                       In The
                 Court of Appeals
   Sixth Appellate District of Texas at Texarkana
           ______________________________

                 No. 06-10-00085-CV
           ______________________________


         IN THE MATTER OF THE MARRIAGE OF
        DAPHNE ALLEN AND JAMES ALLEN AND
IN THE INTEREST OF J.T.A. AND K.R.A., MINOR CHILDREN




         On Appeal from the County Court at Law
                   Rusk County, Texas
            Trial Court No. 2008-09-405-CCL




        Before Morriss, C.J., Carter and Moseley, JJ.
                Opinion by Justice Carter
                                          OPINION

       This appeal arises from the trial court’s property division in the divorce proceeding

between Daphne Allen and James Allen. James contends that a mediator attempted to act as an

arbitrator without an agreement for binding arbitration and, consequently, the trial court erred in

dividing the marital property as found by the mediator. We disagree with James’ contention that

arbitration occurred. Rather, pursuant to a binding mediation settlement agreement, the mediator

was called upon to resolve a factual dispute concerning the scope of the mediation. We affirm the

trial court’s judgment.

I.     Factual and Procedural Background

       On April 24, 2009, the Allens entered into a mediation settlement agreement (MSA)

resulting in settlement regarding the division of property. With regard to the marital residence,

the agreement stated:

       The marital residence real property and all improvements located thereon shall be
       partitioned pursuant to the map attached hereto as Exhibit “B” and incorporated by
       reference for all purposes. Wife shall receive the property marked in RED and
       Husband shall receive the property marked in YELLOW. Wife shall grant
       Husband a perpetual easement of ingress and egress as set forth on Exhibit “B” and
       marked in BLUE/GREEN.

A map of the property with such markings purporting to divide the property by agreement was

attached to the MSA as Exhibit B. For clarity, we summarize Exhibit B in visual form below.




                                                2
                                         Prop to H




                                                              Fence Line Just Beyond 2nd
    Disputed Property                                         Pond And Includes Hay Field
    (not color coded)                                         But Not Alfalfa Field

                                            Prop
                                            to W
                                                               Access Easement

                                                     ROAD


        In boldface type, the MSA, signed by both parties and their counsel, recited that it was

“binding on the parties,” “and not subject to revocation, repudiation or withdrawal of consent.” It

further stated,

        [e]ach party stipulates and agrees that he and she have been cautioned to read this
        entire document word-for-word and to ask questions he or she may have about this
        Agreement to his or her respective attorneys . . . each party stipulates and represents
        to the other and to their attorneys that: (a) each is signing this Agreement only
        after having read this entire document carefully, word-for-word; (b) each has been
        afforded an opportunity to ask any questions he or she may have about this
        Agreement of his or her lawyer outside the presence of the mediator and the other
        party, and each is completely satisfied with the legal representation he and she have
        received today.


                                                   3
4
The MSA provided “that the mediator, Karen D. Bishop, would be the “sole arbiter of any

disagreement with regard to the drafting and intent of the final documents to effectuate this

Agreement.” The trial court was presented with the MSA at a hearing in which Daphne suggested

that the agreement covered division of all property.

        After the execution of the MSA, a dispute arose regarding the fifty-nine-acre tract of land

included within Exhibit “B” of the MSA, but not specifically designated as the property of either

party on the Exhibit. The dispute was decided by Bishop,1 who made the following finding:

        It is my belief that the parties intended to divide ALL of the realty of the community
        estate. It is also my belief that the parties understood that the boundary lines as
        represented on Exhibit “B” were, in fact, the correct boundary lines of the realty in
        question. In other words, Daphne Allen was to receive the property to the south
        and James Allen the property to the North. Therefore, I am extending the north
        boundary line of Daphne Allen’s tract to the far west. I am ruling that Daphne
        Allen is awarded that portion of the undivided tract of land west of the current west
        boundary line and south of the current north boundary lines of Daphne Allen’s
        property as set forth on Exhibit “B.” James Allen is awarded that portion of the
        undivided tract that is located west of the current west boundary line and north of
        the current south boundary line of James Allen’s property as set forth on Exhibit
        “B.” . . . . I am basing my rulings on the discussions that took place at mediation on
        April 24, 2009, and the representations of the parties on that date.




1
 The record does not indicate whether the parties were ordered to return to Bishop, or whether they returned by
agreement.

                                                      5
A visual representation of her ruling is depicted below:




                                           Prop to H




                                              Prop
                                              to W
                                                                  Access Easement

                                                       ROAD


        After Bishop’s finding, James filed a motion to vacate the “arbitration award,”2 arguing

that it was obtained by corruption, fraud, or other undue means, and that there was no agreement to

arbitrate. The trial court set the matter for hearing.

        At the hearing regarding the dispute, James contended that he signed the MSA because his

attorney represented to him that he would be awarded all fifty-nine acres of the disputed property.

James explained that he attended the mediation over the telephone, received Exhibit B via

2
 For reasons discussed below, we disagree with James’ characterization of Bishop’s fact-finding as a binding
arbitration award.

                                                     6
facsimile, and was not able to see the color coding dividing the property. James testified that he

expressed concerns regarding the property division to his attorney during the mediation and had

faxed Exhibit B back to his attorney with markings indicating his intent to claim the entire

fifty-nine acres. James’ drawing, marked Exhibit C,3 was not attached to the MSA, and James

acknowledged that he signed the MSA knowing Exhibit B, not Exhibit C, was attached. James

also initialed Exhibit B.

        Daphne testified that the mediation was intended to divide all of the marital property, that

the fifty-nine acres had been discussed, that she was consistent in her assertions seeking the front

half of the fifty-nine acres, and that she understood the mediation awarded her the front half of the

fifty-nine acres. Her understanding of what constituted the “front half” was based on the location

of a fence line indicated on Exhibit B. The map contains a notation “Fence Line Just Beyond 2nd

Pond And Includes Hay Field But Not Alfalfa Field.” Because the front half of the disputed

property is a hay field, and because the fence line continued across the entire length of the

undivided acreage, Daphne believed it had been awarded to her during the mediation. Her belief

that the disputed property had been divided also rested on the fact that the access easement was

actually a roadbed located in the middle of the fifty-nine-acre tract. However, although she

claims she did not realize it, Daphne admitted that Exhibit B failed to outline any division of the

fifty-nine acres.


3
 Exhibit C was a duplicate of Exhibit B, with one variation. Where we have included the notation “Disputed Property
(not color coded),” James had written “59 That I Claime [sic].”

                                                        7
           At the conclusion of testimony taken at the hearing, an argument was made that Bishop, as

“sole arbiter of any disagreement with regard to the drafting and intent of the final documents to

effectuate this Agreement,” had already decided the division of the fifty-nine-acre tract. The trial

judge determined “that the parties agreements included arbitration by Karen Bishop to be binding,

therefore, pursuant to the Texas Family Code Section 6.601(b)4 the court will enter an order

reflecting the arbiter’s award.” Thereafter, James moved the trial court to enter a final decree of

divorce. During the divorce hearing, James testified he had hired surveyors to draw boundary

lines and create metes and bounds descriptions of the property divisions as set forth in Bishop’s

findings.5 By the time of the divorce hearing, James acknowledged that the survey was prepared

in accordance with the MSA, including Bishop’s finding concerning the fifty-nine-acre tract.

James asked the court to enter a final decree following the survey and Bishop’s division of

property. He agreed there was an established fence line. In accordance with James’ testimony,

the trial court entered a final decree of divorce, which was “stipulated to represent a merger of a

mediation agreement between the parties.” The final decree’s “just and right division” of the tract

4
    Section 6.601 of the Texas Family Code states:

           (a) On written agreement of the parties, the court may refer a suit for dissolution of a marriage to
           arbitration. The agreement must state whether the arbitration is binding or nonbinding.
           (b) If the parties agree to binding arbitration, the court shall render an order reflecting the
           arbitrator’s award.

TEX. FAM. CODE ANN. § 6.601 (Vernon 2006).
5
 The trial court entered an order reflecting Bishop’s findings on February 10, 2010, and James’ survey was conducted
on March 24, 2010.


                                                            8
was in accordance with Bishop’s findings.” The trial court’s final decree, including property

division accepting the division of the fifty-nine acres, was prepared by James. However, the trial

court accepted Daphne’s surveys, providing metes and bounds descriptions of Daphne’s and

James’ tracts, conducted after another, unrelated dispute arose regarding the angle at which the

fence line was drawn.6

         The trial court did not order arbitration, and the record does not reflect entry of an order

returning the parties to Bishop to resolve the dispute over the fifty-nine acres. Thus, it is possible

James voluntarily agreed to have Bishop decide the dispute, and then filed a motion to vacate

Bishop’s findings after notification of the resolution. James now argues that the trial court erred

in concluding that the parties entered into binding arbitration because the MSA “did not provide

for binding post-mediation arbitration by the same mediator as to issues other than drafting

disputes.” Daphne argues that the trial court’s finding that the MSA agreements included

arbitration “was unnecessary, since they [sic] parties had already submitted their differences to

arbitration, evidently by agreement.”




6
 The access easement in favor of the property conveyed to James was also set forth by metes and bounds description in
a separate exhibit.


                                                         9
II.         There Was No Binding Arbitration in this Case

            We first note that no binding arbitration took place in this case.7 TEX. FAM. CODE ANN.

§ 6.601. The parties agreed to mediation, not binding arbitration.8 TEX. FAM. CODE ANN. §

6.602 (Vernon 2006).              Rather, the parties had entered into a binding mediation settlement

agreement. Section 6.602 of the Texas Family Code states:

            (b) 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.

            (c) If a mediated settlement agreement meets the requirements of this section, a
            party is entitled to judgment on the mediated settlement agreement notwithstanding
            Rule 11, Texas Rules of Civil Procedure, or another rule of law.

TEX. FAM. CODE ANN. § 6.602(b), (c).

            Because the MSA, signed by each party and their attorney, stated in boldface type that the

MSA was “binding on the parties,” “and not subject to revocation, repudiation or withdrawal of

consent,” Daphne was entitled to judgment on the MSA. The question in this case was the scope

of the MSA.

7
 We do not preclude the possibility of a MSA requiring binding arbitration as in In re Provine, 312 S.W.3d 824, 827
(Tex. App.—Houston [1st Dist.] 2009, no pet.).
8
    As explained below, any error in the trial court’s characterization of the nature of the agreement was harmless.

                                                            10
III.     Per the MSA, Bishop Was Granted Authority to Resolve the Dispute

         James argues that the trial court erred in holding Bishop had the authority to decide

division of the fifty-nine acres. The MSA provided that Karen D. Bishop would be the “sole

arbiter of any disagreement with regard to the drafting and intent of the final documents to

effectuate this Agreement.”9 In this case, there does not appear to be a factual dispute. Both

Daphne and James testified the MSA was intended to dispose of the fifty-nine acres, and both

believed that the MSA had divided the property. Specifically, direct examination of James

produced the following:

         Q     Now, you went to mediation also back on April 24th and you had Cary
         Crump as your lawyer at that time; correct?

         A        Yes, ma’am.

         Q      And in that mediated settlement agreement there was -- there’s some
         property included in that; correct?

         A        Yes, ma’am.

         Q        Some real property?

         A        Yes, ma’am.

         Q        And that’s what the issue is today, correct?

         A        Yes, ma’am . . . .


9
 This does not equate with binding arbitration. In this case, the trial court was free to find the disputed property was
not included within the MSA, and therefore, could have rejected Bishop’s finding that it was. Thus, Bishop’s
determination was by no means binding.

                                                          11
       Q       And you were given -- you agree that you were given the property outlined
       in yellow?
       A       Yes, ma’am.

       Q      Correct? And you agree she could also have the property outlined in red?

       A      Yes, ma’am . . . .

       Q      Okay. It’s -- how many acres is that?

       A      Fifty-nine.

       Q      And that’s not included in any of these outlines; correct?

       A      Not in any of those outlines, no.

       Q      Now, you signed off on this mediated settlement agreement?

       A      I did.

       Q      Your signatures are on this last page?

       A      Yes, ma’am.

       Q      Did you know that this triangle was not outlined?

       A      Yes, ma’am. I knew it was not outlined. I stated it to Cary that it was not
       outlined.

       Q      Okay. And what did you think was going to happen to this piece of
       property after mediation?

       A      He told me that I would receive it because she had outlined the property that
       she wanted.

James also objected to the placement of the easement, an easement which he would not have been

granted had he been awarded the entire fifty-nine acres. Because both parties acknowledged that


                                                  12
division of the fifty-nine acres had been discussed during the mediation, as evidenced in Bishop’s

arbitration ruling stating the ruling was based “on the discussions that took place at mediation on

April 24, 2009, and the representations of the parties on that date,” the MSA provided that Bishop

be the sole arbiter of “drafting and intent of the final documents” regarding the fifty-nine acres.

Bishop’s report recognizes the limitations of her role and stated that she could resolve the

fifty-nine-acre tract issue as it involved the intent of the mediation document. Bishop determined

that the parties intended to divide all realty and understood the boundary lines; she then explained

the boundaries as intended. Her decision was based on the discussions at the mediation and the

representations of the parties. In essence, Bishop found the division of the fifty-nine acres, as set

out in her letter, was a part of the MSA reached by the parties during the mediation session.

James’ briefing provides no authority suggesting otherwise.10 In fact, he incorporated Bishop’s

ruling when conducting surveys of the property and asked the trial court to enter a final decree of

divorce dividing the property in accordance with the finding.

         We find that because Daphne was entitled to enforce the MSA, the trial court did not err in

finding that Bishop was authorized to decide the issue, to determine the intent of the mediation

document and to determine the manner in which the parties intended to divide the fifty-nine acres

in dispute.

10
  Instead, James’ authority argues on appeal that the trial court’s award was not just and right. However, Daphne was
entitled to enforce the MSA, in which the parties agreed to a property division. “[S]ection 6.602 is also an exception
to sections 7.001 and 7.006 in allowing a judgment to be entered on a section 6.602 agreement without a determination
by the trial court that the terms of the agreement are just and right.” Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied).

                                                         13
      For reasons stated within, we overrule James’ sole point of error.

IV.   CONCLUSION

      We affirm the trial court’s judgment enforcing the parties’ mediation settlement

agreement.


                                                           Jack Carter
                                                           Justice

Date Submitted:      March 25, 2011
Date Decided:        March 30, 2011




                                              14
