John Louie Zimmerman v. Natasha Pigolenko Zimmerman--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00347-CV

John Louie ZIMMERMAN,

Appellant

v.

Natasha Pigolenko ZIMMERMAN,

Appellee

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-03654

Honorable David Peeples, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 3, 2005

AFFIRMED

John Zimmerman appeals a divorce decree rendered pursuant to a mediated settlement agreement. We affirm.

1. John first contends the divorce decree is void because his ex-wife, Natasha, did not plead or prove that the mediated settlement agreement was enforceable as a contract. We disagree.

John and Natasha participated in a court-ordered mediation that resulted in a mediated settlement agreement. The agreement states that it fully resolve[s] all issues between the parties and states:

4.Each signatory to this settlement has entered into the settlement freely and without duress after having consulted with professionals of his or her choice. Each party has been advised by the mediator that the mediator is not the attorney for any party and that each party should have this agreement approved by that party s attorney before executing it.

5.This stipulation is signed voluntarily and with the advice and consent of counsel on the dates set out below and subject to the court s approval, and its provisions are intended to be incorporated into a final decree of divorce.

....

7.THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.

The agreement was signed on the day of the mediation by John, Natasha, their attorneys, the mediator, and the trial court judge. Eight days after the agreement was signed, but before the divorce decree was signed, John filed his Respondents [sic] Notice of No! attempting to revoke his consent to the agreement. After hearing Natasha s motion to sign a decree in accordance with the agreement and John s arguments for seeking to revoke his consent, the trial court granted Natasha s motion and signed the final decree.

John does not dispute that the mediated settlement agreement complies in all respects with sections 6.602(b) and 153.0071(d) of the Texas Family Code. // Therefore, the agreement is binding on the parties, and Natasha was entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law. Tex. Fam. Code Ann. 6.602(c) (Vernon Supp. 2004), 153.0071(e) (Vernon 2002). The trial court was required to render judgment on the mediated settlement agreement notwithstanding John s attempt to repudiate it; and Natasha was not required to seek enforcement of the agreement as a contract. See In re Circone, 122 S.W.3d 403, 406-07 (Tex. App. Texarkana 2003, no pet.) (holding that when the requirements of section 153.0071(d) are met, trial court is required to enter judgment based on mediation agreement notwithstanding appellant s attempt to withdraw consent); In re J.A.W.-N, 94 S.W.3d 119, 121 (Tex. App. Corpus Christi 2002, no pet.) (holding that trial court is required to render judgment on agreement that complies with section 153.0071(d) even though appellant tries to repudiate it; and agreement need not be presented and proven as a contract in order to be reduced to a judgment ); Cayan v. Cayan, 38 S.W.3d 161, 165 (Tex. App. Houston [14th Dist.] 2000, pet. denied) (holding that the plain language of section 6.602 provides a method whereby the parties to a divorce may elect to make their agreement binding as of the time of its execution rather than at the subsequent time the divorce is rendered ); Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App. Eastland 1997, pet. denied) (holding that trial court was required to render judgment on a mediated settlement agreement that complied with the predecessor to section 6.602 even though one party withdrew consent to agreement before judgment was signed because [u]nilateral withdrawal of consent does not negate the enforceability of the agreement, and a separate suit for enforcement of a contact is not necessary ).

John also argues the divorce decree is void because it is incorrectly styled an agreed decree. The decree was properly styled agreed because it is based on an irrevocable settlement agreement that was binding on John and Natasha when they signed it. See Cayan, 38 S.W.3d at 165.

John next argues the decree is void because there is no evidence that the divorce was proved up. However, the decree recites that the parties appeared before the court on February 19, 2003 and waived a jury and the making of a record of testimony, and that the trial court consented to the waiver of a record and received evidence. In the decree, the court makes all the required findings on jurisdiction and domicile and dissolves the marriage on the ground of insupportability. John did not request findings of fact and conclusions of law. Where, as here, nothing in the record contradicts judgment recitals, they are taken as true. See Serna v. Webster, 908 S.W.2d 487, 489 n.1 (Tex. App. San Antonio 1995, no pet.); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex. App. San Antonio 1989, writ denied). And, in the absence of a record, we presume the evidence before the trial court supports the judgment. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

Finally, John argues the judgment is void because he should have the unfettered ... power to declare an agreement revoked at any time, for any reason, prior to the entry of a judgment. He concedes his position is contrary to existing law, but argues this court should modify the law. We are obligated to apply the law as written by the Texas Legislature, and decline the invitation to modify it.

2. John next contends the trial court erred in enforcing the mediated settlement agreement because the mediator committed misconduct by coercing John into an agreement. Mediated settlement agreements are subject to being invalidated if they are illegal or procured by fraud, duress, coercion, or other dishonest means. Durham v. Durham, No. 03-03-00303-CV, 2004 WL 579224, at *2 (Tex. App. Austin Mar. 25, 2004, no pet.) (mem. op.) (citing Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex. App. Fort Worth 2002, no pet.)). The trial court heard John s evidence on this issue, both at the hearing on Natasha s motion to sign the decree and at the hearing on John s motion for new trial, and rejected the contention.

John states he went into the mediation determined to take the case to a jury unless he received at least equal time with his child and no child support payments. He testified the mediator, Senior Judge Henry Schuble, right away told him You re not going to get any of that from a judge, and a jury is not going to give it to you either. The mediator then wrote down what he believed would be the outcome of a trial and John testified that when his lawyer read it to him, he felt like [he] had no choice. [The mediator] literally harried me into this thing. John further testified the mediator told him that if he did not continue with the mediation, the mediator could testify to that in court. John conceded he was represented and advised by a lawyer during the mediation but felt the lawyer, although well-intentioned, ... was cowed by this Judge Schuble. And judges wield a tremendous amount of power. ... And these lawyers look up to judges, and they know that judges can reward or punish. And he saw that Judge Schuble wanted me to agree to this thing and just get out. John also testified that he had been advised about the mediation process, understood that agreement at the mediation was voluntary, and knew that he could leave without an agreement. John testified he knew the agreement was a bad deal when we were sitting in the mediation room, but nevertheless signed the agreement because of the pressure placed on him by the mediator. //

John s lawyer, who participated in the mediation, testified that Judge Schuble, with his years of experience on the bench, imparted to us that this was his impression ... of what could possibly happen [at] a jury trial. He testified that the mediator told John that, based on his experience as a judge, attorney, and mediator and the information he had before him, // it was unlikely that John would be awarded equal time with the child if he went to trial.

After hearing the testimony, the trial court found that John s claim that the mediator overcame his will was not credible and granted the motion to sign the divorce decree. John s motion for new trial was overruled by operation of law after another hearing on John s claim of coercion.

The only evidence that John s agreement to the settlement was coerced is John s testimony about his perceptions of the mediator and how the mediator made him feel evidence the trial court stated on the record it did not find credible. As the fact-finder, the trial court is the sole judge of the witnesses credibility. Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App. San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835 (2000). We therefore hold the trial court did not err either in concluding that John s signature on the mediated settlement agreement was not coerced or in enforcing the agreement and denying the motion for new trial on that ground. See Durham, 2004 WL 579224, at *3-*4.

3. John next contends it was legal error to fail to inform [him], when present in court-ordered mediation, that he had Miranda-type rights. We disagree. Miranda v. Arizona applies only to questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). John was neither in custody nor questioned by law enforcement officers at the mediation.

4. John next contends that, before incorporating the mediated settlement agreement into the divorce decree, the trial court should have subject[ed] John to the questioning normally associated with the entry of a plea of guilty in a criminal proceeding, or tak[en] heed of his objections made, which should have voided a plea of guilty, and that the mediation process violates his right to trial by jury. To the extent John is arguing the trial court erred in failing to consider his contention that his agreement was coerced and involuntary, we disagree. The trial court heard and considered John s evidence of coercion and rejected it. To the extent John is arguing he was entitled to further process before the decree was entered or has a constitutional right to a jury trial notwithstanding his agreement to settle, he waived the arguments by failing to raise them before the final decree was signed. // See Tex. R. App. P. 33.1; Richards v. Texas A & M Univ. Sys., 131 S.W.3d 550, 555 (Tex. App. Waco 2004, pet. denied) (holding that to preserve error for appeal, complaint must be raised when the ground becomes apparent and at a time when the trial court has the power to correct the error alleged), cert. denied, 125 S. Ct. 620 (2004).

5. John next contends the divorce decree is prima facie contrary to equal rights in violation of his rights under the Texas Equal Rights Amendment and section 153.003 of the Family Code. The discrimination John alleges is the fact that the divorce decree does not treat him and Natasha equally with respect to conservatorship and child support and such discrimination is not justified by any fact findings. However, a divorce decree is not required to give the parents equal access to a child or equal financial responsibility for a child; and any inequality in this decree is justified by the parties voluntary agreement to the terms of the decree.

6. Finally, John asks this court to construe section 6.001 of the Family Code to permit a divorce on grounds of insupportability only when the divorce is agreed or uncontested. // We are not free to disregard the plain language of the statute, which authorizes trial courts to grant a divorce when one party alleges insupportability and establishes the statutory elements. See In re Marriage of Beach, 97 S.W.3d 706, 708 (Tex. App. Dallas 2003, no pet.); Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App. Beaumont 2002, no pet.); Baxla v. Baxla, 522 S.W.2d 736, 738 (Tex. Civ. App. Dallas 1975, no writ), disapproved on other grounds by Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977).

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice