Opinion issued August 22, 2013
In The
Court of Appeals For The
First District of Texas ————————————
NO. 01-10-00368-CV ——————————— MELANIE LEIGH WALLACE, Appellant V. GREGORY ANGUS MCFARLANE, Appellee
On Appeal from the 312th District Court Harris County, Texas Trial Court Case No. 2005-27517
MEMORANDUM OPINION
Melanie Leigh Wallace appeals the trial court’s final decree of her divorce
from Gregory Angus McFarlane, complaining that the trial court (1) effectively
granted her motion for new trial and motion to vacate the December decree when it
ordered the parties to arbitration in March 2010; (2) erred and abused its discretion by signing over her objections, a final divorce decree which contradicted and
exceeded the scope of the mediated settlement agreement (MSA); (3) erred and
abused its discretion by failing to order a stay of the judicial proceedings when it
signed the order granting her motion to compel arbitration; and (4) erred by
denying her motion to vacate or modify the final divorce decree and her motion for
new trial on the basis that both motions were too general and unclear. For the
reasons stated herein, we affirm as modified.
Background
McFarlane filed for divorce on April 27, 2005, and Wallace counter-filed on
May 12, 2005. After over four years of acrimonious divorce proceedings, Wallace
and McFarlane eventually entered into a binding, mediated settlement agreement
(MSA) on November 4, 2009. At a hearing on November 25, 2009, the trial court
approved the MSA and asked McFarlane’s counsel to prepare a draft of the decree
based its terms. McFarlane and Wallace’s respective counsels exchanged at least
five drafts of the proposed decree over the course of the next month. Although the
parties disagreed about some of the terms included in the initially-circulated drafts
of the decree, no attempt was made to arbitrate any of these disputes prior to the
entry hearing.
The trial court held an entry hearing on December 29, 2009. At that hearing,
the parties informed the trial court that they were generally in agreement with
2 respect to the terms of the proposed decree, with three or four exceptions that they
wanted to discuss. According to Wallace, the latest draft decree circulated by
McFarlane contained numerous unauthorized changes to the parties’ MSA.
Attorneys for both parties and the amicus attorney representing the children
discussed the challenged portions of the decree with the trial court and made hand-
written changes to McFarlane’s latest draft.
During one such discussion, Wallace informed the trial court that the parties
had agreed to arbitrate any disputes regarding the drafting and execution of the
MSA and that she was reserving her right to arbitrate these disputes. Wallace did
not, however, ask for a continuance or ask the trial court to refrain from signing a
final divorce decree pending such arbitration. On the contrary, Wallace’s counsel
advised the court that a final decree could still be signed that day and that if the
arbitrator later determined that the decree differed from the terms agreed to in the
MSA, he would simply file a motion for judgment nunc pro tunc to correct the
error.1 At the end of the hearing, counsel for Wallace, McFarlane, and the children
initialed each page of the decree with the hand-written interlineations, and signed
that version of the decree “approved as to form.” The trial court signed the decree
that same day (December decree).
1 We note that a judgment nunc pro tunc is one rendered to correct non-substantive clerical errors after the court loses its plenary power. See TEX. R. CIV. P. 316 (allowing correction of clerical errors in the judgment). 3 On January 21, 2010, Wallace filed a “Motion to Vacate and Alternative
Motion for Additional Orders” in which she argued that the December decree
contained a misstatement of the MSA and included injunctions that had not been
agreed to at mediation. Wallace asked the trial court to either modify the existing
decree or vacate the decree and enter a new decree correcting certain errors. One
week later, on January 28, 2010, Wallace filed a motion for new trial asking the
trial court to set the December decree aside and order a new trial because the
evidence was legally and factually insufficient to support the trial court’s finding
that the decree conformed to the terms of the MSA.
On March 2, 2010, Wallace filed a Motion to Compel Arbitration over
whether the MSA required the children to attend therapy or counseling. Her
motion did not challenge the validity of the December decree, nor did it raise any
issues concerning any other provisions of the December decree—only the absence
of an express provision requiring the children to attend therapy or counseling.
After a hearing on March 9, 2010—for which there is no reporter’s record—the
trial court granted the motion and ordered the parties to “mediate and/or arbitrate”
before Maryellen W. Hicks, the mediator responsible for the drafting of the MSA.
The trial court signed the order granting Wallace’s motion to compel on March 15,
2010—the same day Wallace’s motion for new trial and motion to vacate were
overruled by operation of law. TEX. R. CIV. P. 329b(c) (stating motions for new
4 trial and motions to modify, correct, or reform judgment that have not been ruled
on are overruled by operation of law 75 days after judgment signed). The
arbitration, which was held on March 29, 2010, was unsuccessful. Notably, March
29, 2010 was also Wallace’s deadline to file her notice of appeal. TEX. R. APP. P.
26.1(a)(1) (stating that notice of appeal is due by 90th day from date final
judgment signed if any party timely files motion for new trial, motion to modify
judgment, or motion to reinstate).
On April 13, 2010, the trial court held a final hearing in this case. This was
also the last day the trial court had plenary power and the 15th day after the
deadline to file a notice of appeal in the case. At that hearing the trial court
reconsidered and then denied Wallace’s motion for new trial. The trial court
further stated that it was also denying Wallace’s motion to modify or vacate the
judgment because, having denied Wallace’s motion for new trial, her only remedy
was a motion to modify the judgment. See TEX. FAM. CODE ANN. § 156.001 (West
2008) (providing that court with continuing exclusive jurisdiction may modify
order providing for conservatorship of, support of, possession of, or access to
child), 156.101 (West Supp. 2012) (providing grounds for modifying order
establishing conservatorship or possession and access).
Wallace filed her notice of appeal later that same day. Wallace later filed a
motion to extend time to file her notice of appeal in which she offered some
5 explanation for her tardy filing. See Jones v. City of Hous., 976 S.W.2d 676, 677
(Tex. 1998) (stating that, under Verburgt rule, appellants must reasonably explain
their need for an extension); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(holding that motion to extend time is “necessarily implied” if appellant files
notice of appeal within fifteen-day extension period). 2
Discussion
A. Effect of Order Granting Post-Judgment Motion to Compel Arbitration
In her first issue, Wallace argues that the trial court intended to vacate or set
aside its December decree when it ordered the parties to arbitration in March 2010,
and thus, it effectively granted her motion for new trial and motion to vacate the
December decree at that time. Wallace is also asking this Court to hold that,
because the trial court effectively granted her motion for new trial and vacated the
December decree, there is no final judgment in this case, and we should order “that
the arbitration process should continue until it reaches a binding, final result.” 3
2 This Court previously dismissed Wallace’s appeal for want of jurisdiction based upon her failure to offer a reasonable explanation for her untimely appeal. Unbeknownst to the Court, Wallace had filed a motion for extension of time in which she explained her need for an extension, but the Court had not been made aware of it before it dismissed the appeal. The Court granted Wallace’s motion for rehearing, withdrew our previous opinion and we set aside our previous judgment. TEX. R. APP. P. 49.3. 3 If, as Wallace argues, there is no final judgment in this case, we would have no choice but to dismiss her interlocutory appeal for want of jurisdiction. 6 First, the order compelling arbitration did not, as Wallace argues, direct the
parties to essentially mediate or arbitrate the entire divorce proceeding again.
Wallace’s motion for arbitration only asked the trial court to compel the parties to
arbitrate the question of whether the MSA required the children to attend therapy
or counseling; she did not challenge any other aspect of the December decree. The
effect of the trial court’s “Order on Motion to Compel Arbitration” was merely to
grant Wallace’s motion to compel arbitration on this one, discrete issue.
Second, Wallace argues that it is clear from the record that the trial court
intended to vacate or set aside its December decree when it granted her motion to
compel arbitration based upon a statement the trial court made at the April 13,
2010 hearing. The record, however, does not support such a reading. Indeed, at
hearing the trial court stated, “I didn’t set aside that decree. . . .” The children’s
amicus attorney agreed stating, “That has not been set aside. That decree is a
decree in full force and effect right now. . . .” Wallace did not express any
disagreement with the trial court and the amicus attorney’s statements.
We overrule Wallace’s first issue.
B. Denial of Arbitration Rights due to Trial Court’s Failure to Stay Judicial Proceedings
In her third issue, Wallace contends that the trial court erred and abused its
discretion by failing to order a stay of the judicial proceedings when it signed the
order granting her motion to compel arbitration. According to Wallace, the trial
7 court’s inaction on this issue deprived her of her right to arbitration. Wallace
further argues that if a trial court finds that a claim falls within the scope of a valid
arbitration agreement, the court has no discretion but to compel arbitration and stay
its own proceedings. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex.
2008). Thus, the trial court could only have erred in this respect if a valid
arbitration agreement existed and the parties’ dispute fell within the scope of that
agreement.
Whether there is a valid and enforceable agreement to arbitrate is a matter of
contract interpretation, and as such, is a legal question subject to de novo review.
See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009). Wallace
argues that the arbitration agreement included in the MSA required the parties to
arbitrate their disputes regarding the drafting and execution of the MSA even after
the trial court signed the final decree on December 29, 2009. McFarlane, on the
other hand, contends that the MSA’s arbitration agreement is inapplicable post-
judgment.
The two-paragraph arbitration agreement included in the MSA provides in
pertinent part that the parties agree to use mediator, Hicks, “as binding Arbitrator
for any dispute that arises in the drafting and execution of this Agreement” and “to
notify Hicks, in writing, of their request for her services at least ten days prior to a
Court entry date. . . .” The agreement further provides that all arbitration fees are
8 due “on or at the time of entry.” Based upon these provisions, and considering the
arbitration agreement as a whole, it is evident that the agreement to arbitrate only
applies prior to the signing of a final divorce decree. Cf. In re Provine, 312
S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding)
(concluding that MSA’s arbitration agreement “plainly contemplates post-divorce
disputes, as it includes matters related to the ‘performance’ of the agreement.”)
Unlike in Provine, McFarlane and Wallace did not agree to arbitrate any disputes
over the “performance” of their respective obligations under the MSA, nor does
their arbitration agreement contain any other indicia that post-judgment arbitration
was contemplated and agreed to by the parties.
We further note that, although Wallace attempted to invoke the arbitration
agreement at the December 29, 2009 entry hearing, her attempt to reserve her right
to arbitration was insufficient. Instead of asking for a continuance in order to
arbitrate her disputes prior to the signing and entry of judgment, Wallace’s counsel
informed the trial court: “I’m not trying to delay the Court today. I just need to
reserve my client’s right to arbitrate a disagreement in the mediated settlement
agreement.” Wallace’s counsel later reiterated at that hearing: “Judge, what I
would think then is that you can enter a final order today. Judge Hicks can
determine if that is in any way different than the mediated settlement agreement,
then we would file a motion nunc pro tunc. That’s what I would suggest.” The
9 trial court signed the final decree that day, as Wallace suggested, and the
arbitration agreement expired by its own terms. Thus, by the time Wallace moved
to compel arbitration in March 2010, there was no valid arbitration agreement.
Because there was no valid arbitration agreement in existence when Wallace
moved to compel arbitration in March 2010, the trial court could not have abused
its discretion by refusing to stay its own proceedings. Forest Oil Corp., 268
S.W.3d 51, 56.
We overrule Wallace’s third issue.
C. December Decree Contradicted and Exceeded Scope of MSA
In her second issue, Wallace argues that the trial court erred and abused its
discretion by signing, over her objections, a final divorce decree that contradicted
and exceeded the scope of the MSA, thereby violating her right to due process
under the U.S. and Texas Constitutions, her right to an equitable division of the
martial estate under Family Code section 7.001, and her property rights.
Specifically, Wallace argues that the decree deviates from the MSA in numerous
respects, which she sets forth in a detailed list attached as an appendix to her
appellant’s brief. In particular, Wallace argues on appeal that the decree:
(1) gives McFarlane exclusive rights with respect to the children’s medical and mental health care, including the right to determine whether the children need mental health care; (2) prohibits her from seeking medical treatment for the children while they are in her possession (with the exception of extended periods of possession);
10 (3) omits the MSA’s requirement that the children are to attend therapy; (4) requires Wallace and McFarlane to comply with the recommendations of Dr. Laval as set forth in his November 11, 2009 letter, as opposed to complying with Dr. Laval’s October 2009 oral recommendations, as contemplated by the MSA; and (5) omits the MSA’s language prohibiting the dissemination of Dr. Laval’s recommendations under most circumstances; (6) awards McFarlane community property not addressed in the MSA (i.e., three E*trade accounts); (7) includes passport language that varies significantly from the language required by the MSA (i.e., “language per the Family Code and Family Practice Manual”); and (8) adds terms and provisions which were never agreed to by the parties, or addressed by the MSA, including: a. injunctions prohibiting Wallace4 from i. making disparaging remarks or allowing others to make disparaging remarks about McFarlane or his family in the children’s presence; ii. calling, texting, or instant messaging McFarlane in “an offensive and repetitious manner” or “without a legitimate purpose”; and iii. engaging in any act or speech reasonably calculated to provoke or excite McFarlane during any exchange of the children; b. provisions regarding air travel; c. specifying a specific location for the surrender and return of the children after periods of possession; d. allocating tax liabilities between Wallace and McFarlane for 2005– 2009; e. dismissing with prejudice all pending protective orders and effectively prohibiting her from “testifying about all prior physical abuse;” f. extinguishing any claims for emotional abuse;
4 The decree enjoins both Wallace and McFarlane from engaging in such conduct, but Wallace is complaining about the provisions only as they apply to her.
11 g. ordering the survival of pending obligations for temporary support; and h. lifting the agreed geographical restriction placed on the children’s residence by the MSA under specific circumstances.
Wallace also argues that McFarlane’s failure to disclose to Wallace during
mediation the existence of the three E*trade accounts awarded to him in the decree
amounted to fraud-by-nondisclosure.
1. Preservation of Error
Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides that, as a
prerequisite for presenting a complaint on appeal, the record must demonstrate that
the complaining party made his complaint to the trial court by a timely request,
objection, or motion that stated the grounds for the ruling sought with sufficient
specificity to make the trial court aware of the complaint. TEX. R. APP. P.
33.1(a)(1)(A); see also Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A,
249 S.W.3d 380, 387 (Tex. 2008) (“[T]he cardinal rule for preserving error is that
an objection must be clear enough to give the trial court an opportunity to correct
it.”); Ricks v. Ricks, 169 S.W.3d 523, 527–28 (Tex. App.—Dallas 2005, no pet.)
(overruling complaint regarding discrepancy between MSA and final divorce
decree because complaining party failed to make trial court aware of objection); In
re T.M.G.R., 164 S.W.3d 851, 855–56 (Tex. App.—Beaumont 2005, no pet.)
(overruling complaints regarding discrepancies between MSA and trial court’s
order because complaints were contradicted by record and argument that portions 12 of order were unenforceable had not been presented to trial court). In order to
preserve error, the party’s complaint on appeal must comport with the argument it
raised in the trial court. Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—
Texarkana 2010, pet. denied); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40
(Tex. App.—Houston [14th Dist.] 2005, pet. denied).
The record before us on appeal reflects that the discrepancies raised in
numbers 7 and 8(a), (c)-(g) were never specifically brought to the trial court’s
attention at the December 29th hearing, the April 13th hearing, or in any post-
judgment motion. Although Wallace contends that she raised at least ten
objections during a March 9, 2010 hearing on her motion to compel, there is no
record of that proceeding. Regardless of what may have transpired at the March
9th hearing, the record before this Court (i.e., transcripts of the December 29, 2009
and April 13, 2010 hearings and the clerk’s record) does not demonstrate that
Wallace ever presented these issues to the trial court. See TEX. R. APP. P. 33.1
(requiring party seeking appellate review to show that complaint was preserved);
accord Shelton v. Standard Fire Ins., 816 S.W.2d 552, 553 (Tex. App.—Fort
Worth 1991, no writ) (noting that appellant has burden to bring up record on
appeal showing error that would require reversal). Accordingly, none of these
objections have been preserved for our review. See TEX. R. APP. P. 33.1(a)(1)(A);
Arkoma Basin Exploration, 249 S.W.3d at 387.
13 (1) Provisions Regarding Air Travel
Wallace’s complaint about the inclusion of new provisions regarding air
travel (number 8(b)) is moot. While this appeal has been pending, the matter was
transferred to Montgomery County on a motion of the parties, and that court
modified the provisions of the decree regarding the surrender and return of the
children and the provisions relating to the children’s air travel. Consequently, we
need not address this issue. See TEX. R. APP. P. 47.1 (“The court of appeals must
hand down a written opinion that is as brief as practicable but that addresses every
issue raised and necessary to final disposition of appeal.”).
(2) Fraud-by-Nondisclosure
Wallace’s fraud-by-nondisclosure argument, which was raised for the first
time at the April 13, 2010 hearing, was not preserved for appellate review either.
Wallace’s counsel argued at the April hearing that he had only just discovered a
few days before that the decree awarded three E*trade accounts to McFarlane that
were not included in the inventory of assets that McFarlane submitted during
mediation the previous November. Although she argued that McFarlane’s
omission amounted to fraud-by-nondisclosure, Wallace did not offer any sworn
testimony or documentary evidence of any kind in support of her allegation of
fraud (e.g., a copy of the inventory list McFarlane submitted at mediation). More
importantly, Wallace did not amend her motion for new trial to include this newly
14 discovered allegation. Therefore, Wallace has failed to preserve this issue for our
review. See TEX. R. CIV. P. 324(b)(1) (stating that point in motion for new trial is
prerequisite to complaint regarding newly discovered evidence).
(3) Dr. Laval’s Recommendations
Wallace also argues that the December decree orders the parties to comply
with the recommendations of Dr. Laval as set forth in his November 11, 2009
letter, as opposed to complying with Dr. Laval’s prior oral recommendations, as
contemplated by the MSA signed on November 4, 2009. Dr. Laval’s letter is not
included in the appellate record. In fact, the record is silent as to any of Dr.
Laval’s recommendations.
It is possible that Dr. Laval’s November 11 letter merely memorializes his
earlier-stated oral recommendations, and, if that is the case, then the language in
the decree would be consistent with the MSA and the intent of the parties. If not,
the inclusion of this language in the decree could constitute reversible error. In
fact, Wallace’s counsel informed the trial court at the entry hearing: “Just for the
record, Dr. Laval did write a letter on November 11, 2009. My client does not
agree with—my client does not agree that his recommendations are consistent with
everything that we talked about in mediation and possibly also with the phone
conference that we had with him back in early November.” Without Dr. Laval’s
recommendations before us, however, we have no way to make this determination.
15 Accordingly, this issue has not been preserved for our review. See Shelton, 816
S.W.2d at 553 (noting that appellant has burden to bring up record on appeal
showing error that would require reversal).
(4) Wallace’s Right to Access Medical Care for the Children
Wallace argues that the December decree (1) gives McFarlane exclusive
rights with respect to the children’s medical and mental health care, including the
right to determine whether the children need mental health care, even though that
was not agreed to in the MSA; (2) prohibits her from seeking medical treatment for
the children while they are in her possession (with the exception of extended
periods of possession); and (3) omits the MSA’s requirement that the children are
to attend therapy.
Wallace argued to the trial court that the provision of the draft decree
authorizing her to take the children to see a doctor for non-emergency care was
incorrectly limited to her extended summer possession, Christmas holiday, or
spring break, and that it should be modified to allow her to do so during any period
of possession. McFarlane responded that the parties agreed in the MSA to follow
Dr. Laval’s recommendations. McFarlane and the children’s attorney agreed that
the provision in question was consistent with the “specific parameters” that Dr.
Laval set forth in his November 11, 2009 letter. As previously discussed, Dr.
Laval’s letter is not included in the appellate record. Without Dr. Laval’s letter
16 before us, we have no way to tell if this provision is consistent with Dr. Laval’s
recommendations as McFarlane and the children’s attorney contend. Accordingly,
this issue has not been preserved for our review. See Shelton, 816 S.W.2d 552,
553 (noting that appellant has burden to bring up record on appeal showing error
that would require reversal).
Wallace’s remaining complaints (numbers 1–3, 5–6, and 8(h)) were
preserved for our review and we will address them accordingly.
2. Law Applicable to MSA and Final Divorce Decree
In suits affecting the parent-child relationship or suits for the dissolution of
marriage, an MSA is binding on the parties and irrevocable 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. TEX. FAM. CODE ANN.
§§ 6.602(b)-(c), 153.0071(d)-(e). If an MSA meets these statutory requirements,
then the parties are entitled to judgment on that MSA “notwithstanding Rule 11,
Texas Rules of Civil Procedure, or another rule of law.” TEX. FAM. CODE ANN.
§§ 6.602(c), 153.0071(e); see also Garcia–Udall v. Udall, 141 S.W.3d 323, 327
(Tex. App.—Dallas 2004, no pet.). Accordingly, a trial court must enforce an
MSA that meets these requirements unless a party demonstrates that the MSA was
17 illegal or was procured by fraud, duress, coercion, or other dishonest means. Boyd
v. Boyd, 67 S.W.3d 398, 403 (Tex. App.—Fort Worth 2002, no pet.).
A final judgment founded upon an MSA must be in “strict or literal
compliance” with that agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d
292, 292 (Tex. 1976); Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied); see also Garcia-Udall, 141 S.W.3d at 332
(concluding that trial court abused its discretion under Family Code section
153.0071 by entering judgment not conforming with MSA in suit affecting parent-
child relationship). A trial court may modify the terms of an MSA, however, so
long as those modifications do not add terms, significantly alter the original terms,
or undermine the parties’ intent. Beyers, 199 S.W.3d at 362–63 (stating
modifications to MSAs only constitute reversible error if they “add terms,
significantly alter the original terms, or undermine the intent of the parties”); see
also Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App.—El Paso 1997, no pet.)
(finding reversible error when trial court added provision requiring husband to pay
$3,500 of wife’s attorney’s fees); In the Matter of the Marriage of Ames, 860
S.W.2d at 592–93 (holding trial court erred when it added terms which “differed
significantly from the settlement agreement”).
(1) Prohibition against Distribution of Dr. Laval’s Recommendations
The MSA states in pertinent part, “Dr. Laval’s recommendations shall be
18 followed by both parties as to their individual situations. These recommendations
shall be made a part of the [agreement incident to divorce] and held by each lawyer
and not be released unless an emergency action [is] filed with Court *including
enforcement action is filed.” Wallace argues that this language prohibits the
parties from sharing Dr. Laval’s recommendations with anyone, unless there is an
emergency. On the contrary, the language of the MSA only prohibits the parties’
counsel from disseminating the information. Because the MSA does not prohibit
McFarlane from divulging Dr. Laval’s recommendations, the trial court did not
abuse its discretion when it failed to include such a provision in the December
decree.
(2) Provisions Regarding the Children’s Medical and Mental Health Care
Wallace argues that the December decree (1) gives McFarlane exclusive
rights with respect to the children’s medical and mental health care, including the
right to determine whether the children need mental health care, even though that
was not agreed to in the MSA; and (2) omits the MSA’s requirement that the
children are to attend therapy. The MSA states, “Exclusive to Dad on education
after confer and consult with mom as well as psychological and psychiatric mom
shall select therapist after dad gives her a list of three therapists.” Contrary to
Wallace’s position, this language does not require the children to attend therapy. It
gives McFarlane the exclusive right to make decisions with respect to the
19 children’s mental health needs, after he confers and consults with Wallace. In the
event McFarlane decides that the children need either psychological or psychiatric
care, the MSA also gives Wallace the right to choose the children’s therapist from
a list of three compiled by McFarlane.
Because the MSA does not require the children to attend counseling or
therapy, the trial court did not abuse its discretion when it declined to include such
a provision in the December decree. Likewise, the provisions in the December
decree addressing McFarlane’s rights with respect to the children’s medical and
mental health care are entirely consistent with the terms of the MSA, and thus,
their inclusion does not constitute an abuse of discretion either.
(3) Community Property
Wallace argues that the December decree improperly awards McFarlane
community property that was not addressed in the MSA (i.e., three E*trade
accounts). The MSA awarded each party “his or her own bank accounts,
retirement, real estate, vehicles, and personal property.” The December decree
goes a step further and specifically lists those items. This type of modification
does not, however, add terms, significantly alter the original terms, or undermine
the parties’ intent, and thus, does not constitute reversible error. See Beyers, 199
S.W.3d at 362–63.
20 (4) Geographical Restriction
Wallace argues that, although both the MSA and draft decree limit the
children’s primary residence to specific counties in the Houston and Dallas metro
areas, page 6 of the draft decree also includes a provision lifting that restriction if
Wallace moves from her current residence or outside the 250-mile radius of the
312th District Court of Harris County. Wallace argues that the MSA did not
address when (or if) the geographical restriction could be lifted. This provision
lifting the geographical restriction on the children’s residence in certain
circumstances was not addressed in the MSA. The trial court abused its discretion
by adding this new term to the December decree. See Beyers, 199 S.W.3d at 362–
63 (stating modifications to MSAs only constitute reversible error if they “add
terms, significantly alter the original terms, or undermine the intent of the parties”).
We overrule Wallace’s third issue, except as it pertains to her complaint
regarding language in the December decree lifting the geographical restriction
placed on the children’s residence.
D. Denial of Motion for New Trial and Motion to Vacate or Modify Decree
In her fourth issue, Wallace contends that the trial court erred by denying her
motion to vacate or modify the final divorce decree and her motion for new trial on
21 the basis that both motions were too general and unclear. 5 The denial of such
motions is generally reviewed under an abuse of discretion standard. See Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial court abuses its
discretion when its action is arbitrary, unreasonable, or “without reference to any
guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985). A trial court does not abuse its discretion if it reaches
the right result, even for the wrong reason. Luxenberg v. Marshall, 835 S.W.2d
136, 141–42 (Tex. App.—Dallas 1992, orig. proceeding).
1. Motion for New Trial
In her motion, Wallace argued that she was entitled to a new trial because
the evidence was legally and factually insufficient to support the trial court’s
finding that the decree conformed to the terms of the MSA. According to Wallace,
the MSA was not “accurately represented” in the decree. Wallace further alleged
that the decree contained unspecified “substantial clerical and substantive errors.”
Wallace’s motion for new trial did not specifically identify the portions of the
December decree that she contended failed to conform to the terms of the MSA.
From the face of the motion, there was no way for the trial court to know if
5 The record reflects that the trial court denied Wallace’s motion for new trial because the motion was too general and unclear. The record also reflects that the trial court denied her motion to vacate or modify the decree because, having denied Wallace’s motion for new trial, her only remedy was a motion to modify the judgment.
22 Wallace was requesting a new trial based on all, some, or even none of the
challenges she raised to the decree at the entry hearing. 6 Given the lack of
specificity in her motion, we hold that the trial court did not abuse its discretion
when it denied Wallace’s motion for new trial. See TEX. R. CIV. P. 321 (stating
that each point in motion for new trial or motion in arrest of judgment must refer to
complaint “in such a way that the objection can be clearly identified and
understood by the court”); TEX. R. CIV. P. 322 (prohibiting consideration of
grounds for objection “couched in general terms”). We further note that even if
Wallace’s motion had complied with Rules 321 and 322, the trial court was,
nevertheless, correct in denying her motion because, although she alleged that the
decree did not strictly comply with the MSA, she failed to demonstrate that the
decree contained any reversible error (i.e., added new terms or significantly altered
the terms of the MSA, or undermined the intent of the parties). See Beyers, 199
S.W.3d at 362–63 (stating modifications to MSAs only constitute reversible error
if they “add terms, significantly alter the original terms, or undermine the intent of
the parties”).
6 As previously discussed, Wallace attempted to challenge the conformity of several provisions on appeal that she never argued to the trial court at any hearing, or specifically raised in a post-judgment motion.
23 2. Motion to Vacate or Modify Decree
Wallace also filed a “Motion to Vacate and Alternative Motion for
Additional Orders” in which she argued that the December decree contained a
misstatement of the MSA and included injunctions not agreed to at mediation.
Wallace asked the court to either modify the existing decree or vacate the decree
and enter a new decree correcting certain errors. Specifically, Wallace argued that
the December decree improperly omitted provisions, (1) requiring court-ordered
therapy for the children, and (2) enjoining McFarlane from distributing Dr. Laval’s
recommendations. 7 She also argued that the decree included ambiguous provisions
on air travel that required clarification and that the decree it needed to be modified
“to reflect the MSA which contain[ed] no injunctions against [Wallace].”
Regardless of the reason given, the trial court did not abuse its discretion
when it denied Wallace’s motions. See Luxenberg, 835 S.W.2d at 141–42 (stating
trial court does not abuse its discretion if it reaches right result, even for wrong
reason). As previously discussed, the MSA neither requires the children to see a
therapist or counselor nor enjoins McFarlane from distributing Dr. Laval’s
recommendations to others, and her complaint regarding air travel is moot.
7 Wallace also complained in her motion to vacate that the December decree improperly omitted language addressing telephone contact. Wallace does not complain about the omission of this language on appeal. 24 Wallace’s remaining allegation that the decree needed be modified “to
reflect the MSA which contain[ed] no injunctions against [Wallace]” is an
incorrect statement of the MSA and does not entitle her to relief. The MSA clearly
and unequivocally enjoined Wallace from taking the children to see mental health
professionals. (“Mom shall not be permitted to take children to mental health
professionals.”)
We overrule Wallace’s fourth issue.
Conclusion
We reform the judgment to delete the language lifting the geographical
restriction on the children’s residence under certain circumstances, and we affirm
the trial court’s judgment as modified.
Jim Sharp Justice
Panel consists of Justices Keyes, Sharp, and Huddle.