Opinion
No. 09-09-00323-CV
Submitted on August 7, 2009.
Opinion Delivered August 27, 2009.
Original Proceeding.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
Danny Wilburn Green seeks a writ of mandamus to compel the trial court presiding in his suit for a divorce from Lisa A. Green to immediately sign a judgment based upon a mediated settlement agreement. We deny the petition.
The parties signed a memorandum of agreement on June 3, 2008. The agreement recites the parties' acknowledgment that any settlement reached as a result of the mediation process would be binding and that the agreement was not subject to revocation. The agreement also provides that the parties would submit sworn inventories within 14 days. On July 9, 2008, the trial court made an oral pronouncement of divorce and announced an intention to approve the property division as set out in the mediated agreement. On July 17, 2008, Lisa filed a document titled "Revocation of Mediated Settlement Agreement." The trial court signed a judgment on August 6, 2008. Although the judgment recited that Lisa and her attorney both appeared in person and agreed to the terms of the decree as evidenced by their signatures "appearing below," neither had actually been present at pronouncement and neither Lisa nor her counsel actually signed the decree.
Lisa later conceded that this revocation was ineffective because the trial court had already orally pronounced judgment.
On August 12, 2008, Lisa filed a motion for new trial that alleged that her agreement had been procured through duress, coercion, impaired capacity, unfair tactics, and nondisclosure of assets. The trial court conducted an evidentiary hearing on the motion for new trial and granted the motion before plenary power expired.
Arguing that the mediated settlement agreement was irrevocable, Danny asked the trial court to reconsider the granting of the motion for new trial. The trial court denied the motion to reconsider. Asserting his entitlement to summary enforcement of the mediated settlement agreement, Danny filed a motion to enter judgment based upon the mediated settlement agreement. The trial court conducted a hearing but did not rule on the motion to enter judgment. Instead, the trial court indicated that the motion would remain under consideration and suggested that her ruling would come "probably not . . . before trial."
Danny argues that he is entitled to summary entry of a decree based upon the mediated settlement agreement. See Cayan v. Cayan, 38 S.W.3d 161, 165 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (A mediated settlement agreement entered in compliance with Family Code § 6.602 may be made binding before rendition of divorce.); see also Tex. Fam. Code Ann. § 6.602 (Vernon 2006). Cayan is distinguishable because the non-moving party in that case attempted to repudiate the agreement for reasons other than fraud, duress, or coercion. See Cayan, 38 S.W.3d at 167. Cayan recognized that one who is wrongfully induced to enter into a mediated settlement agreement under section 6.602 "has the same recourse as one who discovered such a circumstance after judgment was entered on a non-section 6.602 agreement." Id.
Here, the real party has alleged impaired capacity and alleged that her signature on the mediated settlement agreement was at least in part due to wrongdoing by Danny. "A trial court is not required to enforce a mediated settlement agreement if it is illegal in nature or was procured by fraud, duress, coercion, or other dishonest means." In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex. App.-Texarkana 2006, pet. denied); Boyd v. Boyd, 67 S.W.3d 398, 404-05 (Tex. App.-Fort Worth 2002, no pet.) (A Family Code § 6.602 mediated settlement agreement may be subject to rescission due to intentional nondisclosure.); In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding) (A mediated settlement agreement may be voided for illegality.).
Lisa contends Danny received all he was entitled to — entry of judgment on the mediated settlement agreement — in 2008 when the trial court signed the decree, and suggests that the granting of the motion for new trial placed the parties in the position they were in before the mediated settlement agreement was signed. We note, however, that the trial court effectively vacated the decree but has not entered a new judgment that voids the mediated settlement agreement. That is a matter the trial court may consider when it hears the case. Finding neither failure to perform a ministerial act nor an abuse of discretion by the trial court, we deny the petition for writ of mandamus.
PETITION DENIED.