                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                   NO. 02-12-00313-CV


MARCY CLARE CAMPBELL                                                 APPELLANT

                                         V.

JAMES KEVIN CAMPBELL                                                   APPELLEE


                                      ----------

          FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Appellant Marcy Clare Campbell appeals from the trial court’s May 3, 2012

judgment granting a divorce from her husband, Appellee James Kevin Campbell

(Kevin), and providing orders for the conservatorship, possession, access, and

support of the couple’s two minor children. In two issues, Marcy contends that

the trial court abused its discretion by failing to ensure that a reporter’s record

was taken of the hearing on Kevin’s motion to sign the final judgment and by
      1
       See Tex. R. App. P. 47.4.
ordering a property division that was not just and right because no evidence

supported the property division. Because we hold that Marcy waived the making

of a reporter’s record of the hearing on Kevin’s motion to sign and that the trial

court did not abuse its discretion by enforcing the parties’ mediated settlement

agreement (MSA) but did err by stating in the judgment that the property division

was just and right, we modify the judgment to delete the “just and right” finding

and affirm the trial court’s judgment as modified.

      In her first issue, Marcy contends that we should reverse the trial court’s

judgment because no reporter’s record was made of the hearing on Kevin’s

motion to sign the decree, and she did not agree to waive the hearing. While it is

true that Marcy did not personally waive the reporter’s record at the hearing

because she was absent, the record indicates that her trial counsel was present

at the hearing: he affixed his signature to the bottom of the decree to indicate

that he approved the decree as to its form. There is no evidence in the clerk’s

record that Marcy’s trial counsel requested that a reporter’s record be made or

objected to the failure to record the proceedings.        Further, the trial court’s

judgment states, “The making of a record of testimony was waived by the parties

with the consent of the Court.”

      A party “may waive the making of a record by express written agreement

or by failing to object to the lack of a record during the hearing.”2 Accordingly, we

      2
      In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth 2003, pet.
denied).


                                         2
hold that Marcy waived the reporter’s record; the trial court therefore did not err

by failing to ensure that a reporter’s record was taken of the hearing.            We

overrule her first issue.

      In her second issue, Marcy contends that there is no evidence that the

property division is a just and right division of the parties’ marital property when

the MSA, which was not admitted into evidence, is excluded from consideration.

Marcy raises no challenge to any specific award in the property division portion of

the judgment. She also does not challenge the validity of the MSA or contend

that the property division conflicts with it.

      The final judgment in this case states that the trial court

      finds that the parties have entered into a written agreement as
      contained in this decree by virtue of having approved this decree as
      to both form and substance. To the extent permitted by law, the
      parties stipulate the agreement is enforceable as a contract. The
      [c]ourt approves the agreement of the parties as contained in this
      Agreed Decree of Divorce.

The decree does not bear the signature of Marcy or that of her trial counsel

agreeing to the substance of the decree; it is therefore not an agreed decree. 3

      But the clerk’s record does contain the parties’ MSA, in which they agreed

“to the entry of a final judgment that incorporate[d] the terms of” the MSA. The

MSA was signed by the parties and their trial counsel on March 2, 2012. It

appears in the record independently and as an attachment to Kevin’s motion to


      3
     See In re T.G.-S.L., No. 02-12-00391-CV, 2013 WL 43738, at *1 (Tex.
App.—Fort Worth Jan. 4, 2013, no pet.) (mem. op.).


                                            3
sign. The record contains no objection to the trial court’s consideration of the

MSA. 4

      Further, section 6.602(c) of the family code provides that “[i]f 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.” 5 In fact, “[t]he express

provision on mediated settlement agreements . . . contains no express

exceptions giving the trial court discretion not to enforce the” MSA. 6 Marcy does

not challenge the validity of the MSA. We therefore hold that the controlling

statute required the trial court to judicially notice the MSA and to enforce it

regardless of its formal admission into evidence.

      But Marcy’s complaint that the trial court had no basis upon which to

determine that the division of the marital estate was just and right has some

merit; it just does not warrant the remedy she seeks. As the Supreme Court of

Texas has pointed out, “[T]he trial court is not required to determine if the



      4
        See Spradley v. Spradley, No. 03-13-00745-CV, 2014 WL 1279658, at *2
& nn. 7–8 (Tex. App.—Austin Mar. 26, 2014, no pet. h.) (mem. op.) (holding that
wife failed to object to trial court’s consideration of MSA as evidence in support of
husband’s arbitration motion).
      5
         Tex. Fam. Code Ann. § 6.602(c) (West 2006) (emphasis added).
      6
        In re S.A.D.S., 413 S.W.3d 434, 438–39 (Tex. App.—Fort Worth 2010, no
pet.) (analyzing the companion provision, found in section 153.0071(e) of the
family code, that governs MSAs in suits affecting the parent-child relationship).


                                         4
property division is ‘just and right’ before approving an MSA.” 7 We therefore hold

that this statement in the decree: “The Court finds that the following is a just and

right division of the parties’ marital estate having due regard for the rights of each

party,” is erroneous, and we modify the decree to delete that statement. 8 To that

small extent, we sustain Marcy’s second issue. We overrule the remainder of her

second issue.

      Having sustained Marcy’s second issue in part, we modify the divorce

decree to delete the statement that the property division “is a just and right

division of the parties’ marital estate having due regard for the rights of each

party.” Having overruled the remainder of Marcy’s two issues, we affirm the trial

court’s judgment as modified.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: May 15, 2014




      7
       Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012).
      8
        See S.A.D.S., 413 S.W.3d at 438–39 (deleting the finding “that
appointment of the parent as Managing Conservator would not be in the best
interest of the child because the appointment would significantly impair the child’s
physical health or emotional development” when the parties had executed an
MSA under section 153.0071 of the family code).


                                          5
