Petition for Writ of Mandamus Conditionally Granted and Majority and
Dissenting Opinions filed September 30, 2014.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-14-00486-CV



                 IN RE DIANA LOVELL-OSBURN, Relator


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                             246th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-18060

                         DISSENTING OPINION

      The parties in the underlying litigation mutually agreed to include in their
mediated settlement agreement (“MSA”) a provision retaining venue of any future
proceedings in the 246th District Court. Section 153.0071(e) of the Texas Family
Code provides that a party is “entitled to judgment” on a compliant MSA
“notwithstanding . . . another rule of law.” The Supreme Court of Texas in In re
Lee, 411 S.W.3d 445 (Tex. 2013) (orig. proceeding), considered the language in
Section 153.0071(e) and concluded that a trial court is required (subject only to
limited exceptions not applicable here) to defer to the terms of the parties’ MSA
regardless of other statutory mandates that ordinarily would apply. In concluding
that the mandatory venue provision at Section 155.201(b) of the Family Code
requires transferring the underlying case to Burleson County in contravention of
the MSA in this case, the majority fails to recognize the operative effect of the
language in Section 153.0071(e) as interpreted by Lee. Therefore, I respectfully
dissent.

      The reasoning employed by the court in Lee cannot be confined solely to the
circumstances in that case. First, before even reaching the statutory interpretation
question, the court provided a detailed explanation of the legislative policy
underlying the mandate in Section 153.0071(e)—namely, that “the amicable
resolution of child-related disputes should be promoted forcefully.” Id. at 449–50.
Such policy concerns are equally present in circumstances where reaching an
amicable resolution may be contingent on the parties’ ability to consent to a
different venue for future proceedings than that provided by the Family Code.

       Second, in interpreting the language in Section 153.0071(e) that provides a
party is entitled to judgment on an MSA “notwithstanding Rule 11, Texas Rules of
Civil Procedure, or another rule of law,” the court rejected a narrower reading of
this language as only pertaining to a party’s ability to revoke an MSA prior to entry
of judgment. Lee, 411 S.W.3d at 454 n.8. Rather, in adopting a broader
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interpretation, the supreme court concluded that the mandate in Section
153.0071(e) to enter judgment on an MSA controls over the mandate in Section
153.002 of the Family Code that “[t]he 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.” Lee, 411 S.W.3d at 454–55. How can the
majority say that the policy at issue here, establishing venue in the county of a
child’s residence, is more important than the policy trumped in Lee, the best
interest of the child (specifically, in Lee, best interest concerns that were raised
about the child residing with a registered sex offender)?

      If, under Lee, Section 153.0071(e) requires a trial court to defer to the terms
of an MSA despite the best interest mandate of Section 153.002, then Section
153.0071(e) likewise requires a trial court to defer to the terms of an MSA despite
the mandatory venue provision at Section 155.201(b). Section 153.0071(e) requires
a trial court to enter judgment on an MSA “notwithstanding . . . another rule of
law.” Section 155.201(b) is another rule of law, and the broad interpretation given
the language in Section 153.0071(e) by the supreme court does not exclude the
issue of venue. See Lee, 411 S.W.3d at 454 & n.8; see also In re Fisher, 433
S.W.3d 523, 534 (Tex. 2014) (orig. proceeding) (stating use of “notwithstanding”
language in a venue provision in Chapter 15 of the Civil Practice and Remedies
Code “indicates that the Legislature intended for it to control over other mandatory
venue provisions”).

      The majority grounds its conclusion on the fact that the supreme court in Lee
did not reach the question of whether a trial court is required to enter judgment on
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an MSA where the MSA is illegal. See 411 S.W.3d at 455 n.10; see also id. at 464
n.9 (Guzman, J., concurring). The majority states the general rule that parties
cannot contract to fix venue in contravention of Section 155.201(b) of the Family
Code, and that the Legislature did not intend by adopting Section 153.0071(e) to
enable parties to enforce contractual provisions that are void as being contrary to
public policy. But by focusing on the question the supreme court did not reach in
Lee, the majority fails to recognize the implication of the holding on the question
the supreme court did reach.

      The mandate that trial courts are to consider the best interest of the child is
one that permeates the Family Code. See id., 411 S.W.3d at 471 n.6 (Green, J.,
dissenting) (listing over 100 sections of the Family Code relating to protection of a
child’s best interest); see also Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002) (“The
Legislature has made clear that ‘[t]he 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.’”) (quoting Tex. Fam. Code § 153.002)
(alteration in original). Therefore, a party seeking to enforce a contract establishing
terms of conservatorship or possession of and access to a child that are not (from
the court’s perspective) in that child’s best interest would be just as much contrary
to public policy as a party seeking to enforce a contractual provision attempting to
fix venue in contravention of Section 155.201(b). See Fairfield Ins. Co. v. Stephens
Martin Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008) (“The Legislature
determines public policy through the statutes its passes.”). But in Lee, the supreme



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court concluded that the mandate to enter judgment on an MSA controls over the
best interest mandate. See 411 S.W.3d at 448, 452, 454–55.

      Consequently, it is not sufficient for the majority to note the general rule that
parties cannot contract against public policy, because that rationale leaves no way
to distinguish the holding in Lee. The policy underlying the venue provision at
Section 155.201(b) is no more compelling than the policy underlying the Family
Code’s best interest mandates. Compare id., 411 S.W.3d at 459 n.20 (plurality op.)
(“We recognize the serious policy reasons underlying the Family Code’s numerous
references to a child’s best interest . . . .”) with Cassidy v. Fuller, 568 S.W.2d 845,
847 (Tex. 1978) (orig. proceeding) (“It is manifest, we think, that this venue
provision was enacted for the reason that current circumstances affecting the child
may usually be best shown in the county where the child resides.”). And there is no
apparent technical rule of statutory construction that would result in Section
153.0071(e) controlling over the best interest mandate at Section 153.002, but not
the venue mandate at Section 155.201(b). Compare Lee, 411 S.W.3d at 469
(Green, J., dissenting) (noting Section 153.0071 was enacted in May 1995) with In
re Foreman, No. 05-13-01618-CV, 2014 WL 72483, *2 (Tex. App.—Dallas Jan. 9,
2014, orig. proceeding [mand. denied]) (mem. op.) (noting longstanding
predecessor venue provision was recodified into current section in April 1995); see
also Lee, 411 S.W.3d at 455 (noting Section 153.0071(e) controls over best interest
mandate in part because of more recent date of enactment).

      The majority draws support for its holding from the Lee majority’s direct
citation to In re Calderon, 96 S.W.3d 711, 718 (Tex. App.—Tyler 2003, orig.
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proceeding [mand. denied]), and the citation in Justice Guzman’s concurrence to
Garcia-Udall v. Udall, 141 S.W.3d 323, 331–32 (Tex. App.—Dallas 2004, no pet.)
(citing Calderon). The majority reasons that it would be anomalous to read Lee as
requiring enforcement of the venue provision in the parties’ MSA when the court
of appeals in Calderon held a similar venue provision in an MSA was void. I
respectfully believe the majority’s analysis on this point misses the mark.

      First of all, neither the Lee majority nor Justice Guzman in her concurrence
cited Calderon or Garcia-Udall for the specific holding in Calderon that a
provision in an MSA fixing venue is void and unenforceable notwithstanding the
mandate at Section 153.0071(e). Rather, Calderon and Garcia-Udall were cited for
the more generic proposition, not at issue in Lee, that a trial court may not be
required to enter judgment on an illegal MSA. See Lee, 411 S.W.3d at 455 n.10; id.
at 464 n.9 (Guzman, J., concurring). An interpretation that Section 153.0071(e)
requires a trial court to enforce a venue provision in an MSA does not foreclose the
possibility that certain other provisions in MSAs may be deemed unenforceable for
illegality—for example, provisions that require the violation of criminal laws. See,
e.g., In re Kasschau, 11 S.W.3d 305, 312–13 (Tex. App.—Houston [14th Dist.]
1999, orig. proceeding) (op. on reh’g) (concluding trial court did not abuse its
discretion by invaliding an MSA that facially called for the destruction of evidence
in violation of the Penal Code).

      Secondly, the holding in Calderon that the venue provision in the parties’
MSA was void and unenforceable was based on the conclusion that Section
153.0071(e) did not provide a basis for the parties to override the statutory venue
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rule at Section 155.201(b). In reaching that conclusion, the court of appeals
adopted the same narrow interpretation of the phrase “notwithstanding . . . another
rule of law” in Section 153.0071(e) that the supreme court in Lee explicitly
rejected. Compare Lee, 411 S.W.3d at 454 n.8, and id. at 477–79 (Green, J.,
dissenting), with Calderon, 96 S.W.3d at 717–18. Inasmuch as the majority seeks
to avoid reading Lee as containing an unexplained inconsistency, it should not read
Lee as tacitly approving the holding in Calderon while simultaneously rejecting the
reasoning upon which that holding is based.

       The majority further rationalizes its holding by stating that an opposite
conclusion would open a family law Pandora’s Box by enabling parties to include
various other provisions in MSAs that are contrary to public policy. But this logic
fails to account for the supreme court’s express recognition in Lee that underlying
Section 153.0071(e) is the policy that “the amicable resolution of child-related
disputes should be promoted forcefully.” 411 S.W.3d at 449–50. Therefore, the
issue here and in future cases is not simply whether parties may contract against
public policy in an MSA, but rather the resolution of competing public policies. In
Lee, the supreme court concluded that the mandate in Section 153.0071(e) controls
over the best interest mandate at Section 153.002. For the reasons stated above, I
cannot reconcile the supreme court’s holding in Lee with a conclusion that the
venue rule at Section 155.201(b) controls over the venue provision in the parties’
MSA.

       The critical fact in this case is that the question presented involves
enforcement of a venue provision included in an MSA entered into under Section
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153.0071 of the Family Code. We are not asked to opine on the validity of a
contractual venue provision under general contract law principles. Section
153.0071(e) provides that a party is entitled to judgment on an MSA
“notwithstanding . . . another rule of law,” and the supreme court in Lee afforded
the foregoing phrase a broad interpretation. I read the supreme court’s
interpretation of the language in Section 153.0071(e) as meaning that the trial court
was required to enforce the provision in the parties’ MSA preserving venue in the
246th District Court notwithstanding the fact that venue of the underlying litigation
would be in Burleson County under Section 155.201(b). Accordingly, I conclude
that the trial court did not abuse its discretion in denying Lovell-Osburn’s motion
to transfer venue to Burleson County. Because the majority holds otherwise, I
respectfully dissent.




                                              /s/   Martha Hill Jamison
                                                    Justice

Panel consists of Justices Christopher, Jamison, and McCally. (Christopher, J.,
majority).




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