Opinion
No. 10-03-00182-CV
Opinion delivered and filed August 11, 2004.
Appeal from the 220th District Court, Bosque County, Texas, Trial Court # 00-11-25600-Bcfm.
Affirmed.
Karen C. Matkin, Attorney at Law, Waco, TX, for appellant/relator.
Steve Robertson Phil Robertson, Robertson, Robertson Silas, Clifton, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Justice VANCE concurs in the judgment with a note: The majority's analysis relies on a distinction without a difference. I would affirm on the grounds that the trial judge has the discretion to review a challenged mediation agreement and reject it if flawed. See Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex. App.-Fort Worth 2002, no pet.) (mediated settlement agreement is subject to review by the trial court)).
MEMORANDUM OPINION
Mikle Gene Lee filed for divorce from Mary Lucile Lee. After a jury trial, the court entered a decree of divorce. Lucy appealed. We affirm.
The parties entered into a mediated settlement agreement. The mediator sent a copy of the agreement to the trial court. Shortly thereafter, Gene noticed a settlement term, that Lucy would pay Gene $87,500 within 30 days from the date the decree was entered, was missing from the agreement. Lucy filed a motion for entry of the decree of divorce based on the mediated settlement agreement. Gene moved to reform the mediated settlement agreement and enter a decree of divorce. At a hearing on the motions, Gene, his attorney, and the mediator agreed that the payment should have been included in the agreement. Lucy said it was not a part of the agreement. Her attorney at the time the agreement was signed was less than clear on the subject. The court denied both motions. Lucy also filed a motion for summary judgment based on the same issues that she presented in her previous motion. The trial court denied her motion for summary judgment. The divorce was then set for a jury trial.
In one issue, Lucy contends that the trial court erred in not entering a decree of divorce based on the mediated settlement agreement, either by her motion for entry of a decree of divorce or her motion for summary judgment. She specifically argues that because the parties complied with section 6.602(b) of the Texas Family Code, the trial court was required to enter a decree of divorce on the settlement agreement pursuant to section 6.602(c) of the Code. TEX. FAM. CODE ANN. § 6.602(b), (c) (Vernon Supp. 2004).
Gene contends that compliance with section 6.602(b) does not require an entry of a decree on the settlement agreement. We agree. The language of the statute is clear. A party is only entitled to judgment on a mediated settlement agreement if the agreement "meets the requirements of this section." Id. (c). "[T]his section" is 6.602, not just subsection (b) as Lucy argues. The agreement must also meet the requirements of subsection (a).
Subsection (a) provides:
On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation.
Id. (a). But nothing about this mediated settlement agreement meets the requirements of (a). There was no written agreement between the parties to mediate and there was no referral by the court based on a written agreement or on the court's own motion to mediation.
Thus, because the mediated settlement agreement did not meet the requirements of subsection (a) in addition to the requirements of (b), Lucy was not "entitled to judgment" on the mediated settlement agreement. See id. (c).
It may initially appear that this is inconsistent with the result reached by three other Texas appellate courts on this issue. See Killroy v. Killroy, 2004 Tex. App. LEXIS 4182 (Tex. App.-Houston [1st Dist.] May 6, 2004, no pet. h.); In re Circone, 122 S.W.3d 403 (Tex. App.-Texarkana 2003, no pet); In re J.A.W.-N., 94 S.W.3d 119 (Tex. App.-Corpus Christi 2002, no pet.). However, in those three cases, the courts were interpreting Family Code section 153.0071, a similar, yet strikingly different, provision. The similarities of the section end with the following subsection:
(e) If a mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement. . . .
The language of sections 6.602(b) and 153.0071(d) is identical. Section 6.602 is applicable to the dissolution of the marriage, whereas section 153.0071 is applicable to issues relating to the conservatorship, possession, and access to children.
TEX. FAM. CODE ANN. § 153.0071(e) (Vernon 2002) (emphasis added). As emphasized earlier, under section 6.602, the mediated settlement agreement must meet the requirements of the entire section, not just subsection (b). Thus, the decisions from Houston, Texarkana, and Corpus Christi are distinguishable.
Lucy's only argument for why the trial court erred in denying her two motions is that, once the requirements of section 6.602(b) are met, she is entitled to judgment on the mediated settlement agreement. Because we hold that the requirements of the entire section must be met and the requirements of (a) were not met, Lucy's sole issue is overruled.
Gene, in his reply brief, raises one cross-issue. We may not grant Gene relief on his cross-issue because he did not file a separate notice of appeal and did not join in Lucy's notice of appeal. TEX. R. APP. P. 25.1(c). Thus, we have no jurisdiction to address his issue requesting affirmative relief.
The trial court's judgment is affirmed.