A judge cannot change the terms or decline to enter judgment on a valid MSA, unless the court finds that: (1) a party to the agreement was a victim of family violence, and that circumstances of the family violence impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest. Texas Family Code Sec. 153.0071(e)(e-1); Williams v. Williams,___S.W.3d___(Tex. App.—El Paso Nov. 28, 2013) (Cause No. 08-11-00212-CV) (Chief Justice Ann Crawford McClure wrote the opinion).
Facts of Williams: Parties entered into a MSA which was incorporated into the decree. H and W were JMCs, W primary, with H having parenting time as per a SPO. Decree said, “Summer Weekend Possession by JO-ANN WILLIAMS-IF JO-ANN WILLIAMS gives ALAN L. WILLIAMS written notice by April 15 of a year, JO-ANN WILLIAMS shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by ALAN L. WILLIAMS in that year, provided that JO-ANN WILLIAMS picks up the child from ALAN L. WILLIAMS and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.”[Emphasis added]. This language conforms with SPO language in TFC sec. 153.312(b)(3).
Alan planned a trip to Yellowstone with the child during his summer possession. Jo- Ann felt the pickup and exchange for her weekend during Alan’s summer possession should be at her residence rather than in Yellowstone. She filed a motion to clarify. The court changed the language in the decree for the pickup and return of the child to take place at a specific location in Denton County, TX rather than at dad’s vacation location. Dad appealed to the Fort Worth Court of Appeals, but the case was transferred to the El Paso Court of Appeals.
Law and Holding: The MSA complied with the requirements of TFC sec. 153.0071(d). There were no allegations or evidence of family violence, thus the court could not decline to enter judgment under TFC sec. 153.0071(e)(e-1). Without evidence of family violence and that the violence impaired a party’s ability to make decisions and that the MSA was not in the child’s best interest due to family violence, a court cannot clarify a specific and non-ambiguous order. TFC sec. 157.421. A court may not change the substantive provisions of an order to be clarified. TFC sec. 157.423(a). Any substantive changes by a court are unenforceable. TFC sec. 157.423(b). If Jo-Ann wants weekend access during Alan’s summer possession, that is her right. But she is bound by the MSA, judgment, and statute to travel to the site of the vacation. Reversed and Rendered. Williams v. Williams,___ S.W.3d___(Tex. App.—El Paso Nov. 28, 2013) (Cause No. 08-11-00212-CV) (Chief Justice Ann Crawford McClure wrote the opinion)
A similar issue is pending before the Texas Supreme Court, In Re Stephanie Lee, No. 11-0732, argued on Feb. 28, 2012 and still waiting for a decision. The Family Law Council of the SBOT filed an Amicus Curiae brief asking the Supreme Court to grant Stephanie Lee’s petition for writ of mandamus and order the trial court to enter judgment that conforms the parties’ MSA.