This a pretty stunning case out of the Houston Court of Appeals – 14th District. In re Minix, 2018 Tex.App. LEXIS 1489 (Tex.App..– Houston [14th Dist.].
The parties entered a Mediated Settlement Agreement regarding custody of their three-year-old child. Prior to entry of judgment the father complained that Mother was not following the MSA and asked it be set aside. Mother complained the MSA was no longer in the child’s best interest and asked that the MSA be set aside. There was no docket entry of this agreement or written order. The case continued on with several more hearings and psychological evaluations. At final trial mother testified that she did not believe she had revoked her consent to the MSA and appealed when the trial court would not entered judgment based on the MSA.
The appellate court found that an MSA may only be set aside under limited circumstances, and the agreement of the parties is not one of those limited circumstances. In short, once parties sign an MSA they can’t change it even if they both agree it’s in their child’s best interest.
The problems with this opinion are extensive and obvious. Parent’s in child custody litigation regularly tweak agreements and frankly should be encouraged to be flexible and modify the provisions of their agreements when it makes sense for there child.
It’s not clear what as attorney’s we can do to work around this opinion. Would the Court honor a provision in the MSA that says it’s revocable by agreement? What if the parties sign a new MSA? Is it less enforceable than the first? What if the underlying case is dismissed by agreement ?
The clear take away is be really sure you agree to any Mediated Settlement Agreement you sign.