In the Interest of K.N.M., No. 2-08-308-CV (Tex. App. 7/23/2009)

• Decision Date: 23 July 2009
• Docket Number: No. 2-08-308-CV.,2-08-308-CV.
• Parties: IN THE INTEREST OF K.N.M., a Child.
• Court: Texas Court of Appeals

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IN THE INTEREST OF K.N.M., a Child.

No. 2-08-308-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: July 23, 2009.

Appeal from the 367th District Court of Denton County.

Panel: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

MEMORANDUM OPINION¹

TERRIE LIVINGSTON, Justice.

This case involves the attempted withdrawal of consent to a rule 11 settlement agreement in a custody case before entry of a final order. In three issues, appellant Martha,² the child's mother, challenges the propriety of the order incorporating the settlement agreement; she contends in a fourth issue that the order is not in strict compliance with the settlement agreement. We affirm.

Background Facts

Martha filed a suit affecting the parent-child relationship (SAPCR) in November 2006 seeking to be named a parent joint managing conservator of her daughter Karen, along with Karen's father Peter. Peter and Martha have never been married. Martha later amended her petition to seek sole managing conservatorship of Karen. Martha and Peter subsequently entered into agreed temporary orders appointing them joint managing conservators, with Martha having the exclusive right to designate Karen's residence within Texas.

The trial court referred the case to mediation on September 27, 2007. The next day, Daphne, Martha's mother, filed a petition in intervention, seeking to be named Karen's sole managing conservator and in the alternative to have possession of and access to Karen. She alleged that she had standing because "the child's present environment presents a serious question concerning the child's physical health or welfare." See Tex. Fam. Code Ann.-102.004(a)(1) (Vernon 2008) (providing that a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that "the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development"). In an affidavit attached to her petition in intervention, Daphne alleged that she had had significant contact with Karen since her birth, seeing her every weekend and a few nights during the week. She also alleged that Karen and Martha had moved in with her for several months when Karen was almost two years old and that she had provided significant financial support.

Daphne further alleged that the summer Karen was three years old, Martha and Peter broke up for good, and Martha and Karen moved in with her for two months. She took care of Karen because Karen and Martha had a "terrible relationship"; Daphne alleged that Martha and Karen would scream at each other and that Martha did not want to be a mother to Karen. Eventually, Peter began to take Karen three nights a week, Daphne would have her two or three days a week, and Martha or Martha's father would have Karen one or two days a week. Daphne alleged that between August 2005 and March 2006 Martha would spend her nights in the bars and her days sleeping, leaving Karen to be watched by her grandfather or placed in daycare.

Daphne further alleged that Martha eventually began dating the man who would become her husband, got a day job, and stopped allowing Daphne to see Karen as much. Karen would call Daphne screaming that she wanted to see her and would scream in hysterics when Martha came to pick her up. Daphne further alleged that Martha eventually moved to Dallas³ and began to restrict Daphne's access to Karen, including obtaining temporary orders in the SAPCR precluding Peter from allowing Karen to stay with or visit Daphne for more than a four hour period during his periods of possession. Daphne alleges that in November 2006, about the time Martha filed the SAPCR, Martha told Daphne that she "could not ever see [Karen] again." According to Daphne, Karen would cry and beg Peter to let her see Daphne.

Daphne's affidavit alleges that Martha continued to threaten that Daphne would never see Karen again, calling her one time "in a drunken rage." She also alleged that Martha told Karen that Daphne did not love Martha and thus could not be a part of Karen's family; this upset Karen. Daphne averred that Karen told her that Martha locks her in her room at night so that she will not get up. She also accused Martha of drinking and taking Xanax and stated that "[w]ith the exception of the two year period of time when she was pregnant with [Karen] and the first year and a half after, [Martha] has taken many drugs while [Karen] was in her care." According to Daphne, Martha uses the television and computer to entertain Karen and "has no interaction with [her] at all."

Daphne concluded her affidavit by averring that if Karen were kept from her, it would break the bond between the two of them, detrimentally affecting Karen. According to Daphne, she has

been the only stable person in [Karen's] life since birth. [Her] home has been the only place [Karen] felt totally safe. She loves her father and has a bond with him, but even he has not been the person she depends on. Because of all the turmoil in her little life, to remove [Daphne] from [Karen's] life would change her forever.

A mediation occurred on October 24, 2007, but no settlement was reached. It is unclear which parties participated in the mediation. In January 2008, Daphne filed a petition in intervention for grandparent possession or access, alleging that "[d]enial of possession or access . . . will significantly impair [Karen's] physical health or emotional well-being" and that she has had a "significant past relationship" with Karen since her birth. See id. § 102.004(b).

Neither party objected to the petitions in intervention or filed a motion to strike. Instead, on March 31, 2008, at the final hearing set for the case, Martha, Peter, and Daphne all testified that they had reached an agreement for Martha and Peter to be named joint managing conservators of Karen with Martha having the primary right to determine Karen's residence and incorporating the standard possession order for parents living more than 100 miles apart. In addition, Daphne would be granted four consecutive days' visitation with Karen during the summer: two days during Peter's possession and two days during Martha's possession. They additionally agreed that if any conservator was to have Karen stay overnight in someone else's care that "everyone [was] to be notified of that." Peter was to pay child support and health care insurance for Karen, and uninsured medical expenses were to be split 50/50. Further, Martha was to have the right to make decisions regarding Karen's education. All parties agreed on the record that Daphne would be responsible for making sure Karen was picked up and delivered safely to and from the respective parents' residences before and after Daphne exercised her visitation and that if the parties wanted to provide Daphne "with more time outside of her four consecutive days that they [would be] free to do that."

After the parties finished putting their settlement agreement on the record, the trial court stated,

All right. Somebody's going to prepare an order which reflects this. Is that correct?

. . . .

All right. Then based upon the testimony of all the parties involved, the court will approve the agreements as they have been stated for the record, and I will make it the written order of the court when it is submitted. [Emphasis added.]

A draft order was not immediately presented to the trial court.⁴

Thereafter, on May 28, 2008, Martha filed a "Notice of Withdrawal of Consent to Oral Agreement." In it, she purported to withdraw her consent to the settlement agreement because of Daphne's "continued lack of communication and cooperation, for more than a year, with" Martha; Daphne's not having Karen overnight for more than a year; Martha's feeling "pressured into" entering the agreement; and Martha's better understanding of Troxel v. Granville, 530 U.S. 57 (2000).

Thereafter, Daphne filed a "Motion to Enter Final Order," asking the trial court to enter a written order reflecting the settlement agreement and attaching a form order. The motion states that it is Daphne's way to enforce the rule 11 settlement agreement. Martha responded, citing Padilla v. LaFrance and contending that she had withdrawn her consent before the trial court rendered judgment. 907 S.W.2d 454 (Tex. 1995). She also requested a jury trial. Daphne objected to Martha's attempt to withdraw her consent to the settlement agreement.

The trial court held a hearing on Daphne's motion to enter a final order, during which Peter agreed with Daphne that Martha could not withdraw her consent to the agreement because the trial court approved the "agreement here in the court, and that is on the record." However, Martha and Peter also argued that they had agreed to certain terms that were not included in the rule 11 agreement, but they never stated what those terms are. At the end of the hearing, the trial court stated,

I agree the order should have been entered. But it wasn't. And I don't have any problem giving y'all some additional time before the dismissal docket to try to reach an agreed order. . . .

. . . [L]ooking at the record of this, it says — it does say the court will approve the agreements and I will make it the written order of the court when it is submitted. That's not like rendering a judgment as of that date. And, you know, I think the law is that they can withdraw it before [a] final order is entered.

. . . [I]f you have a specific case that you want to refer me to that I can look at more carefully to support your position, obviously I want to follow the case law as closely and carefully as possible, and I'll be happy to review anything that you want me to review. But that's my understanding of the law, especially if there are still issues that are unresolved. And just looking back through here, it does appear to me that there were some loose ends as stated on the record.

The...