Sandra Pruitt Higginbotham v. Hulon Ted Higginbotham ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00201-CV
Sandra Pruitt Higginbotham, Appellant
v.
Hulon Ted Higginbotham, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. C2019-1494A, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING
MEMORANDUM OPINION
Sandra Pruitt Higginbotham appeals from the trial court’s final decree of divorce
that divided the parties’ marital estate by a mediated settlement agreement (the MSA). 1 In five
issues, Sandra challenges the MSA and the award of attorney’s fees. For the following reasons,
we affirm the final decree.
BACKGROUND
The parties married in 1997 and separated in July 2019. The following month,
Sandra filed a petition for divorce, and Ted filed a counterpetition. Based on a rule 11 agreement
“regarding the packing and removal by Sandra of the items from the marital residence,” Sandra
had access to the marital residence for two days in September to remove specified items that
included her “office files.”
1 Because the parties have the same last name, we refer to them as Sandra and Ted.
In January 2020, the trial court ordered the parties to mediation. Pursuant to a
rule 11 agreement that was filed on May 7, the parties agreed to supplement all discovery by
May 20 and to reset the mediation to occur on June 10. At the end of May, Sandra amended her
petition to allege cruel treatment by Ted among her stated grounds for divorce.
At the June 10 mediation, the parties were represented by their respective counsel,
Sandra had the assistance of a financial advisor, and the parties were in separate rooms and did
not directly communicate with each other. Both the parties and their attorneys signed the MSA,
acknowledging that they had reviewed and agreed to its terms. The MSA included the parties’
agreement to the division of their property and debts. Sandra was awarded all interest in her
“[City Public Service] CPS annuity/pension [certificate number] 96689.” The MSA also
included their stipulation that they had “voluntarily accepted the benefits of this settlement and
the judgment that will follow based upon the terms of the settlement agreement,” and the parties
agreed that they waived “any right to appeal following rendition of the judgment in this case”
and that any discovery obligations “shall immediately cease upon the execution of this [MSA],
including the requirement for either party to respond to outstanding discovery requests or
supplement any discovery responses.” Pursuant to the parties’ agreement, Ted and his attorney
appeared for an uncontested hearing later in June, and the trial court granted the parties’ divorce
but did not sign a final decree of divorce. Sandra’s attorney was in the process of preparing it.
After Sandra’s attorney completed preparing the final decree, Sandra refused to
sign it. In response, Ted filed a motion to enter the final decree, and Sandra’s attorney filed a
motion to withdraw and motion for continuance. The trial court considered the motions at a
hearing in October 2020. After she was sworn, Sandra admitted to the trial court that she signed
the MSA and that the decree properly reflected the parties’ agreement, but she testified that she
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“was misled during mediation very badly” by the mediator, that her attorney “was silent” when
she was misled, that she did not find out about certain information until after the mediation was
over, and that she “was given information that [Ted] has hidden assets.” The trial court granted
Ted’s motion to enter the final decree, denied Sandra’s motion for continuance, and granted her
attorney’s motion to withdraw.
Sandra obtained new counsel and filed a motion for new trial. Among her stated
grounds for new trial, she raised newly discovered evidence and family violence. Sandra
contended that she had been a victim of family violence that was perpetrated by Ted “on
numerous instances over a three year period” and alleged that he had “shouted and threatened”
her. She also contended that when the mediation occurred, she did not have access to a
document (the Document) that she needed to prove the separate property component of her
annuity pension. The Document contained information pertaining to the 2007 settlement of a
discrimination lawsuit that she had filed against her employer CPS and her pension from her
employment with CPS. Approximately two weeks after the mediation, Sandra picked up folders
from Ted’s attorney’s office, and one of the folders contained the Document.
In December 2020, the trial court held a hearing on Sandra’s motion for new trial.
Sandra’s attorney admitted during the hearing that the Document was “hers in [the] first place”
and that Sandra “probably” had possession of it within the preceding year to the parties’ divorce
but that it was “taken during the separation” and that Sandra had been unable to locate a copy.
Following the hearing, the trial court signed an order granting her motion for new trial as to
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Ted’s motion to enter the final decree and ordered Sandra to pay attorney’s fees to Ted’s attorney
in the amount of $1,800. 2
In early 2021, Ted filed a subsequent motion to enter the final decree, and Sandra
filed a motion to set aside the MSA on the grounds that it was procured by fraud, duress,
coercion, or other dishonest means. Sandra contended that at the time of the mediation, she “was
under a great amount of emotional distress” because her mother’s health was deteriorating, that
she was a victim of domestic violence and the “environment at the mediation impaired her ability
to make decisions,” and she “did not have a copy of the critical document” in her possession at
the time of the mediation. She contended that she obtained the Document on June 23, 2020,
when she “received a call to pick up” items from Ted’s attorney’s office that were specifically
awarded in the MSA, that the items “included some folders containing documents that [she] had
been requesting,” that the Document was in one of the folders, and that it “contained the
calculation of Petitioner’s monthly retirement benefit $5,993.17 if she had retired in 2007, rather
than the settlement amount of 10,268.08.” She explained that she “did not consider at the time of
mediation that she could refuse to enter into an agreement which was based on incomplete
information”; that she had attempted to obtain the Document from CPS, but CPS “was
uncooperative,” and from her attorney who represented her in the lawsuit against CPS, but he
2 When asked by the trial court, Sandra’s attorney stated that Sandra was willing to pay
attorney’s fees of $1,800 if the trial court granted her motion for new trial. See Equitable
General Ins. Co. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984) (“A conditional grant of a motion
for new trial based on a party’s payment of costs is well within the trial court’s discretion.”);
Harris v. Caldwell, No. 05-01-00480-CV, 2003 Tex. App. LEXIS 1028, at *5 (Tex. App.—
Dallas Feb. 4, 2003, no pet.) (mem. op.) (“Generally, a trial court does not abuse its discretion by
conditionally granting a motion for new trial upon the payment of opposing counsel’s attorney
fees.”). At the hearing, Ted’s attorney represented to the court that his hourly fee was $300 and
that he had spent six hours responding to the motion and attending the hearing.
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could not locate it; and that the Document reflects “what she would have received retiring in
2007, which changes the calculations for the community portion of the retirement significantly.” 3
Ted filed a response to Sandra’s motion. 4 Ted argued that there was no evidence
that he had deliberately failed to disclose any document to Sandra; that no motion to compel
discovery was heard by the court; that Sandra did not address the existence or whereabouts of the
Document with Ted or his attorney; and that Ted was unaware that the Document existed, that it
had been left at the residence, or that Sandra was searching for it. He also argued that she was
aware of the Document’s existence and content, that she had the opportunity to obtain a copy
from other sources, that both parties during the mediation were aware of the separate property
claim that Sandra was making regarding her pension and the discrimination lawsuit, and that she
was able to calculate and negotiate her claim with Ted regarding the separate property
3 She further explained:
Without the proof of benefits [Sandra] would have received retiring in 2007,
(Monthly pension of $5,993.17) compared with her monthly retirement of
$10,286.08, including settlement for discrimination lawsuit. Petitioner could not
overcome in trial the community presumption of the retirement accrued during
marriage. Without the benefit of the calculations the division of the community
estate changed significantly. Although Petitioner received her pension in the
divorce division, she could not receive additional community assets to equalize
the property division without factoring in the additional separate property
component of her retirement due to the discrimination portion of the retirement
award. She was compelled to accept the division of community property without
the benefit of factoring in her separate property component of her retirement
during marriage.
4 In his response to Sandra’s motion to set aside, Ted sought sanctions under rule 13 of
the Texas Rules of Civil Procedure and chapter 10 of the Texas Civil Practice and Remedies
Code. See Tex. R. Civ. P. 13 (authorizing court to impose sanction when statement in pleading
is known to be groundless or false); Tex. Civ. Prac. & Rem. Code § 10.004 (authorizing court to
impose sanction for frivolous pleading or motion).
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component of her pension during the mediation. As support, Ted cited Sandra’s first amended
inventory and appraisement sworn and signed by Sandra on May 25, 2020, that referenced the
separate property portion of her pension, stating that she had “26 years of service which [was]
her separate property from years accrued prior to marriage, plus the years and age given to her as
part of the lawsuit settlement for future years she would have worked” and that listed the
separate property portion as 67% and the community property portion as 33%.
In February 2021, the trial court held an evidentiary hearing on Ted’s motion to
enter the final decree and Sandra’s motion to set aside the MSA. During the hearing, Sandra
testified that she “received an unequitable portion of the community property” because she did
not have the Document available at the time of the mediation. She also testified that she had “a
lot of duress” because of family violence by Ted, but she did not allege or testify that he had
committed physical violence against her. Following the hearing, the trial court granted Ted’s
motion to enter, signed the final decree of divorce, denied Sandra’s motion to set aside the MSA,
and ordered Sandra to pay attorney’s fees of $2,400 to Ted’s attorney. Sandra filed a second
motion for new trial, which was overruled by operation of law. This appeal followed.
ANALYSIS
In five issues, Sandra argues that: (1) the trial court abused its discretion by not
setting aside the MSA because it was procured by fraud, duress, coercion, or other dishonest
means; (2) the trial court erred in failing to consider the threat of family violence that she
suffered in trying to prove her claim of duress; (3) the trial court abused its discretion in
awarding attorney’s fees; (4) she did not waive her right to appeal the MSA; and (5) she did not
voluntarily accept the benefits of the MSA.
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Ted’s Motion to Dismiss
As a threshold matter, Ted has filed a motion to dismiss Sandra’s appeal based on
the MSA’s provision that the parties “waive any right to appeal following rendition of the
judgment in this case.”
Contractual waivers of the right to appeal, including in the context of a final
divorce decree, have been found to be enforceable. See Huber v. Huber, No. 04-17-00326-CV,
2018 Tex. App. LEXIS 2686, at *11–13 (Tex. App.—San Antonio Apr. 18, 2018, pet. denied)
(mem. op.) (concluding that both parties waived their right to appeal from final decree based on
waiver provision in informal settlement agreement); see also In re Spiller, No. 04-18-00522-CV,
2019 Tex. App. LEXIS 4608, at *4–5 (Tex. App.—San Antonio June 5, 2019, pet. denied)
(mem. op.) (“The right to appellate review may be waived by Rule 11 agreement.”); Emerson
v. Emerson, 559 S.W.3d 727, 734, 737–38 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(concluding that waiver of right to appeal from trial court’s ruling on request for attorney’s fees
was enforceable). Further, when a mediated settlement agreement meets the requirements of
section 6.602 of the Texas Family Code, “a party is entitled to judgment on the mediated
settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another
rule of law.” See Tex. Fam. Code § 6.602(c); see Emami v. Emami, No. 02-21-00319-CV,
2022 Tex. App. LEXIS 5840, at *12 (Tex. App.—Fort Worth Aug. 11, 2022, no pet.) (mem. op.)
(explaining that MSA that complies with section 6.602 is irrevocable once signed).
In this case, Sandra agrees that the MSA meets the requirements of section 6.602:
it is signed by both parties and their respective counsel and states in boldface type that it is not
subject to revocation. See Tex. Fam. Code § 6.602(b). “However, a court is not required to
enforce an MSA if it is illegal in nature or was procured by fraud, duress, coercion or other
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dishonest means.” Triesch v. Triesch, No. 03-15-00102-CV, 2016 Tex. App. LEXIS 2365, at *4
(Tex. App.—Austin Mar. 8, 2016, no pet.) (mem. op.) (citing Spiegel v. KLRU
Endowment Fund, 228 S.W.3d 237, 241 (Tex. App.—Austin 2007, pet. denied); In re Marriage
of Joyner, 196 S.W.3d 883, 890 (Tex. App.—Texarkana 2006, pet. denied)); see Emami,
2022 Tex. App. LEXIS 5840, at *13 (collecting cases holding that “trial court is not required to
enforce an MSA that complies with the statutory requirements if it is illegal or was procured by
fraud, duress, or coercion”). Thus, because the MSA may be set aside if it was procured by
fraud, duress, coercion, or other dishonest means, Sandra may challenge in this appeal the trial
court’s denial of her motion to set aside the MSA based on these grounds. See Triesch,
2016 Tex. App. LEXIS 2365, at *4; Spiegel, 228 S.W.3d at 242.
On this basis, we deny Ted’s motion to dismiss and turn to Sandra’s first two
issues that argue that the trial court abused its discretion by not setting aside the MSA on the
grounds that it was procured by fraud, duress, coercion, or other dishonest means and erred in
failing to consider the threat of family violence that Sandra suffered in trying to prove her claim
of duress.
Was the MSA procured by fraud, duress, coercion, or other dishonest means?
Standard of Review
“We review a trial court’s decision not to set aside a mediated settlement
agreement for abuse of discretion.” Triesch, 2016 Tex. App. LEXIS 2365, at *3 (citing R.H. v.
Smith, 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no pet.); In re C.H., Jr., 298 S.W.3d 800,
804 (Tex. App.—Dallas 2009, no pet.)); see Emami, 2022 Tex. App. LEXIS 5840, at *3–4. “A
trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to
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guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (citing Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)). “A trial court also abuses its discretion by failing to
analyze or apply the law correctly.” Id. (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)).
“The party seeking to avoid enforcement of the MSA bears the burden to show
that the agreement is unenforceable.” Choksi v. Choksi, No. 09-19-00183-CV, 2020 Tex. App.
LEXIS 8944, at *10 (Tex. App.—Beaumont, Nov. 19, 2020, pet. denied) (mem. op.). Thus, it
was Sandra’s burden to establish that the MSA was procured by fraud, duress, coercion, or other
dishonest means. See Triesch, 2016 Tex. App. LEXIS 2365, at *4. In this context, we turn to
her two issues that challenge the MSA on these grounds.
Fraud by Nondisclosure
As part of her first issue, Sandra argues that the trial court abused its discretion by
not setting aside the MSA because Ted committed fraud by nondisclosure.
Fraud by nondisclosure “occurs when a party has a duty to disclose certain
information and fails to disclose it.” Bombardier Aero. Corp. v. SPEP Aircraft Holdings,
LLC, 572 S.W.3d 213, 219 (Tex. 2019) (citing Schlumberger Tech. Corp. v. Swanson,
959 S.W.2d 171, 181 (Tex. 1997)). To establish fraud by nondisclosure, Sandra was required to
show that: (1) Ted “deliberately failed to disclose material facts”; (2) he “had a duty to disclose
such facts” to her; (3) she “was ignorant of the facts and did not have an equal opportunity to
discover them”; (4) Ted intended her “to act or refrain from acting based on the nondisclosure”;
and (5) she relied on the nondisclosure, which resulted in injury. Id. at 219–20.
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Sandra contends that her verified motions and testimony during the
February 2021 hearing established that Ted had a duty to turn over the Document that was in his
possession but that he did not produce it in response to discovery, violating the discovery rules,
or make it available to Sandra until after the mediation had occurred. Sandra further argues that
Ted did not present evidence “to refute the circumstantial evidence tending to prove Sandra’s
claim that he intended her to rely on the [Document’s] nondisclosure” and that she suffered
injury because she “did not retain 100% of her separate property and Ted benefited from an
inaccurately inflated community property interest value.”
In reaching its decision to deny Sandra’s motion to set aside the MSA on the
ground of fraud by nondisclosure, however, the trial court reasonably could have considered the
MSA’s award of the “CPS annuity/pension [certificate number] 96689” to Sandra and her
admission that the Document belonged to her originally. Because the Document belonged to her,
Sandra was aware of its content. She also admitted that she had other sources for obtaining
another copy of the Document or its content—her employer CPS and the attorney who
represented her against CPS; she was given access to the marital residence to pick up her
possessions, including her “office files,” after she filed the petition for divorce; and she did not
seek assistance from the court concerning pending discovery or access to the marital residence to
pick up additional items prior to the mediation. Based on the MSA’s reference to her “CPS
annuity/pension [certificate number] 96689,” and her admissions and opportunities to obtain the
Document or the information contained in the Document prior to the mediation, the trial court
reasonably could have found that Sandra failed to establish that she was ignorant of material
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facts and that she did not have an equal opportunity to discover them. 5 See id. (requiring
plaintiff to establish that she was ignorant of facts and did not have equal opportunity to
discover them).
Sandra argues that Ted did not dispute her testimonial evidence and that there
were “no circumstances in evidence tending to discredit or impeach” her testimony that was
unequivocal and proved fraud by nondisclosure, citing this Court’s opinion in Dyer v. Dyer,
No. 03-16-00753-CV, 2018 Tex. App. LEXIS 4380, at *25 (Tex. App.—Austin June 15, 2018,
no pet.) (mem. op.). The trial court, however, reasonably could have found that there were
circumstances in the evidence tending to impeach or discredit her testimony, including her
admission that the Document belonged to her. Thus, the trial court could have found that Sandra
did not present credible evidence that before the mediation, Ted was aware that the Document
existed, that Sandra did not have a copy of it, that she was looking for it, or that it was in one of
her folders at the marital residence. See Bombardier, 572 S.W.3d at 219–20 (requiring proof
that defendant deliberately failed to disclose information); see also In re Lechuga,
No. 07-15-00088-CV, 2015 Tex. App. LEXIS 4718, at *8 (Tex. App.—Amarillo May 7, 2015,
orig. proceeding) (mem. op.) (concluding that “[m]ere surmise and speculation is no evidence of
fraud” that would support setting aside MSA (citing KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70,
89 (Tex. 2015))).
Applying the applicable standard of review, we conclude that the trial court acted
within its discretion when it found that Sandra did not prove that the MSA should be set aside on
5 During the hearing on Sandra’s motion for new trial, Ted’s attorney had directed the
trial court to bates-stamped documents that Sandra produced in discovery that provided similar
information to the Document’s content.
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the ground that Ted committed fraud by nondisclosure. See Choksi, 2020 Tex. App. LEXIS
8944, at *10.
Duress and Coercion
As part of her first issue, Sandra also argues that the trial court abused its
discretion by not setting aside the MSA because she was coerced to sign the MSA and was
operating under duress during the mediation. In her second issue, Sandra argues that the trial
court erred in failing to consider the threat of family violence that she suffered in attempting to
prove her claim of duress in entering the MSA.
“Coercion occurs if someone is compelled to perform an act by force or threat.”
In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied) (citing Arnett
v. Arnett, No. 03-05-00056-CV, 2008 Tex. App. LEXIS 3184, at *4 (Tex. App.—Austin
May 2, 2008, pet. denied) (mem. op.)). “Duress occurs when, due to some kind of threat, a
person is ‘incapable of exercising [her] free agency’ and unable to withhold consent.” Arnett,
2008 Tex. App. LEXIS 3184, *4 (citing Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868,
877 (Tex. 2005)). To prove duress, a plaintiff must establish:
(1) a threat or action was taken without legal justification; (2) the threat or action
was of such a character as to destroy the other party’s free agency; (3) the threat
or action overcame the opposing party’s free will and caused it to do that which it
would not otherwise have done and was not legally bound to do; (4) the restraint
was imminent; and (5) the opposing party had no present means of protection.
Choksi, 2020 Tex. App. LEXIS 8944, at *11 (quoting Kalyanaram v. Burck, 225 S.W.3d 291,
301 (Tex. App.—El Paso 2006, no pet.)); see Bolton, 185 S.W.3d at 879 (“The compulsion must
be actual and imminent, and not merely feigned or imagined.”).
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Sandra argues that “Ted exercised an undue influence over [her] by outwitting her
in concealing a document proving her substantial separate property interest until after she signed
an irrevocable [MSA], which is the essence of coercion.” Sandra relies on her testimony that
“without the critical document available at trial she was forced to sign the [MSA] because she
‘had no recourse’” 6 and her “heavy burden” to present “clear and convincing evidence” to
establish separate property. See Tex. Fam. Code § 3.003 (addressing community property
presumption unless property can be established to be separate by “clear and convincing
evidence”). As support for her argument that the trial court erred in failing to consider the threat
of family violence that she suffered in attempting to prove her claim of duress, she relies on the
definition of family violence in the Texas Family Code. See Tex. Fam. Code § 71.004 (defining
family violence to include act by family member “that is a threat that reasonably places [another
family] member in fear of imminent physical harm”).
Sandra did not allege or testify that Ted committed physical violence against her
during their marriage but that she lived with abuse which caused her thyroid to “[go] out” and
half of her hair to fall out and that she was “triggered” when she saw Ted at the mediation. She
testified that she “saw [Ted] standing out in the front of the building [at the mediation] when she
was trying to get some information on the phone, and just his posture and his body triggered
6 When asked why she was under duress without the Document during the mediation
such that she had to sign the MSA, Sandra testified:
I had no recourse. I had no recourse. It was sign it, get done with it, get what you
get. I had nothing to go to trial with. He wasn’t employed. He had been living
off of me.
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back everything.” When the trial court asked her to tell the court about family violence,
Sandra testified:
Threating to come at me, taking all that I have to not come at you, shutting of
doors, hollering, screaming, having to threaten him with the security at a hotel in
New Orleans, having to push him away to not have a fight with my uncle,
threatening with—him with the police no later than 2019 when I left the house
and never returned because I knew he was on the verge of hitting me, him telling
me that his temper was uncontrollable and he knew it, me asking him for a
separation because I couldn’t live with him because I knew if I went back I was
going to be hit.[ 7]
She also testified that on July 7, 2019, Ted threatened her when he “said it was taking everything
he had to not come at [her],” but that she left the room, and he did not hit her.
The trial court, as the trier of fact, could have found that although Sandra may
have believed that she was the victim of family violence during the parties’ marriage, she had not
established that at the time she signed the MSA, she was acting under the influence of a threat by
7 In response to the trial court’s question about family violence, Sandra further testified
after the above quoted testimony as follows:
I’m a counselor, your Honor. It got to the point where I said if I didn’t leave the
home, how could I continue to be a counselor. I didn’t have even my own house
in order. His drinking, his slamming of doors, me telling him if you can’t control
your temper, you need to leave and go stay at a hotel, him telling people that he
married me for my kids and my money, him calling me his sugar momma, him
embarrassing me in Colorado in 2017 at a True Value Hardware after I had been
in the emergency room for bronchitis where the cashier was speechless, and I sat
in the car crying for an hour asking him why are you treating me this way.
When asked to elaborate on the family violence aspect of the True Value incident, Sandra
testified that she “was dillydallying in the store, and he made a derogatory loud statement to
where people overheard it, and [the] cashier was just verbally stunned.” She testified that his
statement was “if you don’t get your ass over here, the car is leaving and you can walk home,
something to that effect” and characterized this statement as a “[s]arcastic, ugly threat.”
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Ted which rose to the level of overcoming her free will or that compelled her to sign the MSA.8
See Arnett, 2008 Tex. App. LEXIS 3184, *4; see Bolton, 185 S.W.3d at 879. Sandra was not in
the same room with Ted at any time during the mediation, and she was represented by counsel
and had a financial advisor available to assist her. See Carson v. Carson, No. 03-04-00521-CV,
2005 Tex. App. LEXIS 9250, at *3 (Tex. App.—Austin Nov. 4, 2005, no pet.) (mem. op.)
(concluding that “bare assertions of intimidation and coercion, especially in light of the fact that
[appellant] was represented by counsel, are insufficient to establish that the mediated settlement
agreement is unenforceable”); see also Durham v. Durham, No. 03-03-00303-CV, 2004 Tex.
App. LEXIS 2609, at *10–11 (Tex. App.—Austin Mar. 25, 2004, no pet.) (mem. op.) (observing
that trial court did not have to credit and could have found party’s testimony about coercion and
duress not credible even though opposing party did not present controverting evidence about
objective aspects of testimony). In her motions and during the hearings, she did not assert
that Ted or anyone else threatened her during the mediation. See Rabe v. Dillard’s, Inc.,
214 S.W.3d 767, 769 (Tex. App.—Dallas 2007 no pet.) (requiring proof of threat to do
something that threatening party has no right to do to demonstrate duress).
The trial court also reasonably could have disbelieved Sandra’s testimony about
Ted’s conduct toward her during their marriage. See Choksi, 2020 Tex. App. LEXIS 8944, at
8 During the hearing, the trial court stated that it had “not heard anything [about] family
violence” but “allegations of rude behavior” and “emotional triggers” about the health of
Sandra’s mother. The trial court similarly stated, “There is an allegation of family violence
although there has been no proof there has been any family violence at all. At most maybe an
allegation of a threat.” The trial court explained that it had “heard nothing that rises to the level
of being in fear for her life to where she signed something as if a gun was to her head.” In
contrast with section 153.0071 of the Texas Family Code, section 6.602 does not include family
violence as an exception to enforcing an MSA. See Tex. Fam. Code §§ 6.602, 153.0071
(authorizing court to decline to enter judgment on MSA in context of suit affecting parent-child
relationship if party to agreement was victim of family violence and circumstances impaired
party’s ability to make decision).
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*12 (stating that trial court, when acting as factfinder, “is the sole judge of witness credibility
and the weight to give to witnesses’ testimony” (quoting In re Lopez, No. 14-18-00797-CV,
2020 Tex. App. LEXIS 6175, at *7 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020, no pet.)
(mem. op.)). In her August 2019 original petition, Sandra’s ground for divorce was because of
“discord or conflict of personalities,” and it was not until the end of May 2020 that she amended
her petition to assert that Ted was guilty of acts against Sandra that constituted cruel treatment.
At the October 2020 hearing, Sandra did not raise family violence but asserted that the mediator
misled her and that Ted had hidden assets.
As to her argument that she was forced to sign the MSA without the Document,
Sandra asserts that Ted’s action of “maintaining control of a critical document proving [her]
substantial property interest in her CPS annuity pension that he was required to produce in
response to discovery precluded [her] from exercising free agency to withhold consent to the
[MSA].” Sandra relies on pending discovery requests to Ted, but the trial court could have
determined that Sandra’s purported belief about the Document’s importance was not credible,
particularly because she was represented by counsel and had a financial advisor available during
the mediation, she did not object to proceeding with the mediation without the Document, the
MSA addressed her pension from CPS, and she agreed in the MSA that all discovery obligations
ceased. See Choksi, 2020 Tex. App. LEXIS 8944, at *12; see also Emami, 2022 Tex. App.
LEXIS 5840, at *14 (“A claim of duress also ‘must be established based on the conduct of the
party accused of duress, not the emotions of the purported victim.’” (quoting Weinberg
v. Baharay, 553 S.W.3d 131, 134 (Tex. App.—Houston [14th Dist.] 2018, no pet.))).
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Applying the applicable standard of review, we conclude that the trial court acted
within its discretion when it found that Sandra did not prove that the MSA should be set aside
based on her claims of duress and coercion. See Choksi, 2020 Tex. App. LEXIS 8944, at *10.
Other Dishonest Means
As part of her first issue, Sandra further argues that “[e]ven if this Court decides
Ted’s actions did not rise to the level of fraud, coercion, or duress, Ted’s actions in harboring a
critical document that he should have produced in response to discovery was dishonest and as a
result Ted received a portion of Sandra’s separate property through the erroneous inflation of the
community property estate.” But the trial court reasonably could have found that she did not
present credible evidence that Ted was aware of the Document’s existence or that it was in a
folder at the marital estate prior to the mediation or that she was not aware of the Document’s
content during the mediation. Thus, applying the applicable standard of review, we conclude
that that the trial court did not abuse its discretion in denying Sandra’s motion to set aside the
MSA on the ground of other dishonest means. See id.For these reasons, we overrule her first and second issues.
Remaining Issues
Because we have concluded that the trial court did not abuse its discretion in
denying Sandra’s motion to set aside the MSA, we conclude that she is bound by her contractual
agreement in the MSA to waive her right to appeal after the rendition of final decree. See Tex.
Fam. Code § 6.602; Huber, 2018 Tex. App. LEXIS 2686, at *11–13 (concluding that both
parties waived their right to appeal from final decree based on waiver provision in informal
settlement agreement); see also Emerson, 559 S.W.3d at 737–38 (concluding that waiver of right
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to appeal from trial court’s ruling on request for attorney’s fees was enforceable). On this basis,
we overrule her remaining issues.
CONCLUSION
For these reasons, we affirm the trial court’s final decree of divorce.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: December 8, 2022
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