Garcia-Udall v. Udall

• Decision Date: 11 August 2004
• Docket Number: No. 05-03-01270-CV.,05-03-01270-CV.
• Citation: 141 S.W.3d 323
• Parties: Ruth Olivia GARCIA-UDALL, Appellant, v. Thomas Howard UDALL, Appellee.
• Court: Texas Court of Appeals

141 S.W.3d 323

Ruth Olivia GARCIA-UDALL, Appellant, v. Thomas Howard UDALL, Appellee.

No. 05-03-01270-CV.

Court of Appeals of Texas, Dallas.

August 11, 2004.

Appeal from the 401st District Court, Collin County, Mark J. Rusch, J Carmen Elaine Eiker, Emil Lippe, Jr., Lippe & Associates, P.C., Dallas, for Appellant.

Charles Robertson, Robertson, Railsback, Heather D. Bailey, Sharon N. Freytag, Haynes & Boone, L.L.P., Dallas, for Appellee.

Before Justices FITZGERALD, RICHTER, and LANG.

OPINION

FITZGERALD, Justice.

Ruth Garcia-Udall appeals certain of the child conservatorship provisions in the divorce decree from her marriage to Thomas Howard Udall. Appellant brings three issues asserting the trial court erred by: (a) not following the mediated settlement agreement regarding decisions on the child's health care; and (b) determining that appellee should have the final say on matters relating to immunization of the child. We modify the judgment and affirm the judgment as modified.

BACKGROUND

The parties married on August 5, 2000, and appellant gave birth to their child on August 1, 2001. Eight-and-one-half months later, on April 22, 2002, appellant filed for divorce.

On June 18, 2002, the trial court held a hearing on the issuance of temporary orders. At the conclusion of the hearing, the trial court dictated temporary orders and entered them on the docket sheet. Concerning the child's medical care, the court approved the parties' agreement that they would jointly choose a pediatrician for the child from appellant's health-insurance plan and that if a parent took the child to a doctor not covered by the health-insurance plan, that parent would have to pay the cost. The trial court also ordered that both parties had authority to make emergency medical decisions for the child, but appellee would make all non-emergency medical decisions, including whether to have the child immunized. The parties submitted proposed written orders.

On July 30, 2002, the trial court signed written temporary orders. The written temporary orders did not follow the trial court's oral rendition at the June 18, 2002 hearing concerning the right to consent to medical treatment of the child in a non-emergency situation. Unlike the oral rendition, which gave appellee the authority to make all non-emergency medical decisions, the written orders gave each party the right during his or her period of possession to consent to non-invasive medical and dental treatment for the child. The written orders gave appellee the exclusive right "to consent to medical, dental, and surgical treatment involving invasive procedures, and to consent to psychiatric and psychological treatment, specifically including, but not limited to, the exclusive right to determine whether the child should be immunized."

After the trial court signed the written temporary orders, the parties signed a mediated settlement agreement, in which they agreed to all the issues relating to the divorce and most of the issues in the suit affecting the parent-child relationship. In underlined, boldface capital letters, the mediated settlement agreement provided, "THIS AGREEMENT IS NOT SUBJECT TO REVOCATION OR CHANGE," and it was signed by the parties and their attorneys. The mediated settlement agreement stated, "The parental rights and duties shall be allocated between Mother and Father according to the terms set forth in the Temporary Orders in this case" except as modified in the mediated settlement agreement. The mediated settlement agreement contained three modifications of the temporary orders relevant to this appeal. First, concerning the decision making on the child's health care, "In the event the parties cannot agree on medical, dental or surgical treatment involving invasive procedures and to psychiatric and psychological treatment for the Child, then Father will have the right to make the final decision on those matters." Second, concerning immunizations, "The issues of rights and duties regarding the Child's immunizations will be tried before the Court if not resolved by agreement beforehand." Third, concerning selection of a physician and healthcare appointments, the agreement provided, "The parties will jointly choose the Child's pediatrician from the list of providers under Mother's current employer provider health insurance plan. Neither party will take the Child to a healthcare provider without first notifying the other at least forty-eight (48) hours in advance so they may attend the appointment if they so desire."

The trial court entered the divorce decree, which acknowledged the mediation and stated that except for the issue of immunization of the child, "the terms and provisions" of the mediated settlement agreement "are reflected in this Decree." Appellant objected to the decree, complaining that some of its provisions differed from those in the mediated settlement agreement. Appellant alleged that one difference was that the divorce decree did not give each parent during periods of possession the right to consent to medical and dental care not involving an invasive procedure as set out in the written temporary orders and incorporated into the mediated settlement agreement. Instead, the decree stated they had the "joint right" to consent to such care. Appellant also objected to the decree stating the parties could not take the child to any healthcare provider other than the agreed-upon physician or, in his absence, one of his associates, because that term was not in the mediated settlement agreement and was contrary to the mediated settlement agreement's provisions. Appellant also objected to the decree stating that on the issue of immunizations and inoculations, appellee was to consult with appellant on the issue, and if they could not reach a joint decision, then appellee would have the sole right to make decisions regarding the child's immunizations, because this determination was contrary to the evidence. The trial court subsequently entered findings of fact and conclusions of law, which found the orders in the decree were in the child's best interest.¹

Appellant filed a motion for new trial, the grounds of which included complaints that the decree varied from the terms of the mediated settlement agreement. She also complained that the trial court had determined the immunization issue without a trial before the court. The trial court agreed it had given the parties "short shrift" on the immunization issue, and the court granted the motion for new trial on that issue. After hearing evidence on the immunization issue, the trial court determined that appellee should consult with appellant about the child's immunizations, and if they could not agree, then he would have the final decision-making authority on immunizations.

MEDIATED SETTLEMENT AGREEMENT

In her first two issues, appellant asserts the trial court abused its discretion by entering provisions in the divorce decree that were inconsistent with the mediated settlement agreement. Section 153.0071(c) of the family code permits the trial court to refer a suit affecting the parent-child relationship to mediation. TEX. FAM. CODE ANN. § 153.0071(c) (Vernon 2002).² If the agreement states in the appropriate font that it is not subject to revocation and is signed by both parties and their attorneys, then "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(d), (e). The mediated settlement agreement in this case meets the requirements of section 153.0071(d).

Right to Consent to Medical Treatment

Appellant asserts the divorce decree does not follow the mediated settlement agreement regarding the parties' right to consent to medical treatment for the child. Appellee asserts the decree is not in conflict with the mediated settlement agreement.

On the issue of non-emergency medical decision making, the temporary orders stated: (1) for non-invasive medical or dental treatment for the child, each party had the right to consent to such treatment during his or her periods of possession; and (2) for invasive medical, dental, or surgical treatment, including immunizations, or psychological or psychiatric treatment for the child, appellee had the exclusive right to consent to such treatment. The mediated settlement agreement incorporated the temporary orders as modified by the agreement. The only express reference in the mediated settlement agreement to medical decision making (other than for immunizations, which was to be determined in a trial before the court) is the following term: "In the event the parties cannot agree on medical, dental or surgical treatment involving invasive procedures and to psychiatric and psychological treatment for the Child, then Father will have the right to make the final decision on those matters."

Appellant asserts this provision in the mediated settlement agreement changed the decision making on invasive and psychological/psychiatric treatment from an exclusive right of appellee's to a joint right of the parties with appellee having the authority to make the decision if they cannot agree. Under this construction, the incorporation of the temporary orders' provision that each party had the right to consent to noninvasive treatment during periods of possession was left unchanged. The divorce decree, however, made the right to consent to noninvasive medical or dental treatment a "joint right" of the parties.

Appellee argues that the provision in the mediated settlement agreement concerning "medical, dental or surgical treatment involving invasive procedures" applies to all non-emergency medical decisions and not just invasive medical, dental, and surgical treatment and that the provision gave appellee final decision-making authority on all non-emergency medical decisions. The trial court also interpreted the mediated settlement agreement in this manner.

If the...