Reverse and Remand and Opinion Filed July 8, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00253-CV
IN THE INTEREST OF S.K.D AND J.E.D., MINOR CHILDREN
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-19830-Z
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Richter1
Opinion by Justice Bridges
Katherine Duncan appeals the trial court’s order modifying the parent-child relationship
appointing John Duncan as joint managing conservator of S.K.D. and J.E.D. with the exclusive
right to designate both children’s residence and ordering Katherine to pay $800 per month in
child support. In four issues, Katherine argues the trial court erred in not entering an order
consistent with a mediated settlement agreement between the parties, failing to make specific
findings regarding child support, awarding attorney’s fees against Katherine, and not conducting
a jury trial as requested. We reverse the trial court’s order and remand for further proceedings.
As an initial matter, we note this Court’s opinion on original submission was withdrawn
on the Court’s own motion. However, before the Court was John’s motion to withdraw opinion
and dismiss the appeal in which John stated Katherine had died during the pendency of the
1
The Hon. Martin Richter, Justice, Assigned
appeal. Katherine’s counsel filed a response urging this Court to uphold the Mediated
Settlement Agreement in this case. Neither party provided proof of Katherine’s death. Further,
both parties urge this Court to address the merits of the trial court’s action in entering its order
modifying the parent-child relationship by either affirming the trial court’s order or reversing and
remanding for further proceedings, respectively. Accordingly, we address Katherine’s
arguments on appeal.
In May 2006, John and Katherine divorced. John and Katherine were named joint
managing conservators of their two children, S.K.D. and J.E.D., with John having primary
custody and the right to determine the residence of the children. The divorce decree further
obligated Katherine to pay $100 per month in child support and required John to maintain health
insurance for the children. In June 2006, Katherine filed a petition to modify the parent-child
relationship seeking to have herself appointed sole managing conservator with the exclusive right
to designate the primary residency of the children. In November 2007, the trial court referred the
case to mediation, and a mediated settlement agreement (MSA) was reached in March 2008.
Under the terms of the MSA, John and Katherine remained joint managing conservators of
S.K.D. and J.E.D., but Katherine was given primary of S.K.D., their daughter, with the exclusive
right to establish her residence. John retained primary possession of their son, J.E.D. The MSA
further required John to pay $1050 per month in child support and continue to provide health
insurance for the children.
On November 11, 2008, Katherine filed an emergency petition to modify the parent-child
relationship in which she sought modification of the divorce decree “and/or” the MSA. The
same day, the trial court entered an order dismissing the case for want of prosecution. On
November 18, 2008, John filed a motion to reinstate the case, but he non-suited the motion to
reinstate on December 15, 2008. The next day, the trial court dismissed the case without
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prejudice. On December 22, 2008, John filed a first amended counter-petition to modify the
parent-child relationship in which he sought to be named sole managing conservator of S.K.D.
and J.E.D. with the exclusive right to designate the children’s primary residence, consent to their
medical treatment, and manage certain financial matters. Further, the motion requested that
Katherine’s access to the children be restricted and that she be ordered to submit to a
psychological evaluation and six months of drug testing.
In November 2009, the trial court conducted a trial before the court at which Katherine
represented herself pro se. Nearly a year after trial, on November 1, 2010, the trial court entered
an order containing the court’s findings that the circumstances of the children, a conservator, or
other party had materially and substantially changed and that the requested modification was in
the best interest of S.K.D. and J.E.D. The order provided that John and Katherine would remain
joint managing conservators, but John was given the exclusive right, among other things, to
designate the primary residence of S.K.D. and J.E.D. and to consent to psychological and
psychiatric treatment. Katherine’s possession of J.E.D. was roughly equal to John’s but her
access to S.K.D. was restricted to two hours of supervised access per week at Hannah’s House
Supervised Visitation and Exchange Center. During the first six months following the entry of
the order, Katherine was ordered to submit to random drug testing three times at a time and
location determined by John. Finally, the order awarded John $50,000 in attorney’s fees against
Katherine. This appeal followed.
In her first issue, Katherine argues the trial court erred by not entering an order in
accordance with the parties’ March 2008 MSA. Specifically, Katherine relies on section
153.0071 of the family code in arguing that a mediated settlement agreement in a suit affecting
the parent-child relationship is “enforceable,” and an “MSA cannot be repudiated to prevent
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judgment on the matter.” Essentially, Katherine argues the MSA entitled her to an order in strict
accordance with the terms of the MSA, and the trial court erred in failing to enter such an order.
Section 153.0071 of the family code provides that, if an MSA meets the requirements of
that section, “a party is entitled to judgment on the [MSA] notwithstanding Rule 11, Texas Rules
of Civil Procedure, or another rule of law.” TEX. FAM. CODE ANN. § 153.0071(d), (e) (West
2008). It is clear that the MSA statute was enacted with the intent that, when parents have
agreed that a particular arrangement is in their child’s best interest and have reduced that
agreement to a writing complying with section 153.0071, courts must defer to them and their
agreement. In re Lee, 411 S.W.3d 445, 455 (Tex. 2013). Section 153.0071 encourages parent to
peaceably resolve their child-related disputes through mediation by foreclosing a broad best
interest inquiry with respect to entry of judgment on properly executed MSAs, ensuring that the
time and money spent on mediation will not have been wasted and that the benefits of successful
mediation will be realized. Id. A trial court may not deny a motion to enter judgment on a
properly executed MSA under section 153.0071 based on a broad best interest inquiry. Id. We
sustain Katherine’s first issue. Because of our disposition of Katherine’s first issue, we need not
address her remaining issues.
We reverse the trial court’s order and remand for further proceedings consistent with this
opinion.
110253F.P05 /David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF S.K.D AND J.E.D., On Appeal from the 256th Judicial District
MINOR CHILDREN, Appellant Court, Dallas County, Texas
Trial Court Cause No. 05-19830-Z.
No. 05-11-00253-CV Opinion delivered by Justice Bridges.
Justices Lang and Richter participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion..
It is ORDERED that appellant Katherine Duncan recover her costs of this appeal from
appellee John Duncan.
Judgment entered July 8, 2014
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