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In re R.S.

Court of Appeals of Texas, Fifth District, Dallas

April 12, 2019

IN THE INTEREST OF R.S., A.S., AND L.S., CHILDREN

          On Appeal from the 254th Judicial District Court Dallas County, Texas, Trial Court Cause No. DF-13-09274

          Before Justices Myers, Osborne, and Nowell

          MEMORANDUM OPINION

          OSBORNE, JUSTICE

         Mother appeals the trial court's "agreed final decree of divorce" (agreed decree).[1] Mother raises two issues on appeal, arguing the trial court erred when it: (1) included material terms in the agreed decree that were not included in the parties' partial mediated settlement agreement (partial MSA) or informal settlement agreement (ISA); and (2) denied her request to divide a previously undivided asset. The substance of Mother's appeal is that she did not consent to the agreed decree. We conclude the agreed decree was not a consent judgment. We affirm the portion of the trial court's agreed decree ordering the dissolution of the parties' marriage. In all other respects, we vacate the trial court's agreed decree and remand the case to the trial court for further proceedings consistent with this opinion.

         I. PROCEDURAL CONTEXT

         On May 10, 2013, Mother sued Father for divorce after about fifteen years of marriage. Father counter-sued for divorce. The couple had three children, R.S., A.S., and L.S.

         On June 5, 2015, Mother and Father executed a partial MSA under Texas Family Code section 153.0071 with respect to the suit affecting the parent-child relationship. See Tex. Fam. Code Ann. § 153.0071 (alternative dispute resolution procedures in suits affecting parent-child relationship). The partial MSA reflects that the parties appeared without their counsel and the amicus attorney was also present. The partial MSA resolved disputes relating to the conservatorship of the children, visitation, counseling, reunification therapy, extracurricular activities, health insurance, and child support. Also, the partial MSA provided that any disagreement about the children or other issues not determined by the partial MSA would be submitted to binding arbitration.

         Then, on December 4, 2015, during the course of arbitration, the parties executed an ISA under Texas Family Code section 6.604 with respect to the dissolution of the marriage.[2] See Fam. § 6.604 (informal settlement conferences in suits for dissolution of marriage). The ISA states that the parties stipulate the agreement "shall be rendered as the final award of the arbitrator." See Fam. §§ 6.601 (arbitration procedures in suits for dissolution of marriage); 153.0071(a)-(b) (arbitration procedures in suits affecting parent-child relationship). However, the record does not include a subsequent arbitration award that incorporates the terms of the ISA and the ISA is not signed by the arbitrator. Nevertheless, in subsequent hearings before the trial court, counsel refer to an "arbitrator's award."[3] The ISA states that the partial MSA continues without alteration except as specifically set out in the ISA. Also, the ISA resolved disputes relating to, inter alia, child support, the children's school tuition, reunification therapy, supervised visitation and the associated fees, visitation, financial accounts, spousal maintenance, tax burdens and the distribution of refunds, the division of real property, the purchase of a home warranty, and payment of the children's medical expenses. In addition, the parties agreed that any drafting or substantive disputes shall be submitted to arbitration.

         On May 18, 2016, the trial court held a hearing.[4] During the hearing, the attorneys pointed out that the parties had several disputes relating to provisions in the partial MSA and the ISA, and that some necessary provisions were missing from those agreements. At the conclusion of the hearing, it was agreed that they would return for another hearing.

         On June 2, 2016, the trial court held another hearing, [5] during which there was testimony about some of the provisions of the partial MSA and ISA and it was stated that those documents had been filed with the trial court. However, neither the partial MSA nor the ISA were admitted into evidence, and the trial court did not take judicial notice of the file. Also, although the parties agreed in the partial MSA and the ISA that any drafting or substantive disputes must be arbitrated, in the hearing they represented that they wanted the trial court to determine any continuing or further disputes so they could get the final decree completed. Although the record does not reflect that a trial was held, at the conclusion of the hearing, the trial court found that "based on the testimony, . . . [the parties'] provisions regarding [the parties'] children are in [the children's] best interest, that [the parties'] property division is just and right, and [granted] [the parties'] divorce."

         On July 26, 2016, Mother filed a motion to divide an undivided asset, and on October 6, 2016, Father filed a response. The trial court denied Mother's motion to divide the undivided asset by letter dated November 7, 2016, stating that the tax language submitted by Father's attorney should be used in the divorce decree.

         On October 13, 2016, the trial court held another hearing, at the beginning of which it noted that the hearing was on the parties' "joint motion."[6] During the hearing, Father's counsel stated that the parties had "agreed on the record that the remainder of the disputes in this case would be submitted to [the trial court] to the extent they could not agree amongst themselves" because additional fees are incurred by going back to arbitration. However, Mother's counsel responded "if [the trial court] do[es not] have time, [Mother] would like the alternative of doing actually [sic] what the parties agreed to do in the arbitrator's award and go to [the arbitrator]. It's basically a time thing. We agreed to use [the arbitrator], we also agreed to use [the trial court].[7] At the conclusion of the hearing, counsel for both parties agreed to work together on the language of the decree and trial court stated it would have a conference call with counsel on the following Monday.

         On December 30, 2016, the trial court signed an "agreed decree" that states the trial court heard the case on June 2, 2016. With respect to the consent of the parties, the agreed decree stated:

         Agreement ...


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