Cade Pryor v. Samantha Pryor

• Court: Court of Appeals of Texas
• Decided: November 2, 2021
• Docket: 07-20-00329-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00329-CV ________________________

CADE PRYOR, APPELLANT

V.

SAMANTHA PRYOR, APPELLEE

On Appeal from the 22nd District Court Comal County, Texas Trial Court No. C2014-0987A; Honorable Charles A. Stephens II, Presiding

November 2, 2021

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Cade Pryor, Appellant, appeals from the trial court’s Order Modifying Order in Suit

Affecting the Parent-Child Relationship that included a child support obligation in the

amount of $1,461.24. He argues the trial court erred because it should have included a

child support obligation of $1,062.60, the amount agreed to during mediation and included

in the Mediated Settlement Agreement (Agreement). Samantha Pryor, Appellee, contends the trial court did not err because the agreement was ambiguous, and the trial

court acted within its discretion in resolving the ambiguity. We will affirm the trial court’s

order. 1

BACKGROUND

The appeal before us arose from a modification of the parent-child relationship filed

by the Texas Attorney General, with counter-petitions to modify filed by both Samantha

and Cade. Samantha and Cade attended mediation on October 4, 2019. The mediation

lasted some seven hours. At the conclusion of the mediation, both parties and their

attorneys signed the Agreement at issue here. Samantha and Cade also initialed each

page of the Agreement. The Agreement included one attached handwritten page with a

child support calculation created by counsel for Samantha during the mediation. Also

attached were four 2018 W-2 tax forms indicating wages earned by Cade. Those forms

were not initialed and not specifically incorporated into the Agreement.

The attached page containing the child support calculation and the body of the

Agreement identified Cade’s monthly child support obligation as $1,062.60. However,

the attached page also contained a method for calculating child support. It provided that

“child support is based on [Cade’s] representation that he has no rental income and is

calculated pursuant to the attached calculations and Exhibits.”

1 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. 2 The trial court held a hearing on a Motion to Enter Order on April 16, 2020, during

which the court determined there was a scrivener’s error in calculating child support. The

court reached this conclusion because it appeared there was a misreading of one of

Cade’s 2018 W-2 forms attached to the Agreement and the child support calculation

included income of $2,500 when it should have been $25,000. The court requested Cade

file a brief regarding whether the court was permitted to change the child support

obligation from the figure included in the Agreement to the one it believed was correct.

Cade did so on April 22. The court heard a second Motion to Enter Order on October 16,

2020, after which the court entered the Order Modifying Order in Suit Affecting the Parent-

Child Relationship as proposed by Samantha, over Cade’s objections. The order set

Cade’s monthly child support obligation at $1,461.24.

Through this appeal, Cade argues the trial court erred in entering an order that

included the $1,461.24 child support obligation figure and requests that this court reverse

and remand the case and instruct the trial court to enter a judgment in accordance with

the Agreement, specifying the child support monthly obligation to be $1,062.60.

ANALYSIS

Through four issues, Cade argues he was entitled to judgment based on the

Agreement even if there was a mutual mistake and even in the event the Agreement was

ambiguous. He further contends the scrivener’s error rules are inapplicable here.

Samantha argues the Agreement is ambiguous even if there was a mutual mistake and

the trial court was within its discretion in issuing its order in this matter. We agree with

Samantha’s contentions.

3 We review a trial court’s decision to render judgment on a mediated settlement

agreement under Texas Family Code section 153.0071 for an abuse of discretion. In the

Interest of M.E.H., No. 14-18-00281-CV, 2020 Tex. App. LEXIS 3467, at *13 (Tex. App.—

Houston [14th Dist.] April 23, 2020, pet. denied) (mem. op.) (citing In re C.C.E., 530

S.W.3d 314, 319 (Tex. App.—Houston [14th Dist.] 2017, no pet.)). Such an 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.

See TEX. FAM. CODE ANN. § 153.0071(d). If a mediated settlement agreement meets

these requirements, a party is entitled to judgment on the agreement notwithstanding

Rule 11 of the Texas Rules of Civil Procedure or another rule of law. See id. at §

153.0071(e).

A settlement agreement is a contract, and its construction is governed by legal

principles generally applicable to contracts. Garza v. Villarreal, 345 S.W.3d 473, 479

(Tex. App.—San Antonio 2011, pet denied) (citation omitted). Whether a contract is

ambiguous is a question of law. 2 Milner v. Milner, 361 S.W.3d 615, 619 (Tex. 2012) (citing

Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). When the agreement’s language can

be given a certain and definite meaning, the agreement is not ambiguous, and the

contract’s construction is a matter for the court. Milner, 361 S.W.3d at 619 (citing Chrysler

2A court may determine ambiguity regardless of whether the parties have raised the issue. Garza, 345 S.W.3d at 480 (citing Coker v. Coker, 650 S.W.2d 391, 392-95 (Tex. 1983)). 4 Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex. 2009) (per

curiam)). However, if the agreement is susceptible to more than one reasonable

interpretation, the agreement is ambiguous, creating a fact issue on the parties’ intent.

Milner, 361 S.W.3d at 619 (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229

(Tex. 2003)).

In construing a written contract, the primary concern of the court is to ascertain the

true intentions of the parties as expressed in the instrument. Webster, 128 S.W.3d at 229

(citing R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980);

City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968)). To

achieve this objective, the court must examine and consider the entire writing in an effort

to harmonize and give effect to all the provisions of the contract so that none will be

rendered meaningless. Webster, 128 S.W.3d at 229 (citation omitted). No single

provision taken alone will be given controlling effect; instead, all the provisions must be

considered with reference to the whole instrument. Id. (citations omitted).

It is undisputed that the Agreement at issue here meets each of the requirements

set forth above and is thus binding on the parties. 3 What is in dispute is whether the

Agreement contained a scrivener’s error, whether the parties operated under a mutual

3 The first page of the mediated settlement agreement states as follows:

It is the intention and agreement of the parties that:

THIS MEDIATED SETTLEMENT AGREEMENT IS NOT SUBJECT TO REVOCATION AND IS BINDING ON ALL PARTIES.

EACH PARTY TO THIS AGREEMENT IS ENTITLED TO JUDGMENT ON THE MEDIATED AGREEMENT ATTACHED.

THIS MEDIATED SETTLEMENT AGREEMENT HAS BEEN REVIEWED BY THE PARTIES AND THEIR ATTORNEYS, IF REPRESENTED, BEFORE SIGNING. 5 mistake, or whether the Agreement is ambiguous with regard to the child support

obligation such that the trial court acted within its discretion to alter the monthly obligation

in its order or whether the trial court was required to include in its order the child support

figure set forth in the Agreement.

Cade contends the scrivener’s error rules are inapplicable here and further asserts

that even if the Agreement is ambiguous, the “ambiguity is considered a drafting dispute,”

requiring arbitration with the mediator. Samantha disagrees, arguing the Agreement is

ambiguous and the trial court was within its discretion to examine and consider the entire

Agreement and harmonize and give effect to each provision.

The page attached to the Agreement containing the child support calculation and

the body of the Agreement identified Cade’s monthly child support obligation as

$1,062.60. It is that figure Cade insists must be included in the final order because the

Agreement is binding on the parties. However, the attached page also contained a

method for calculating child support. It provided that “child support is based on [Cade’s]

representation that he has no rental income and is calculated pursuant to the attached

calculations and Exhibits.” The four W-2 forms relating to Cade’s wages were attached

as exhibits to the Agreement. The trial court identified an error when the child support

obligation was determined during mediation. That error came from a misreading of one

of the W-2 forms. In the initial calculation, the wages that were included were $2,500.

However, a clear copy of the W-2 shows those wages should have been $25,000, causing

a discrepancy in the proper amount of the monthly child support obligation. Therefore,

the record shows there is a conflict between the sum for child support in the Agreement

and the sum that is derived from the method for calculating child support that was also

6 included in the Agreement. The two cannot be harmonized in a way that gives effect to

all provisions of the Agreement. As such, the Agreement is ambiguous.

In both hearings, the trial court characterized the issue here as a “scrivener’s

error.” In the first hearing, the court acknowledged that it could not modify a mediated

settlement agreement but believed that “when there’s an error such as this, an obvious

scrivener’s error—what I call a scrivener’s error—I think that’s what the law refers to it is

that I can change what would otherwise be just a simple addition error.” In the second

hearing, after reiterating its belief that there was a scrivener’s error in the matter, the court

concluded “the correct child support should be $1,461.24.”

Cade argues the issue here is not a clerical or scrivener’s error. A scrivener’s error

is an error that is clerical in nature. See, e.g., Ramirez v. Ramirez, No. 03-18-00200-CV,

2019 Tex. App. LEXIS 2897, at *13 (Tex. App.—Austin April 11, 2019, no pet.) (mem.

op.) (noting the discrepancy between the informal settlement agreement and the final

decree of divorce was a scrivener’s error in drafting, i.e., a clerical error); Joe T. Garcia’s

Enterprises, Inc. v. Snadon, 751 S.W.2d 914, 917 (Tex. App.—Dallas 1988, writ denied)

(noting that a correction deed is executed and recorded for the unique purpose of

correcting a scrivener’s error in the description of the property). Citing Escobar v.

Escobar, 711 S.W.2d 230, 231-32 (Tex. 1986), Cade describes a scrivener’s error as one

that “occurs when there is a discrepancy between the decree and the judgment entered,

that was made by mistake during drafting of the order.”

What we have before us is of a slightly different nature. While the error originated

from a misreading of one of the W-2 forms utilized to calculate Cade’s monthly child

7 support obligation, i.e., misreading income of $2,500 rather than $25,000, we cannot say

the resulting discrepancy between the stated sum of $1,062.60 and the sum calculated

by the trial court of $1,461.24 was simply a clerical mistake. It was not a simple

transcription error or a failure to transfer the proper sum. The handwritten exhibit attached

to the Agreement states “Father shall pay mother beginning Nov 1, 2019 $1062.60 per

month child support for 3 children. Child support is based on Father’s representation that

he has no rental income and is calculated pursuant to the attached calculation and

Exhibits.” The stated sum of $1,062.60 and the sum derived from the exhibits as stated

do not yield the same sum. Accordingly, the Agreement contains contradictory terms

such that it is susceptible to more than one reasonable interpretation and creates a fact

issue on the parties’ intent. We cannot simply accept Cade’s position that the stated sum

of $1,062.60 is correct because to do so, we would necessarily ignore the statement that

“Child support is based on Father’s representation that he has no rental income and is

calculated pursuant to the attached calculation and Exhibits.” The trial court was thus

within its discretion to determine the proper calculation using the attached exhibits to give

full effect to all terms in the Agreement.

We note also Cade’s argument that if we determine the Agreement to be

ambiguous, the matter must be returned to the mediator. Cade cites to Diggs v. Diggs,

No. 14-11-00854-CV, 2013 Tex. App. LEXIS 8500, at *36-37 (Tex. App.—Houston [14th

Dist.] July 11, 2013, no pet.) (mem. op.) for support for his assertion. In Diggs, the court

found there was a fact question regarding the intent of the parties as reflected in the

mediated settlement agreement regarding which companies were awarded to the

husband. Id. The court ordered the parties to return to the mediator for binding arbitration

8 to resolve the issue. Id. That case is distinguishable, however. There, the court did not

have before it the necessary information to resolve the ambiguity. The trial court did not

find additional mediation necessary given that the information required to make a

calculation per the requirements of the Agreement was attached to the Agreement.

Moreover, we note the record indicates that the mediator was contacted about the

discrepancy but “he declined to arbitrate.”

Lastly, we address Cade’s assertion that the Agreement cannot be modified in the

event of a mutual mistake. Mutual mistake is an affirmative defense that must be pleaded

and proved. 4 Garza, 345 S.W.3d at 483 (citation omitted). A mutual mistake occurs

when the parties to an agreement have a common intention, but the written contract fails

to reflect that intent. AmeriGas Propane, L.P. v. Aboytes-Muñiz, No. 09-18-00122-CV,

2019 Tex. App. LEXIS 3992, at *18 (Tex. App.—Beaumont May 16, 2019, pet. denied)

(citation omitted). To prove mutual mistake, a party must show (1) the parties’ true

agreement and (2) that the instrument incorrectly reflects that agreement because of a

mutual mistake. Id. (citation omitted). Samantha agrees that if the Agreement contained

a mistaken sum or a mistaken calculation exhibit to which both parties had erroneously

agreed, Cade would be correct. See, e.g., Kott v. Kott, 03-06-00398-CV, 2008 Tex. App.

LEXIS 1464, at *7-8 (Tex. App.—Austin Feb. 29, 2008, no pet.) (mem. op.). However,

she argues, the Agreement here contains both a sum and a method for calculating the

sum using the attached W-2 forms. Because both are present in the Agreement, we have

before us an ambiguity in the instrument, not a simple mutual mistake. Further, the record

does not contain proof of the necessary elements to show a mutual mistake occurred

4It appears from the record that mutual mistake was discussed only in Cade’s brief prepared at the request of the trial court after the first hearing. 9 here. See Garza, 345 S.W.3d at 483. Accordingly, we resolve Cade’s appellate issues

against him.

CONCLUSION

Having overruled Cade’s appellate issues, we affirm the trial court’s Order

Modifying Order in Suit Affecting the Parent-Child Relationship.

Patrick A. Pirtle Justice