Petition for Review from the Court of Appeals for the Seventh
District of Texas
the Texas Family Code, a party to a suit for dissolution of
marriage or a suit affecting the parent-child relationship is
entitled to judgment on a mediated settlement agreement (MSA)
if the agreement satisfies the statute's enumerated
requirements. Tex. Fam. Code §§ 6.602(c),
153.0071(d). The principal issue in this case is whether an
MSA that resolves the parties' property-division and
conservatorship issues can satisfy all statutory requirements
if it is executed before a petition for divorce is filed.
Unlike the court of appeals, we hold that it can. However, we
agree with the court of appeals that one of the parties to
the MSA at issue did not receive proper notice of the hearing
at which the trial court rendered judgment on the MSA.
Accordingly, we reverse the court of appeals' judgment in
part and remand the case to the trial court for further
and Meredith Highsmith married in 2004 and had two children.
In 2014, Meredith decided to end the marriage, and she
located a mediator to assist the parties in working out the
terms of their divorce. On February 11, 2015, the Highsmiths
attended mediation without attorneys and executed a written
agreement titled "Mediated Settlement Agreement."
Highsmiths' agreement provided for immediate partition of
the marital estate and settled all child custody issues,
making Charles and Meredith joint managing conservators with
Charles possessing the right to designate the children's
primary residence. Additionally, Meredith was given extended
possession rights and, in exchange for allowing Charles to
keep the marital home, was not required to pay child support.
The agreement stated that a divorce action "[would] be
filed by [Meredith] within 10 days of [the] agreement"
and would be finalized "not before May 1, 2015 but . . .
at any time thereafter." Meredith also "agree[d] to
appear in court . . . and secure rendition of judgment in
accordance with [the] agreement." The MSA stated in
underlined, capital letters that it was not subject to
February 20, nine days after the Highsmiths executed the
agreement, Charles filed a divorce petition in Travis
County. The petition twice referenced the
parties' MSA, requesting that the court approve the
agreement and render judgment consistent with it. Meredith
filed an answer on March 30 that contained a general denial
but did not reference the MSA.
1, Charles and his attorney appeared in court for the
uncontested docket. During that brief hearing, Charles
testified as to the insupportability of the marriage and
requested that the court approve the terms contained in the
Highsmiths' MSA. At the end of the hearing, the trial
court orally rendered judgment on the MSA. Meredith did not
receive notice of the hearing and thus did not attend.
20, Meredith filed a motion to set aside the judgment and, in
the alternative, a motion for new trial, as well as a motion
to revoke the MSA. She asserted in those post-judgment
motions that (1) the MSA was unenforceable because it did not
comply with the Family Code's requirements-namely, the
MSA was signed before a suit for divorce was in existence,
(2) the May 1 hearing violated Meredith's due process
rights because she did not receive the requisite forty-five
days' notice under Texas Rule of Civil Procedure 245, and
(3) Charles breached the agreement when he filed for divorce
despite the express language that Meredith would file suit
and obtain rendition on the MSA. The trial court denied the
motions and entered a final decree of divorce on July 2,
2015, incorporating the MSA's terms. In its order denying
Meredith's motion to revoke the MSA, the trial court
specifically found that the MSA "is [e]nforceable"
pursuant to chapter 6 of the Family Code.
court of appeals reversed, disagreeing with the trial
court's conclusion that the parties' MSA was
enforceable under section 6.602. S.W.3d, (Tex. App.-Amarillo
2017). Instead, the court held that under the section's
plain language, a pending suit for divorce is a
"threshold requirement" for obtaining a statutorily
binding MSA; thus, because the parties entered into their
agreement before either had filed for divorce, the
agreement was merely a contract subject to the same defenses
as any other contract. Id. at . The court also held
that Meredith was denied due process when Charles failed to
give her notice of the May 1 hearing. Id. at . The
court explained that, because Meredith made an appearance by
filing an answer, she was entitled to forty-five days'
notice under Rule 245. Id. at . The court further
rejected the notion that the lack of notice constituted
harmless error because Meredith's post-judgment motions
indicated that, had she received proper notice, she would
have timely challenged the agreement's enforceability.
Id. at . Charles filed a petition for review with
this Court, contending that the parties' MSA meets the
Family Code's requirements and that Meredith was not
entitled to notice of the hearing.
first address the MSA's compliance with the Family Code.
Section 6.602, located in the chapter governing divorce
suits, provides in pertinent part:
(a)On the written agreement of the parties or on the
court's own motion, the court may refer a suit for
dissolution of the marriage to mediation.
(b) A mediated settlement agreement is binding on the parties
if the agreement:
(1)provides, in a prominently displayed statement that is in
boldfaced type or capital letters or underlined, that the