In the Interest of N.R.C and L.A.C--Appeal from 306th District Court of Galveston County

Reversed and Remanded and Memorandum Opinion filed November 3, 2005

Reversed and Remanded and Memorandum Opinion filed November 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00891-CV

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IN THE INTEREST OF N.R.C. AND L.A.C.

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On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 91FD0011

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M E M O R A N D U M O P I N I O N

Rachel appeals from an order entered in a suit to modify the parent-child relationship.[1] In one issue, Rachel contends the trial court abused its discretion by entering an order that differs from a mediated settlement agreement. We reverse and remand with instructions that the trial court correct its order.

Background

Rachel and David were divorced in the early 1990=s and appointed joint managing conservators of their two children. In 2003, Rachel and David each filed a motion to modify the provisions of a previous order concerning possession of, and access to, the children.[2] At a court-ordered mediation, Rachel and David signed a Amediated settlement agreement@ concerning Rachel=s possession of their daughter. The agreement outlines a AStep Up Process@ whereby the nature and length of Rachel=s periods of possession will gradually increase if her daughter chooses to progress through the various steps.[3]

On June 1, 2004, David=s attorney appeared before the trial court for entry of an order based on the mediated settlement agreement, but Rachel was not present. David=s attorney presented a proposed order which was signed by David and his attorney, but was not signed by Rachel. The trial court signed the proposed order. Approximately a month later, Rachel filed a motion to correct the order contending it differed from the mediated settlement agreement. Following a hearing, the trial court denied Rachel=s motion.

Discussion

In one issue, Rachel contends the trial court abused its discretion by entering an order that differs from the mediated settlement agreement. A trial court may refer a suit affecting the parent-child relationship to mediation. Tex. Fam. Code Ann. ' 153.0071(c) (Vernon 2002). 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 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. Tex. Fam. Code Ann. ' 153.0071(d) (Vernon 2002). If a mediated settlement agreement complies with section 153.0071(d), a party is entitled to judgment based on the agreement notwithstanding Rule 11 of the Texas Rules of Civil Procedure or another rule of law. Tex. Fam. Code Ann. ' 153.0071(e)(Vernon 2002); see In Re Circone, 122 S.W.3d 403, 406 (Tex. App.CTexarkana 2003, no pet.). The trial court has no authority to enter a judgment that varies from the terms of a mediated settlement agreement although the trial court has authority not to enforce terms of a medicated settlement agreement that are illegal or against public policy. See Garcia-Udall v. Udall, 141 S.W.3d 323, 331B32 (Tex. App.CDallas 2004, no pet.).

Here, the mediated settlement agreement complies with section 153.0071(d) because it contains a prominently displayed, bold-faced, and underlined statement that it is not subject to revocation, it was signed by both Rachel and David, and it is undisputed their attorneys were not present at the mediation.[4] SeeTex. Fam. Code Ann. ' 153.0071(d). The mediated settlement agreement was filed with the trial court. Nevertheless, the trial court entered an order that differs from the mediated settlement agreement with respect to (1) the location for surrender of the daughter for Rachel=s periods of possession,[5] (2) the method of notice for Rachel=s periods of possession,[6] and (3) the terms of alternate dispute resolution.[7]

However, there is no evidence that the relevant terms of the mediated settlement agreement were illegal or against public policy. See Udall, 141 S.W.3d at 331B32. The record of the hearing on Rachel=s motion to correct reflects that the trial court refused to correct the order because Rachel had not appeared on June 1, 2004 for entry of the order. At the hearing, the parties disagreed on whether Rachel should have appeared for entry of the order.[8] Regardless, section 153.0071 contains no exception allowing a trial court to enter an order that differs from a mediated settlement agreement because one party is not present when the order is entered. See Tex. Fam. Code Ann. ' 153.0071. Consequently, the trial court had no discretion to enter an order that differs from the mediated settlement agreement.[9]

Accordingly, we sustain Rachel=s sole issue, and we reverse and remand the trial court=s order with instructions that the trial court correct the order consistent with this opinion.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 3, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] Due to the nature of this case, we refer to the parties by their first names. See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002).

[2] Litigation between Rachel and David regarding the children has been on-going for years. Previously, David obtained termination of Rachel=s parental rights, but we reversed and remanded. See In Re N.R.C., 94 S.W.3d 799 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). David later non-suited his termination petition but reurged his motion to modify, and Rachel filed her own cross-motion to modify.

[3] Apparently, Rachel and her daughter have been estranged for some time, and the mediated settlement agreement is designed to reestablish their relationship. The parties= son was about to turn eighteen at that time, so the agreement concerns the daughter only.

[4] The agreement does not reflect whether any attorneys attended the mediation, but Rachel asserts no attorneys attended the mediation. David has not filed a brief, and, thus, does not dispute that assertion.

[5] The final Astep@outlined in the mediated settlement agreement adopts the Standard Possession Order, which requires surrender at the parties= residences. In contrast, the order requires surrender at a McDonald=s restaurant.

[6] The mediated settlement agreement provides that the daughter will notify Rachel whether she chooses to attend Rachel=s periods of possession, and David will confirm her choices by fax or certified letter. However, the order provides that David will notify Rachel of the daughter=s choices.

[7] The mediated settlement agreement provides that Aif there is conflict in the exercising of this agreement and the Final Order,@ the parties will first mediate their dispute. In contrast, the order states that the parties are not required to mediate disputes concerning enforcement of the order.

[8] Rachel contends she received notice an order would be entered that day, but she did not know she needed to appear. Further, David faxed her the proposed order after 10:00 p.m. on May 31, 2004; thus, Rachel contends she did not know before entry the next morning that an order differing from the mediated settlement agreement would be entered.

[9] Because David has not filed a brief, he has not urged any reason the trial court had discretion to enter an order that differs from the mediated settlement agreement.