Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00928-CV
IN RE Dustin L. BARRETT
Original Proceeding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: December 20, 2023
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relator (Dustin) argues the trial court abused its discretion by denying his motion to enter
an order on the parties’ mediated settlement agreement (MSA). Real Party in Interest (Hartley)
argues Dustin breached the MSA after it was signed and before Dustin’s motion to enter was heard,
and therefore the trial court properly sustained her objections and denied Dustin’s motion.
Having reviewed Dustin’s petition, Hartley’s response, and the materials the trial court
relied on, we conditionally grant Dustin’s petition.
BACKGROUND
The underlying dispute arises from divorced parents’ competing motions to modify the
parent-child relationship.
This proceeding arises out of Cause No. 2020-0012-CCL, styled In the Interest of D.L.B., D.L.B., and D.L.B., 1
Children, pending in the County Court at Law, Val Verde County, Texas, the Honorable Sergio J. Gonzalez presiding. 04-23-00928-CV
A. Marriage, Divorce, Children
Dustin and Hartley had three children born of their marriage. In April 2021, their Agreed
Final Decree of Divorce was signed. About six months later, Hartley moved to modify the parent-
child relationship, and the trial court appointed an attorney ad litem for the children. A few months
later, Dustin filed a counter petition.
B. Mediated Settlement Agreement
The parties mediated, and on April 21, 2023, they executed an MSA. One of the MSA’s
provisions was that Dustin’s possession of the children would progress in stages beginning with
only supervised visits. The parties exchanged drafts of a proposed final order that incorporated
the terms of the MSA. Before they could agree on final language, according to Hartley, Dustin
materially breached the MSA.
C. Motion to Enter, Objections
In June 2023, Dustin moved to enter his proposed final order based on the MSA. A few
days later, Hartley responded to Dustin’s motion by filing her objections to its entry and notice of
Dustin’s breach of the MSA. She asked the trial court (1) to set a status hearing on her objections
and (2) to set her amended petition for modification for a final trial on the merits.
D. Status Hearing
On August 14, 2023, the trial court held a status hearing via Zoom. Hartley, her lawyer,
Dustin’s lawyer, and the children’s attorney ad litem participated in the hearing, but Dustin did
not. At the outset, without her being sworn, the trial court asked Hartley when she divorced and a
few questions about the children as they started a new school year. She answered those questions,
but she was never sworn, and she was never called to testify. In fact, no witnesses were called;
the hearing consisted exclusively of arguments from the parties’ lawyers.
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1. Background
Hartley began by briefly summarizing the relevant background information. After her
divorce from Dustin was final, she petitioned to modify the parent-child relationship, and the
record shows Dustin filed a counter petition. The parties mediated, they executed an MSA, and
she “fully expected that that could be entered as a judgment.” But according to Hartley, within a
month after executing the MSA, Dustin breached it.
2. Alleged Breaches of MSA
Hartley argued that Dustin materially breached the MSA by (1) failing to attend his
required individual therapy, (2) failing to increase child support, and (3) violating the supervised
visitation requirements. She alleged that during a visit with the children at a public park, Dustin
inappropriately touched their daughter. The daughter ran away from the park to her home, and the
next day she made an outcry to her school resource officer. A police report was filed for indecency
with a child, and the Department investigated, but Hartley did not know the results of the
investigation. She contended that the material breaches made the MSA void, and the trial court
should not enter an order on the MSA.
3. Hartley: Statutory Exception Applies
Hartley also argued that the trial court could deny Dustin’s motion under the family
violence exception in section 153.0071(e-1). See TEX. FAM. CODE ANN. § 153.0071(e-1). She
asserted that the allegation of indecency with a child met subsection (e-1)’s family violence
exception, and the trial court could decline to enter a final order on the MSA.
4. Dustin: Statutory Exception Inapplicable
Dustin argued that subsection (e-1) does not apply because the provision’s requirements
were not met: there was no evidence that either he or Hartley were victims of family violence that
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impaired his or her ability to make a decision. See id. He insisted that, absent fraud or duress, the
trial court’s duty was to enter an order based on the MSA.
5. Ad Litem’s Recommendation
The children’s attorney ad litem asked the trial court to not enter an order on the MSA
because it was not in the children’s best interests. She had talked with the children about “the
events that happened after the MSA was [executed],” and she “found the children to be very
credible and genuine in their interviews.”
6. Trial Court’s Oral Ruling
The trial court noted that it had reviewed the MSA and considered the parties’ arguments.
It denied Dustin’s motion to enter an order on the MSA and it set the matter for a final hearing. It
expressly stated it was “not making any judgments . . . as to the reports [pertaining to the] May
23rd [incident]” because it did not have copies of the reports. But it added, “I believe I do have
the authority to not enter this MSA for the safety and welfare of the children.” When asked, the
trial court confirmed that the sole basis for its decision was the safety and welfare of the children.
E. Trial Court’s Order
The trial court’s October 16, 2023 written order states that it “considered Respondent’s
Motion to Enter Order and Petitioner’s Objections to Motion to Enter Order, Notice of Breach of
Mediated Settlement Agreement, Request for Trial Setting and Status Conference, and after
reviewing the evidence and hearing the arguments,” the court made its decisions. It sustained
Hartley’s objections to Dustin’s motion to enter, found that entering Dustin’s proposed final order
based on the MSA would not be in the best interest of the children, and denied Dustin’s motion to
enter; it also set the motions to modify for a final trial on the merits.
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F. Dustin’s Petition for Writ of Mandamus
The next day, Dustin filed his petition for writ of mandamus. He argues that the MSA fully
complied with the statutory requirements to make it a valid, enforceable agreement, which Hartley
does not dispute, and he was entitled to judgment on the MSA. He insists there was no evidence
to meet section 153.0071(e-1)’s provisions that would have allowed the trial court to decline to
enter a judgment on the MSA, and by failing to enter an order on the MSA, the trial court abused
its discretion.
Before we address the parties’ arguments, we briefly review the applicable law and
standard of review.
MEDIATED SETTLEMENT AGREEMENT
The legislature has decided that “[i]t is the policy of this state to encourage the peaceable
resolution of disputes, with special consideration given to disputes involving the parent-child
relationship, including the mediation of issues involving conservatorship, possession, and support
of children, and the early settlement of pending litigation through voluntary settlement
procedures.” TEX. CIV. PRAC. & REM. CODE ANN. § 154.002; accord Highsmith v. Highsmith, 587
S.W.3d 771, 777 (Tex. 2019) (per curiam); In re A.C., 560 S.W.3d 624, 632 (Tex. 2018).
A. MSA Statutory Requirements
To further that policy, the legislature enacted section 153.0071. Act of May 26, 1995, 74th
Leg., R.S., ch. 751, § 27, sec. 153.0071, 1995 Tex. Gen. Laws 3888, 3899 (codified at TEX. FAM.
CODE ANN. § 153.0071). Subsection (d) makes an MSA “binding on the parties if the agreement”
meets certain requirements. TEX. FAM. CODE ANN. § 153.0071(d); In re Lee, 411 S.W.3d 445, 452
(Tex. 2013); see Highsmith, 587 S.W.3d at 775 (“[A] statutorily compliant MSA is binding on
both the parties and the trial court, subject to a few narrow exceptions.”).
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B. Right to Judgment on an MSA
In the succeeding subsection, the legislature reinforced a valid MSA’s efficacy. See TEX.
FAM. CODE ANN. § 153.0071(e); In re A.C., 560 S.W.3d at 632; In re Lee, 411 S.W.3d at 453.
“Section 153.0071(e) unambiguously states that a party is ‘entitled to judgment’ on an MSA that
meets the statutory requirements ‘notwithstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law.’” In re Lee, 411 S.W.3d at 453 (quoting TEX. FAM. CODE ANN.
§ 153.0071(e)); see Highsmith, 587 S.W.3d at 775.
But there are at least two exceptions to enforcing a statutorily sound MSA.
C. Statutory Exception
The first is a statutory exception. “Subsection (e–1) provides a narrow exception, allowing
a trial court to decline to enter judgment on an MSA when three requirements are all met: (1) a
party to the agreement was a victim of family violence, and (2) the court finds the family violence
impaired the party’s ability to make decisions, and (3) the agreement is not in the child’s best
interest.” In re Lee, 411 S.W.3d at 453; accord Highsmith, 587 S.W.3d at 775 n.3 (recognizing
subsection (e-1)’s exceptions).
D. Case Law Exception
The second is a case law exception. In In re Lee, “a majority of justices opined that a trial
court may decline to render judgment on a statutorily compliant MSA when it would endanger a
child’s safety and welfare.” Highsmith, 587 S.W.3d at 775 n.3 (referring to Justice Guzman’s
concurring opinion and Justice Green’s dissenting opinion—which was joined by the chief justice
and two other justices). In her concurring opinion, Justice Guzman “agree[d] with the dissent to
the extent it believes that a contextual reading of the Family Code allows a narrow inquiry into
whether entering judgment on an MSA could endanger the safety and welfare of a child.” In re
Lee, 411 S.W.3d at 463–64 (Guzman, J., concurring).
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E. Contract Defense Exception
A third exception may not exist: “It is unsettled whether ordinary contract defenses render
MSAs unenforceable under the statutory provisions governing MSAs.” In re Willeford, No. 04-
20-00495-CV, 2021 WL 356242, at *2 (Tex. App.—San Antonio Feb. 3, 2021, orig. proceeding)
(mem. op.) (citing Highsmith, 587 S.W.3d at 777 n.5); see Highsmith, 587 S.W.3d at 777 n.5
(“[W]e need not and do not address whether an MSA that complies with the statutory formalities
may nevertheless be set aside on the ground that it is illegal or was procured by fraud, duress, or
coercion.”). But see Highsmith, 587 S.W.3d at 778 (“Parties challenging an MSA may still avail
themselves of applicable statutory defenses or otherwise argue that the agreement should be set
aside.”).
Having recited the applicable law regarding entering an order based on an MSA, we briefly
recite the applicable standard of review.
MANDAMUS STANDARD OF REVIEW
“Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its
discretion and when there is no adequate remedy on appeal.” In re Nat’l Lloyds Ins. Co., 507
S.W.3d 219, 226 (Tex. 2016) (orig. proceeding) (per curiam) (quoting In re Ford Motor Co., 988
S.W.2d 714, 718 (Tex. 1998) (orig. proceeding)).
Because a party seeking to enforce a valid MSA would lose much of the MSA’s benefits
if the party was required to prosecute an appeal, the supreme court has concluded that
“[m]andamus relief is available to remedy a trial court’s erroneous refusal to enter judgment on an
MSA.” In re Lee, 411 S.W.3d at 450 n.7 (citing Mantas v. Fifth Court of Appeals, 925 S.W.2d
656, 659 (Tex. 1996) (orig. proceeding)).
“If the record contains legally sufficient evidence both against and in support of the trial
court’s decision then mandamus will not lie because weighing conflicting evidence is a trial court
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function.” In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding) (Johnson,
J., dissenting) (“[A]n appellate court may not deal with disputed areas of fact in a mandamus
proceeding.” (quoting West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) (orig. proceeding)));
accord In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, orig.
proceeding). But a trial court abuses its discretion if there is no evidence to support its decision.
See Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (orig. proceeding) (per curiam)
(“A trial judge, who denies discovery in the absence of evidence substantiating the claim of
privilege, abuses his discretion.”); In re Mansfield, No. 04-19-00249-CV, 2019 WL 2439104, at
*3 (Tex. App.—San Antonio June 12, 2019, orig. proceeding) (mem. op.) (concluding the trial
court abused its discretion when no evidence supported its decision); D.N.S. v. Schattman, 937
S.W.2d 151, 155 (Tex. App.—Fort Worth 1997, orig. proceeding) (“A trial court also abuses its
discretion when there is no evidence to support its ruling.”).
DISCUSSION
To determine whether the trial court abused its discretion in denying Dustin’s motion to
enter an order on the parties’ MSA, we consider whether the MSA was valid and if any exceptions
allowed the trial court to decline to enter judgment on the MSA.
A. MSA Meets Statutory Requirements
We first address whether the MSA was in evidence, considered by the trial court, and
statutorily sound.
Hartley’s objections included a copy of the MSA, and the trial court’s order states that it
considered Hartley’s objections—which necessarily included the MSA. See B.C. v. Steak N Shake
Operations, Inc., 598 S.W.3d 256, 261 (Tex. 2020). Dustin asserts that the MSA meets the
statutory requirements, and Hartley agrees. See TEX. FAM. CODE ANN. § 153.0071(d); In re Lee,
411 S.W.3d at 452.
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Having reviewed the MSA, we also agree. The MSA states in bold, all-capital letters that
it is not subject to revocation, and it was signed by Dustin, Hartley, and the attorneys who were
present for the mediation. See TEX. FAM. CODE ANN. § 153.0071(d); In re Lee, 411 S.W.3d at 452.
We conclude the MSA was evidence the trial court considered, and the MSA met the statutory
requirements. See TEX. FAM. CODE ANN. § 153.0071(d); In re Lee, 411 S.W.3d at 452.
B. Exceptions to Right to Judgment
Given the MSA complied with the statute, Dustin was entitled to judgment on it unless
there was sufficient evidence of one or more exceptions. See Highsmith, 587 S.W.3d at 775 (“[A]
statutorily compliant MSA is binding on both the parties and the trial court, subject to a few narrow
exceptions.”); In re A.C., 560 S.W.3d at 632.
1. Statutory Exception
To invoke the statutory exception, Hartley argues that (1) their daughter was a party
affected by the MSA, (2) Dustin’s alleged inappropriate contact with their daughter made their
daughter a victim of family violence, and thus (3) she satisfied subsection (e-1)’s exception. See
TEX. FAM. CODE ANN. § 153.0071(e-1) (allowing a court to “decline to enter a judgment on a
mediated settlement agreement if the court finds . . . that . . . a party to the agreement was a victim
of family violence, and that circumstance impaired the party’s ability to make decisions” and the
MSA “is not in the child’s best interest”); In re Lee, 411 S.W.3d at 453.
We disagree. Nothing in section 153.0071’s plain language supports Hartley’s view that a
minor child of the adults who enter into an MSA is “a party to the agreement” for purposes of
subsection (e-1), and she has presented no authorities to support her view. We conclude that
subsection (e-1)’s exception does not apply.
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2. Case Law Exception
To invoke the case law exception, both Hartley and the children’s attorney ad litem
presented arguments to the trial court.
a. Hartley’s Arguments
Hartley cites In re Lee’s proposition “that a trial court may decline to render judgment on
a statutorily compliant MSA when it would endanger a child’s safety and welfare.” See Highsmith,
587 S.W.3d at 775 n.3 (citing In re Lee, 411 S.W.3d at 463–64, 466 (Guzman, J., concurring)); In
re Lee, 411 S.W.3d at 463–64 (Guzman, J., concurring) (agreeing that “the Family Code allows a
narrow inquiry into whether entering judgment on an MSA could endanger the safety and welfare
of a child”).
At the hearing, by argument of her counsel, Hartley alleged that Dustin had inappropriate
contact with their daughter, their daughter made an outcry to the school resource officer, a police
report was filed, and the Department investigated the incident. But Hartley did not know the results
of the investigations, and she did not call any witnesses or proffer any evidence to support any of
these allegations.
The trial court stated it was “not making any judgments . . . as to the reports that y’all are
referring to dated May 23rd of 2023” and it acknowledged that “I haven’t had access to those.”
In reviewing an order from an evidentiary hearing where “no findings of fact or conclusions
of law were requested or filed [we would ordinarily imply] that the trial court made all the findings
necessary to support its [decision].” See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);
accord BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). But here,
neither party called any witnesses or proffered any evidence, and the trial court based its decisions
on the parties’ respective motions and arguments. Cf. Otis Elevator Co. v. Parmelee, 850 S.W.2d
179, 181 (Tex. 1993) (noting that “the trial court heard no evidence but expressly based its decision
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on the papers filed and the argument of counsel”); In re Mansfield, 2019 WL 2439104, at *3
(“Motions and arguments of counsel are not evidence.” (quoting McCain v. NME Hosps., Inc., 856
S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ))).
Like Parmelee, “[u]nder these circumstances, there are no factual resolutions to presume
in the trial court’s favor.” See Parmelee, 850 S.W.2d at 181. Hartley’s unsworn objections motion
contained only the MSA, and she produced no testimony or other evidence to support an implied
finding that rendering judgment on the MSA would endanger the children’s safety or welfare. See
Highsmith, 587 S.W.3d at 775 n.3 (citing In re Lee, 411 S.W.3d at 463–64, 466 (Guzman, J.,
concurring)); In re Mansfield, 2019 WL 2439104, at *3 (noting that the “trial court did not hear
testimony from any witness and no other evidence was introduced” on the matter in question and
determining that the trial court abused its discretion).
b. Attorney Ad Litem’s Request
In the hearing, the children’s attorney ad litem asked the trial court not to enter an order on
the MSA because it was not in the children’s best interests. She stated she had interviewed the
children about “the events that happened after the MSA was [executed],” and she “found the
children to be very credible and genuine,” but she did not state what “the events” were or testify
to any facts to support her conclusion. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San
Antonio 2013, no pet.) (“[C]onclusory testimony . . . even if uncontradicted does not amount to
more than a scintilla of evidence.”); accord In re D.L.W.W., 617 S.W.3d 64, 84 (Tex. App.—
Houston [1st Dist.] 2020, no pet.).
She advised the trial court that she filed a written objection to its entering an order on the
MSA, but her written objection was filed about half an hour before the hearing, and the trial court
noted it had not seen it or read it.
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The trial court’s order denying Dustin’s motion does not state that it considered the ad
litem’s written objection. Even if we assume it did, the written objection was not legally sufficient
evidence because its few alleged facts were not sworn, and it did not include an affidavit, a
deposition transcript, or any other evidence. See In re Pirelli Tire, L.L.C., 247 S.W.3d at 686
(requiring legally sufficient evidence to support a trial court’s decision); cf. Am. Petrofina, Inc. v.
Allen, 887 S.W.2d 829, 830 (Tex. 1994) (“A mere pleading or a response to the summary judgment
motion does not satisfy this burden of coming forward with sufficient evidence to prevent
summary judgment.”); Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex. 1971)
(“Pleadings simply outline the issues; they are not evidence, even for summary judgment
purposes.”); Collin Cnty. Dist. Att’y’s Office v. Fourrier, 453 S.W.3d 536, 541 (Tex. App.—Dallas
2014, no pet.) (“[A] party’s pleadings are not evidence of the facts alleged therein.”).
The ad litem’s written objection was merely an unsworn pleading containing conclusory
allegations, which was not legally sufficient evidence to support the trial court’s finding regarding
the safety and welfare of the children. See Hidalgo, 462 S.W.2d at 543; Fourrier, 453 S.W.3d at
541; In re A.H., 414 S.W.3d at 807.
Having reviewed all that the trial court considered, 2 we conclude there was no evidence to
support a case law “safety and welfare of the children” exception.
3. Material Breach
As a putative third exception, Hartley also argues that after the MSA was executed but
before the hearing on Dustin’s motion to enter, Dustin materially breached the MSA.
We recognize that “[i]t is unsettled whether ordinary contract defenses render MSAs
unenforceable under the statutory provisions governing MSAs.” In re Willeford, No. 04-20-
2 “[A]n appellate court is not free to search the entire record, including materials not cited to or relied on by the trial court.” Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio 2003, no pet.).
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00495-CV, 2021 WL 356242, at *2 (Tex. App.—San Antonio Feb. 3, 2021, orig. proceeding)
(citing Highsmith, 587 S.W.3d at 777 n.5). But we need not reach that question.
Hartley’s unsworn pleadings were not evidence, see Hidalgo, 462 S.W.2d at 543, and she
presented no witnesses or evidence of Dustin’s alleged material breaches. Thus, even if we assume
that a material breach of an MSA—after it was executed but before the hearing on the motion to
enter—could excuse the trial court from entering a judgment on the MSA, Hartley produced no
evidence of any material breach. Accordingly, Hartley’s material breach argument fails.
C. Abuse of Discretion
Because the MSA met the statutory requirements, the trial court was required to enter an
order or judgment implementing the MSA’s terms unless an exception applied. See TEX. FAM.
CODE ANN. § 153.0071(d), (e-1); Highsmith, 587 S.W.3d at 775; In re A.C., 560 S.W.3d at 632.
But here, none apply.
First, there was no evidence of section 153.0071(e-1)’s first two essential elements. See
TEX. FAM. CODE ANN. § 153.0071(e-1); In re Lee, 411 S.W.3d at 453 (recognizing subsection
(e-1)’s three requirements: “(1) a party to the agreement was a victim of family violence, and (2)
the court finds the family violence impaired the party’s ability to make decisions, and (3) the
agreement is not in the child’s best interest”).
Second, there was no evidence to support a finding that the children’s safety and welfare
was endangered. See In re Lee, 411 S.W.3d at 462 (Guzman, J., concurring) (“[A] majority of the
Court agrees that if there is evidence of endangerment, an additional mechanism the trial court
possesses to protect the child is to refuse to enter judgment on the MSA.” (emphasis added)).
Third, even assuming a material breach of an MSA could allow a trial court to decline to
enter an order or judgment on the MSA, Hartley presented no evidence of any material breach.
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Therefore, despite the trial court’s concerns for the safety and welfare of the children, it
was the trial court’s duty to enter an order or judgment on the MSA. 3 See Highsmith, 587 S.W.3d
at 775; In re A.C., 560 S.W.3d at 632. Its denial of Dustin’s motion to enter was an abuse of
discretion. See Weisel Enters., 718 S.W.2d at 58; D.N.S., 937 S.W.2d at 155; see also In re Pirelli
Tire, L.L.C., 247 S.W.3d at 686.
DISPOSITION
We conditionally grant Dustin’s petition for writ of mandamus. We direct the trial court
to vacate its October 16, 2023 “Order Regarding Respondent’s Motion to Enter Order, Petitioner’s
Objections to Motion to Enter and Request for Trial Setting” and enter an order or judgment in
accordance with the parties’ April 21, 2023 Mediated Settlement Agreement.
Patricia O. Alvarez, Justice
3 “Even after issuing a final order, a trial court may act to protect the safety and welfare of a child by issuing protective orders, by issuing temporary orders during an appeal, by ruling on motions to modify, or through habeas corpus proceedings, again upon proper motion.” In re Lee, 411 S.W.3d 445, 456–57 (Tex. 2013).
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