Texas Final Divorce Decree Constituted Consent Judgment after Revocation of MSA

A Texas Mediated Settlement Agreement (“MSA”) must generally include language that it is not subject to revocation, be signed by each party, and be signed by the party’s attorney who is present at the time of execution. Tex. Fam. Code § 6.602(b). If the MSA meets these requirements, it is binding and the court must render a divorce decree adopting it. The judgment must be compliant with the agreement and must not substantively alter it. The parties may revise or repudiate the agreement before the divorce is rendered, unless the agreement is otherwise binding under another law. Tex. Fam. Code § 7.006.

In a recent case, a former wife appealed a divorce decree, arguing the court erred in rendering judgment on a settlement after she revoked her consent.  The parties had reached an agreement at mediation and signed an MSA, but only the husband’s attorney’s signature was on the document.

Wife Revokes Consent to MSA

The wife filed a revocation of consent and an objection to the entry of a final divorce decree. She argued the agreement was not valid without her counsel’s signature and was therefore revocable.

The wife’s attorney testified he had been present for the entire mediation, but did not specifically state he had been present when she signed the MSA.  The trial court held the MSA was valid and ordered the parties to submit a Final Decree of Divorce comporting with the terms of the MSA.

The wife’s attorney signed the order, noting she approved it “only as to form” and that the wife was not waiving any right to challenge it.

At a hearing on September 1, the husband’s attorney told the trial court the parties had signed the final decree. The wife and her attorney were not present.

Final Divorce Decree Varied from MSA

The final decree did not match the MSA, however. The decree acknowledged the wife’s objection and noted the court had found the MSA was valid, binding, and irrevocable, and satisfied the requirements under the Texas Family Code. The decree further stated that the wife confirmed the decree was consistent with the intent and terms of the MSA, without waiving any objection to the MSA, but it also stated that she “waive[d] all objection to the Final Decree of Divorce and right to appeal based upon the form or the substance of the Final Decree of divorce. . .” The appeals court noted the wife had not previously agreed to waive the right to appeal the final decree based on form and substance.

The decree differed from the MSA with regard to which school two of the children would attend and the husband’s obligation to pay tuition.  The decree awarded businesses to the husband in the property division that had been identified as his separate property in the MSA. The decree also differed from the MSA with regard to what adults could stay overnight when the children were present.

The MSA and the decree also  differed in when child support would begin, how it was structured, and when it would cease.  The decree also placed a cap on the amount the husband was to pay for the wife’s attorney’s fees, though none was included in the MSA.

Wife Appealed Divorce Decree

The wife appealed, arguing the trial court erred in finding the MSA met the statutory requirements and by enforcing it after she revoked her consent.

The appeals court noted the decree contained “significant and substantive differences” from the MSA. The wife argued any additional terms in the decree were just clarifications and not material changes. The appeals court disagreed, finding the changes substantively modified the terms of the MSA.  The court noted these changes indicated the parties had renegotiated their agreement.

The appeals court also pointed out that the trial court did not have the discretion to render a judgment if there were unresolved ambiguities in the MSA. Additionally, the MSA required the parties to return to mediation to resolve any interpretation disputes. There was no indication in the record they had tried to remediate any ambiguous or disputed terms before the decree was entered.

The appeals court also noted that there was nothing in the decree itself or the September hearing transcript showing that the trial court rendered judgment on the MSA or incorporated it into the final decree.  The decree stated that the wife confirmed the decree was consistent with the MSA, but the appeals court found that was not determinative.  The decree also stated that the court had previously found the husband was entitled to judgment on the MSA, but did not state that the decree was a judgment on the MSA.

Based on the hearing transcript, the trial court did not question whether the decree complied with the MSA. The final decree also stated the court had heard the case on September 1 and not in July when it heard the argument regarding the MSA’s validity.  The appeals court found the final decree was not a judgment on the MSA.

Appeals Court Finds Divorce Decree is Valid Consent Judgment

The appeals court found, however, that the final decree constituted a valid consent judgment.  For a consent judgment to be valid, the parties must each “explicitly and unmistakably” consent on the record that they came to an agreement regarding the case’s disposition.

The appeals court noted that each party had “approved and consented to” the form and substance of the final decree.  The appeals court considered the decree as a whole, including the language stating the parties understood it “constitute[d] a full and complete resolution of the case” and believed the agreement was a just and right division.  The appeals court acknowledged the wife had attempted to revoke her consent to the MSA but pointed out there was nothing in the record indicating she had tried to revoke her consent to the entry of the final decree.  Finding the wife had waived all non-jurisdictional error, including those that formed the basis of her appeal, the appeals court affirmed the trial court’s judgment.

When Done Correctly, Settlement Can Result in a Favorable Resolution – Call McClure Law Group Today to Discuss Your Options

An MSA can be a good way to resolve the issues in a divorce, if the parties can reach an agreement.  If you are facing a divorce, an experienced Texas divorce attorney can help you negotiate with your spouse and proceed to litigation if an agreement cannot be reached. Schedule your consultation with McClure Law Group by calling 214.692.8200.