                             NUMBER 13-15-00306-CV

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ROBERTO VAZQUEZ,                                                                   Appellant,

                                                 v.

MARIA ANGELICA VAZQUEZ,                                                            Appellee.


                      On appeal from the 155th District Court
                            of Fayette County, Texas.


                             MEMORANDUM OPINION

                  Before Justices Garza, Perkes, and Longoria
                   Memorandum Opinion by Justice Perkes1

       Appellant Roberto Vazquez appeals from a final decree of divorce dissolving his

marriage to appellee Maria Angelica Vazquez and dividing their marital property. By four



       1
         Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
issues, which we treat as one, Roberto argues the trial court abused its discretion by

rendering a judgment which modified the terms of the parties’ mediated settlement

agreement. We reverse and remand.

                                             I. BACKGROUND

       Angelica filed an original petition seeking a divorce from Roberto and the division

of their marital property.2 The parties participated in a mediation on November 25, 2014,

which resulted in a mediated settlement agreement (MSA).                          Through the MSA, the

parties divided the community estate, which included bank accounts, vehicles, farm

equipment, personal property, and real estate holdings. Roberto received, among other

things, “66.248 acres . . . in the T.O. Berry League, A-17 [located at] 144 Schulze Road

[(the Schulze property)] . . . contingent upon payment of the $250,000.00 to Angelica.”

The MSA also awarded Angelica the following:

       $250,000.00 in cash to be paid by Roberto to Angelica on or before January
       15, 2015. Robert agrees to begin efforts to secure a loan to pay Angelica
       $250,00.00 [sic] within 3 business days of the date of this Agreement.
       Angelica agrees to produce any and all documentation in her possession
       reasonably required by Roberto to give to a lender to secure a loan against
       the 66.248 acres and to sign any and all documentation reasonably required
       by a lender for Roberto to get such a loan. The Parties agree that this
       Agreement is expressly contingent upon Roberto getting the loan necessary
       to allow him to pay Angelica the $250,000.00 required by this Agreement
       and in the event he is not able to secure such a loan, this Agreement shall
       be of no further force and effect.

(Emphasis added). The MSA further provided that “[t]he Parties agree to use their best

efforts to try and implement this settlement[.]”




       2   The petition alleged that there were “no children under the age of 18 years born of this marriage[.]”
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       Angelica later filed a “Motion to Award Real Property . . . or to Order Sale of Real

Property and to Confirm Terms of Mediated Settlement Agreement.” Angelica argued

that Roberto “failed to comply with the terms of the MSA by failing to, in good faith, secure

a loan to pay the sum of $250,000.00 owed to [Angelica].” Angelica requested “that the

[Schulze property] be awarded in full to [Angelica] or . . . be immediately sold, with the

sum of $250,000.00 from the . . . proceeds being paid to [Angelica.]”

       Roberto subsequently filed a motion to set aside the MSA. Roberto argued that

the MSA was contingent upon his ability to secure a $250,000 loan, and, because he was

unable to do so, the MSA was of no further force and effect.           Roberto also filed a

response to Angelica’s motion, asserting the same. The trial court held a hearing on the

parties’ respective motions but did not enter a ruling. Instead, the trial court rendered an

order requiring certain financial institutions to produce Roberto’s complete loan

application files to the parties. Subsequently, the parties filed loan application files from

three separate banks. Following a second hearing, the trial court granted Angelica’s

motion and entered a final decree of divorce which provided in relevant part as follows:

       Except for provisions with regard to sale of the real property and monetary
       award to [Angelica] as set forth herein from the sale of the real property,
       agreements in this Final Decree of Divorce were reached in mediation . . .
       This Final Decree of Divorce is stipulated to represent a merger of a
       mediation agreement and this Final Decree of Divorce. To the extent there
       exist any differences between the mediated settlement agreement and this
       Final Decree of Divorce, this Final Decree of Divorce shall control in all
       instances.
       The trial court ordered that “[the Schulze property] shall be sold ‘as is’” and “[f]rom

the net sale proceeds, the escrow or closing agent shall assign [Angelica] the sum of . . .

$250,000.00 and any additional monies owed to her by [Roberto] (which shall include


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outstanding attorney’s fees and any reimbursements as detailed herein).” The trial court

further ordered that “all remaining net sale proceeds from the sale of the [Schulze

property] shall be awarded to [Roberto].” Aside from the disposition of the Schulze

property, the final decree of divorce disposed of the remainder of the community estate

pursuant to the terms of the MSA. The trial court awarded Angelica $6,500 in attorney’s

fees as well as contingent appellate attorney’s fees. The trial court later entered an order

appointing a receiver “for the purpose of selling the [Schulze property] according to the

terms of . . . the Final Decree of Divorce[.]” This appeal followed.

                         II. MEDIATED SETTLEMENT AGREEMENT

       Roberto raises the following issues, which we will address as one: (1) “Was the

[MSA] in compliance with Texas Family Code [section] 6.602 . . . ?”; (2) “Did [Roberto]

comply with the provisions of ‘effort’ to [s]ecure a loan to pay [Angelica]?”; (3) “Does the

trial court have discretion to modify a mediated settlement agreement?”; and (4) “Does

the trial court have discretion to enter a judgment that [v]aries from the terms of a

mediated settlement agreement?”

A.     Standard of Review and Applicable Law

       In a suit for the dissolution of marriage, an MSA is binding on the parties and

irrevocable 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. TEX. FAM. CODE

ANN. § 6.602(b)-(c) (West, Westlaw through 2015 R.S.). If an MSA meets these statutory


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requirements, the parties are entitled to judgment on that MSA “notwithstanding Rule 11,

Texas Rules of Civil Procedure, or another rule of law.” Id. § 6.602(c); see also Garcia–

Udall v. Udall, 141 S.W.3d 323, 327 (Tex. App.—Dallas 2004, no pet.). Section 6.602

provides a procedural shortcut for the enforcement of MSAs in divorce cases, eliminating

the need for a separate suit to enforce the agreement even when one party withdraws his

consent from the MSA. See Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.—Fort Worth

2002, no pet.).    Accordingly, a trial court must enforce an MSA that meets these

requirements unless a party demonstrates that the MSA was illegal or was procured by

fraud, duress, coercion, or other dishonest means. Id. at 403.

      A final judgment founded upon an MSA must be in “strict or literal compliance” with

that agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976);

see also Udall, 141 S.W.3d at 332 (trial court abused its discretion by entering judgment

not conforming with MSA in suit affecting parent-child relationship). A trial court may

modify the terms of an MSA, so long as those modifications do not add terms, significantly

alter the original terms, or undermine the parties’ intent. See Keim v. Anderson, 943

S.W.2d 938, 946 (Tex. App.—El Paso 1997, no pet.) (finding reversible error when trial

court added provision requiring husband to pay $3,500 of wife’s attorney’s fees); In re

Marriage of Ames, 860 S.W.2d 590, 592–93 (Tex. App.—Amarillo 1993, no writ) (holding

trial court erred when it added terms which “differed significantly from the settlement

agreement”).

      We review a trial court’s judgment on a mediated settlement agreement for an

abuse of discretion. R.H. v. Smith, 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no


                                            5
pet.); In re C.H., Jr., 298 S.W.3d 800, 804 (Tex. App.—Dallas 2009, no pet.). We apply

the rules of contract interpretation to the MSA. See Milner v. Milner, 361 S.W.3d 615,

619 (Tex. 2012) (parties’ dispute over interpretation of mediated settlement agreement

concerning property division was a matter of contract interpretation). The interpretation

of an unambiguous contract is a question of law and is reviewed de novo. See MCI

Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex. 1999).

B.     Analysis

       The parties both maintain that the MSA was in compliance with section 6.602 of

the Texas Family Code. We observe that the MSA provided the following language:

“THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.” (bold faced and underlined

type in original).   The MSA was further signed by the parties and their attorneys.

Therefore, we agree that the MSA met the requirements of section 6.602. See TEX. FAM.

CODE ANN. § 6.602. We also note there were no allegations that the agreement should

be revoked because it was illegal or was procured by fraud, duress, coercion, or other

dishonest means. See Boyd, 67 S.W.3d at 402. As a result, the trial court did not have

authority to enter a decree that varied from the terms of the MSA. See Udall, 141 S.W.3d

at 332.

       The MSA unambiguously provided that the agreement was “expressly contingent

upon Roberto getting the loan necessary to allow him to pay Angelica . . . $250,000.00[.]”

The parties further agreed that “in the event [Roberto] is not able to secure such a loan,

[the MSA] shall be of no further force and effect.” It is undisputed that Roberto was

unable to obtain the loan by the date prescribed in the MSA. Therefore, the MSA, by its


                                            6
own terms, was of “no further force and effect.” Nevertheless, Angelica argues, without

citation to any authority, that “the trial court . . . was within [its] discretion to divide the

community property no longer covered by the terms of the [MSA] as a result of Roberto’s

breach of those terms.” Perhaps in recognition of the difficulty of securing the loan and

delivering the proceeds within seven weeks—November 25, 2014 to January 15, 2015—

the parties agreed that the MSA was “expressly contingent” on this occurrence. Parties

are bound by the terms of their agreement as written, and this Court cannot rewrite the

agreement to change its terms. Alamo Cmty. Coll. Dist. v. Miller, 274 S.W.3d 779, 785–

86 (Tex. App.—San Antonio 2008, no pet.).

        We find no authority for the proposition that a trial court can modify the terms of an

MSA due to a party’s alleged breach. See Morse v. Morse, 349 S.W.3d 55, 56 (Tex.

App.—El Paso 2010, no pet.) (concluding breach was not grounds for revocation of an

MSA).     To the contrary, an MSA complying with section 6.602 is immediately

enforceable, not subject to repudiation by a party, and binding on the trial court without

approval or determination of whether the agreement’s terms are just and right. See In

re Marriage of Joyner, 196 S.W.3d 883, 887 (Tex. App.—Texarkana 2006, pet. denied);

Cayan v. Cayan, 38 S.W.3d 161, 164–66 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied); see also Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App.—

Austin 2007, pet. denied) (when MSA meets section 6.602’s requirements, it must be

enforced in the absence of allegations that the agreement calls for the performance of an

illegal act or that it was procured by fraud, duress, coercion, or other dishonest means).




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       The final divorce decree provided that its terms represented agreements that “were

reached in mediation . . . [e]xcept for provisions with regard to sale of the real property

and monetary award to [Angelica.]” In that regard, the decree required Roberto to sell

the Schulze property and awarded $250,000 of the sale proceeds to Angelica. The trial

court was without authority to enter a final divorce decree enforcing certain terms of the

MSA while modifying others. See Udall, 141 S.W.3d at 332. We hold that the trial court

abused its discretion in entering a final decree of divorce which partially enforced and

modified an MSA that by its own terms was of “no further force and effect.” See Smith,

339 S.W.3d at 765; In re C.H., Jr., 298 S.W.3d at 804. We sustain Roberto’s issues on

appeal.

                                    III. CONCLUSION

       We reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion.

                                                 GREGORY T. PERKES
                                                 Justice
Delivered and filed the
10th day of November, 2016.




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