Appellant, Sean August Mueller, brings this restricted appeal complaining of the trial court's rendition of a final decree of divorce from appellee, Alana Nicole Mueller. In three issues, Sean argues the trial court erred by (1) not rendering decree in conformity with the parties' mediated settlement agreement and (2) including an award of child support arrearage in the decree when Alana failed to plead for such relief in her petition.
We affirm, in part, and reverse and remand, in part.
Sean and Alana were married in August 2006. In July 2009, Alana filed a petition for divorce, and Sean filed a counter-petition. Some time later, the trial court referred the parties to mediation. On April 12, 2010, the parties entered into a mediated settlement agreement. The settlement agreement apportioned the property between the parties and established the custody matters for their son.
After the mediated settlement agreement was signed, Sean began repeatedly breaching it, including failing to deliver money to Alana on the day following the agreement. Nevertheless, on June 10, 2010, Sean filed a motion to render a final decree of divorce in conformity with the settlement agreement and set a hearing on the motion.
Shortly afterwards, Sean's attorney filed a motion to withdraw, which the trial court granted. Sean had no further involvement in the case.
Alana subsequently filed a motion to set aside the mediated settlement agreement, alleging fraud. At the hearing, Alana identified Sean's numerous breaches of the mediated settlement agreement and asked the trial court to set it aside. The trial court granted the motion on August 30, 2010.
On September 23, 2010, the trial court conducted a trial on the petitions for divorce. Alana and the amicus attorney appeared. The trial court signed the final decree of divorce on September 23, 2010. The final decree of divorce did not reflect the agreement in the mediated settlement agreement. It also included in the decree an award of child support arrearages, which Alana had not pleaded for in her petition.
Sean filed his notice of restricted appeal on March 14, 2011.
A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the decree was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the decree complained of and did not timely file any post-decree motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); seeTEX. R. APP. P. 26.1(c), 30. The face of the record consists of all the papers on file in the appeal. See Norman Commc'ns v. Tex. Eastman Co.,955 S.W.2d 269, 270 (Tex. 1997) (stating that review by restricted appeal affords appellant same scope of review as ordinary appeal, which is review of entire case).
Here, it is undisputed that Sean filed his notice of restricted appeal within six months after the decree was signed; that he was a party to the underlying lawsuit; that he did not participate in the hearing that resulted in the default decree, which is the decree complained of; and that he did not timely file any post-decree motions or requests for findings of fact and conclusions of law. The only element remaining is whether error appears on the face of the record.
Mediated Settlement Agreement
In his first issue, Sean argues that Alana failed to present the trial court a sufficient basis to set aside the mediated settlement agreement. In his second issue, Sean argues the trial court erred in granting Alana a decree not in conformity with the mediated settlement agreement.
A.Standard of Review
Whether a mediated settlement agreement complies with the statutory requirement-entitling a party to its enforcement-is a legal question, which we review de novo. Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 241 (Tex. App.-Austin 2007, pet. denied). If party moves to set aside a settlement agreement for other reasons, however, we review the trial court's decision for an abuse of discretion. In re C.H., Jr., 298 S.W.3d 800, 804 (Tex. App.-Dallas 2009, no pet.).
In both a divorce action and a suit affecting the parent-child relationship, the parties can enter into a mediated settlement agreement. TEX. FAM. CODE ANN. § 6.602(b) (Vernon 2006), § 153.0071(d) (Vernon 2008). Both statutes provide that a mediated settlement agreement is binding on the parties if the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
Id. §§ 6.602(b), 153.0071(d). Both statutes also provide that if a mediated settlement agreement meets the above requirements, "a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law." Id. §§ 6.602(c), 153.0071(e).
Settlement agreements complying with section 6.602 and 153.0071 are immediately enforceable, not subject to repudiation by a party, and, with certain limited exceptions, binding on the trial court without approval or determination of whether the agreement's terms are just and right. See In re Marriage of Joyner, 196 S.W.3d 883, 889 (Tex. App.-Texarkana 2006, pet. denied); Cayan v. Cayan, 38 S.W.3d 161, 164--66 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).
The mediated settlement agreement prominently stated that the agreement was not subject to revocation. This statement was bolded, underlined, and capitalized. The agreement was signed by both Sean and Alana as well as their attorneys that were present at mediation. We hold Sean met his burden of establishing he was entitled to judgment on the mediated settlement agreement. See TEX. FAM. CODE ANN. §§ 6.602(c), 153.0071(e).
If a party establishes that he is entitled to judgment on the mediated settlement agreement, it can only be set aside if the opposing party establishes that the agreement was illegal or was procured by fraud, duress, coercion, or other dishonest means. Spiegel, 228 S.W.3d at 242. Otherwise, a trial court has no authority to enter a decree that varies from the terms of a mediated settlement agreement. Cf. Garcia--Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.-Dallas 2004, no pet.) (concluding that trial court abused its discretion by entering decree not conforming with MSA in suit affecting parent-child relationship).
Alana asked the trial court to set aside the mediated settlement agreement on an allegation of fraud. Her basis for fraud was Sean's numerous and repeated breaches of the settlement agreement in the intervening time between the signing of the agreement and the hearing on the motion to set aside the agreement.
Sean argues that breaching a contract cannot be a basis for fraud. This is not entirely true. "A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made." Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). "[A] party's intent is determined at the time the party made the representation, [but] it may be inferred from the party's subsequent acts after the representation is made." Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). "While breach of the contract alone is not evidence that a party did not intend to perform, 'breach combined with "slight circumstantial evidence" of fraud' is some evidence of fraudulent intent, enough to support a verdict." Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 775 (Tex. 2009) (quoting Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006)).
Alana fails to cite to any portion of the record that would constitute "slight circumstantial evidence" to accompany evidence of Sean's breaches. Nor have we found any such evidence in our review in the record. Without this, the trial court could not have set aside the mediated settlement agreement on the basis of fraud. Id.
On appeal, Alana argues that the trial court still has discretion to review the agreement and a duty to act in the best interest of the child. She argues the trial court did not simply have a ministerial duty to render a decree in conformity with the mediated settlement agreement. See In re Kasschau, 11 S.W.3d 305, 311 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding) (holding trial court has discretion to review settlement agreement before rendering decree and rendition of decree is not ministerial duty).
While the duty to render a decree based on the settlement agreement is not ministerial, this does not mean it is not a duty. A trial court has the discretion to review the settlement agreement to ensure that it is in conformity with the applicable statutes. See In re Marriage of Joyner, 196 S.W.3d at 889. And, if raised by the opposing party, the trial court has the discretion to review the settlement agreement for illegality, fraud, duress, coercion, or other dishonest means. Spiegel, 228 S.W.3d at 242. Those are the limits of the trial court's discretion, however.
Similarly, nothing in section 153.0071 requires a trial court to conduct a best interest hearing before rendering decree in conformity with the mediated settlement agreement. Beyers v. Roberts, 199 S.W.3d 354, 359 (Tex. App.- Houston [1st Dist.] 2006, pet. denied). Nor did Alana present any evidence, at trial or on appeal, to establish that rendition of a decree in conformity with the mediated settlement agreement that she signed would not be in the best interest of the child. Accordingly, this cannot be a basis to support the trial court's determination to set aside the mediated settlement agreement.
We sustain Sean's first and second issues.
Child Support Arrearage
In his third issue, Sean argues the trial court erred by including in the decree an award of child support arrearage when Alana failed to plead for such relief in her petition.
We begin by noting that Sean agreed in the mediated settlement agreement to pay child support "starting May 1, 2010." This is one of the many breaches Sean committed. As of the time of rendition of the decree, the amount of past-due child support owed was $6,000. The portion of the decree awarding Alana this past-due amount, then, is in conformity with the mediated settlement agreement.
Further, under the statute for mediated settlement agreements in suits affecting the parent-child relationship, a party is entitled to judgment on the agreement "notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law." TEX. FAM. CODE ANN. § 153.0071(e). Even when a mediated settlement agreement is not involved, "[d]etailed pleadings are not required in suits affecting the parent-child relationship, because the paramount concern of the court is the best interests of the child, and therefore, the technical rules of pleading and practice are of little importance." Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex. App.-Houston [1st Dist.] 1985, no writ). A party cannot avoid portions of a mediated settlement agreement simply because the parties agree to matters beyond what is addressed in their pleadings.
We overrule Sean's third issue.
We reverse the decree of the trial court to the degree it conflicts with the mediated settlement agreement. We affirm the award of child support arrearage in the decree because it does not conflict with the mediated settlement agreement. We remand this case to the trial court for rendition of a decree in conformity with the mediated settlement agreement.
Laura Carter Higley Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.