Jill J. Moore v. Billy Joe Moore

Opinion issued December 8, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00163-CV

———————————

Jill J. Moore , Appellant

V.

Billy Joe

Moore , Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 53437

MEMORANDUM OPINION

Jill J. Moore appeals the trial

court’s final decree of divorce entered after she had reached a mediated

settlement agreement (MSA) with her husband, Billy Joe Moore. In her sole issue, Jill argues that the trial

court abused its discretion by entering a decree inconsistent with the terms of

the MSA. Finding error, we reverse in

part, reform in part, and affirm in part.

Background

Jill and

Billy Joe entered into a mediated settlement of their divorce case that divided

their marital estate, provided for conservatorship of their five children, and

established child support. The MSA,

signed by Billy Joe, Jill, and their respective attorneys, provided in

boldfaced, capitalized, and underlined type that it was “ NOT SUBJECT TO REVOCATION ” and that Billy Joe and Jill were

“ ENTITLED TO JUDGMENT ”

thereon. To resolve future disagreements

with respect to the MSA, the parties agreed to submit:

(a) all drafting disputes;

(b) all issues regarding the interpretation of this Mediated Settlement

Agreement; and (c) all issues regarding the intent of the parties as reflected

in the Mediated Settlement Agreement to [the mediator], whose decision shall be

binding on the parties, including decisions on the payment for additional

mediation fees (if any).

After the trial court rendered

judgment on the MSA and while the parties were drafting the final decree of

divorce, a dispute arose regarding the division of future disbursements from

Billy Joe’s employee stock ownership plan (ESOP).

The MSA divided Billy Joe’s employment

benefits as follows:

Jill contended that this division entitled her to

fifty percent of all Billy Joe’s “future retirement disbursements,” including

disbursements from his 401(k) plan and his ESOP. Billy Joe agreed that Jill was entitled to

fifty percent of the future disbursements from his 401(k) plan, but not from

his ESOP. As provided in the MSA, they submitted

their dispute to the mediator.

The mediator issued three separate

letters announcing his decision. In his

first letter, the mediator stated his recollection that the parties intended to

“split” the 401(k) plan, grant one hundred percent of the ESOP to Billy Joe,

and “split” the “future retirement disbursement

. . . 50/50 between the parties.”

With respect to the language dividing the “future retirement disbursements,”

the mediator instructed that specific language be included in the divorce

decree:

W-6: 50.00% of Billy Joe Moore’s future retirement

disbursements from ISI Specialist, Inc. and/or Brand Industrial Specialist, LLC

arising out of Billy Joe Moore’s employment with ISI Specialist, Inc. and/or

Brand Industrial Specialist, LLC as will be more particularly defined in a

Qualified Domestic Relations Order entered by this Court.

Three months later, the mediator

issued a second letter regarding the scope of the “future retirement

disbursements.” He wrote that he could

“not recall that the parties were aware of whether item 15 [the ESOP] was

separate from or a part of item 16 [the future retirement disbursements]. However, it is clear from my notes, my recollection,

and the Mediated Settlement Agreement, that Mr. Moore was awarded 100.00% of

item 15. Save and except for item 15,

then whatever value was left in or left over from item 16 was then awarded on a

50/50 basis.” Thus, in both his first

and second letters, the mediator seemingly agreed with Billy Joe’s construction

of the MSA, concluding that Jill was not entitled to future disbursements from

the ESOP because it had been awarded solely to Billy Joe.

Apparently

these two letters did not finally resolve the parties’ dispute about “future

retirement disbursements” because the mediator issued a third letter. In it he stated that he was “aware of

everyone’s concerns and the practical effect that certain language may or may

not have.” He then suggested the

following language for the division of Billy Joe’s employee benefits, which was

different from the previously suggested language and more in agreement with

Jill’s construction of the MSA:

H-3 Fifty percent (50.00%) of Industrial

Specialists, Inc. 401(k) Plan; Balance: unknown

H-4 One hundred percent (100.00%) of the balance

of ISI Specialists, Inc. Employees’ Stock Ownership Plan; Plan No. 4-51128, as

of August 11, 2009 with an approximate balance of $46,765.44.

H-5 Save and except for that portion awarded to

Billy Joe Moore in Item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership plan.

W-5 Fifty percent (50.00%) of Billy Joe Moore’s

interest in Industrial Specialists, Inc. 401(k) Plan as of January 26, 2010

arising out of Billy Joe Moore’s employment with Industrial Specialist, Inc.

and more particularly defined in a Qualified Domestic Relations Order which will

be entered with this court.

W-6

Save and except for that portion awarded

to Billy Joe Moore in item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership plan, and more particularly defined in a Qualified

Domestic Relations Order to be entered by this Court.

Jill

and Billy Joe then sought entry of the final divorce decree in the trial

court. In their proposed decrees, they

offered competing provisions with respect to the future disbursements from

Billy Joe’s ESOP. Jill’s tender incorporated

the language used in the mediator’s third and final letter, whereas Billy Joe’s

tender was consistent with the mediator’s first two announcements.

The court, finding that the

mediator’s letters were not “helpful because they’re 180 degrees opposite of

each other,” entered a final decree dividing the employee benefits in the

manner proposed by Billy Joe and suggested in the mediator’s first and second

letters.

Property to Husband

H-3. 50% of Industrial Specialists,

Inc. 401(k) Plan; Balance unknown

H-4. 100% of ISI Specialists, Inc. Employees Stock Ownership Plan;

H-5. 50% of all future retirement disbursements due to Bill[y] Joe

Moore’s employment and the benefits arising from such employment with ISI

Specialist, Inc. and/or Brand Industrial, save and

except 100% of the Employee Stock Ownership Plan which is awarded solely to

Billy Joe Moore.

Property to Wife

W-5. 50% of Billy Joe Moore’s interest

in Industrial Specialists, Inc. 401(k) Plan as of January 26, 2010 arising out

of Billy Joe Moore’s employment with Industrial Specialist, In[ c].

and more particularly defined in a Qualified Domestic

Relations Order which will be entered with the Court.

W-6. 50% of Billy Joe Moore’s future retirement disbursements from ISI

Specialist, Inc. [a] nd /or Brand Industrial

Specialists, save and except for 100% of the Employee Stock Ownership Plan

which is awarded solely to Billy Joe Moore here in [sic], and more particularly

defined in a Qualified Domestic Relations Order which will be entered with this

court.

Jill,

arguing that the construction and language provided by the mediator in his

third letter was binding on the parties and the trial court, appeals the

divorce decree on the ground that its terms “vary from the terms of the MSA and

operate to deprive [her] of one-half of the future disbursements under the

employees’ stock ownership plan as called for by the MSA.”

Entry of Judgment on the Mediated Settlement Agreement

Texas public policy

encourages the peaceable resolution of disputes, particularly those involving

the parent-child relationship, and the early settlement of pending litigation

through voluntary settlement procedures.

Tex. Civ. Prac .

& Rem. Code Ann . § 154.002 (West 2011). The Family Code furthers this policy by

providing alternative dispute resolution procedures through which parties may settle

a suit for dissolution of a marriage. See, e.g. , Tex. Fam. Code Ann . §§ 6.601 - .604 (West 2006). One such procedure is mediation. See id.

§ 6.602. A mediated settlement agreement

is binding under section 6.602 of the Family Code 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).

Settlement agreements complying

with section 6.602 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 Joyner , 196 S.W.3d 883, 889 (Tex. App.—Texarkana 2006,

orig. proceeding); Cayan v. Cayan , 38

S.W.3d 161 , 164 - 66 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied); see also Spiegel v. KLRU

Endowment Fund , 228 S.W.3d 237, 242 (Tex. App.—Austin 2007, pet. denied) (noting

that when MSA meets section 6.602’s requirements, “it must be enforced in the

absence of allegations that the agreement calls for the performance of an

illegal act or that it was ‘procured by fraud, duress, coercion, or other

dishonest means.’”) ( quoting Boyd v. Boyd , 67 S.W.3d 398, 403 (Tex. App.—Fort Worth 2002, no

pet.). “After all, the purpose of

mediation is to let parties settle their property as they see fit, keeping

those matters out of the courtroom.” Joyner , 196 S.W.3d at

889 . A trial court has no

authority to enter a judgment 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 under Tex.

Fam. Code Ann . § 153.0071 (West 2002) by entering judgment not

conforming with MSA in suit affecting parent-child

relationship).

Neither

Jill nor Billy Joe disputes that the MSA here meets the requirements of section

6.602. Likewise, they do not dispute

that the MSA is enforceable; there is no allegation that the agreement requires

the performance of an illegal act or was procured by fraud, duress, or

coercion. Rather, the parties’ only dispute

is with respect to the meaning of that part of the MSA dividing Billy Joe’s “future

retirement disbursements” equally and whether future distributions from Billy

Joe’s ESOP are included within its scope.

Ordinarily, if the terms of the MSA

could be given a certain or definite meaning, we would construe the agreement as

a matter of law to determine whether Jill’s or Billy Joe’s construction is

correct. See Garcia-Udall , 141 S.W.3d at 328 . But, this case presents a unique circumstance

in that the parties agreed in the MSA to submit “(a) all drafting disputes[,]

(b) all issues regarding the interpretation of [the MSA,] and (c) all issues

regarding the intent of the parties as reflected in the [MSA]” to the mediator

and to make his decision on these matters binding. Thus, by their agreement, Jill and Billy Joe

removed the resolution of their dispute from the province of the courts and

assigned that responsibility to the mediator.

Absent some allegation that the MSA requires an illegal act or was

procured by fraud, duress, coercion, or other dishonesty, the trial court was obligated

to enforce their agreement. See id. at 332 ;

Spiegel , 228 S.W.3d at 242 .

We reject Billy Joe’s contention

that the mediator’s “flip-flopping” somehow nullifies his decision regarding

the parties’ intended division of Billy Joe’s “future retirement

disbursements.” Billy Joe has offered no

reason why a mediator should not have the same discretion afforded trial courts

to reconsider a ruling. See generally Fruehauf Corp. v. Carrillo ,

848 S.W.2d 83, 84 (Tex. 1993) (noting that trial court has power to set aside

interlocutory orders at any time before a final judgment is entered). The record we have of the parties’ dispute

before the mediator is limited, consisting only of the MSA, counsels’

representations at the hearing on the entry of judgment, and the three letters

issued by the mediator. We will not

speculate about the reasons for the mediator’s reconsideration of his initial

determination nor the arguments presented to him by the parties. We note only that the mediator acknowledged

the parties’ continuing dispute and professed an understanding of their

“concerns and the practical effect that certain language may or may not have”

in his third letter. We conclude that letter,

being the last of the mediator’s communications, constitutes the final

expression of his decision with respect to the division of Billy Joe’s “future

retirement benefits.”

The mediator suggested this

division of the “future disbursements”:

H-5 Save and except for that portion awarded to

Billy Joe Moore in item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership.

…

W-6 Save and except for that portion awarded to

Billy Joe Moore in item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership plan, and more particularly defined in a Qualified

Domestic Relations Order to be entered by this Court.

The trial court’s departure from the suggested

language is not insignificant. By entering

a divorce decree that awards Jill only fifty percent of Billy Joe’s “future

retirement disbursements from ISI Specialist, Inc. and/or Brand Industrial

arising out of Billy Joe Moore’s employment,” the trial court deprived Jill of her

right to fifty percent of all “future retirement disbursements . . . [from

Billy Joe’s] participation in the employee stock ownership plan,” which is a

right the mediator finally determined the parties intended her to have as a

part of the MSA. The entry of a divorce

decree like this one, which varies from the terms of the MSA, is inconsistent

with the public policy favoring the resolution of disputes outside of our

courthouses in the manner the parties see fit.

To defend the trial court’s

judgment, Billy Joe argues that the language suggested by the mediator in his

third letter is technically incorrect because the ESOP is not a retirement plan

and is not community property. But, we

cannot pass upon the character of Billy Joe’s ESOP because we have no record of

the plan’s terms or the history of his participation in it. The mediator, in contrast, was the

decision-maker with whom the parties presumably discussed the character and

division of their property. Even if the future

dividends paid under the ESOP are properly characterized as Billy Joe’s separate

property, the parties certainly may agree to divide their property in a manner

different than a court might divide it. See Cayan , 38

S.W.3d at 166 (“[T]he prohibition against divesting a spouse of separate property

applies only to judicial, i.e. , unagreed , divestitures and does not restrict the parties

from dividing separate property by agreement.”).

Although the trial court merely sought

to give effect to the parties’ true intent in its divorce decree, as the trial

court understood that intent, the trial court erred in dividing the future

disbursements from Billy Joe’s ESOP in a manner other than that provided by the

mediator. See Garcia-Udall , 141 S.W.3d at 332 ; see also Tex. Fam. Code Ann . § 6.602(c); Reza v. Reza , No. 02-07-00371-CV, 2008

WL 4445619 , at *1 (Tex. App.—Fort Worth Oct. 2, 2008, no pet.)

( holding that court abused discretion by dividing

property not mentioned in the MSA).

Accordingly, we sustain Jill’s sole

issue.

Necessity of Findings of Fact and Conclusions of Law

Billy Joe contends that

because Jill did not request, and the trial court did not file, findings of

fact and conclusions of law explaining the trial court’s reasons for departing

from the division of property set forth in the mediator’s third letter, Jill

has waived any error. [1] We disagree.

In each of the family law cases cited by Billy Joe the trial court heard

evidence and made a determination based on that evidence, and, when the

appellant failed to request findings of fact and conclusions of law, the

appellate court concluded the scope of its review was limited. See Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (concluding

that trial court impliedly made all findings necessary to support its order modifying

child support obligations); Smith v.

Smith , 22 S.W.3d 140, 150 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ( same with respect to trial court’s division of community

property); Frommer

v. Frommer , 981 S.W.2d 811, 813 (Tex.

App.—Houston [1st Dist.] 1998, pet. dism’d ) (same). These authorities do not necessitate a

request for findings of fact and conclusions of law in this case. The parties here agreed to the division of

their marital estate in a binding MSA pursuant to section 6.602. See Tex. Fam. Code Ann . § 6.602. They did not leave that matter to the trial

court’s discretion. Consequently, they

did not present any evidence to the trial court as to the character or value of

their property, and the trial court was required to render judgment on the

MSA. See

Cayan , 38 S.W.3d at 166 - 67. Under the circumstances of this case, the

absence of any findings of fact or conclusions of law does not preclude Jill’s

complaint that she was entitled to judgment on the MSA and the trial court

failed to correctly enter that judgment.

Conclusion

We

reverse the trial court’s final decree of divorce with respect to the division

of the future disbursements from Billy Joe’s ESOP in items H-5 and W-6. In accordance with the mediator’s third

ruling, we reform the judgment to include this language for items H-5 and W-6:

H-5 Save and except for that portion awarded to

Billy Joe Moore in item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership plan.

W-6 Save and except for that portion awarded to

Billy Joe Moore in item H-4, fifty percent (50.00%) of all future retirement

disbursements arising out of Billy Joe Moore’s employment with ISI Specialist,

Inc. and/or Brand Industrial, whether from retirement or participation in the

employee stock ownership plan, and more particularly defined in a Qualified

Domestic Relations Order to be entered by this Court.

We affirm the trial court’s final decree of divorce

in all other respects.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

[1]

Billy Joe relies on section

6.711(a) of the Family Code, which provides:

(a) In a suit for dissolution of a

marriage in which the court has rendered a judgment dividing the estate of the

parties, on request by a party, the court shall state in writing its findings

of fact and conclusions of law concerning:

(1) the characterization of each

party’s assets, liabilities, claims, and offsets on which disputed evidence has

been presented; and

(2) the

value or amount of the community estate’s assets, liabilities, claims, and

offsets on which disputed evidence has been presented.

Tex. Fam. Code Ann . § 6.711(a) (West 2006).