Gary Edward Morse v. Dana Ann Morse

• Court: Court of Appeals of Texas
• Decided: August 31, 2010
• Docket: 08-09-00046-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ GARY EDWARD MORSE, No. 08-09-00046-CV § Appellant, Appeal from § v. 109th District Court § DANA ANN MORSE, of Winkler County, Texas § Appellee. (TC # 15,320) §

OPINION

Gary Edward Morse appeals an order entered on a motion to compel execution of closing

documents and an original petition for post-divorce division of property. This court ordered the

parties to attend mediation pursuant to Section 154.021 of the Civil Practice and Remedies Code1

and they entered into an irrevocable mediated settlement agreement (MSA). Among other things,

the agreement required Gary to dismiss this appeal. Gary has instead filed a motion to set aside the

MSA. For the reasons that follow, we deny the motion and dismiss the appeal.

FACTUAL SUMMARY

Dana Morse filed a petition for divorce on July 20, 2007. The trial court signed a final decree

on September 25, 2008. Neither of the parties appealed. Dana later filed an original petition for

post-divorce division of property she alleged Gary had hidden during the pendency of the divorce.

She also filed a motion to compel execution of closing documents. On February 18, 2009, the trial

court entered an order addressing both the motion to compel and the petition for post-divorce

1 T EX .C IV .P RAC .&R EM .C O D E A N N . § 154.021 (Vernon Supp. 2009). division of property. Gary filed notice of appeal indicating his intent to appeal from that order.2

Pursuant to our order, the parties attended mediation and, according to the status report filed by

Dana, they resolved all matters of controversy between them. Dana attached to her report a copy of

the MSA signed by the parties and their attorneys. Among other things, Gary agreed to dismiss his

appeal as part of the settlement agreement. He did not comply with the agreement but instead filed

a motion to set it aside on the ground that Dana had intentionally breached the agreement by

damaging some items of property awarded to him. Dana responds that because the MSA satisfies

the requirements of Section 6.602 of the Family Code, it is not subject to revocation by either party.

MEDIATED SETTLEMENT AGREEMENT

A mediated settlement agreement is immediately binding on the parties if the agreement: (1)

provides in a prominently displayed statement that is in boldfaced type, capital letters, or underlined,

that the agreement “is not subject to revocation”; (2) is signed by the parties; and (3) is signed by the

parties’ attorneys who are present at the time of signing. TEX .FAM .CODE .ANN . § 6. 602(b)(Vernon

2006). If an MSA meets these requirements, a party is entitled to judgment notwithstanding Rule

11 of the Texas Rules of Civil Procedure or another rule of law. TEX .FAM .CODE .ANN . § 6. 602(c).

Compliance with Section 6.602 makes the agreement an exception to Sections 7.001 and 7.006,

which allow revision and repudiation of settlement agreements. TEX .FAM .CODE ANN . §§ 7.001,

7.006; In re Joyner, 196 S.W.3d 883, 889 (Tex.App.--Texarkana 2006, pet. denied). A court is not

required to enforce an MSA if it is illegal in nature or procured by fraud, duress, coercion, or other

dishonest means. Joyner, 196 S.W.3d at 890; Boyd v. Boyd, 67 S.W.3d 398, 404-05 (Tex.App.--Fort

2 Gary also filed a notice of appeal which indicated his intent to appeal from a contempt order entered by the trial court. W e lack jurisdiction to review a contempt order by direct appeal. Norman v. Norman, 692 S.W .2d 655, 655 (Tex. 1985)(per curiam); Tracy v. Tracy, 219 S.W .3d 527, 530 (Tex.App.--Dallas 2007, no pet.). Contempt orders involving confinement may be reviewed by writ of habeas corpus; contempt orders that do not involve confinement may be reviewed only through mandamus. Tracy, 219 S.W .3d at 530. Worth 2002, no pet.)(holding that § 6.602 mediated settlement agreement may be subject to

rescission due to intentional nondisclosure.); In re Kasschau, 11 S.W.3d 305, 312 (Tex.App.--

Houston [14th Dist.] 1999, orig. proceeding)(holding that a mediated settlement agreement may be

set aside on the ground of illegality).

Gary does not dispute that the MSA meets all of the requirements of Section 6.602. Unless

he can establish a ground for revocation, it is binding. The only ground Gary alleges is that Dana

intentionally breached the settlement agreement with malice by damaging certain items of property.

He cites no authority that an MSA can be revoked due to a party’s alleged intentional breach.

Because Gary has failed to assert a viable ground for setting aside or revoking the MSA, we deny

his motion.

The terms of the MSA require Gary to dismiss this appeal. In the interest of judicial

economy, we will not require Gary to file a formal motion. Instead, we sua sponte dismiss the

appeal.

August 31, 2010 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.