Opinion
No. 07-17-00283-CV
02-14-2018
IN THE MATTER OF THE MARRIAGE OF NOMBERTO QUINONES FLORES AND LETICIA BARRAZA FLORES AND IN THE INTEREST OF A.F. AND E.F., CHILDREN
On Appeal from the County Court at Law No. 2 Johnson County, Texas
Trial Court No. CC-D20150117 , Honorable F. Steven McClure, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Nomberto Quinones Flores appeals from a final divorce decree. Aspects of the decree arose from a mediated settlement agreement (MSA) he executed along with his ex-wife Leticia Barraza Flores. The appeal actually involves the MSA and the trial court's refusal to rescind or modify it. The "Contractual Agreement," as the parties referred to the MSA, was signed by them, their attorneys, and the mediator on June 3, 2016. It dealt with the division of property, debt, conservatorship of their children, access to the children, and child support. Within two months of its execution, Nomberto moved the trial court to rescind or modify the document. The motion was denied, and the MSA was incorporated into the final divorce decree. Nomberto argues, through four issues, that the trial court's decision regarding the MSA constituted error. We affirm.
Because this appeal was transferred from the Tenth Court of Appeals, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision would be inconsistent with the precedent of the transferor court. TEX. R. APP. P. 41.3.
The MSA arose under the auspices of § 153.0071 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.0071(c) (West Supp. 2017) (stating that "[o]n the written agreement of the parties or on the court's own motion, the court may refer a suit affecting the parent-child relationship to mediation"). Per subparagraph (d) of § 153.0071, the legislature provided that a "mediated settlement agreement is binding . . . 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." Id. § 153.0071(d)(1)-(3). If those requirements are met, a party is "entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law ." Id. § 153.0071(e) (emphasis added).
Yet, another statute endows the trial court with limited authority to reject the agreement. That authority appears in § 153.0071(e-1) of the Family Code and states that the trial court may "decline to enter a judgment on" it when (1) a party to the agreement was a victim of family violence which impaired the person's ability to make decisions; (2) the agreement permits someone subject to registration under Chapter 62 of the Texas Code of Criminal Procedure or has a history or pattern of engaging in physical or sexual abuse to reside with or have unsupervised access to the child, and (3) the agreement is not in the child's best interests. Id. § 153.0071(e-1). That is, before an MSA may be disregarded, the trial court must find not only that either the family violence or Chapter 62/abuse prong exists but also that the best interests of the child warrant rejection of the mediated accord. It lacks authority to reject the contract simply because it concludes that the agreement is not in the child's best interests. See In re Lee, 411 S.W.3d 445, 447 (Tex. 2013) (orig. proceeding). We do caution that, although we have yet to formally decide the matter, some courts have held that an agreement which otherwise complies with § 153.071(d) may be unenforceable if found to be illegal or to have been procured by fraud, duress, coercion, or other means of dishonesty. In re Lechuga, No. 07-15-00088-CV, 2015 Tex. App. LEXIS 4718, at *5 (Tex. App.—Amarillo May 7, 2015, orig. proceeding) (mem. op.) (citing the opinions so holding).
Nomberto does not contend under any of his issues that the MSA at bar failed to satisfy the criteria of § 153.0071(d). Nor does he contend that the agreement is unenforceable under the exceptions itemized in § 153.0071(e-1). Indeed, he represented in his brief that he "believes that the [trial] [c]ourt made [its] ruling based on current law." Instead, he hoped to render it unenforceable because Leticia (1) was the subject of newly discovered 2003 outstanding deportation order, (2) purportedly drove without a license contrary to court order, (3) purportedly had a history of driving while intoxicated, and (4) otherwise endangered the children. We find these reasons insufficient basis to hold that the trial court erred in deciding to uphold the MSA.
First, none of the circumstances cited by Nomberto come within the statutory exceptions to enforcing the agreement. Instead, he repeatedly couched the foregoing circumstances within the framework of best interests. That is, he argued at the hearing held on his motion to rescind or modify the MSA, at the final divorce hearing, and at the hearing on his motion for new trial that those circumstances illustrated the MSA was not in the best interests of the children. Yet, as said by the Supreme Court in In re Lee, "it absolutely clear that the Legislature limited the consideration of best interest in the context of entry of judgment on an MSA to cases" falling within the scope of § 153.0071(e-1). In re Lee, 411 S.W.3d at 453. Simply contending that circumstances have arisen rendering the MSA contrary to the children's best interests is not enough.
Second, while Nomberto correctly argues the In re Lee court said § 153.0071 "does not require a trial court to blindly leave a child whose welfare is at risk in harm's way," id. at 455-56, it did not hold that such a risk permitted the jettison of a settlement agreement. Rather, it acknowledged that "courts can never stand idly by while children are placed in situations that threaten their health and safety." Id. at 456. That "does not mean courts can refuse to abide by section 153.0071(e) by denying a motion to enter judgment on a properly executed MSA on best interest grounds." Id. "Trial courts have other statutorily endorsed methods by which to protect children from harm without eviscerating section 153.0071(e)'s mandatory language . . . ." Id. In other words, risks posed to children outside the scope of § 153.0071(e-1) do not justify the rejection of an MSA. Instead, the accord must be honored, while the trial court utilizes other remedies to protect the child from endangerment. Nomberto failed to illustrate here that the trial court lacked other remedies to insulate his children. Indeed, he did not even address the topic. He simply demanded a remedy prohibited by statute and In re Lee.
Third, his argument that the "the MSA provisions are . . . illegal because . . . [Leticia] cannot legally establish residency in the United States, or the counties therein, because she could be immediately removed from the United States" also falls short. We do not find where he questioned the legality of the MSA below. Nor did he cite us to any portion of the record encompassing that argument. Thus, it was not preserved for review. Furthermore, it too falls outside the scope of § 153.0071(e-1) and, therefore, is irrelevant. Nor does it find relevance in those line of cases we alluded to in In re Lechuga, which suggests that certain common law contract defenses may apply to mediated settlement agreements. We know of no authority rendering contracts executed by illegal aliens unenforceable simply because they are illegal aliens. Indeed, it seems as though one's citizenship has little to do with the enforceability of an agreement. See Burtscher v. Moore, CV-11-2309-DMG, 2013 U.S. Dist. LEXIS 190343, at *9-10 (C.D. Cal. July 22, 2013) (stating that "foreign companies and noncitizens have the capacity to enter into binding contracts in the United States" and "[t]he citizenship of the parties entering a contract is irrelevant to the enforceability of the resultant contract").
Fourth, and again assuming common law defenses may have a place in § 153.0071(e) litigation, Nomberto cites us to no evidence of a prior misrepresentation uttered by Leticia regarding the outstanding removal order, her status as an illegal alien, her driving without a license, or her purported criminal conduct endangering the children. Given that such a misrepresentation is elemental to fraud, see Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., 341 S.W.3d 323, 337 (Tex. 2011) (quoting Aquaplex, Inc. v. Rancho Valencia, Inc., 297 S.W.3d 768 (Tex. 2009) (per curiam), and describing the elements of fraud as including a material representation by the defendant that was false when made), Nomberto failed to show that Leticia defrauded him into executing the MSA.
Indeed, the record discloses that Nomberto knew about Leticia's status as an illegal immigrant and her being subject to deportation years before signing the MSA. It further illustrates that he knew she lacked a driver's license, allowed her to drive, and secured vehicle insurance for her. In short, it seems as though Nomberto knew of each concern broached here and had the ability to address them in the MSA. His failure to do so is not reason to ignore the dictate of In re Lee or otherwise avoid the agreement.
As for her purported act of driving while intoxicated or assaulting someone with a beer bottle, Nomberto fails to cite us to evidence of record establishing that either occurred. Nor did we find such evidence of record. And though he attached an exhibit to his appellate brief purporting to show that she had been charged with "DUI - open container" in July of 2015, simply attaching documents to a brief do not make them cognizable on appeal. See Simmons v. Blackstone Developers, LLC, No. 10-14-00228-CV, 2014 Tex. App. LEXIS 13623, at *7 (Tex. App.—Waco Dec. 18, 2014, no pet.) (mem. op.) (citing Tex. R. App. P. 34.1 and holding that the reviewing court is bound by the appellate record and simply attaching documents to a brief does not make them part of the record subject to consideration). More importantly, Nomberto cites us to nothing of record suggesting that he lacked knowledge of the accusation before signing the MSA in June of 2016.
We overrule his issues and affirm the trial court's judgment.
Brian Quinn
Chief Justice