Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 401st Judicial District Court Collin County,
Texas Trial Court Cause No. 401-54722-2015
Justices Lang, Brown, and Whitehill.
appellant Diana Fay Bass appeals from a final decree of
divorce incorporating the terms of a mediated settlement
agreement (MSA). After she and appellee Richard H. Bass
entered into the MSA, Diana sought to have the trial court
set it aside. As we read Diana's brief, she raises three
issues: (1) the trial court erred in failing to revoke the
MSA because it was procured by fraud and duress; (2) the MSA
is invalid because it was not notarized; and (3) the divorce
decree varied from the MSA. We affirm the trial court's
and Richard married in 1997. There are no children of the
marriage. In August 2015, Richard filed an original petition
for divorce, and Diana later filed a counter petition for
divorce. The parties mediated their dispute and agreed to
settle all claims and controversies between them. On October
5, 2015, Diana and Richard and their attorneys signed an MSA
which divided the parties' property and debts. The
agreement was contingent upon the short sale of real property
at 1605 Rockhill Road in McKinney. Among other things,
Richard was awarded all interest in 1605 Rockhill,
"including Wife's 50% undivided interest in such
property related to the short sale by Ocwen." The
agreement required Diana to sign, by October 6, certain
documents to effectuate the sale of real properties in
McKinney. The MSA also provided that Richard was to pay Diana
$170, 000 from the proceeds of the sale of "the real
properties in McKinney." Richard was also awarded all
interest in two trusts, the Bass Living Trust and the Bass
Living Trust-RHB Subtrust.
three weeks later, Diana's attorney moved to withdraw,
and the trial court granted the motion. Richard moved the
court to sign a final decree of divorce. In response, Diana
filed a pro se motion to quash the MSA. Richard then filed an
emergency ex parte motion for appointment of a receiver,
asserting Diana refused to sign the papers to facilitate the
sale of the property as required by the MSA. On November 2,
2015, the trial court granted Richard's motion and
appointed Richard as receiver, specifically authorizing him
to sell the 1605 Rockhill property. The property was sold,
and Diana's $170, 000 share of the proceeds was deposited
into the registry of the court.
February 2016, Diana again filed a motion asking the trial
court to revoke the MSA. On March 17, 2016, the trial court
held a hearing on Diana's motion. Richard testified that
he inherited real property in McKinney from his mother after
she died in 2003. At some point, the property was divided
into three contiguous parcels, one of them being 1605
Rockhill. Outside of 1605 Rockhill, the only other real
estate Richard owned was in McKinney, and it was owned in the
name of the Bass Living Trust. Richard testified that Diana
asked him for a fifty percent interest in 1605 Rockhill, and
he deeded her such an interest in that property. During the
hearing, Diana claimed that she had a one-half separate
property interest in all of the McKinney properties,
not just 1605 Rockhill. Diana claimed ownership in the other
property by way of the Bass Living Trust. She further claimed
Richard had sold property in July, before the MSA, without
informing her and without her permission and in doing so
broke the rules of the trust. She admitted to the trial court
that she knew the status of the property before she went to
mediation "because [her] daughter had looked it up,
" and that during the mediation she confirmed it had
trial court denied Diana's request to set aside the MSA
and signed the final decree of divorce incorporating the
terms of the MSA. In its written order denying the request to
set the MSA aside, the trial court made several findings. The
court found that no credible evidence of fraud, duress, or
other circumstances exists to justify setting aside the MSA
and found that the MSA was entered into freely and
voluntarily. The court also found that before she signed the
MSA, Diana "had knowledge and was aware of real estate
transactions undertaken before the MSA was signed." This
pro se brief contains four pages of "issues
presented." The issues are contained in lengthy
paragraphs and are not numbered, but we construe the brief to
complain that (1) the court should have set aside the MSA
because it was obtained by fraud and duress; (2) the MSA was
not notarized; and (3) the decree varied from the MSA. We
will address these issues in order.
the Texas Family Code, an MSA that meets certain statutory
formalities is binding on the parties and requires the
rendition of a divorce decree that adopts the parties'
agreement. Loya v. Loya, No. 15-0763, 2017 WL
1968033, at *3 (Tex. May 12, 2017); Milner v.
Milner, 361 S.W.3d 615, 618 (Tex. 2012); see
Tex. Fam. Code Ann. § 6.602 (West 2006). If a signed MSA
meets the formal statutory requirements, the trial court is
not required to evaluate its merits or determine if the
property division is "just and right, " but must
render judgment on the parties' agreement.
Milner, 361 S.W.3d at 616, 618. Further, unlike
other settlement agreements, once signed, an MSA cannot be
revoked. Id. at 618. Whether an MSA complies with
the requirements of section 6.602 is a question of law that
we review de novo. See Spiegel v. KLRU Endowment
Fund, 228 S.W.3d 237, 241-42 (Tex. App.-Austin 2007,
pet. denied). We review a trial court's decision not to
set aside an MSA for an abuse of discretion. R.H. v.
Smith, 339 S.W.3d 756, 765 (Tex. App.-Dallas 2011, no
pet.); In re C.H., Jr., 298 S.W.3d 800, 804 (Tex.
App.-Dallas 2009, no pet.).
Diana contends the trial court should have set aside the MSA
because it was procured by fraud and duress. Some courts of
appeals have concluded that section 6.602 does not require
the enforcement of an MSA procured by fraud, duress,
coercion, or other dishonest means; the Texas Supreme Court,
however, has not been faced with the issue. See
Milner, 361 S.W.3d at 619 (citing Morse v.
Morse, 349 S.W.3d 55, 56 (Tex. App.-El Paso 2010, no
pet.); Spiegel, 228 S.W.3d at 242; In re
Marriage of Joyner, 196 S.W.3d 883, 891 (Tex. App.-
Texarkana 2006, pet. denied); Boyd v. Boyd, 67
S.W.3d 398, 403-05 (Tex. App.-Fort Worth 2002, no pet.);
In re Kasschau, 11 S.W.3d 305, 312 (Tex.
App.-Houston [14th Dist.] 1999, orig. proceeding)). For
purposes of this appeal, we will assume without deciding that
an MSA is subject to revocation if procured by fraud, duress,
or other dishonest means.
essence of Diana's fraud claim is that Richard committed
fraud in the mediation by stating that the real estate owned
by the trust was his separate property and that he had the
right to sell it. Diana maintains she owned other property in
McKinney apart from 1605 Rockhill under the trusts and was
entitled to an equal share of the proceeds from the sale of
all McKinney property. In support of her duress argument,
Diana contends in her brief the mediation lasted twelve
hours, which was torture for her as she is disabled. There
was little discussion of duress at the hearing. Diana
asserted that duress had occurred and later stated that there
was "one threat after another" at mediation.
record reflects that the facts regarding the sale of the
McKinney properties were known to Diana at the time of
mediation. She acknowledged to the trial court that during
mediation it was confirmed Richard had sold the properties.
Thus, Diana entered into the MSA, which provided that she
would receive $170, 000 of the proceeds from the sale and
that all interest in the trusts would go to Richard, knowing
Richard had already sold the properties. The trial court
found there was no credible evidence of fraud or duress in
this case. We defer to the trial court's evaluation of
the credibility of the witnesses. See Strong v.
Strong, 350 S.W.3d 759, 771 (Tex. App.-Dallas 2011, pet.
denied) (trial court, as trier of fact, is sole judge of
credibility of witnesses and weight to be given their
testimony). The trial court did not abuse its discretion in
refusing to set aside the MSA on grounds it was procured by
fraud, duress, or other dishonest means. We overrule
Diana's first issue.
Diana contends the MSA did not meet the requirements of
section 6.602 of the family code because it was not
notarized. To be binding, an MSA must be signed by each party
to the agreement and by the party's attorney, if any, who
is present at the time the agreement is signed. Tex. Fam.
Code Ann. § 6.602(b). There is no requirement that the
MSA be notarized. See id. The MSA in this case is
signed by ...