in the Interest of E.W.M., a Child

Opinion

AFFIRMED; Opinion Filed October 28, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01005-CV

IN THE INTEREST OF E.W.M., A CHILD

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-53699-2018

MEMORANDUM OPINION Before Justices Myers, Nowell, and Evans Opinion by Justice Myers This is an appeal from a divorce decree following the parties’ signing a

mediated settlement agreement (MSA). Father brings three issues on appeal

contending the trial court erred by adding additional terms to the child-care

parental right-of-first-refusal provisions in the MSA and by awarding Mother her

attorney’s fees. We affirm the trial court’s judgment.

BACKGROUND

Mother and Father were married and had one child, E.W.M. Subsequently,

Father filed a petition and Mother filed a counterpetition for divorce. In their live

pleadings, they each requested that they be named joint managing conservators of the child. The trial court ordered the parties to mediate, and after two lengthy

mediation sessions, they signed a mediated settlement agreement regarding

division of property and conservatorship and support of the child. The MSA

complied with Family Code sections 6.602(b) and 153.0071(d). See TEX. FAM.

CODE ANN. §§ 6.602(b), 153.0071(d). 1 The MSA included this term: “Right of

first refusal if the parent in possession is unable to supervise the child overnight.” 2

Mother and Father presented their own versions of the divorce decree to the

trial court. Concerning the right of first refusal, the two versions expanded on the

language in the MSA, adding a definition and other language that was not in the

MSA. Although Mother’s and Father’s versions were not identical, the two

versions were substantially similar to a certain point. 3 Mother’s version then added

exceptions to the provision:

1 These provisions state, 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. FAM. §§ 6.602(b); 153.0071(d). In this case, the MSA stated “this agreement is not subject to revocation” in boldfaced, underlined, capital letters, and it was signed by Mother and Father and by their attorneys. 2 The “right of first refusal” in this case means an agreement that if the parent with current possession of the child will not be personally supervising the child during an overnight period, the parent must offer the parent not in possession the opportunity to supervise the child during that period. 3 Mother’s version described the right as follows: Right of First Refusal – In the event a Party in possession of the child is unable to supervise the child for an overnight period (with “overnight” being defined as beginning

–2– The Right of First Refusal does not apply to age-appropriate sleep-overs with friends, sleep overs with family members of [Father], sleep overs with family members of [Mother], or school or church activities.

Father’s version of the decree did not contain these exceptions, and he objected to

their inclusion in the decree.

The MSA provided that if the parties disagreed about the interpretation of

the MSA’s terms, they would return to the mediator who would have “the

exclusive authority to add any and all language he deems appropriate or necessary

for clarification and/or to effectuate the intent and agreement with the parties.”

The MSA also stated that if a dispute arose regarding the interpretation of the MSA

and its incorporation into the judgment, the dispute would be resolved through

binding arbitration with the mediator, who would have “the exclusive authority to

at 10:00 p.m. and ending at 7:00 a.m.) during that Party’s period of possession of the child for any reason, such party shall notify the other Party as soon as possible after the Party in possession discovers he/she will be unable to supervise the child overnight, and the Party not then entitled to present possession of the child shall have the first option to take possession of the child for such period of time as the Party entitled to present possession of the child will be unable to supervise the child overnight. This Right of First Refusal does not apply to age-appropriate sleep-overs with friends, sleep overs with family members of [Father], sleep overs with family members of [Mother], or school or church activities. Father’s version of the decree described the right of first refusal as follows: Right of First Refusal – In the event a Party will not be present personally with the child for an overnight period (with “overnight period” being defined as beginning at 10:00 p.m. and ending at 7:00 a.m.) during that party’s period of possession of the child for any reason, such Party shall notify the other Party as soon as possible after the Party in possession discovers he/she will not be present personally with the child for such period of more than one overnight, and the Party not then entitled to present possession of the child shall have the first option to take possession of the child for such period of time as the Party entitled to present possession of the child will not be personally present with the child.

–3– add any and all language, including but not limited to language for clarification,

enforceability, indemnity and/or to effectuate the intent and agreement of the

parties, without reservation.”

At the hearing on the parties’ motions concerning the decree, the parties

described to the trial court their disagreement about the right of first refusal and

other parts of the decree. Father told the trial court about his concerns with

Mother’s friend monitoring a sleepover of another child. 4 Mother told the trial

court that the exceptions were the common practice. After reaching an agreement

on the other issues, the parties told the trial court they could not reach an

agreement on the language in the decree concerning the right of first refusal.

Father’s attorney told the court that the parties were waiving “the right to go to

arbitration and let you decide that so we can get this done.” Father and Mother

told the court under oath that they were waiving the right to arbitration and asking

the court to decide the issue. The court then announced that the exceptions to the

right of first refusal would be included in the decree.

4 Father told the trial court: There’s been past experiences with my stepchildren where she left them at—a person—a friend named Dakota, and I said I really don’t think that’s a good idea. And then found out that they would sneak in girls into their room at night, and I think they were sneaking out as well . . . . And they want to spend as much time with my son as they can. If—if she doesn’t want to be with him, I want to be with him.

–4– The trial court also awarded Mother $500 for attorney’s fees due to the

additional time Mother’s attorney spent because of Father’s delays after the

mediation.

PRO SE PARTIES

Father was represented by counsel in the trial court, but he is pro se before

this Court. We liberally construe pro se briefs. Washington v. Bank of N.Y., 362

S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). However, we hold pro se

litigants to the same standards as licensed attorneys and require them to comply

with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573

S.W.2d 181, 184–85 (Tex. 1978); Washington, 362 S.W.3d at 854. To do

otherwise would give a pro se litigant an unfair advantage over a litigant who is

represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.–

San Antonio 1999, pet. denied).

RIGHT OF FIRST REFUSAL

In the first and second issues, Father contends the trial court erred by adding

exceptions to the right of first refusal provision in the MSA because the parties did

not agree to the exceptions, and because the MSA did not permit an arbitrator to

add to or delete from the MSA’s substantive provisions.

Father contends the right of first refusal is a “core parental right.” Father

cites Troxel v. Granville, 530 U.S. 57 (2000), in support of this assertion. In

Troxel, the children were being raised solely by the mother after the father had

–5– died. Id. at 60. Before his death, the father regularly brought the children to visit

his parents on weekends. Id. After his death, the mother told the father’s parents

that she wished to limit the children’s visits to one short visit per month. Id. at 61.

The grandparents brought suit under a state statute that permitted a court to grant

visitation to any person whenever visitation may serve the best interest of the child.

Id. at 60, 61. The trial court ordered the mother to provide greater visitation to the

grandparents than the mother wanted. Id. at 61. The Supreme Court identified the

interest of parents in the care, custody, and control of their children as “perhaps the

oldest of the fundamental liberty interests recognized by this Court.” Id. at 65.

The Court determined that the state statute was unconstitutional because it did not

require the courts to accord special weight to the parent’s determination. Id. at 70–

73 (“[T]he Due Process Clause does not permit a State to infringe on the

fundamental right of parents to make child rearing decisions simply because a state

judge believes a ‘better’ decision could be made.”). Troxel does not concern the

right of first refusal. Nor does it concern the rights of one parent during periods

when the other parent has possession of the child.

Father also cites In re Lee, 411 S.W.3d 445 (Tex. 2013) (orig. proceeding).

In that case, the trial court refused to enter judgment on an MSA because the court

considered the agreement not to be in the best interest of the child. Id. at 448. The

supreme court concluded that Family Code section 153.0071 did not permit the

trial court to inquire into whether the agreement was in the child’s best interest, –6– and that allowing trial courts to do so is “in contravention of the unambiguous

statutory mandate in section 153.0071 [that] has severe consequences that will

inevitably harm children.” Id. at 455. The supreme court concluded the trial court

abused its discretion by denying the motion to enter judgment on the MSA. Id. at

458–59. The case did not concern the right of first refusal, nor does this case

involve a trial court’s refusal to enter judgment on an MSA.

Father presents no other authority in support of his assertion that the right of

first refusal is a “core parental right.” Even if the right to control a child’s

associations is a parental right with which the State cannot interfere, Father cites

no authority for the proposition that a parent who is not in a period of possession of

the child has the right to overturn the associational determinations of the parent

with possession. We conclude Father has not shown that he, as a non-custodial

parent, has a right of first refusal that is a “core parental right.” Nor has he shown

that he has a constitutional right that is being infringed by the circumstances of this

case that is superior to the custodial parent’s rights.5

To the extent Father argues the trial court lacked authority to add the

exceptions to the right of first refusal because the MSA required disputes to be

5 We do not imply that the trial court could not give one parent the right to approve or overturn the associational decisions of the other parent in the appropriate case. We hold only that there is no constitutional right, or as Father phrases it, “core parental right,” for a parent not in a period of possession of the child to approve or disapprove the associational determinations of the other parent during that parent’s period of possession.

–7– arbitrated, Mother and Father told the trial court multiple times, including under

oath, that the trial court could make the determination about whether to include the

exceptions in the decree instead of sending the case back to the mediator for

arbitration of that issue. “Waiver is an intentional relinquishment of a known right

or intentional conduct inconsistent with claiming that right.” Chalker Energy

Partners III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 676 (Tex. 2020)

(internal quotation marks omitted). The trial court and the attorneys informed the

parties of their right to have the dispute concerning the right of first refusal be

determined in arbitration before the mediator. The parties, including Father, told

the trial court they wanted the court to determine the dispute to hasten the

resolution of the case. Father expressly waived any right to have the issue

determined by arbitration.

Father also contends that “[t]he arbitrator is not authorized to add to a

substantive provision.” We presume Father means that the trial court in the

position of the arbitrator (based on the parties’ agreement to have the trial court

make the determinations about the right of first refusal that otherwise would have

been arbitrated) did not have authority “to add to a substantive provision.” The

MSA stated, “The arbitrator will not be authorized to add to or delete from the

substantive provisions of this Mediated Settlement Agreement.”

The MSA stated, “Right of first refusal if the parent in possession is unable

to supervise the child overnight.” Thus, the MSA provided only that the decree –8– would have a right of first refusal for overnight supervision of the child. It did not

specify the terms of that provision. In the MSA, the parties stipulated “that there

may need to be interpretation of the document and an extension of the language in

this document, and that all the language to be used in the order(s) may not be

contained in this mediated settlement agreement.” The MSA provided that if the

parties could not agree to the language to be used in the decree, the dispute would

be submitted to arbitration, and that the arbitrator would have “the exclusive

authority to add any and all language including but not limited to language . . . to

effectuate the intent and agreement of the parties.” That was the situation with the

right of first refusal. Both parties recognized that the MSA’s provision concerning

the right of first refusal was insufficient for the decree, and both their versions of

the decree added language from that in the MSA. Father argues on appeal that the

parties did not intend to add the sleep-over exceptions to the right of first refusal

because the parties mediated extensively for two days and the MSA does not

mention the exceptions.

The trial court could conclude that that inclusion of the exceptions did not

add any “substantive provisions” to the many provisions of the MSA but instead

constituted language “to effectuate the intent and agreement of the parties”

concerning one of those substantive provisions, the right of first refusal. Under the

MSA, the arbitrator, and thus the trial court sitting in place of the arbitrator, had

authority to include language “to effectuate the intent and agreement of the –9– parties.” Therefore, the trial court had the authority to include the exceptions in

the right of first refusal provision.

We conclude Father has not shown the trial court erred by including the

exceptions in the right of first refusal provision. We overrule Father’s first and

second issues.

ATTORNEY’S FEES In the third issue, Father contends that the attorney’s fees award should be

reversed if we reverse and remand the inclusion of the exceptions in the right of

first refusal. As discussed above, we are affirming the inclusion of the exceptions

in the right of first refusal. Therefore, we do not reverse the award of attorney’s

fees for this reason.

Father also argues the trial court erred by admitting the exhibit consisting of

Mother’s attorney’s billing records. At trial, Father’s attorney objected to the

billing records:

Your Honor, this is the first time I’ve received this; and second, opposing counsel did not file this contract that shows that there is an existing relationship—we don’t it’s appropriate and timely filed [sic]. To show on these things, there has to be a breakdown.

The fee should be motion for the motion to enter, not for the work done from mediation on; and the law requires that you have an itemized statement of what bill was related to what we’re here for today.

The trial court overruled the objections and stated,

You [Mother’s attorney] have a very detailed breakdown of what your fees were for, they absolutely comply with what is required. And it’s –10– very clear that these fees were after mediation and that most of them had to do with trying to schedule arbitration . . . .

We review the trial court’s admission of evidence for an abuse of discretion.

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014).

A court abuses its discretion if it acts “without reference to any guiding rules and

principles” or if “the act was arbitrary or unreasonable.” Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Father argues on appeal that the trial court erred by admitting the exhibit

because it was not timely filed and Father’s attorney saw the exhibit for the first

time at the hearing. Father cites no trial court order, rule, or other authority that

required Mother to file the exhibit ahead of time. Nor does he explain why

Mother’s failure to file the exhibit before trial made the exhibit inadmissible. We

conclude Father has not shown the trial court abused its discretion by overruling

this objection.

Father argues the trial court erred by admitting the exhibit because

“opposing counsel did not file the attorney contract that establishes that there was

an existing relationship between the attorney and client.” Father cites no authority

showing that such a contract must be filed. At the beginning of the hearing,

Mother’s attorney told the trial court she was appearing in representation of

Mother. Father did not object. The record does not show that Father filed a Rule

12 motion challenging Mother’s attorney’s authority to act on her behalf. See TEX.

–11– R. CIV. P. 12. We conclude Father has not shown the trial court abused its

discretion by overruling this objection.

Father also argues, “the fees should be motion for motion to what was

entered and the requirement to have an itemized billing statement.” Mother’s

attorney provided an itemized billing statement, and Father does not explain how it

was insufficient. To the extent Father asserts the evidence of attorney’s fees

should have been limited to those incurred in preparation for and the hearing on the

motion to sign the divorce decree, Father cites no authority and provides no

explanation for the assertion that the inclusion of other billing entries made the

entire exhibit inadmissible. We conclude Father has not shown the trial court

abused its discretion by overruling this objection.

Father also asserts that part of Mother’s attorney’s testimony cannot be

considered because she was not sworn. When Mother’s attorney finished her

direct testimony about attorney’s fees, the following occurred:

The Court: [To Father’s attorney] Do you have any cross- examination for her on attorney’s fees?

[Father’s attorney]: Yes.

The Court: I did not swear you in. I’m sorry.

....

Okay. You’ve got to start over.

(Oath administered to both attorneys by the Court.)

The Court: And same for you?

–12– [Father’s attorney]: Yes, Your Honor.

The Court: Okay. Are you saying that you waive any objection to her not being sworn in to testify?

[Father’s attorney]: Yes, Your Honor, I do.

The Court: Thank you.

[Father’s attorney]: She’s an officer of the Court and I trust her ethics.

Father’s attorney expressly waived any error from the trial court’s consideration of

Mother’s attorney’s unsworn testimony. See Chalker Energy, 595 S.W.3d at 676.

Moreover, any error is not preserved. For error to be preserved for appellate

review, the record must show a party objected, stating the grounds for the ruling

sought, and that the trial court ruled on the objection. See TEX. R. APP. P. 33.1(a).

These requirements apply to unsworn testimony by an attorney. See Banda v.

Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). In this case, Father’s

attorney did not object to opposing counsel’s unsworn testimony. Therefore,

appellant’s argument on appeal was not preserved for appellate review.

The Family Code provides that “the court may render judgment for

reasonable attorney’s fees and expenses.” FAM. § 106.002(a). We review the trial

court’s decision to award attorney’s fees in a suit affecting the parent–child

relationship for an abuse of discretion. In re B.J.W., No. 05-17-00253-CV, 2018

WL 3322882, at *1 (Tex. App.—Dallas July 6, 2018, no pet.) (mem. op.). Mother

requested attorney’s fees of $8,214.18, and the trial court awarded fees of $500.

–13– Father has not shown the award of fees was unreasonable or constituted an abuse

of discretion.

We overrule Father’s third issue.

CONCLUSION

We affirm the trial court’s judgment.

/Lana Myers/ LANA MYERS JUSTICE

191005F.P05

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF E.W.M., A On Appeal from the 219th Judicial CHILD District Court, Collin County, Texas Trial Court Cause No. 219-53699- No. 05-19-01005-CV 2018. Opinion delivered by Justice Myers. Justices Nowell and Evans participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Sarah Rose Masefield recover her costs of this appeal from appellant Marc Wayne Masefield.

Judgment entered this 28th day of October, 2020.

–15–