by Constance A. Mims and Bryan Ballew
The Courts in Texas, especially with respect to Family Law, have long favored the finality of agreements. The institution of Texas Family Code Sections 6.602 and 153.007 regarding the binding effect of mediations were definitely a trend toward limiting the Court’s power to interfere with the parties’ ability to contract. However, recent trends in case law tend to demonstrate that the Courts seek to limit the ability to contract to specific circumstances.
For instance, recently, in In re Minix, 543 S.W.3d 446 (Tex. App.—Houston [14th Dist.] 2018) the parties sought, at a certain juncture in the case, to agree to set aside a mediated settlement agreement (MSA), and at least one party asserted that the parties did so in open court. However, in this case, the 14th Court of Appeals held that the plain meaning of the statute, which read that the MSA would be “binding on the parties” where certain conditions had been met, would not allow the parties to make any subsequent agreements contrary to those in the MSA. In Minix, the court held that the express language of the statute provides that a party is entitled to judgment on an otherwise statutorily compliant MSA ‘notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.’”
Minix was distinguished by In re Marriage of Harrison, No. 14-15-00430-CV, 2018 Tex.App. LEXIS 4201 (App.—Houston [14th Dist.] Feb. 15, 2018), where the same court determined that where the trial court entered an “interim” order on the terms of the MSA, and then subsequently modified that order on petition of a party, based on facts and circumstances that happened subsequent to the agreement, Minix did not apply because it was not a matter of the parties’ agreement; rather, the trial court granted a modification.
Consistent with the trends in Family Law with respect to finality of MSAs, authority exists, with distinctions, where the courts seek to limit the ability of parties to alter the property division contained in a final divorce decree using an agreement under Texas Rule of Civil Procedure 11. For instance, in Gourley v. Gourley, 2018 Tex. App. LEXIS 4354 (App.—Fort Worth June 14, 2018), the parties executed three separate divorce decrees, each of which had been signed (entered) by the trial court in succession. However, almost 20 years after the third and last decree was entered, when the parties were to begin payment on the husband’s military retirement, the husband petitioned the trial court to void the two last divorce decrees, as both were detrimental to his share of the military retirement.
The wife in Gourley sought to enforce the third decree as a Rule 11 Agreement that had been confirmed and ordered by the Court. A Rule 11 agreement must touch any suit pending. Tex. R. Civ. P. 11. The Supreme Court of Texas held agreements do not require ‘slavish adherence’ to the rule’s literal language and two courts have adopted an expansive view of “any suit pending”. Kennedy v. Hyde, 682 S.W.2d 525 (Tex. 1984).
First, parties litigated a dispute regarding an easement and several years after the final judgment one party filed an enforcement. Coale v. Scott, 331 S.W.3d 829, 830 (Tex. App. – Amarillo 2011, no pet.). The parties then entered into an agreement that ultimately expanded one of the party’s rights. Id.
The court stated, “Irrespective of whether a trial court lost its plenary jurisdiction over its judgment, the trial court's authority to approve a Rule 11 agreement does not depend upon whether it has such jurisdiction.” Id. At 831. Additionally, “[A] settlement agreement . . . executed while the parties were attempting to sway the trial court to enforce its judgment logically falls within the scope of “any suit pending” for purposes of Rule 11.”Id. at 831.
The Second Court of Appeals in Fort Worth expressed a similar view in another circumstance. The court cited the Coale decision in the context of a case on appeal. Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519 (Tex. App.—Fort Worth 2011, pet. denied). The court noted that even though the trial court did not have plenary power at the time of the agreement, the case had not been finally disposed of, as the trial court did have authority to enforce the judgment.
However, the Second Court of Appeals recently distinguished the concept of “pending” in Gourley, holding an agreement made during a Nunc Pro Tunc proceeding where no appeal had been filed would impermissibly vest the court with subject matter jurisdiction. This recent decision, as in the Minix case, presents a conundrum with respect to the parties’ ability to make agreements in Family Law cases.
Constance Mims is the Senior Managing Attorney and Member at the Beal Law Firm, PLLC, is Board Certified in Family Law by the Texas Board of Legal Specialization; Bryan Ballew is a Senior Associate Attorney at the firm. They can be reached at firstname.lastname@example.org and email@example.com, respectively.