Glen H. Beeler, Jr. v. Brenda Beeler

• Court: Court of Appeals of Texas
• Decided: May 23, 2002
• Docket: 03-01-00295-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00295-CV

Glen H. Beeler, Jr., Appellant

v.

Brenda Beeler, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY NO. 00-2127-FC2, HONORABLE ROBERT F. B. ASKIP@ MORSE, JUDGE PRESIDING

This is an appeal from a judgment in a divorce case. Appellant Glen H. Beeler, Jr. asserts

nine issues on appeal, which can be classified into four categories, complaining that the trial court erred by:

(1) making findings of fact regarding visitation and child support that were based on no evidence; (2)

including visitation provisions in the final divorce decree that are invalid for various reasons; (3) granting

child support payments in the final decree in violation of statutorily prescribed guidelines; and (4) failing to

allow appellant to make an offer of proof regarding visitation and child support.1 We will affirm the

judgment of the trial court.

1 Appellee Brenda Beeler did not file a brief with this Court. BACKGROUND

On June 1, 1991, appellant and appellee Brenda Beeler were married. Appellant filed for

divorce on November 13, 2000, and appellee answered and filed a counter petition November 15. There

is one child of the marriage, a daughter who was eight years old at the time of the divorce hearing. The

parties agreed to mediation and on December 11, 2000, entered into a Rule 11 stipulation and settlement

agreement as a result of that mediation.

On February 15, 2001, a hearing was held to consider the mediated settlement agreement.

After the date the agreement was finalized and before the hearing date, appellant lost his job and took

another that paid less. At the hearing, however, the court did not allow additional evidence other than the

parties= agreement and denied appellant=s request to make an offer of proof regarding child support and

visitation issues. The court instructed appellant to obtain a future date from the court clerk to return and

make an offer of proof. At the February 15 hearing, appellant also requested the court to make findings of

fact and conclusions of law. Trial counsel for appellee prepared and the trial judge signed the findings of

fact and conclusions of law, including the finding of fact indicating that the offer of proof requested by

appellant was denied. On March 8, 2001, the date appellant scheduled a hearing to make his offer of

proof, the court denied his motion to make the offer of proof.

MEDIATED SETTLEMENT AGREEMENT

Before specifically addressing appellant=s issues on appeal, we will first consider the

statutory provisions governing mediated settlement agreements in suits for dissolution of a marriage and suits

2 affecting the parent-child relationship. See Tex. Fam. Code Ann. '' 6.602(b), (c); 153.0071(d), (e) (West

Supp. 2002).

Section 6.602, which governs suits for dissolution of a marriage, provides in part:

(b) A mediated settlement 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.

(c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

And section 153.0071, which governs suits affecting the parent-child relationship, provides

in part:

(d) A mediated settlement 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;

(3) is signed by the party=s attorney, if any, who is present at the time the agreement is signed.

(e) If a mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

3 The plain language of the parties= mediated settlement agreement indicates that the parties intended their

agreement to be final. The first page of the agreement states, AThe parties hereto agree to settle all claims

and controversies asserted and assertable between them.@ The agreement covered all issues in dispute to

be decided.2 Additionally, the agreement concludes with a separate paragraph, in a prominently displayed

statement in boldface type, capitalized, and underlined: ATHIS SETTLEMENT AGREEMENT IS

NOT SUBJECT TO REVOCATION.@ Furthermore, it is undisputed that both parties and their

attorneys signed the agreement. Accordingly, appellee was entitled to judgment on the mediated settlement

agreement. See id. '' 6.602(c); 153.0071(e).3

2 The agreement settled all claims relating to conservatorship, support, visitation, and health care of the child of the marriage in addition to the division of property and other general issues commonly resolved in a divorce settlement. 3 Mediated settlement agreements entered into under sections 6.602 and 153.0071 of the Texas Family Code are not revocable. See Cayan v. Cayan, 38 S.W.3d 161, 165 (Tex. App.CHouston [14th Dist.] 2000, pet. denied); Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.CEastland 1997, pet. denied). Unilateral withdrawal of consent does not negate the enforceability of the agreement. Alvarez, 958 S.W.2d at 234. Accordingly, in the present case, appellant could not repudiate the agreement, and appellee was entitled to judgment on the mediated settlement agreement.

4 Furthermore, we note that appellant, in his brief to this Court, fails to cite a standard of

review, fails to expressly challenge the trial court=s specific fact findings or conclusions of law, and fails to

cite authority for most of the contentions made in his brief. See Tex. R. App. P. 38.1(h).4 Nevertheless, in

the interest of justice, we will address his complaints as we discern them.

NO-EVIDENCE CHALLENGE

4 Rule 38.1(h) provides, AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@

5 In his first issue, appellant contends that the trial court erred by making findings of fact

regarding child support and visitation based on no evidence. Appellant, however, suggests no standard of

review for considering this contention. Appellant is correct that the trial court did not hear evidence on

these issues. In fact, the trial court specifically states in Finding of Fact No. 26 that AFebruary 15, 2001

was not a hearing on child support or visitation or possession. No evidence was present[ed] on either issue,

the appropriate motions were not filed, and child support and visitation were not properly before this Court

on that date.@ At the hearing, appellant requested the trial court to alter the terms of the mediated settlement

agreement because he had lost his job after the settlement agreement was finalized and because he now

contends that the supervised visitation he originally agreed to is void as against public policy. The trial court

denied appellant=s request. The court determined that his request to alter the terms did not result from a

dispute over the interpretation of the terms of the agreement; rather, his request was an attempt to make

material changes to the terms of an irrevocable mediated settlement agreement.5 The trial court then found

that the visitation provision was substantiated on the basis of the mediated settlement agreement.6

Furthermore, the trial court made findings regarding requirements for child support based on the agreement.7

5 Finding of Fact No. 25: AOn February 15, 2001, [appellant] asked this Court to make a ruling to change the child support and visitation terms of the irrevocable Rule 11 Stipulation and Settlement Agreement; however, this is not a dispute over interpretation. This is a request to make material changes in a [sic] irrevocable Rule 11 Stipulation and Settlement Agreement.@ 6 Finding of Fact No. 33: AThe visitation provision, which deviates from the Standard Possession Order and requires supervised visitation for [appellant], is substantiated on the evidence of the irrevocable Rule 11 Stipulation and Settlement Agreement between the parties.@ 7 Finding of Fact No. 36: ABecause neither child support nor visitation were properly before this Court, no evidence was presented on monthly net resources of the obligor or obligee. However, because the Court finds that the Rule 11 Stipulation and Settlement Agreement is valid and irrevocable, the

6 The trial court made these findings based on the parties= irrevocable mediated settlement agreement, which

complied with the requirements of sections 6.602 and 153.0071 of the Texas Family Code. Appellant has

not demonstrated that the trial court erred in any way. Accordingly, we overrule his first issue.

VISITATION PROVISIONS

Court finds the following based on the evidence of the Rule 11 Stipulation and Settlement Agreement: . . . .@

7 In issues two through seven, appellant contends that the trial court erred in including

visitation provisions in the final divorce decree that are invalid for a variety of reasons. All of these

provisions were terms agreed upon by appellant in the parties= settlement agreement. In his second issue,

appellant contends that the visitation provisions are unenforceable and therefore void.8 Appellant claims that

disinterested nonparties are required to perform under the divorce decree in order for him to visit his child.

Specifically, a named Travis County Sheriff, a mutually-agreed upon adult, or a certified Texas peace officer

must be present during any visitation between appellant and his child. Furthermore, these visitation

restrictions continue until a named therapist recommends that the restrictions may be discontinued.

Appellant contends that the court has no jurisdiction over the disinterested nonparties whose performance is

required under the visitation provisions of the divorce decree. Accordingly, he contends that the failure of

these nonparties to cooperate or participate preclude his access to his child with no remedy to enforce his

visitation rights. At the hearing to render judgment on the mediated settlement agreement, the trial court

suggested the appropriate remedy if a disinterested nonparty fails to cooperate or participate as provided in

the divorce decree: appellant may file a motion to modify the decree. If, as appellant contends, the failure of

a nonparty to cooperate or participate precludes his access to his child with no remedy to enforce visitation,

he could assert that a modification would be in the best interest of his child and that circumstances have

8 The only authority appellant cites is In the Interest of Kasschau, 11 S.W.3d 305 (Tex. App.CHouston [14th Dist.] 1999, no pet.). In that case, the agreement required the performance of an illegal act. Id. at 312-13. In the present case, appellant contends certain provisions are unenforceable; he does not claim that the agreement requires the performance of an illegal act. The Kasschau case is clearly distinguishable.

8 materially and substantially changed. See Tex. Fam. Code Ann. ' 156.101 (West Supp. 2002). We

overrule appellant=s second issue.

In his third issue, appellant contends that the visitation provisions violate public policy.

Appellant directs our attention to sections 153.001, 153.251, and 153.252 of the Texas Family Code,

which encourage frequent contact between a child and each parent. See Tex. Fam. Code Ann. ''

153.001, .251, .252 (West 1996 & Supp. 2002). Specifically, appellant emphasizes section 153.252,

which provides:

In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F [of Chapter 153]:

(1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and

(2) is in the best interest of the child.

Id. ' 153.252 (West 1996).

There is no dispute that the divorce decree in the present case did not follow the standard

possession order in Subchapter F of Chapter 153 of the Texas Family Code. However, the trial court

expressly stated in the decree: AThe Court finds that it is in the best interest of the child to deviate from the

Standard Possession Order . . . .@ Appellant cites no authority to show that the trial court erred in deviating

from the standard possession order.

Additionally, appellant complains that the divorce decree fails to state the specific reasons

9 for the deviation from the standard possession order. See Tex. Fam. Code Ann. ' 153.258 (West 1996).9

The divorce decree expressly provides, AThis access schedule shall continue until [appellant] has enrolled in

and completed sex offender treatment at the direction of a therapist suggested or recommended by the

Department of Protective and Regulatory Services, or that therapist=s referral, and [appellant] has been re-

evaluated by Matt Ferrara.@ We find this statement sufficient for purposes of section 153.258, and we

overrule appellant=s third issue.

In his fourth issue, appellant contends that the visitation provisions are not in the best interest

of his child. Appellant does not expressly challenge a particular finding of fact or conclusion of law; rather,

he simply states that the trial court erred in not permitting him to present evidence indicating that the

visitation provisions included in the mediated settlement agreement were not in the best interest of his child.

First, we note that appellant freely and voluntarily entered into the mediated settlement. He may now be of

the opinion that the visitation provisions are not in his child=s best interest; parents involved in a divorce may

9 Section 153.258 provides:

Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, on written request made or filed with the court not later than 10 days after the date of the hearing or on oral request made in open court during the hearing, the court shall state in the order the specific reasons for the variance from the standard order.

10 disagree on this issue. Appellant, however, has directed us to no authority, and we have found none, that

would preclude parties from entering into settlement agreements. We assume, therefore, that appellant

bases his argument on his no-evidence challenge set out in his first issue. In other words, we address this

issue as if appellant contends that there is no evidence to support the trial court=s findings and conclusion

that the visitation provisions are in the best interest of his child. We concluded previously that the trial court

based its findings regarding visitation on the evidence of the mediated settlement agreement. Specifically,

the trial court made the following findings and conclusion:

Findings of Fact:

7. Supervised visits between the child and [appellant] were agreed upon by the parties.

8. The supervised visitation schedule and related conditions were set forth in the Rule 11 Stipulation and Settlement Agreement.

32. The terms for visitation and possession as set forth in the Rule 11 Stipulation and Settlement Agreement and again in the Final Decree of Divorce are in the best interest of the child.

33. The visitation provision, which deviates from the Standard Possession Order and requires supervised visitation for [appellant], is substantiated on the evidence of the irrevocable Rule 11 Stipulation and Settlement Agreement between the parties.

Conclusions of Law:

7. The possession of this child and visitation were clearly established and set forth in the binding, irrevocable Rule 11 Stipulation and Settlement Agreement. The visitation provisions which deviate from the Standard Possession Order, as set forth in the Final Decree of Divorce, are in the best interest of the child, based on the negotiated terms of the irrevocable Rule 11 Stipulation and Settlement Agreement.

11 We conclude that the evidence of the mediated settlement agreement is sufficient to support the trial court=s

findings and conclusion that the visitation provisions are in the best interest of the child, and we overrule

appellant=s fourth issue.

In his fifth issue, appellant contends that the visitation provisions are invalid because the

divorce decree contains no Adecretal language.@ As appellant states, the divorce decree Acontains no

language ordering either of the parties to do anything concerning possession of the child.@ He directs our

attention to Taft v. Johnson, 553 S.W.2d 408 (Tex. App.CEl Paso 1977, writ ref=d n.r.e.). The Taft case

is distinguishable. That case involved a motion to modify a parent-child relationship. The case was tried to

a jury that was unable to reach a verdict, and the judge then rendered a modification order relying on a

provision in a previous pleadingCnot a mediated settlement agreement. The Taft court indicated that the

pleading relied upon by the trial judge was merely a recognition of the mother=s rights, not a direction that

any particular act take place.10 In contrast, in the present case, a mediated settlement agreement exists that

provides specifically for visitation and the conditions under which the visitation will be modifiedC

until [appellant] has enrolled in and completed sex offender treatment at the direction of a therapist suggested or recommended by the Department of Protective and Regulatory

10 The Taft court stated:

If the pleading constituted such an agreement, it appears only to be a recognition of Rebecca=s rights, after regaining her health, to become managing conservator. There is no recital in the pleading that she must be appointed managing conservator at such time. There is absolutely no language in the decree of divorce that the court considered any written agreement as to conservatorship of the child, or that such conservatorship should be changed upon restoration of Rebecca=s health.

Taft v. Johnson, 553 S.W.2d 408, 410-11 (Tex. App.CEl Paso 1977, writ ref=d n.r.e.).

12 Services, or that therapist=s referral, and [appellant] has been re-evaluated by Matt Ferrara. The parties agree to follow the recommendation of Matt Ferrara and the therapist for visitation after [appellant=s] completion of the treatment requirements.

Although we agree that the decree is not artfully drafted in this regard, these provisions are sufficient, and

we overrule appellant=s fifth issue.11

In his sixth and seventh issues, appellant contends the visitation provisions are invalid

because they fail to provide him access to his child on specific dates and at specific times and fail to contain

certain statutory general provisions. Appellant directs our attention to sections 153.314 and 153.316 of the

Texas Family Code. See Tex. Fam. Code Ann. '' 153.314, .316 (West 1996). But he cites no other

authority. These provisions are included in Subchapter F of Chapter 153 of the Texas Family Code. As

stated previously, Subchapter F contains the provisions for the standard possession order. See Tex. Fam.

Code Ann. ' 153.252 (West 1996). Because we have previously held that the trial court did not err in

deviating from the standard possession order in the present case, the trial court did not err in failing to

include standard possession order provisions. Rather, the court included the visitation provisions based on

the irrevocable mediated settlement agreement entered into voluntarily by the parties. Accordingly, we

overrule appellant=s sixth and seventh issues.

CHILD SUPPORT

11 Although the trial court does not use language ordering visitation (the order states when each party Ashall have the right to possession of the child@ (emphasis added)), appellant has not indicated how the language used by the court has harmed him.

13 In his eighth issue, appellant contends the trial court erred by including child support

provisions in the final divorce decree that violate the statutory child support guidelines. See Tex. Fam. Code

Ann. ' 154.125 (West 1996). Again, appellant cites no authority for his argument other than referencing

the statute. There is no dispute that the child support agreed upon in the mediated settlement was within the

statutory guidelines at the time that agreement was entered into. Subsequent to the date the agreement was

finalized and before the hearing date for rendering judgment on the agreement, appellant lost his job and

took another job that paid less. As a result, appellant wanted to renegotiate the mediated settlement

agreement. The trial court refused, offering him his available remedy at lawChe could file a motion to

modify the decree, demonstrating that circumstances have materially and substantially changed. See Tex.

Fam. Code Ann. ' 156.401 (West Supp. 2002). Accordingly, we overrule appellant=s eighth issue.

OFFER OF PROOF

In his ninth issue, appellant contends that the trial court erred in failing to permit him to offer

evidence regarding visitation and child support. As indicated previously, appellant had entered into an

irrevocable mediated settlement agreement. The issues of visitation and child support were both resolved in

the settlement agreement. Accordingly, there was no need to hear evidence on these issues. The trial court

explains in the following Findings of Fact:

25. On February 15, 2001, [appellant] asked this Court to make a ruling to change the child support and visitation terms of the irrevocable Rule 11 Stipulation and Settlement Agreement; however, this is not a dispute over interpretation. This is a request to make material changes in a [sic] irrevocable Rule 11 Stipulation and Settlement Agreement.

14 26. February 15, 2001 was not a hearing on child support or visitation or possession. No evidence was present [sic] on either issue, the appropriate motions were not filed, and child support and visitation were not properly before this Court on that date.

27. The Court will not change the terms of the irrevocable Rule 11 Stipulation and Settlement Agreement filed in this case.

29. The irrevocable Rule 11 Stipulation and Settlement Agreement meets the requirements of Section 6.602 of the Texas Family Code. [Appellee], Brenda Beeler, is therefore entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

30. The Rule 11 Stipulation and Settlement Agreement is accurately and correctly incorporated into the Final Decree of Divorce.

31. [Appellant=s] request for an Offer of Proof is denied.

The trial court indicated that appellant was free to file a motion to modify the final decree based on these

issues. Appellant has an adequate remedy at law. We overrule appellant=s ninth issue.

CONCLUSION

Having overruled each of appellant=s issues, the judgment of the trial court is affirmed.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: May 23, 2002

15 Do Not Publish