IN RE GLADYS N. MINIX, Relator
PROCEEDING WRIT OF MANDAMUS 312th District Court Harris
County, Texas Trial Court Cause No. 2015-65897
consists of Chief Justice Frost and Justices Jamison and
HILL JAMISON JUSTICE.
original proceeding, we are asked to decide whether Section
153.0071 of the Texas Family Code permits the parties to a
mediated settlement agreement in a suit affecting the
parent-child relationship ("MSA") to agree to set
aside the MSA. Here, there is evidence that the parties
agreed to set aside the MSA. The trial court, however, never
ruled that the MSA was set aside. Subsequently, relator
Gladys N. Minix moved to enter judgment on the MSA, and the
trial court denied her motion.
brings this mandamus proceeding, asking this court to compel
the Honorable David Farr, presiding judge of the 312th
District Court of Harris County, to enter a judgment
consistent with the terms of the MSA. See Tex.
Gov't Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. We conclude that the plain
language of section 153.0071 does not permit the parties to
the MSA to consent to revoking it, and we conditionally grant
the petition for writ of mandamus.
and real party in interest Michael Sterling Alexander have a
three-year-old child. Michael filed an original petition in a
suit affecting the parent-child relationship. After Michael
filed his petition, he and Gladys and their respective
attorneys signed an MSA and filed it with the trial court on
December 1, 2015. Under the MSA, Gladys and Michael were
joint managing conservators, and Michael's possession of
the child was unsupervised and similar to a standard
possession order. Michael was to pay $1, 300 per month in
child support. The parties did not request the trial court to
enter judgment on the MSA at that time. The court was not
asked to enter temporary orders.
January 2016, Michael filed a motion to enforce the MSA, and
subsequently filed first and second amended motions to
enforce the MSA, alleging that Gladys had failed to comply
with the MSA by denying Michael possession of or access to
the child. On March 28, 2016, Michael filed a motion to enter
temporary orders consistent with the MSA.
24, 2016, Gladys filed a motion for a temporary restraining
order and an emergency motion to modify, requesting the trial
court to (1) appoint her sole managing conservator; and (2)
deny Michael possession of or access to the child. Gladys
alleged that the child had welts across his back, and the
child said Michael had hit him with a belt. On May 27, 2016,
the trial court signed a temporary restraining order,
prohibiting Michael from having possession of or access to
the child and setting a date for a temporary orders hearing.
7, 2016, Michael filed a petition to set aside the MSA and
request for temporary orders, alleging that Gladys had failed
to cooperate in obtaining a final order based on the MSA and
Gladys had repeatedly violated the MSA. The parties'
attorneys appeared before Judge Farr that same day and
advised him that the parties had agreed to set aside the MSA.
Gladys does not recall being at the June 7, 2016 hearing, and
there is neither a record of the June 7, 2016 hearing nor a
docket entry reflecting that the MSA was set aside. The
parties never signed any document stating that they were
setting aside the MSA.
following day, on June 8, 2016, at a hearing on temporary
orders before Associate Judge Eileen Gaffney, Gladys's
attorney at that time, Stephanie Proffitt, advised Judge
Gaffney that the parties had stipulated to set aside the MSA:
MS. PROFFITT: I think yesterday when we were down here, it
was stipulated on the record that the mediated settlement
agreement that the parties entered into back in November or
December is set aside.
THE COURT: Does that sound correct?
MR. PLACZEK: Yes, Your Honor.
THE COURT: And I think y'all did that in front of Judge
MR. PLACZEK: Yes, Your Honor.
hearing, the trial court entered "Band-Aid"
temporary orders. On June 29, 2016, Gladys filed a motion to
modify the Band-Aid orders based on newly discovered
evidence, requesting that she be appointed sole managing
conservator and Michael and his wife be denied possession of
and access to the child.
August 19, 2016, Judge Farr signed an agreed order for
psychological examinations of Gladys and Michael to assist in
his determination of which parent should have the exclusive
right to determine the primary residence of the child. On
November 22, 2016, Judge Farr signed agreed temporary orders,
appointing Gladys and Michael temporary joint managing
conservators and awarding Gladys the exclusive right to
designate the primary residence of the child. The terms of
the temporary orders were similar to those in the MSA, except
that Michael's child support obligation was increased to
$1, 422.05 per month.
hired her current counsel on March 7, 2017, and counsel filed
a motion for entry of judgment based on the MSA and also
requested that all subsequent temporary orders, rule 11
agreements, and other court orders be vacated. On March 21,
2017, the trial court held a hearing on Gladys's motion
for entry of judgment. At the hearing, Michael's counsel
stipulated the MSA is valid and binding and "under
normal circumstances [Gladys] would have an absolute right to
enforce it, " but contended that the parties had agreed
to set aside the MSA.
testified at the hearing that she initially believed that the
MSA was a final settlement of all issues, but came to believe
it was no longer a final agreement because "we continued
to come to court and it was continued [sic] to be
litigated." Gladys stated that she did not recall being
in front of Judge Farr on June 7, 2016, but she remembered
being in front of Judge Gaffney the next day. Gladys stated
that she did not agree to set aside the MSA, nor did she
recall Proffitt informing Judge Gaffney that the MSA had been
set aside the previous day. Proffitt testified that Gladys
was in court on June 7, 2016, and that Judge Farr set aside
trial court took Gladys's motion for entry of judgment on
the MSA under advisement and, on April 27, 2017, signed an
order denying the motion. Gladys filed her petition for writ
of mandamus, asking this court to (1) set aside the April 27,
2017 order denying her motion for judgment on the MSA; and
(2) direct the trial court to render judgment consistent with
the terms of the MSA.
Mandamus Standard of Review
to be entitled to mandamus relief, a relator must demonstrate
(1) the trial court clearly abused its discretion; and (2)
the relator has no adequate remedy by appeal. In re
Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex.
2106) (orig. proceeding) (per curiam). A trial court clearly
abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial
error of law, or if it clearly fails to analyze the law
correctly or apply the law correctly to the facts. In re
H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016)
(orig. proceeding) (per curiam); In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). Mandamus relief is available when
the trial court erroneously refuses to enter judgment on a
MSA. In re Lee, 411 S.W.3d 445, 450 n.7 (Tex. 2013)
The MSA meets the requirements of Section
sole issue presented is whether the trial court abused its
discretion and violated the Family Code by refusing to render
judgment on the parties' MSA, which complied with the
Code's requirements. An MSA is binding on the parties if
it meets all the requirements of Section 153.0071(d) of the
Texas Family Code. See Tex. Fam. Code Ann. §
153.0071(d) (West 2014). An MSA is binding if it (1) states
in boldfaced type or capital letters or underlined letters
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. Id. If an MSA meets the
requirements of section 153.0071(d), then a party is entitled
to judgment on the MSA "notwithstanding Rule 11, Texas
Rules of Civil Procedure, or another rule of law."
Id. § 153.0071(e).
between Gladys and Michael provides that it is not subject to
AGREEMENT NOT SUBJECT TO REVOCATION
BY THEIR SIGNATURES BELOW, THE PARTIES HEREBY ACKNOWLEDGE
THAT THE AGREEMENT REACHED IN THIS MEDIATION IS BINDING ON
THE PARTIES AND IS NOT SUBJECT TO REVOCATION.
THIS AGREEMENT MEETS THE REQUIREMENTS OF SECTION 153.0071(d),
TEXAS FAMILY CODE.
EACH PARTY UNDERSTANDS AND AGREES THAT THIS AGREEMENT IS NOT
REVOCABLE AND THAT EACH INTENDS AND AGREES THAT EITHER PARTY
SHALL BE ENTITLED TO JUDGMENT ON THIS AGREEMENT UNDER THE
PROVISION OF THE LAW PURSUANT TO SECTIONS 153.0071 AND 6.602
TEXAS FAMILY CODE.
A PARTY TO THIS AGREEMENT IS ENTITLED TO JUDGMENT ON THE
MEDIATED SETTLEMENT AGREEMENT.
statement is in boldfaced type and capital letters and is
underlined, and the parties and their attorneys signed the
MSA. See Tex. Fam. Code Ann. § 153.0071(d). The
MSA satisfies the requirements of section 153.0071(d) to
constitute a binding MSA.
Section 153.0071 does not permit the parties to agree
to set aside an MSA.
contends that, even if an MSA complies with 153.0071, the
parties, nonetheless, may agree to set aside the MSA.
Resolution of this issue requires that we construe section
of statutory construction are reviewed de novo. Levinson
Alcoser Assocs. v. El Pistolon II, Ltd., 513 S.W.3d 487,
493 (Tex. 2017). Our goal is to determine and give effect to
the Legislature's intent. Pedernal Energy, LLC v.
Bruington Eng'g, Ltd., No. 15-0123, ___ S.W.3d___,
2017 WL 1737920, at *4 (Tex. Apr. 28, 2017). "When
statutory text is clear, we do not resort to rules of
construction or extrinsic aids to construe the text because
the truest measure of what the Legislature intended is what
it enacted." Melden & Hunt, Inc. v. E. Rio Hondo
Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017).
Words in the statute are given their ordinary and plain
meaning. Marino v. Lenior, 526 S.W.3d 403, 409 (Tex.
construes statute so that no part is surplusage, but so that
each word has meaning. Pedernal Energy, LLC, 2017 WL
1737920, at *4. There is a presumption that "the
Legislature included each word in the statute for a purpose
and that words not included were purposefully omitted."
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
899 (Tex. 2017) (per curiam) (internal quotations and
citations omitted). "We also take statutes as we find
them and refrain from rewriting text chosen by the
Legislature." Pedernal Energy, LLC, 2017 WL
1737920, at *4.
"is binding on the parties" if it satisfies the
three enumerated requirements found in section 153.0071(d),
and a party is entitled to judgment on the MSA. Tex. Fam.
Code Ann. § 153.0071(d), (e). The version of section
153.0071(e-1) in effect at the time the trial court denied
Gladys's motion on entry of judgment provided that the
trial court could deny judgment on an MSA only if (1) a party
to the MSA was a victim of family violence, and that
circumstance impaired the party's ability to make
decisions; and (2) the MSA is not in the child's best
interest. The Legislature has since amended section
153.0071(e-1) to allow the trial court to deny entry of
judgment on an MSA where the MSA permits a person subject to
the sex-offender registration statute or who has a history of
past or present physical abuse directed at any person to
reside in the same household as the child or have
unsupervised access to the child and the MSA is not in the
child's best interest.
Legislature has provided no other circumstances under which
the trial court may refuse to enter judgment on the MSA. If
the Legislature had intended to permit the parties to agree
to set aside an MSA, which meets all requirements that make
the MSA binding, the Legislature could have included such an
exception in section 153.0071, but chose not to do so.
See ExxonMobil Pipeline Co., 512 S.W.3d at 899
(presuming that the Legislature included each word in the
statute for a purpose and that words not included were
purposefully omitted). To allow the parties to agree to set
aside an irrevocable MSA would render meaningless subsection
(e), which provides that "a party is entitled to
judgment on the mediated settlement agreement not
withstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law." See Pedernal Energy, LLC,
2017 WL 1737920, at *4 (stating that the courts must construe
statutes so that no part is surplusage, but so that each word
conclude that section 153.0071 does not allow the parties to
agree to set aside the MSA.
Assuming disputed issues of material fact regarding
whether the parties agreed or the judge
pronounced from the bench that the MSA was set aside, the
statute does not permit the parties to agree or the judge to
set aside the MSA.
asserts that there is at least a fact issue regarding whether
the parties agreed to set aside the MSA, which this court
cannot address in a mandamus proceeding. See In re
Angelini, 186 S.W.3d 558 (Tex. 2006) (orig. proceeding)
(stating that an appellate court may not decide disputed fact
issues in an original mandamus proceeding). At the March 21,
2017 hearing, Gladys testified that she did not agree to set
aside the MSA. Michael presented an excerpt of the
reporter's record of the June 8, 2016 hearing conducted
by Judge Gaffney where Gladys's former attorney,
Stephanie Proffitt, advised Judge Gaffney the parties had
agreed to set aside the MSA and that Judge Farr had, in fact,
set it aside.
March 21, 2017 hearing and after hearing testimony and
argument about whether the MSA had been set aside in 2016,
Judge Farr stated,
. . . maybe this is what was said on June 7th, but nobody
knows. If the parties came in front of me and said, I want to
set aside our MSA, I don't know that I would go,
hunky-dunky. I would just kind of go, well, I don't have
anything to say about that, you guys either ask for judgment
on your MSA or you don't ask for judgment. And if you
don't ask for judgment and we kick that can down the
road, I'm going to continue as a judge to respond to the
affirmative relief that you're asking me for in any other
capacity, including temporary orders.
not decide disputed issues of material fact in this mandamus
proceeding. Even if Michael and Gladys agreed or the judge
pronounced from the bench that the MSA was set aside, as
discussed above, the express language of the statute provides
that a party is entitled to judgment on an otherwise
statutorily compliant MSA "notwithstanding Rule 11,
Texas Rules of Civil Procedure, or another rule of law."
Tex. Fam. Code Ann. § 153.0071(e). Therefore, the
statute does not allow the parties to agree to revoke an MSA
that satisfies the requirements of section 153.0071(d), nor
does it allow a judge to set aside an MSA in accordance with
the parties' agreement.
Gladys did not invite the trial court to make a
ruling which she complains about in this
argues that Gladys is precluded from asking the trial court
to make a specific ruling and then complaining about the
ruling to the appellate court. Under the invited error
doctrine, a party is estopped from challenging a trial
court's ruling on appeal if the complaining party
requested the specific action taken by the trial court.
Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862
(Tex. 2005); see also Gordon v. Gordon,
14-10-01031-CV, 2011 WL 5926723, at *7 (Tex. App.- Houston
[14th Dist.] Nov. 29, 2011, no pet.).
contends that the invited error doctrine applies because
before Gladys asked the trial court to enforce the MSA, she
agreed to set it aside in June 2016. He also argues that
Gladys invited error when she filed a motion for a temporary
restraining order and an emergency motion to modify, alleging
changed circumstances and asking the trial court to (1)
appoint her sole managing conservator; and (2) deny Michael
possession of and access to the child. On May 27, 2016, the
trial court issued the temporary restraining order.
Therefore, Michael posits that Gladys was seeking relief
inconsistent with the terms of the MSA, but now she seeks a
judgment consistent with the MSA, which would provide Michael
with unsupervised possession of and access to the child.
reject these arguments because Gladys does not complain about
the court's setting aside the MSA or granting the
temporary restraining order in 2016. Instead, Gladys
complains about the trial court's April 27, 2017 denial
of her motion for entry of judgment.
dissent argues that the invited error doctrine is to be
construed broadly, but cites no cases applying the doctrine
to a ruling other than the ruling complained of by the
appellant on appeal. Thus, Gladys did not invite error by
asking the trial court to enter judgment on the MSA; indeed,
as explained above, the court lacked the power to do
otherwise. The invited error doctrine is not applicable to
In re Lee does not permit the parties to agree to
set aside an MSA.
argues that the Texas Supreme court in In re Lee
left open the possibility that a trial court may properly
refuse to enter judgment on an MSA that complies with section
153.0071. In Lee, the court observed that several
courts of appeals had addressed the issue of whether section
153.0071 mandates entry of judgment on a statutorily
compliant MSA "under any and all circumstances, "
including where the MSA was "illegal, " or was
"procured by fraud, duress, coercion, or other dishonest
means." 411 S.W.3d at 455 n.10. The court, however,
declined to address that issue because it was not presented
there. Therefore, we do not read Lee as leaving the
door open to refuse to enter judgment on a statutorily
compliant MSA. As in Lee, there are no allegations
here of illegality or of facts that would preclude the
formation of an agreement. Cf. In re Kasschau, 11
S.W.3d 305, 314 (Tex. App.-Houston [14th Dist.] ...