Summary
In Hilms, for instance, we held husband waived his right to complain that the final decree of divorce varied from a mediated settlement agreement where the parties had agreed to submit disputes regarding the form and substance of the divorce decree to arbitration and did so.
Summary of this case from Huber v. HuberOpinion
No. 04-07-00631-CV
Delivered and Filed: April 2, 2008.
Appealed from the 407th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-01435, Honorable Peter Sakai, Judge Presiding.
AFFIRMED.
Sitting: ALMA L. LOacute;PEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Richard Hilms appeals a Final Decree of Divorce contending the trial court erred by: (1) entering the final divorce decree after the expiration of the trial court's plenary power; and (2) entering a decree that failed to strictly comply with the terms of the parties' Mediated Settlement Agreement. Richard also contends that an arbitration award entered after the Final Decree of Divorce was signed was waived or is void. We affirm the trial court's judgment.
Background
In January of 2005, Richard filed an original petition for divorce. Carole Molina Hilms answered and filed a counter-petition. The trial court ordered the parties to mediation, and the parties entered into a mediated settlement agreement ("MSA") on August 22, 2006. The trial court judicially pronounced and rendered the divorce on August 23, 2006, but the final divorce decree was not signed until June 19, 2007.
Before the decree was entered, the parties participated in an arbitration; however, the record contains no evidence of the issues that were arbitrated. The final divorce decree provided:
Agreement of Parties
The agreements in this Final Decree of Divorce were reached in mediation with SOL CASSEB, III. This Final Decree of Divorce is stipulated to represent a merger of a mediation agreement between the parties. To the extent there exist any differences between the mediation agreement and this Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.
Both Richard and Carole signed the decree as approving both form and content. Richard subsequently filed a motion to correct and/or reform the divorce decree complaining that it did not conform to the MSA. The parties also participated in two additional arbitrations after the decree was entered, and Richard subsequently filed a motion to vacate the arbitration award resulting from those arbitration proceedings.
Jurisdiction to Enter Divorce Decree
In his first issue, Richard contends that the trial court did not have jurisdiction to enter the divorce decree because the trial court signed the MSA as "approved and rendered" on August 23, 2006. Although the MSA permitted either party to present the agreement for a rendition of judgment, the MSA expressly provided that the court would enter a Final Decree of Divorce "in conformity with the terms for same as set out in the most current TEXAS FAMILY LAW PRACTICE MANUAL." By stating that the final divorce decree would contain terms in conformity with the most current Texas Family Law Practice Manual, the parties agreed that additional terms would be included in the final divorce decree that were not contained in the MSA. Therefore, the MSA did not address all of the pending issues because some issues remained to be addressed by the additional terms to be included in the final divorce decree. See Pursley v. Ussery, 982 S.W.2d 586, 599 (Tex.App.-San Antonio 1998, pet. denied) (noting judgment is final if it disposes of all issues and parties). The pendency of issues remaining after the MSA was executed is further evidenced by the parties engaging in arbitration prior to the entry of the final divorce decree. If all issues had been resolved by the MSA, the parties would not have needed to participate in arbitration. Accordingly, the trial court's plenary power did not begin to run until the date on which the final divorce decree was signed, and the trial court had jurisdiction to enter the Final Decree of Divorce. See Tex. R. Civ. P. 329b.
Some of the issues that the Texas Family Law Practice Manual likely addressed in view of the terms of the final divorce decree include: (1) payment of cost for income tax return preparation; (2) actions to be taken if the Internal Revenue Service disallowed the filing of an individual income tax return in accordance with Internal Revenue Code Sections 66(a) and 879(a); (3) required preservation of financial records; and (4) discharge from discovery retention requirement.
Conformity of Decree with MSA
A trial court has no authority to enter a judgment that varies from the terms of a mediated settlement agreement. In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex.App.-Texarkana 2006, pet. denied); Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex.App.-Dallas 2004, no pet.). Richard contends that the final divorce decree varies from the terms of the MSA in the following respects: (1) failed to award Richard 100% of his pension disability; (2) awarded Carole a global award of retirement; and (3) ordered Carole to refinance the home within 150 days of the entry of the decree or September 14, 2007, which are in conflict.
In this case, the MSA provided that any disputes regarding the form and substance of the divorce decree to be entered by the trial court would be submitted to binding arbitration. Prior to the entry of the decree, the parties participated in an arbitration. Absent evidence of the issues presented to the arbitrator, we cannot determine whether the parties arbitrated the terms Richard now contends vary from the terms of the MSA. See In re T.B.H.-H., 188 S.W.3d 312, 315 (Tex.App.-Waco 2006, no pet.) (noting trial court not authorized to vacate arbitration award that conflicted with settlement agreements where parties agreed to binding arbitration). Moreover, the parties agreed that the terms of the decree would control in the event its terms differed from the MSA. Finally, Richard signed the decree as consenting to form and content. Absent an allegation and proof of fraud, collusion, or misrepresentation, Richard's consent waives his right to complain of any alleged error in the judgment. Baw v. Baw, 949 S.W.2d 764, 766 (Tex.App.-Dallas 1997, no writ); Urbanczyk v. Urbanczyk, 634 S.W.2d 34, 36 (Tex.App.-Tyler 1982, no writ).
Arbitration
In his final issue, Richard challenges the authority of the arbitrator to enter the arbitration award following the second and third arbitrations that occurred after the entry of the final decree. Richard contends that the entry of such an award exceeds the arbitrator's scope of authority.
Courts, rather than arbitrators, decide whether and what issues a party can be compelled to arbitrate. In re Great Western Drilling, Ltd., 211 S.W.3d 828, 836 (Tex.App.-Eastland 2006, orig. proceeding [mand. pending]). This requires that we determine if the parties' dispute is within the scope of their arbitration agreement, which is a question of law that we review de novo. Id.; Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex.App.-San Antonio 2005, no pet.).
In this case, the arbitration provision contained in the MSA provided:
Any disputes regarding the form and substance to be contained in the FINAL DECREE OF DIVORCE to be entered by the Court herein, pursuant to the terms of this Mediation Agreement, shall be submitted to SOL CASSEB, III for binding arbitration.
(emphasis added). By using the infinitive "to be" contained in a decree "to be" entered by the court, the MSA limited the scope of the arbitrator's authority to resolving issues of form and substance prior to the actual entry of the divorce decree. Because the second and third arbitrations occurred after the divorce decree was signed and entered, the arbitrator exceeded his authority in entering the arbitration award. The trial court, however, never incorporated the terms of this arbitration award into its decree. Therefore, the trial court's judgment contains no reversible error.
Conclusion
The trial court's judgment is affirmed.