File: 070504F - From documents
Opinion Filed March 19, 2008.
Court of Appeals
District of Texas at Dallas
IN THE INTEREST OF L.M.M., A CHILD
On Appeal from the 366th Judicial District
Trial Court Cause No.
Justice Thomas and Justices Bridges and FitzGerald
Opinion By Chief Justice Thomas
Michelle Wright (Mother)
challenges the trial court's judgment based on a mediated settlement agreement (MSA) designating Gary Murtha (Father) as
the managing conservator with the exclusive right to determine the primary
residence of L.M.M. and giving Father the exclusive right to establish L.M.M.'s
primary religious faith. In five issues, Mother contends the judgment is not
supported by the pleadings or the evidence, the judgment is an improper consent
judgment and does not conform to the MSA, and the judgment violates Mother's and
L.M.M.'s rights to freely practice their religion. We affirm.
born on August 7, 1998. Mother and Father were not married and, on August 12, 1998, Mother filed a petition to establish
the parent-child relationship between L.M.M. and Father and to obtain the
appointment of a managing conservator. On March 12, 1999, the trial court
entered judgment establishing the parent-child relationship between Father and
L.M.M., naming Father and Mother joint managing conservators, and giving Mother
the exclusive right to determine the primary residence of L.M.M.
On June 23,
2006, Father filed a petition to modify, seeking to be named sole managing conservator or, alternatively, to be named the joint
managing conservator with the exclusive right to determine the primary residence
of L.M.M. The parties subsequently participated in mediation and reached a
settlement agreement pursuant to which Father was named the joint managing
conservator with the exclusive right to determine the primary residence of
L.M.M. and given the exclusive right to determine the primary religious faith of
L.M.M. The MSA, signed by Mother and Father and their respective attorneys, was
filed with the court on March 29, 2007.
Mother fired the attorney
who had represented her through the mediation and hired new counsel. On April 3, 2007, Mother filed a motion for new trial
and supplemental motion for new trial, seeking to withdraw her consent to the
MSA. On April 13, 2007, the trial court entered a final order incorporating the
terms of the MSA.
In her first
issue, Mother contends the trial court erred in rendering judgment based on the MSA because, after Mother withdrew her consent
to the agreement, Father failed to plead and prove an underlying claim for
breach of contract. In a related argument, Mother asserts in her second issue
that the evidence is legally insufficient to support the trial court's order
because a “party seeking enforcement of a written settlement agreement as a
contract must support it by proof.”
Section 153.0071 of the
family code addresses alternative dispute resolution in suits affecting the parent-child relationship. Tex. Fam. Code Ann. §
153.0071 (Vernon Supp. 2007).
See Footnote 1
Section 153.0071(d) provides:
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.
Tex. Fam. Code
Ann. § 153.0071(d). See
If the settlement agreement meets the statutory
requirements, then 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. § 153.0071(e); see also Garcia-Udall
v. Udall, 141 S.W.3d 323, 327 (Tex. App.-Dallas 2004, no pet.). The
unilateral withdrawal of consent does not negate the enforceability of a
mediated settlement agreement in a suit affecting the parent-child relationship.
In re Circone, 122 S.W.3d 403, 406-07 (Tex. App.-Texarkana 2003, no
pet.); see Mullins v. Mullins, 202 S.W.3d 869, 876 (Tex. App.-Dallas
2006, pet. denied) (interpreting identical language in section 6.602 of the
family code addressing mediated settlement agreements in divorce action). A
separate suit for the enforcement of a contract is not necessary. In re
Calderon, 96 S.W.3d 711, 718 (Tex. App.-Tyler 2003, orig. proceeding [mand.
denied] ); see Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.-Fort Worth
2002, no pet.) (interpreting identical language in section 6.602 of the
In this case, the MSA
stated on the front page that it complied with section 153.0071(d) and, in bold, underlined, all capital letters provided:
THE PARTIES ACKNOWLEDGE AND AGREE BY THEIR SIGNATURE HEREIN THAT THIS
AGREEMENT IS BINDING AND NOT SUBJECT TO REVOCATION AND IS ENFORCEABLE BY A COURT
OF COMPETENT JURISDICTION.
Both Mother and her attorney signed
the agreement. We conclude the MSA meets the statutory requirements of section 153.0071(d) of the family
Therefore, Father was not required to file a separate breach of contract action
in order to enforce the MSA and was not required to present evidence in support
of a breach of contract claim.
Mother also asserts it is
unconstitutional under the Texas and United States Constitutions to conclude the MSA is irrevocable “for the same reasons
that the court expounded in Cadle [Co. v. Castle, 913 S.W.2d 627 (Tex.
App.-Dallas 1995, writ denied)].” Mother did not make this argument in the trial
court and may not raise it for the first time on appeal. In re R.B., 225
S.W.3d 798, 801 (Tex. App.-Fort Worth 2007, no pet.).
overrule Mother's first and second issues.
Withdrawal of Consent
and Conformance with MSA
In her third
and fourth issues, Mother contends the judgment should be reversed because (1) her counsel acted beyond the scope of
his authority and against her wishes and Mother withdrew her consent to the MSA,
and (2) the judgment does not conform to the MSA, was entered without the
approval of Mother's counsel, and constitutes hearsay. In neither issue does
Mother present proper argument, citation of authority, or even a jurisprudential
framework for evaluation of her contentions. We therefore conclude Mother has
waived issues three and four due to inadequate briefing. Tex. R. App. P. 38.1(h)
(brief “must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record”); Fredonia State Bank
v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court
has discretion to waive point of error due to inadequate briefing); Blanks v.
Liberty Mut. Fire Ins. Co., 196 S.W.3d 451, 452 (Tex. App.-Dallas 2006, pet.
denied) (inadequate briefing waives complaint). Accordingly, we overrule issues
three and four.
Constitutional Right to Practice Religion
In her fifth
issue, Mother contends the trial court's order is unconstitutional because it gives Father the exclusive right to establish
L.M.M.'s primary religious faith. Mother claims L.M.M. has been a practicing
Catholic, and the order “strip[s] the mother's and child's right[s] to continue
to practice their faith and would require the child to practice the current
faith of the father (currently Baptist)” in violation of the constitutions of
the United States and the State of Texas.
Constitutional rights can
be waived. In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003). Mother agreed in the MSA that Father would have the
exclusive right to determine L.M.M's primary religious faith. Because the MSA
met the statutory requirements, the trial court had no discretion but to enter
an order incorporating the agreed terms. Garcia-Udall, 141 S.W.3d at 332.
Therefore, we overrule Mother's fifth issue.
Motion to Dismiss or
a motion to dismiss Mother's appeal, asserting the appeal is frivolous and brought in bad faith and requested damages in
the amount of attorney's fees incurred by Father in responding to Mother's
appeal. We deny Father's motion.
We affirm the trial
The Texas Legislature amended section 153.0071 during the 2007 legislative
session to add subsection (g) pertaining to the
confidentiality of alternative dispute resolution procedures. Because the
amendment does not affect our analysis, we cite the current version of the
A trial court may decline to enter a judgment on a mediated settlement agreement
if the court finds (1) a party to the agreement
was the victim of family violence and that circumstance impaired the party's
ability to make decisions, and (2) the agreement is not in the best interest of
the child. Tex. Fam. Code Ann. § 153.0071(e). Appellant has not argued she was
the victim of family violence.
Mother cursorily states in her brief that her consent was not freely given.
Mother failed to provide substantive argument on
this issue and, therefore, waived any argument the MSA should have been set
aside because she did not freely consent. Tex. R. App. P.