Notice: The opinion in the case of In the Interest of S.K.D and J.E.D. has been withdrawn as of 09-11-2013 and is no longer the law.
On Aug. 27, 2013, the Fifth Court of Appeals in Dallas issued a memorandum opinion answering the question negatively. In the Interest of S.K.D. and J.E.D., Minor Children, No. 05-11-00253-CV, (Tex. App.-Dallas 2013).
FACTS: Mom and Dad divorced in May 2006, were named JMCs, with Dad primary and Mom ordered to pay support. In June 2006, Mom filed petition to modify. In Nov. 2007, the case was ordered to mediation and a MSA was reached in March 2008. Under the terms of the MSA, the parents remained JMCs, but Mom was given primary possession of S.K.D., their daughter and Dad retained primary possession of their son, J.E.D. The MSA required Dad to pay $1050 per month child support to Mom and to continue to provide health insurance for the children.
Judgment was not rendered on the MSA. On 11/11/2008, Mom filed a petition to modify the divorce decree “and/or” the MSA. On the same day, the trial court dismissed the case for want of prosecution. On 11/18/2008, Dad filed a motion to reinstate, but non-suited his motion on 12/15/2008. On 12/22/2008, Dad filed a first amended counter-petition to modify seeking to be named the SPC of both children. (Why an amended petition when the case had been DWOP?)
In Nov. 2009, the trial court conducted a trial. On Nov. 1, 2010, the trial court entered an order in Dad’s favor, gave Dad primary custody of both children, ordered Mom to pay support of $800 per month to Dad, and ordered $50,000 in attorney’s fees to Dad against Mom. Mom appealed.
Mom argued the trial court erred by not rendering judgment on the March 2008 MSA which met the requirements of TFC 153.0071. (The appellate court had an out here since the case was DWOP.)
RULING: The appellate court said no to Mom and ruled that Mom is trying to enforce a MSA under chapter 153 of the TFC, which governs the initial determination of conservatorship, possession, and access. TFC 153.0071; 153.001-.611; In re S.E.K., 294 S.W.3d 926,928 (Tex.App.-Dallas 2009, pet. denied). The Dallas appellate court then said, “However, this is a proceeding to modify a child-custody determination under chapter 156 of the family code. See TEX. FAM. CODE ANN. Sec. 156.001-.410; In re S.E.K., 294 S.W.3d at 928. Chapters 153 and 156 are distinct statutory schemes that involve different issues. In re V.L.K., 24 S.W.3d 338,343 (Tex. 2000).” The appellate court then noted that Chapter 156 modification cases raise additional policy concerns such as stability for a child and the need to prevent constant litigation in child custody cases and the burden of proof is different in original and modifications suits.
Thus, “Under these circumstances, we conclude that the trial court in this chapter 156 modification proceeding was not bound to enter an order in strict compliance with an MSA reached under chapter 153. See In re V.L.K., 24 S.W.3d at 343; In re S.E.K., 294 S.W.3d at 928.”
It is too early to know about whether a motion for rehearing will be filed. This opinion is not binding on areas outside of those governed by the Dallas Court of Appeals.