                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-19-00417-CV

                               IN THE INTEREST OF C.N.H., a Child

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017EM500829
                            Honorable Antonia Arteaga, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Beth Watkins, Justice

Delivered and Filed: February 5, 2020

REVERSED AND REMANDED

           Appellant Travis Robben appeals the trial court’s order in a suit affecting the parent-child

relationship. Because we conclude the trial court erred by deviating from the terms of a binding

mediated settlement agreement, we reverse the trial court’s order and remand this cause to the trial

court for proceedings consistent with this opinion.

                                              Background

           Travis and appellee Celia Hernandez Diaz are the parents of one child born in 2016. On

the petition of the Office of the Attorney General, the trial court entered an order establishing the

parent-child relationship on June 20, 2017. The trial court appointed Celia sole managing

conservator with the exclusive right to designate the child’s residence and appointed Travis

possessory conservator.
                                                                                        04-19-00417-CV


       In 2018, Travis filed a petition to modify the parent-child relationship, alleging materially

and substantially changed circumstances and requesting the parties be named joint managing

conservators. The trial court referred the parties to mediation. At mediation, the parties entered

into a mediated settlement agreement (“the MSA”), in which they agreed to joint managing

conservatorship and a geographic restriction on the child’s residence, among other things. The

MSA further provides: “Possession, access, visitation, and the parent with the exclusive right to

designate the residence of the child will be decided by the court, unless there is a future agreement

by the parties.”

       The trial court held a hearing on Travis’s petition to modify on August 10, 2018. During

the hearing, Celia alleged there had been two incidents of domestic violence during her relationship

with Travis. Travis disputed Celia’s testimony and testified he was neither arrested nor charged

with an offense in relation to either incident. At the conclusion of the hearing, the trial court stated

on the record: “You’re [Travis] on felony probation for drugs, and there are issues of domestic

violence. Respectfully, due to that, mother is granted sole managing conservatorship with the

exclusive right to determine residence without geographic restriction. Father will revert back to

possessory.” Travis’s counsel referred the trial court to the MSA, and the trial court responded:

“Respectfully, the Court finds there has been domestic violence, and according to the code, you

can’t have the JMC, it must be an SMC.” On April 29, 2019, the trial court signed an order

appointing Celia sole managing conservator with the exclusive right to determine the child’s

residence with no geographic restriction. Travis appeals.

                                        Standard of Review

       We review the trial court’s decision to modify an order regarding conservatorship for abuse

of discretion. In re M.G.N., 491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied).




                                                  -2-
                                                                                          04-19-00417-CV


The trial court abuses its discretion by acting arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Id.

                                                Discussion

            In three issues, Travis argues the trial court: (1) abused its discretion by disregarding the

MSA, (2) abused its discretion in finding family violence, and (3) denied Travis due process by

finding family violence without notice. 1 We first address Travis’s argument that the trial court

abused its discretion by declining to enter judgment on the MSA.

A.          Applicable law

            Family Code section 153.0071 permits a trial court to refer a suit affecting the parent-child

relationship to mediation. TEX. FAM. CODE ANN. § 153.0071(c). A mediated 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; (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” is binding on the parties. Id. § 153.0071(d).

            A party is entitled to judgment on a properly executed mediated settlement agreement

“notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.” Id.

§ 153.0071(e). This provision “reflects the Legislature’s determination that it is appropriate for

parents to determine what is best for their children within the context of the parents’ collaborative

effort to reach and properly execute an MSA.” In re Lee, 411 S.W.3d 445, 454 (Tex. 2013). “This

makes sense not only because parents are in a position to know what is best for their children, but

also because successful mediation of child-custody disputes, conducted within statutory




1
    Celia did not file an appellate brief.


                                                    -3-
                                                                                       04-19-00417-CV


parameters, furthers a child’s best interest by putting a halt to potentially lengthy and destructive

custody litigation.” Id.

       Subsection (e-1), however, creates a “very narrow exception” in which the trial court may

decline to enter a properly executed mediated settlement agreement. Id. at 450. That subsection

provides: “Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a

mediated settlement agreement if the court finds: (1) that: . . . a party to the agreement was a victim

of family violence, and that circumstance impaired the party’s ability to make decisions; . . . and

(2) that the agreement is not in the child’s best interest.” TEX. FAM. CODE ANN. § 153.0071(e-1).

        The supreme court has recognized the potential for the terms of a mediated settlement

agreement to conflict with other provisions of the Family Code. For instance, Family Code section

153.002 provides: “The best interest of the child shall always be the primary consideration of the

court in determining the issues of conservatorship and possession of and access to the child.” Id. §

153.002. In Lee, the supreme court addressed this conflict, holding a trial court may not deny a

motion to enter judgment on a properly executed mediated settlement agreement based solely on

the trial court’s best interest finding. 411 S.W.3d at 450. Applying statutory rules of construction,

the court reasoned section 153.0071 controls over section 153.002 because: (1) the

“notwithstanding . . . another rule of law” language in section 153.0071(e) reflects the

Legislature’s intent that section 153.0071 control over conflicting provisions of the Family Code;

(2) “the specific statutory language of section 153.0071(e) trumps section 153.002’s more general

mandate”; and (3) section 153.0071 was enacted “long after” section 153.002 “and therefore

prevails as ‘the statute latest in date of enactment.’” Id. at 454–55 (citing and quoting TEX. GOV’T.

CODE ANN. §§ 311.025(a), 311.026(b)).




                                                 -4-
                                                                                        04-19-00417-CV


B.      Analysis

        In this case, the MSA satisfies section 153.0071(d)’s requirements because it: (1) states in

boldfaced, underlined text: “The parties agree that this agreement is binding and not subject to

revocation and is enforceable by a court of competent jurisdiction”; (2) is signed by Travis and

Celia; and (3) is signed by the parties’ attorneys and a mediator. See TEX. FAM. CODE ANN.

§ 153.0071(d). Therefore, the trial court had no discretion to refuse to enter judgment on the MSA

unless it found “a party to the agreement was a victim of family violence, and that circumstance

impaired the party’s ability to make decisions” and “the agreement is not in the child’s best

interest.” See id. § 153.0071(e)–(e-1).

        In the April 29, 2019 modification order, the trial court found: “Travis Robben has a history

or pattern of committing family violence during the two-year period preceding the filing of this

suit or during the pendency of this suit.” The trial court did not, however, find a party to the MSA

was a victim of family violence and that circumstance impaired the party’s ability to make

decisions. Indeed, there was no evidence introduced at the August 10, 2018 hearing that either

party’s ability to make decisions was impaired by family violence. And, while the modification

order states “the following orders are in the best interest of the child,” the trial court did not

specifically find the MSA is not in the child’s best interest.

        Instead of section 153.0071, it appears the trial court based its decision on Family Code

section 153.004, which provides in relevant part: “The court may not appoint joint managing

conservators if credible evidence is presented of a history or pattern of past or present child neglect,

or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child[.]”

Id. § 153.004(b). While section 153.004(b) generally applies in suits affecting the parent-child

relationship, we conclude section 153.0071 controls here. As the supreme court noted in Lee,

section 153.0071 specifically entitles a party to judgment on a mediated settlement agreement


                                                  -5-
                                                                                        04-19-00417-CV


notwithstanding any other provision of law, indicating the Legislature’s intent that section

153.0071 control in the event of conflict. 411 S.W.3d at 454. In addition, because the narrow

exception contained in section 153.0071(e-1) was enacted after section 153.004, section 153.0071

prevails. See TEX. GOV’T. CODE ANN. § 311.025(a) (“[I]f statutes enacted at the same or different

sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.”).

        Therefore, even to the extent section 153.004 otherwise would compel a different result in

this case, we conclude the trial court was required by section 153.0071 to enter judgment on the

MSA absent finding “a party to the agreement was a victim of family violence, and that

circumstance impaired the party’s ability to make decisions” and “the agreement is not in the

child’s best interest.” See TEX. FAM. CODE ANN. § 153.0071(e-1). Because the trial court did not

make the requisite findings, which would have been unsupported by the record, the trial court

abused its discretion in declining to enter judgment on the MSA. Accordingly, we sustain Travis’s

first issue. Because Travis’s first issue is case-dispositive, we do not address his remaining issues.

See TEX. R. APP. P. 47.1.

                                             Conclusion

        Having sustained Travis’s first issue, we reverse the trial court’s April 29, 2019 order and

remand to the trial court for proceedings consistent with this opinion.

                                                    Sandee Bryan Marion, Chief Justice




                                                  -6-
