
In The

Court of Appeals


Ninth District of Texas at Beaumont

____________________


NO. 09-05-002 CV

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IN THE INTEREST OF T.M.G.R.




On Appeal from the 356th District Court
Hardin County, Texas

Trial Cause No. 37,010




OPINION
 In this appeal from the modification of an order affecting the parent-child
relationship, John William Rynski complains the trial court's order deviates from the
parties' mediated settlement agreement.  The appellee, Teresa Gorgano Stokely, contends
that Rynski failed to raise his objections to the trial court and argues the order's merger
clause incorporated the mediated settlement agreement into the order.  We find Rynski did
present most of his objections to the trial court, but we hold that the appellate record does
not support the arguments he makes on appeal.  We affirm the judgment of the trial court.

	Rynski, who is representing himself in this appeal, presents one issue, as follows:
	Several key clauses have been removed, outside the scope of the mediated
agreement, from the Order of Parentage filed.  The Order also contains
several key clauses which are contrary to the mediated agreement read into
the court record under sworn testimony one year prior to the filing.  Several
clauses are also believed to be unenforceable and one clause has been
specifically disallowed by the Office of the Attorney General of the State of
Texas.

	Public policy encourages the peaceful resolution of disputes, especially those
involving the parent-child relationship, through voluntary settlement procedures.  See
generally Tex. Civ. Prac. & Rem. Code Ann. § 152.002 (Vernon 1997) (authorizing
establishment of alternative dispute resolution systems).  An agreement made in open court
and entered of record is enforceable.  Tex. R. Civ. P. 11.  A Rule 11 agreement may be
enforced as a binding contract notwithstanding the withdrawal of consent by one of the
parties to the agreement prior to judgment.  Padilla v. LaFrance, 907 S.W.2d 454, 461-62
(Tex. 1995).  Rynski does not contest the trial court's power to enter a judgment in
accordance with the Rule 11 agreement, but he argues the order does not comport with the
settlement agreement.  The ten errors identified by Rynski fall into two general categories:
(1) clauses contained in the original order that were removed from the modified order
without his consent, and (2) clauses in the modification order that differ from the mediated
agreement upon which the trial court rendered judgment.  We address each general
category of alleged error separately. 
	Rynski and Stokely had each alleged the other committed numerous violations of
the original order affecting the parent-child relationship.  Part of the settlement agreement
involved forgiving all past violations and represented an attempt to simplify the parties'
respective rights and obligations.  In memorializing their agreement in open court, the
parties described their agreement to modify the prior order as follows: (1) 
		[Counsel for Rynski]: It is our understanding that there will continue
to be a joint managing conservatorship with Mrs. Stokely being the primary,
with all of the joint managing conservatorship rights that are outlined in the
Texas Family Code, specifically each parent will have the independent right
to take the child to a counselor or a psychologist without the permission or
consent required by the other parent.
		Is that your agreement, Mr. Rynski?

		MR. RYNSKI: Yes.

		MRS. STOKELY: Yes.

		[Counsel for Stokely]: Specifically that includes Dr. Duncan.  We
don't want any more letters to the doctor that he can't see the child.
		Is that agreed?

		MR. RYNSKI: It's part of the Order.

		MS. WALTON: Is it your understanding, Mr. Rynski, that unless we
have modified provisions in this agreement from your original Order of
Parentage, all additional orders -- provisions will carry over?

		MR. RYNSKI: Yes.

		[Counsel for Rynski]: We are addressing that because you-all
currently have a provision in your Order of Parentage that says something
to the effect that if a Court finds that each one of you or either of you
violates the Order on at least three different occasions you-all could be held
responsible for that party's attorney fees and a bond could be required.

		MR. RYNSKI: Yes  

		[Counsel for Stokely]: Yes, that's certainly the agreement.  That's
what we addressed when you said all of the provisions are going to carry
over.  It's understood that because of the e-mail and the recorder, all of that
stuff is being wiped out by this agreement, that you give standard notice for
the flights, a written notice.  We don't have to go into all that, do we?

		[Counsel for Rynski]: No.

		[Counsel for Stokely]: That's being replaced by this modification?

		[Counsel for Rynski]: Yes.

		[Counsel for Stokely]: Do you understand that, Mrs. Stokely?

		MRS. STOKELY: Yes.

		[Counsel for Stokely]: Do you understand what she said about that? 
Basically what we're doing is we're changing the "subject to" business and
we're saying you have the right to make the standard -- what's standard in
the Family Code, you have a right to make those decisions; and he's going
to have a similar right.  You have certain exclusive rights, and one of those
is to determine the residence of the child.  Is that not correct?

		[Counsel for Rynski]: Yes.
 
	At the request of Rynski's attorney, the trial court pronounced rendition of judgment
on the settlement agreement at the conclusion of the hearing.  Over a year elapsed before
the trial court conducted a hearing on motion to enter judgment and signed the written
order.  Counsel explained to the trial court that Rynski's attorney had prepared a draft
order acceptable to Stokely, but that Rynski had insisted on inserting additional
obligations. 
	On appeal, Rynski maintains the order entered by the trial court deviates from the
agreement of the parties.  Rynski identifies five provisions from the original order
establishing paternity that were omitted from the modification order.  First, the appellant
argues the trial court improperly deleted a requirement that the appellee provide a list of
the child's health care providers.  Second, the appellant complains the trial court deleted
a requirement that Stokely obtain a second opinion in the event she desires to schedule
invasive medical treatment to which Rynski does not agree, and that she obtain a tie-breaker opinion if the second opinion conflicts with the initial opinion.  Third, Rynski
objects to the removal of a provision mandating a professional educational assessment in
the event the parties disagree about which school the child should attend.  Fourth, the
appellant objects to the removal of a mutual requirement to notify the other parent within
fourteen days of a firearm being brought into the home.   Fifth, he complains the trial
court removed the requirement that a competent adult remain visible in the doorway when
the child is returned from a period of possession.  The issue on appeal is whether the
parties' agreement to continue as joint managing conservators, with Stokely as the primary
managing conservator and the parties having the standard rights under the Family Code,
constituted an agreement to modify specific provisions affecting those rights.  Rynski relies
upon his counsel's statement that, unless modified by their agreement, the provisions of
the prior order would continue.  The parties did not, he contends, agree to alter specific
rights and obligations expressed in the original Order of Parentage. 
	When these alleged discrepancies were brought to the attention of the trial court
during the hearing on the motion to enter judgment, counsel for the appellee explained that
the health care provider clause was not expressed as a continuing obligation in the original
order, but was to be performed by February 15, 2001.  As to that and the other four
provisions, the appellee argued the parties' agreement was to revert to a standard
agreement except where they specifically agreed to the contrary.  Rynski's attorney
addressed the trial court as follows: 
		[Counsel for Rynski]: I would like for the court to understand that it's
very simple for us lawyers to say joint managing conservatorship with all the
standard rights.  But then when we come back and say, however, because
that first order had so many unusual and case specific inserts and additional
language, we are going to keep that.  Unless we have specifically addressed
it and changed it, we are going to keep everything else because it would have
taken us two days to go through that prior order and pick and choose what
we were changing and what we didn't.  And we did not do that.  We said
joint managing with standard language, and we are going to keep everything
else that was previously entered.  


		So, the majority of the objections that [Stokely's counsel] has are
where I specifically went back and added the language that was case specific
from the first one.  So, I think mine accurately represents what our full
agreement was, Your Honor.
 
	Although the order being appealed is included in the clerk's record, the original
order affecting the parent-child relationship is not contained in the appellate record. (2)  That
order is not one of the documents included in the clerk's record absent a request in the
designation of record.  Tex. R. App. P. 34.5(a),(b).  Thus, we have nothing against which
to compare the order entered on the petitions for modification.  There is also no written
mediated agreement in the appellate record.  Counsel for Rynski and for Stokely both
referred to a written agreement during the hearing on motion to enter judgment, but we
cannot determine whether a written agreement was filed with the trial court as required for
enforcement under Rule 11. (3)   When the appellant bears the responsibility to designate the
inclusion of particular relevant documents in the appellate record, and fails to do so, "[w]e
must presume the missing documents would sustain the trial court's ruling."  Till v.
Thomas, 10 S.W.3d 730, 734 (Tex. App.--Houston [1st Dist.] 1999, no pet.).  There is
no indication in the record that a written agreement was filed with the trial court, and we
will presume the parties rely solely upon their in-court statements for their Rule 11
agreement.   We address the merits of Rynski's argument to the extent we are able.    
	Rynski cites no authority in support of his argument, but he essentially argues that
the trial court abused its discretion by deviating from the terms of the agreement in the
judgment.  In Garcia-Udall v. Udall, temporary orders gave one parent the exclusive right
to consent to "invasive medical, dental, or surgical treatment."  Garcia-Udall v. Udall,
141 S.W.3d 323, 327 (Tex. App.--Dallas 2004, no pet.).  The parties subsequently
executed a Section 153.0071 mediated settlement agreement that incorporated the
temporary orders into the divorce decree, and also provided that one parent would have
the final decision "in the event the parties cannot agree on medical, dental or surgical
treatment involving invasive procedures."  Id. at 327-28.  The appellant argued the
agreement changed the decision making on invasive treatment from appellee's exclusive
right to a joint right.  Id. at 328.  Recognizing that an unambiguous contract must be
interpreted as a matter of law, and ambiguity does not arise merely because the parties
advance differing interpretations, the court of appeals held the adjectives "medical, dental
or surgical" modified the same noun, "treatment" and the participial phrase "involving
invasive procedures" modified the noun "treatment" and was not limited to surgical
treatment.  Id.  The court of appeals reversed the trial court and modified the judgment to
make the decree conform to the mediated agreement.  Id. at 329.  "The fact that the trial
court interpreted the mediated settlement differently is irrelevant because the trial court has
no discretion to misapply the law."  Id.
	Similarly, in Casper v. Preston, No. 01-01-00322-CV, 2003 WL 1563985, *2 (Tex.
App.--Houston 2003, no pet.)(memo. opin.), the mediated agreement entered pursuant to
Family Code § 153.0071 provided for a "Standard Possession Order" and stated that the
father could possess the children for an extended summer vacation of "at least 21 days."
After the trial court entered a decree that provided only 21 days of extended summer
possession, the appellate court reformed the order to provide for weekend visitation
throughout the year and added 30 days of summer vacation possession, 21 of which could
be exercised as extended summer possession.  Id. at *4.  
	In this case, however, Rynski has not established a deviation from the mediated
agreement.  The parties agreed to carry forward from the original order to the new order
any terms not addressed in the Rule 11 agreement.  The rights of the parents were
addressed in the mediated settlement when they agreed to joint managing conservatorship
with the standard rights contained in the Family Code.  See Tex. Fam. Code Ann. §§
153.071-.076 (Vernon 2002 & Supp. 2005).  Although we cannot discern whether the
order modified the prior order in the manner asserted by the appellant, we conclude that
the trial court's order comports with the Rule 11 agreement as to the provisions at issue.
	Rynski identifies five additional provisions he contends differ from the mediated
agreement.  The record contradicts his claims.  First, Rynski complains the trial court
altered the beginning time of possession from the time school is dismissed for Spring Break
to 6:00 p.m.  At the settlement hearing, the parties addressed the fact that the child would
be flying to New York for visitation with Rynski, and they agreed that flights would be
scheduled no earlier than two hours after school is released.  Second, Rynski complains
that the word "accompany" has been replaced with the phrase "always be with" regarding
his international travel with the child.  In the settlement hearing, Rynski's lawyer stated,
"Mr. Rynski will also always be with [T.M.G.R.], physically present with [T.M.G.R.],
when they travel outside of the country. . . ."  Third, the appellant complains that the
provision regarding removing his name from the child abduction list is unenforceable as
written and must require Stokely to immediately act to remove his name from any and all
government lists to which she has added his name.  At the settlement hearing, Rynski
agreed he would "take responsibility of finding out what that requirement is, providing us
with any necessary documentation . . ." and that Stokely would "cooperate" with him.
Fourth, Rynski complains that a provision regarding removing derogatory letters from the
child's school file is unenforceable and that Stokely should be ordered to act immediately
to remove the letters.  The order is consistent with the agreement expressed by the parties,
that "[t]he burden is on him" and that the appellee would "sign and give permission for
that to be removed" but would not "file any lawsuits or anything to get that done."  Fifth,
Rynski objects on appeal to a provision that if Rynski paid for the child's transportation
costs on behalf of Stokely (who was ordered to pay the cost of every other out-of-town
visitation by the child), the actual amount would be credited toward his child support.  He
argues the provision is unenforceable and that the order must be changed to order Stokely
to immediately reimburse Rynski the amount of her obligation toward the child's travel
costs.  The order entered by the trial court is consistent with the Rule 11 agreement that
"If [the appellee] does not advance that [flight] cost up to $310 and Mr. Rynski has to pay
that fee, then the amount he had to pay on her behalf will get credited towards his child
support obligation."  Because these provisions are consistent with the agreement the parties
expressed in open court, the trial court did not abuse its discretion by including them in
the order.
	Furthermore, Rynski did not timely present to the trial court his complaints that
three of the provisions are unenforceable.  See Tex. R. App. P. 33.1.  In addition, his
briefs to the Court refer to events and documents for which there is no evidentiary support
in the record.  Documents not properly presented to the trial court cannot be incorporated
into the appellate record through inclusion in the appendix to the brief.  Cherqui v.
Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n. 2 (Tex. App.--Houston [14th
Dist.] 2003, no pet.).  
	The appellant fails to establish that the order entered by the trial court includes
provisions contrary to the agreement dictated in open court.  The judgment is affirmed.
	AFFIRMED.


							_______________________________ 
								STEVE MCKEITHEN
								       Chief Justice


Submitted on May 10, 2005
Opinion Delivered May 26, 2005

Before McKeithen, C.J., Gaultney and Kreger, JJ.
1.  Emphasis is provided by the Court.  
2.  An unsigned copy of an "Order of Parentage" was attached as an exhibit to
Rynski's original motion for enforcement.  This order is not attached to Rynski's amended
motion, and the clerk's record does not include the order actually signed by the judge. 
The order was not introduced into evidence at trial. 
3.  A written mediated settlement agreement in a suit affecting the parent-child
relationship is enforceable notwithstanding Rule 11.  See Tex. Fam. Code Ann. §
153.0071(d),(e) (Vernon 2002).  The parties have relied solely upon Rule 11 in the course
of these proceedings, and we limit our review accordingly. 
