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Bonacci v. Bonacci

Court of Appeals of Texas, Eighth District, El Paso

December 27, 2013

NICHOLAS J. BONACCI, Appellant,
v.
MYRIAM BARRAGAN BONACCI, Appellee

Appeal from the 388th District Court of El Paso County, Texas. (TC# 2010CM3807).

Before Rivera, J., Antcliff, J., and Chew, C.J. (Senior Judge). Antcliff, J., not participating. Chew, C.J. (Senior Judge), sitting by assignment.

OPINION

GUADALUPE RIVERA, Justice.

Page 295

On June 7, 2010, Appellee, Myriam Barragan Bonacci, filed a petition for divorce seeking to dissolve her marriage to Appellant, Nicholas J. Bonacci. On June 8, 2011, the parties signed and entered into a binding mediated settlement agreement regarding the dissolution of their marriage under Texas Family Code section 6.602. Tex. Fam. Code Ann. § 6.602 (West 2006). The trial court thereafter entered a final decree of divorce on August 2, 2011. Appellant presents five issues for our consideration.

Page 296

BACKGROUND

After Appellee filed her original petition for divorce in El Paso County, Appellant filed a plea in abatement in which he asserted that he had previously filed a petition for divorce in Montgomery County, Texas on May 19, 2010.

On August 3, 2010, Appellant filed a counter-petition for divorce in the 388th District Court of El Paso County. The parties executed a Rule-11 agreement that was filed with the clerk of the court on September 9, 2010, which expressly states that " Venue will remain in El Paso County for the finalization of the divorce." In his " Motion to Enter Agreement & Final Determination of Venue Order," Appellant sought the entry of a formal order regarding the Rule-11 agreement.

On April 15, 2011, the trial court held a dismissal hearing at which Appellee's counsel, Mr. Pine, informed the trial court that Appellant did not want to abandon his suit in Montgomery County and Appellee did not want her suit in El Paso dismissed. The trial court explained that it wanted the option of reading the file and stated that if it determined it was without jurisdiction over the suit, it would issue an order of dismissal in ten days. The trial court did not issue a dismissal order. On April 28, 2011, Appellant filed a pro se " Respondent's Brief Summary for Dismissal" asserting that he had appeared before the 418th District Court of Montgomery County on April 25, 2011, to request a continuance of those proceedings, and complained that Appellee's attorney had failed to prepare an order and " enter" the Rule-11 venue agreement.

Thereafter, Appellant executed a binding, mediated settlement agreement that was signed by the parties, their attorneys, and the mediator, and filed with the 388th District Court in El Paso. The mediated settlement agreement expressly sets forth in bold, underlined, and capitalized text that the agreement is binding and not subject to revocation, and that either party is entitled to judgment on the agreement.

On June 15, 2011, the court held a docket call at which Appellant appeared without counsel. Appellant informed the trial court that he was " pro se today," and that his counsel was " aware of the fact that I'm here, but I'm still shown as attorney of record on file. . . . I'm shown as pro se currently now." In response to the trial court's request for clarification, Appellant explained, " Ms. Strathman represented me the other day, last week in a mediation, and I'm currently here today because she's on vacation. . . . [O]nce we get to the matter of how to go to a final hearing, I'm going to address some of the outstanding issues. . . . I entered another motion which . . . concerns activities that take place post-mediation . . . ." Mr. Pine noted that he did not believe Ms. Strathmann knew that any pending issues needed to be mediated and that the court's file should contain a mediated summary, and further explained that he was present for the purpose of obtaining a setting for " an uncontested final" hearing. The trial court noted the importance of having Ms. Strathmann and Appellee present and set the case for a status hearing to be held July 12, 2011.

On June 30, 2011, an " uncontested hearing" was conducted. Appellee, Mr. Pine, and Ms. Strathmann were present but Appellant was not. Mr. Pine explained to the trial court that the only matter that needed to be placed on the record was jurisdictional testimony from Appellee, and that he had submitted a proposed decree to Ms. Strathmann to review with Appellant. Ms. Strathmann advised the trial court that neither she nor ...


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