Opinion
No. 05-04-01604-CV
Opinion Filed May 30, 2006.
On Appeal from the 302nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-09372-U.
Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Crystal Barton Coke (Wife) appeals the granting of a final decree of divorce based on a mediated settlement agreement ("MSA"). She contends the MSA was subject to revocation on the grounds of fraud, duress, and undue influence, and that if it is not subject to such revocation, her equal protection rights are violated. She also argues she was denied a jury trial on her defenses to the MSA. Henry Cornick Coke (Husband) contends the MSA was not subject to revocation because Wife never presented evidence of the alleged fraud, duress, and undue influence, and that she failed to preserve her right to a jury trial on these defenses. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment.
Background
After several years of marriage, Husband filed a petition for divorce. Wife answered and filed a counter-petition for divorce. Several months later, the parties and their attorneys went to mediation and entered into an MSA. The MSA, signed by both Husband and Wife and their respective attorneys, provided in bold, all-capital letters that the agreement was not subject to revocation. The MSA resolved all issues except the grounds for divorce. Under the MSA, Husband was given possession of the children and Wife was to pay child support.
A few days after the mediation, a new attorney entered an appearance on behalf of Wife and filed a motion to stay the entry of judgment on the MSA. The new attorney requested time to become familiar with the case and determine whether Wife wanted to revoke the MSA and try the lawsuit. Husband filed the MSA with the trial court the next day. Wife then filed a letter demanding a jury trial and payed the jury fee. Husband responded by filing a motion to sign a proposed decree of divorce based on the MSA.
Wife then filed a document entitled "revocation of mediated settlement agreement" and an amended answer. In both documents, she alleged the MSA was procured by fraud, duress, undue influence, accident, mutual mistake, and misrepresentation. (These allegations will be referred to as fraud and duress for the sake of simplicity.) The amended answer also alleged that issues remained for the jury to resolve regarding the grounds for divorce, child custody, child support, and payment of expenses and insurance for the children. Wife alleged Husband regularly received large gifts from his family during the marriage and that these gifts should be considered as income for purposes of determining Husband's ability to pay child support.
At oral argument, counsel for Husband represented repeatedly that these defenses were not raised until Wife's motion for new trial. The record clearly indicates these issues were raised before the decree was signed-in the revocation document, the amended answer, and several briefs filed by Wife in the trial court. The day following oral argument, counsel for Husband filed a letter brief admitting his mistake regarding when these allegations were raised by Wife. We conclude Husband's counsel's misrepresentations of the record were unintentional. However, we emphasize the duty of candor to the Court owed by attorneys under the disciplinary rules of professional conduct. See Tex. Disciplinary R. Prof. Conduct 3.03(a)(1) (a "lawyer shall not knowingly make a false statement of material fact or law to a tribunal").
The trial court conducted a hearing on Husband's motion to sign the decree, but there is no record of that hearing before us. The parties also filed several briefs before and after that hearing. The trial court granted the motion to sign the decree and conducted a brief hearing to prove-up the grounds for divorce. Wife and her attorney appeared at the prove-up hearing, but did not present evidence. Wife filed a motion for new trial arguing the MSA could be revoked for fraud and duress in spite of the language in family code section 6.602(b). She also submitted an affidavit alleging facts in support of her fraud and duress claims. Wife did not present evidence at the hearing on the motion for new trial or at a later hearing on Wife's amended motion for new trial.
Discussion
Wife's brief fails to clearly articulate the issues she presents for review. Tex.R.App.P. 38.1(e). She frames her issue on appeal as whether an MSA meeting the requirements of family code section 6.602(b) may be revoked before judgment is entered because of fraud, misrepresentation, intimidation, and duress in the inducement of the agreement. See Tex. Fam. Code Ann. § 6.602(b) (Vernon Supp. 2005). An agreement meeting the requirements of this section is "binding on the parties" and "a party is 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(b), (c).
The parties argue regarding family code section 6.602, but point out that family code section 153.071 applies to alternative dispute resolution procedures in suits affecting the parent-child relationship. See Tex. Fam. Code Ann. § 153.071 (Vernon Supp. 2005). The primary disputes in this case involve child custody and child support. However, we note that the language in sections 6.602(b) and (c) is the same as sections 153.071(d) and (e). We refer to section 6.602 for convenience.
However, we discern Wife's primary argument is that, as applied to Wife in this case, section 6.602 violates the Fourteenth Amendment's Equal Protection Clause. Wife argues that section 6.602(b)'s prohibition on the revocation of an MSA unreasonably discriminates against her because the MSA was procured by fraud and duress. Relying Boyd v. Boyd, Wife says illegally induced settlement agreements must be subject to revocation because to hold otherwise would lead to absurd results the Legislature could not have intended. See Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex.App.-Fort Worth 2002, no pet.) (section 6.602(c) does not require trial court to enforce MSA "irrespective of what the agreement provides for or how it was procured"). Husband agrees with the holding in Boyd, but counters there is no evidence in this case of fraud or duress and that Wife did not raise a constitutional challenge in the trial court.
Although there are some vague references to the constitution in some of Wife's briefs filed in the trial court, we conclude that the constitutional arguments Wife makes on appeal were not presented to the trial court and are not preserved for appeal. See Tex.R.App.P. 33.1; Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (concluding that even constitutional arguments must be raised in trial court to be preserved for appeal). We reject Wife's equal protection argument.
At oral argument, Wife asserted the trial court abused its discretion in entering the divorce decree without a jury trial on the issues of fraud and duress concerning the MSA. Husband argues this issue was not raised and was inadequately briefed. Husband also argues Wife did not preserve this issue for appeal because she did not object to the lack of a jury and did not present evidence to support her allegations at the hearing on the motion to enter the decree or at the divorce prove-up.
The record reflects that Wife filed a written request for a jury and paid the jury fee shortly after the MSA was filed and before Husband filed his motion to sign the decree. In her reply brief on appeal, Wife refers us to a brief she filed in the trial court in response to Husband's motion to sign the decree, in which she argued the trial court had no authority to sign the decree until after a full-scale trial by a jury on her defenses to the MSA. After the hearing on Husband's motion to sign the decree, Wife filed another brief again arguing that the fraud and duress grounds for setting aside the MSA were fact issues that should be ruled on by a jury and reminding the court that she had paid a jury fee. She requested the trial court to set aside the MSA and proceed to trial on her defenses. The trial court, however, indicated it would grant the motion to sign the decree.
We do not have a record of the hearing on the motion to sign the decree.
After a brief prove-up hearing, the trial court signed the decree. Wife did not object at the prove-up hearing other than to say that the court was aware of her position regarding the decree. The divorce decree signed by the trial court, although not signed by Wife or her attorney, recites that it was based on the MSA and that a jury was waived.
In her verified motion for new trial, supported by her affidavit, Wife argued the MSA was obtained by fraud and duress and stated that she was "entitled to a trial on these factual issues that the Court disregarded simply because the MSA, on its face, complied with the Family Code's requirements." The motion concluded, "These facts-and many more like them-need to be presented to a jury for determination."
Wife appears to argue that paying the jury fee and filing a jury demand are enough to preserve her right to a jury trial. The right to a jury trial in civil cases is not self-executing and must be invoked by complying with rule 216. Tex. R. Civ. P. 216; Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat. Assur. Co., 875 S.W.2d 385, 387 (Tex.App.-Dallas 1993, no writ). Even if perfected, the right to a jury trial may be waived. Sunwest, 875 S.W.2d at 387-88. In Sunwest, we concluded that a party "is required to act affirmatively in order to preserve the right to complain on appeal that it was denied its perfected right to a trial by jury." Id. at 387. If a trial court proceeds to trial without a jury, a party with a perfected right to a jury trial must "either object on the record to the trial court's action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial." Id. (emphasis added).
In Sunwest, we distinguished the supreme court's holding in Citizens State Bank v. Caney Investments, 746 S.W.2d 477, 478-79 (Tex. 1988) (per curiam), that a trial court erroneously denied the bank its perfected right to a trial by jury. Sunwest, 875 S.W.2d at 387. We recognized the supreme court's decision in Caney was based on record evidence, pointed out by the dissent in the court of appeals, that the bank informed the trial court on the record that it had paid a jury fee. Citizens State Bank v. Caney Invs., 733 S.W.2d 581, 588 (Tex.App.-Houston [1st] 1987) (Hoyt, J., dissenting). We said, "Although the bank's statement to the trial court may not have constituted a formal objection, in the context made the statement at the very least put the trial court on notice that the bank intended to stand on its perfected right to a jury trial rather than agreeing to proceed with a trial before the court." Sunwest, 875 S.W.2d at 387. This Court then distinguished Caney because the "appellate record [here] is devoid of any objection or statement by Sunwest that could be construed as an indication to the trial court it was standing on its perfected right to a jury trial." Id.
Here, Wife filed a written jury demand and paid the jury fee. However, in order to preserve any error in ignoring her perfected right to a jury trial, once it became clear to Wife the trial court was going to proceed to enter the decree without a jury trial on her defenses, she was obligated to object on the record to the trial court's action or otherwise indicate affirmatively on the record that she intended to stand on her right to a jury trial. Sunwest, 875 S.W.2d at 387. The record does not clearly indicate that Wife objected at the hearings held by the trial court or informed the trial court that she intended to stand on her perfected right to a jury trial. Id. We conclude she failed to preserve any error concerning this issue. Tex.R.App.P. 33.1. We conclude Wife's brief presents nothing further for review. The judgment of the trial court is affirmed.
The table of contents in Wife's brief lists as one of her arguments whether she preserved in her pleadings the right to a new trial to present the illegal inducement issues to a jury, but she never presents a clear and concise argument for her contentions with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h).