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Crowson v. Crowson

Court of Appeals of Texas, Third District, Austin

December 13, 2013

Andrea A. Crowson, Appellant
v.
Thomas D. Crowson, Jr.; Barrett and Coble, Attorneys at Law; John Barrett; and Kathleen Debra Coble, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-FM-10-002071, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

Before Chief Justice Jones, Justices Rose and Goodwin

MEMORANDUM OPINION

Melissa Goodwin, Justice

Andrea A. Crowson appeals the trial court's final decree of divorce awarding custody and visitation and dividing the marital estate pursuant to the terms of a mediated settlement agreement (the MSA). In five issues, Andrea[1] challenges the trial court's enforcement of the MSA. For the reasons that follow, we affirm the trial court's final decree of divorce.[2]

FACTUAL AND PROCEDURAL BACKGROUND

Andrea and Thomas were married in 1994.[3] Three children were born of the marriage. On April 16, 2010, Andrea obtained a temporary ex parte protective order on the grounds of family violence and filed a petition for divorce. The parties subsequently entered into an agreed final protective order that included a finding that Thomas had committed family violence and agreed temporary orders that required Thomas's possession of the minor children to be supervised. Andrea amended her petition to include tort claims, and the final protective order was modified. At a hearing on May 9, 2011, the parties confirmed that mediation would occur on or before July 15, 2011. At another hearing on July 6, two of Andrea's four attorneys were permitted to withdraw, with Andrea's consent. New counsel entered an appearance on Andrea's behalf (Andrea's divorce counsel), and Andrea continued to be represented by two other attorneys with regard to her tort claims (Andrea's tort counsel). Andrea's divorce counsel requested a continuance of the trial setting, which was denied. None of Andrea's attorneys requested a continuance of the mediation date.

On July 14–15, 2011, the parties attended mediation, at which Andrea was represented by both her divorce counsel and her tort counsel. In addition, a financial business valuation expert was present to assist in valuing the parties' property.[4] At the conclusion of the mediation, the parties entered into the MSA, which stated in large bold letters on page one that

"THIS AGREEMENT IS NOT SUBJECT TO REVOCATION."

The MSA divided the community property, provided for conservatorship and support of the children, and set out the possession schedule. The final protective order, as modified, was to remain in effect except where inconsistent with the MSA. The MSA phased out the requirement that Thomas's possession of the children be supervised.

Prove-up Hearing

On July 21, 2011, Andrea's divorce counsel filed a motion to withdraw and sent a letter to counsel for Thomas stating that Andrea was repudiating the MSA. The next day, Andrea's tort counsel filed a motion to withdraw. On July 29, 2011, at a hearing to prove-up the MSA, the trial court granted the motion to withdraw of Andrea's tort counsel, to which Andrea agreed. Andrea's divorce counsel withdrew his motion to withdraw, stating that Andrea had agreed that the MSA was irrevocable and he would continue to represent her to "wrap things up." The trial court questioned the parties and confirmed that they were not intoxicated or under the influence of any substance that would impair their thinking, that there was no mental process, either emotional or cognitive, that prevented the parties from understanding the proceeding, and that neither party had any complaints concerning the services of his or her attorneys. Andrea testified that she understood that the essence of mediation is compromise, she was not being compelled to go forward in the Court's receiving the MSA and resolving the divorce proceedings, and she was doing so freely and voluntarily. She further stated that, other than believing that her husband had not told the truth during the course of the proceedings, no one had materially misrepresented anything to her or failed to tell her the truth. Andrea also testified that the MSA contained a statement in boldface capital letters that it was not subject to revocation and that she and her attorney had signed it.

Andrea testified that although she understood the agreement at the time of the hearing, she had not understood at the mediation that it was not subject to revocation or further mediation. She stated that by the end of the mediation she "wasn't comprehending" and "wasn't focused." She acknowledged signing the MSA but stated that she did not remember understanding what she signed. She testified that during the mediation her divorce counsel twice received by fax an affidavit of nonprosecution concerning pending criminal charges against Thomas, her divorce counsel told her not to worry about it, but it scared her. Andrea also testified that she had been diagnosed with post-traumatic stress disorder (PTSD) and that she now understood that she had been experiencing PTSD symptoms during mediation. She also stated that she was not on any medication during mediation.

The trial court questioned her on her education and details of what took place on the days of the mediation, indicating it was trying to determine whether Andrea suffered any impairment during the mediation. Andrea testified that she has a bachelor of science degree in accounting and approximately two years toward an MBA and masters in accounting. She also testified as to when the mediation began each day, where it was conducted, how she got there, who attended, clothing worn by those in attendance, where the parties were in relation to each other, artwork on the wall in the conference room, the length of the mediation, lunch breaks, discussions with the mediator, taking care of her children the evening of the first day, and when the MSA was executed. She stated that there were "things" in the MSA that she "wouldn't have agreed to" and that she "wasn't able to pull it together sometimes" and "had to go back into the bathroom" and "just try to get a deep breath and just pray that it would stop." Andrea also testified that she was represented at mediation by her divorce attorney and her tort attorneys, was advised by a financial advisor, and signed or initialed every page of the MSA.[5]

The trial court concluded that Andrea's testimony did not establish any impairment and that she understood that the MSA was irrevocable. The court found that the MSA contained a prominently displayed statement in boldface type that it was not subject to revocation, was signed by each party and by the attorneys in compliance with sections 6.602 and 153.0071 of the Family Code, and was the agreement of the parties regarding the just and right division of their community estate and the conservatorship, support, and visitation of the children. See Tex. Fam. Code ยงยง 6.602 (mediation procedures in suit for dissolution of marriage), 153.0071 ...


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