attend a scheduled meeting

       5
         On Tiffany’s motion, the trial court signed a judgment nunc pro tunc on August 10,
2011, correcting an error in the portion of the decree concerning the parent-child relationship.
The judgment nunc pro tunc is again signed “approved as to form” by counsel for Randy and
Tiffany, but it is not signed by either of them.
       6
        The trial court did not sign the order granting Tiffany’s substitution of counsel until
August 17, 2011.

                                               9
with her and her former counsel, and Tiffany requested that no second meeting be
scheduled. Tiffany asserted that she never knowingly waived her right to the
attorney-client privilege that arose from Wilhite’s assistance as an advocate for her
in this case. Tiffany further alleged that there was legally and factually insufficient
evidence to support the property award found in the divorce decree because the
MSA was not presented to the trial court at or prior to the trial court signing the
decree. Finally, Tiffany contended that the decree does not properly reflect the
MSA based on the ordered assignment to Randy of eight companies that were not
included in the MSA.

       The trial court heard the motion for new trial on September 14, 2011.
Tiffany, Randy, and their attorneys were present. After hearing the argument of
counsel and inquiring whether counsel had “anything else” to present, the court
orally denied the motion.7 The trial court signed an order denying the motion for
new trial on September 20, 2011. This appeal timely followed.

                       DISQUALIFICATION OF MEDIATOR

       In Tiffany’s first issue, she asserts that the trial court abused its discretion by
basing its property division on an MSA procured with the use of an unqualified
mediator. In this issue, she attempts to invalidate the MSA by asserting, nearly six
months after she signed the MSA, that the mediator, Randall Wilhite, was
disqualified due to a conflict of interest. In her related second issue, she argues
that the trial court abused its discretion by refusing to permit her to present
       7
          After a recess, the parties returned to the bench. Tiffany’s counsel requested that the
court sign late-filed findings of fact and conclusions of law, although he acknowledged that he
had failed to give notice that they were past due. The trial court declined to sign the findings and
conclusion because the notice of past-due findings was not filed. Tiffany’s counsel then asked,
“Judge, can I put on a Bill of Exception in terms of [Tiffany’s] testimony about consent on the
Motion for New Trial, just to show that she was not doing an informed consent?” Opposing
counsel objected on the grounds that the trial court had already ruled on the motion for new trial
and that the hearing was not an evidentiary one. The trial court denied the request.

                                                10
evidence at the hearing on her motion for new trial in support of her allegations
that Wilhite was disqualified. We begin our analysis of these two issues with an
overview of the law concerning mediated settlement agreements under section
6.602 of the Texas Family Code.

      An MSA is immediately binding on the parties if the agreement:
(1) provides in a prominently displayed statement that is in boldfaced type, capital
letters, or underlined, that the agreement “is not subject to revocation”; (2) is
signed by the parties; and (3) is signed by the parties’ attorneys who are present at
the time of signing.     Tex. Fam. Code § 6.602(b).        If an MSA meets these
requirements, a party is entitled to judgment notwithstanding Rule 11 of the Texas
Rules of Civil Procedure or another rule of law. Id. § 6.602(c). Compliance with
section 6.602 makes the agreement an exception to Family Code sections 7.001
and 7.006, which allow revision and repudiation of settlement agreements. See id.
§§ 7.001, 7.006; In re Joyner, 196 S.W.3d 883, 889 (Tex. App.—Texarkana 2006,
pet. denied). But a court is not required to enforce an MSA if it is illegal in nature
or procured by fraud, duress, coercion, or other dishonest means. Joyner, 196
S.W.3d at 890; Boyd v. Boyd, 67 S.W.3d 398, 404–05 (Tex. App.—Fort Worth
2002, no pet.) (determining that section 6.602 MSA may be subject to rescission
due to intentional nondisclosure.); In re Kasschau, 11 S.W.3d 305, 312 (Tex.
App.—Houston [14th Dist.] 1999, orig. proceeding) (holding that a section 6.602
MSA may be set aside on the ground of illegality).

      Tiffany does not dispute that the MSA meets all the requirements of Texas
Family Code section 6.602. Further, Tiffany does not complain that the MSA is
illegal or that it was procured by fraud, duress, coercion, or some other dishonest




                                         11
means.8 Thus, it does not appear that she has presented appropriate grounds for
revocation of the MSA. Instead, as noted above, she challenges the validity of the
MSA based on a last-minute attempt to disqualify the mediator.

       Even if this complaint were a ground for revoking the MSA, an issue we do
not address, Tiffany has waived any alleged conflict of interest resulting from
Wilhite’s alleged involvement with her case and subsequent mediation of the
division of the marital estate. First, as discussed above, her counsel specifically
stated on two separate occasions that they agreed to the use of Randall Wilhite as a
mediator: in the January 27, 2011 letter and at the February 3, 2011 hearing.
Second, Tiffany was present at the February 3 and February 10 hearings, both
described above, where mediation with Wilhite was discussed. She made no
complaints or objections to the use of Wilhite as a mediator. Third, she attended
mediation on February 12 and signed the MSA.

       According to the Ethical Guidelines for Mediators, promulgated by the
Supreme Court of Texas, a mediator should disclose possible conflicts:

       Prior to commencing the mediation, the mediator should make full
       disclosure of any known relationships with the parties or their counsel
       that may affect or give the appearance of affecting the mediator’s
       neutrality. A mediator should not serve in the matter if a party makes

       8
         Tiffany asserts in her pro se reply brief that the MSA was procured by fraud, duress,
and coercion, but these issues were not presented to the trial court or in her initial brief. Thus,
we do not consider them on appeal. See Tex. R. App. P. 33.1 (requiring that, as a general
prerequisite to appellate review, an issue must first be timely presented to the trial court); Tex. R.
App. P. 38.3; Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied) (“The Texas Rules of Appellate Procedure do not allow an appellant to include in a
reply brief a new issue not raised in the appellant’s original brief.”).
        We further note that Randy filed a motion to strike the documents Tiffany attached to her
reply brief. To the extent that any documents attached to her reply brief are not included in our
record, we do not consider them. See San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806,
815 n.14 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Accordingly, we deny Randy’s
motion as moot.

                                                 12
       an objection to the mediator based upon a conflict or perceived
       conflict.
Ethical Guidelines for Mediators, Misc. Docket No. 05-9107 (June 13, 2005),
available       at      www.supreme.courts.state.tx.us/MiscDocket/05/05910700.pdf.
Nothing in our record indicates that Tiffany ever objected to Wilhite based upon a
conflict or perceived conflict at any time before the mediation occurred and she
signed the MSA.9 Further, as noted supra, Tiffany did not speak up on February
16 when her counsel acknowledged that the parties were bound by the MSA,
which appears to be the first opportunity she had to express her dissatisfaction with
Wilhite on the record after the mediation.

       Indeed, Tiffany expressed her desire to “revoke” the MSA for the first time
on June 6, 2011, nearly four months after signing it. At the hearing on this date,
she stated that she wanted to revoke the MSA because it was not a just and right
division of the marital estate and because she “never wanted a divorce in the first
place.”10 But unlike other family law settlement agreements, the trial court need
not determine if the property division is “just and right” before approving an MSA,
and once signed, an MSA cannot be revoked like other settlement agreements.
Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012).11

       Tiffany did not challenge the qualifications of Wilhite as a mediator until
she filed her motion for new trial on August 1, 2011, a month after the decree of

       9
       We note that the parties were ordered to attend mediation, not to reach a mediation
agreement.
       10
         She reiterated these reasons for “withdrawing” her consent to the MSA at the June 13,
2011 hearing.
       11
          The Milner Court went on to note that several courts of appeals have concluded that
section 6.602 does not require the enforcement of an MSA that is illegal in nature or procured by
fraud, duress, coercion, or other dishonest means, but left the applicability of those defenses for
another case because the appeal at issue did not involve any of those allegations. Milner, 361
S.W.3d at 619.

                                                13
divorce incorporating the MSA by reference was signed by the trial court and
nearly six months after the MSA was signed. For the first time, she alleged that
Wilhite was disqualified due to a conflict of interest based on her alleged attorney-
client relationship with him.12

       Attorney conflicts of interest are governed by the Texas Disciplinary Rules
of Professional Conduct. Complaints based on violations of these rules are waived
if not timely raised. E.g., Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012) (“The
court of appeals held that Buck’s unexplained seven-month delay in seeking the
attorney’s disqualification [based on an alleged conflict of interest] was sufficient
to establish waiver. We have held that a delay of even less time waives a motion to
disqualify.” (emphasis added).); Vaughan v. Walther, 875 S.W.2d 690, 690–91
(Tex. 1994) (orig. proceeding) (holding that delay of six and a half months
between time that party became aware of possible conflict of interest and seeking
to disqualify attorney resulted in waiver of that party’s right to disqualify attorney);
see also Jones v. Lurie, 32 S.W.3d 737, 744 (Tex. App.—Houston [14th Dist.]
2000, no pet.) (op. on reh’g). Tiffany waited nearly six months after Wilhite
conducted the mediation to complain that he was disqualified by an alleged
conflict of interest. Thus, she has waived any alleged conflict of interest regarding
Wilhite. Buck, 381 S.W.3d at 528. Because Tiffany waived any alleged conflict of
interest regarding Wilhite, he was not an unqualified mediator. Accordingly, the
trial court did not abuse its discretion in basing its property division on the MSA.



       12
          In her motion for new trial, Tiffany stated that her prior attorney had initiated
conversations with Wilhite in an effort to obtain Wilhite’s assistance as co-counsel and had
shared a “great deal of privileged information” with him. However, these allegations are
contrary to her counsel’s description of Wilhite’s involvement in Tiffany’s case: “We did have a
discussion with him when we were retained by our client asking him to possibly assist out with a
business evaluation. We did not go any further with the matter after one phone call discussion.”

                                              14
       For the foregoing reasons, we overrule Tiffany’s first issue. Additionally,
because Tiffany waived her right to disqualify Wilhite by failing to timely raise it,
the trial court did not abuse its discretion by refusing to allow her to present
evidence after it denied her motion for new trial in support of her disqualification
allegations.13 Accordingly, we overrule her second issue.

                               APPROVAL OF THE MSA

       In her third issue, Tiffany contends that the trial court erroneously signed the
divorce decree allegedly containing the terms of the MSA because the MSA was
not part of the trial court’s record when it signed the decree. We begin by noting
that Tiffany does not claim that the trial court did not see or approve the MSA
before incorporating it by reference into the divorce decree; instead, she claims that
the trial court could not have performed the “ministerial act” of signing the divorce
decree because the MSA was not made a part of the record before the decree was
signed.

       It is undisputed that the parties signed the MSA on February 12, 2011.
Tiffany admitted she signed the MSA in open court. When the parties appeared
before the court on February 16, Randy’s counsel announced that they had settled
all property issues. Tiffany’s counsel unequivocally stated that the MSA meets the
requirements of the Family Code and that the court can approve it as a “ministerial


       13
           As noted above, Tiffany’s counsel attempted to make a “bill of exception” after the
trial court had denied her motion for new trial. Generally, to preserve error in the exclusion of
evidence, a party must attempt during the evidentiary portion of the trial to introduce the
evidence. Ulogo v. Villanueva, 177 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2005, no
pet.) (op. on reh’g) (citing Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) and Tex. R. App. P. 33.1(a)). Further, when the trial
court denied Tiffany’s attempted bill of exception, she still could have filed a formal bill of
exception. See Tex. R. App. P. 33.2. Such a bill is appropriate to complain on appeal about a
matter that would not otherwise appear in the record and must be filed no later than thirty days
after the filing party’s notice of appeal is filed. Tex. R. App. P. 33.2.

                                               15
act.” Her counsel further acknowledged more than once that the parties were
bound by the MSA. The trial court announced on February 16 that it would “honor
and approve” the MSA as a “ministerial act” of the court. Thereafter, the parties
proceeded with a jury trial only on the issue of primary conservatorship. During
the jury trial, Tiffany acknowledged that property issues had been resolved “in
another manner.”

       After the jury trial, the parties proceeded before the bench only on matters of
support and possession of their children. Although Tiffany attempted to orally
“withdraw” her consent to the MSA, the trial court explained that she could not do
so and that it was binding on all parties immediately upon signing. Additionally,
section 6.602 entitles a party to judgment based on an MSA if it meets certain
requirements. Tex. Fam. Code § 6.602(c). As noted above, Tiffany does not
dispute that the MSA meets all the requirements of section 6.602. The trial court
does not have to determine if the property division is “just and right” before
approving an MSA, and once signed, an MSA cannot be revoked like other
settlement agreements. Milner, 361 S.W.3d at 618. Further, the record contains a
copy of the MSA attached to proposed findings of fact and conclusions of law filed
by Randy’s counsel on August 31, 2011.14 Thus, the MSA was made a part of the
record prior to the hearing on Tiffany’s motion for new trial conducted on
September 14, 2011.15


       14
          These findings and conclusions were not signed by the trial court because Tiffany’s
counsel failed to file a notice of past due findings pursuant to Texas Rule of Civil Procedure 297.
       15
          Interestingly, as described above, the MSA provides that the first drafts of the decree of
divorce and the AID—which, as noted above, Tiffany refused to sign—would be prepared by
Randy’s counsel. On the request of either party, the final divorce decree “will only refer to” the
AID, “which will not be filed among the papers in this suit.” Thus, in drafting the MSA, the
parties specifically contemplated that the AID would not be included in the papers filed with the
court.

                                                16
      Finally, the MSA explicitly states that it functions as a partition and
exchange agreement pursuant to Texas Family Code section 4.102:

      Partition and Exchange Agreement. The provisions of this
      agreement serve[] as a partition and exchange agreement of all
      property set forth herein to the person to whom such property is
      awarded. All future income of a party and/or from any property
      herein awarded to a party is partitioned to the person to whom the
      property is awarded. All future earnings from each party are
      partitioned to the person providing the services giving rise to the
      earnings. This partition and exchange agreement is pursuant to Texas
      Family Code, Section 4.102 and in this respect, each party waives
      further disclosure of property and debts of the other party. A spouse
      holding title to property herein awarded or confirmed to the other
      spouse shall hold such property as a constructive trustee until such
      time that title to or other muniment to the property can be transferred
      to the spouse to whom such property is awarded or confirmed.

See Tex. Fam. Code § 4.102 (providing that spouses may partition or exchange
between themselves at any time all or part of their community property and that
property transferred by a partition and exchange agreement becomes that spouse’s
separate property).    A partition agreement does not require judicial approval.
Hopkins v. Hopkins, No. 03-03-00629-CV, 2006 WL 112622, at *4 (Tex. App.—
Austin April 27, 2006, pet. denied). Thus, at the time they signed the MSA, the
Diggs also signed a partition and exchange agreement, which, without judicial
approval, operated as of February 12, 2011 to partition all of their community
property into separate property as reflected in Exhibit “A” attached to the MSA.
Cf. id. (finding partition and exchange agreement dividing community property
into separate property legally enforceable at time it was signed); Tex. Fam. Code
§ 6.604(d) (providing that, once a trial court approves a written informal settlement
agreement, it “may set forth the agreement in full or incorporate the agreement by
reference in the final decree”).


                                         17
         In light of the above, we fail to see how the trial court reversibly erred by
signing the divorce decree incorporating the property division reflected in the MSA
by reference when the court had already approved it, the partition and exchange
agreement within it needed no judicial approval to effectuate the division of the
parties’ marital estate, and a copy of the MSA is contained in our record. See Tex.
R. App. P. 44.1(a) (stating that no judgment may be reversed on appeal on the
ground that the trial court erred unless the court of appeals concludes that the error
probably caused the rendition of an improper judgment or probably prevented the
appellant from properly presenting her case to the court of appeals). Accordingly,
we overrule Tiffany’s third issue.

                                TERMS OF THE MSA

         In her fourth issue, Tiffany asserts that the property division in the divorce
decree does not properly reflect the terms of the MSA, and thus she is entitled to
set aside the award of property not found in the MSA. She contends that Randy is
precluded from returning to Wilhite for binding arbitration pursuant to section 6 of
the MSA in her fifth issue. We consider these related issues concerning the
interpretation of the MSA together.

         We interpret the MSA under rules of contract interpretation. See Milner,
361 S.W.3d at 619. If the agreement’s language can be given a certain and definite
meaning, the agreement is not ambiguous, and its construction is a matter for the
court.     Id.   If the agreement is susceptible to more than one reasonable
interpretation, then the agreement is ambiguous, which creates a fact issue on the
parties’ intent. Id. We may not consider extrinsic evidence for the purpose of
creating an ambiguity or giving the MSA a meaning different from that which its
language imports. See Toler v. Sanders, 371 S.W.3d 477, 480–81 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).

                                           18
       This dispute centers around item 23 listed on Exhibit A attached to the
MSA, described as “MoBetter Meat Company, Inc. and Affiliated Companies.”
This item was awarded to Randy; the estimated value of this item states, “See
attached Spreadsheet.” As noted supra, Exhibit A is Randy’s Proposed Division,
with some interlineations and handwritten additions.16                    However, Randy’s
Proposed Division included a spreadsheet entitled “MoBetter Meat Company, Inc.
and Affiliated Companies Net Assets.” Randy acknowledges in his appellate brief
that the MSA executed by the parties and their counsel on February 12, 2011 did
not include a copy of this additional spreadsheet.

       In addition to MoBetter Meat Company, eight other companies are listed on
this spreadsheet (collectively, the “MoBetter Meat Companies”). The eight other
companies include:         RD Rentals Ltd.; Allegiance Holdings, Ltd.; Allegiance
Management, Inc.; Absolute Executive Services, Inc.; Purpose Driven Investments,
LP; Randy’s Fine Foods Inc.; Randy’s Fine Homes LLC; and Great Pacific
Investments, LLC. Randy lists the net assets of the MoBetter Meat Companies as
$3,757,636.00. Tiffany included the MoBetter Meat Companies on her inventory
and proposed division of property. She identified these companies under the term,
“Business Interests.” Her inventory and proposed division indicated that Randy
proposed that he be awarded these companies, but she did not propose a division of
these companies. She provided Randy’s valuation of these companies, but listed
her valuation as “TBD.”

       Tiffany asserts that the “affiliated companies” included on the spreadsheet
attached to Randy’s Proposed Division were not divided by the MSA. She argues

       16
          As is relative to this particular item, on Randy’s Proposed Division, this item is
designated as Randy’s Separate Estate, while on Exhibit A to the MSA, this designation has been
struck out and next to the line describing this item, an “X” is placed in the column indicating it
has been awarded to Randy.

                                               19
that the trial court, by ordering her to execute an assignment of interest detailing
the identity of the eight companies not specifically identified in the MSA,
impermissibly modified the MSA. The Family Code does not authorize a court to
modify an MSA, to resolve ambiguities or otherwise, before incorporating it into a
decree. See Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied) (observing that trial court’s modifications to settlement
agreements are typically grounds for reversal where modifications “add terms,
significantly alter the original terms, or undermine the intent of the parties”).

       Randy, on the other hand, points out that the MSA explicitly states, “Each
party represents and warrants to the other party that he/she has made a full
disclosure of all property and obligations of the parties (both community and
separate) and that this settlement agreement divides, confirms and/or allocates all
such items.”17 He argues that the “affiliated companies” were detailed and

       17
          Randy also asserts that because Tiffany’s counsel approved the final divorce decree as
to form, Tiffany is bound by the judgment. But signing a judgment with the notation “approved
as to form only,” as Tiffany’s counsel did here, manifests a party’s intent to initiate the appellate
process without being bound by the terms of the judgment. See Soon Phat, L.P. v. Alvarado, 396
S.W.3d 78, 95–96 (Tex. App.—Houston [14th Dist.] 2013, pet. filed) (citing First Nat’l Bank of
Beevile v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam)). Thus, we do not consider
Tiffany bound by the decree because she did not sign it herself, and her counsel only approved it
as to form. See id.
        Randy further contends that Tiffany approved the MSA, her counsel approved the AID,
the record reflects that Tiffany was aware of Randy’s claim that the eight companies she was
ordered to assign to Randy were “affiliated companies,” Randy stated on the record that he
owned at least seven business entities other than MoBetter Meats and Randy’s Fine Foods, and
Tiffany had “a duty to speak” if she was uncertain of the meaning of “Affiliated Companies.”
Most of these arguments would require us to refer to extrinsic evidence, which we may not do
when considering the meaning of an MSA. See Toler, 371 S.W.3d at 480–81. Moreover,
Tiffany, when faced with the divorce decree for the first time, refused to sign it. Additionally,
she filed a motion for new trial raising her complaint regarding the inclusion of these eight
companies in the division of property in the divorce decree. Although Tiffany approved the
MSA, she did not sign the divorce decree, and she raised this specific complaint in her motion
for new trial. Thus, she sufficiently preserved this complaint for our review. See Tex. R. App.
P. 33.1(a)(1)(A); see also Brantley v. Brantley, No. 14-11-00583-CV, 2012 WL 727700, at *3
(Tex. App.—Houston [14th Dist.] March 6, 2012, no pet.) (“To preserve a complaint of error in a
                                                 20
disclosed by each party within their respective sworn inventories and
appraisements. Randy asserts that the final judgment does not add or significantly
alter the terms of the MSA or undermine the intent of the parties. See Beyers, 199
S.W.3d at 362. Thus, according to Randy, the trial court did not impermissibly
modify the MSA by ordering Tiffany to assign her interest in the MoBetter Meat
Companies to Randy; rather, it simply effectuated the intent of the parties as
expressed in the MSA.

       Under line item 23 on Exhibit A to the MSA, Randy is awarded “MoBetter
Meat Company, Inc. and Affiliated Companies.” No other companies are listed
anywhere else in the division of property in the MSA. The MSA apparently
contemplates that Randy was to be awarded more than just MoBetter Meat
Company. But without reference to extrinsic evidence, such as the reporter’s
record, items in the clerk’s record including the parties’ inventories and
appraisements, or Tiffany’s affidavit, we cannot determine what other companies
the parties intended to convey to Randy in the property division contained in the
MSA.18 We conclude that because the MSA purports to convey more than just
MoBetter Meat Company to Randy, but does not establish what other companies
are to be conveyed to him, its meaning is ambiguous and the parties’ intent is
therefore a question of fact. See Milner, 361 S.W.3d at 622.

       Because there was a fact question regarding the parties’ intent, the trial court
should not have determined which companies, other than MoBetter Meat
Company, were to be awarded to Randy in the final decree of divorce.


judgment, a party must apprise the trial court of its objection by a motion to amend or correct the
judgment, a motion for new trial, or some other similar method.” (internal quotations and citation
omitted)).
       18
         As noted above, both parties identified eight other business entities in their inventories
and proposed property divisions.

                                                21
Accordingly, we sustain Tiffany’s fifth issue. We reverse only that portion of the
divorce decree concerning the division of the marital estate and remand for
proceedings consistent with this opinion.

       However, pursuant to section 6 of the MSA, the parties are required to return
to the mediator for binding arbitration in the event of a dispute regarding the
drafting of the MSA, issues regarding interpretation of the MSA, and issues
regarding the intent of the parties as reflected in the MSA. We have determined
that there is a fact question regarding the intent of the parties as reflected in the
MSA regarding what companies, in addition to MoBetter Meat Company, if
any,19were awarded to Randy. The parties should be ordered to return to mediator
Randall Wilhite for binding arbitration to resolve this issue Thus, we overrule
Tiffany’s fifth issue, in which she asserts that Randy is precluded from insisting
that they return to Wilhite for arbitration.




       19
          If the mediator determines that the parties did not intend to award all or any of the eight
companies, other than MoBetter Meat Company, to Randy in the MSA, section 12 of the MSA
provides for the following post-decree proceedings regarding division of property:
       b. Both parties reserve all rights to divide property not divided or awarded to a
       party in the Final Decree of Divorce and Agreement Incident to Divorce.
       c. A party seeking to divide property not divided or awarded to a party shall give
       written notice to the other party of their intention to mediate issues regarding a
       post-decree division of property. If, within ten days after receipt of the written
       notice, the parties cannot agree on a mediator or the other party does not agree to
       mediation or fails to attend a scheduled mediation of the controversy, the party
       seeking a post-decree division of property shall be released from the obligation to
       mediate and shall be free to file suit.
       d. Exclusive venue for any post-decree proceeding shall be in the county where
       the Final Decree of Divorce was rendered.

                                                 22
      In summary, we have overruled Tiffany’s first, second, third, and fifth
issues. However, we have sustained her fourth issue. Accordingly, we reverse and
remand only that portion of the divorce decree concerning the division of the
parties’ marital estate for proceedings consistent with this opinion. We affirm the
remainder of the divorce decree.




                                      /s/    Tracy Christopher
                                             Justice



Panel consists of Justices Brown, Christopher, and McCally.




                                        23
