When is an Agreement Not an Agreement?

In a child support case, the father claimed that the trial court erred by approving the parties’ agreement on child support after he had withdrawn his consent to the agreement. The Fourteenth Court of Appeals agreed, and it reversed and remanded that issue for further proceedings in the trial court. Woody v. Woody, No. 14-12-00762-CV (Tex. App. – Houston [14th Dist.] Apr. 17, 2004).

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Was the Agreement a Mediated Settlement Agreement?

The parties went to mediation. The ex-wife argued that the ex-husband had agreed to pay $771.73 each month for child support. Section 153.0071 of the Texas Family Code requires that a mediated settlement agreement (“MSA”) be in writing. There was no written agreement. The mediator appeared and testified that there had been an agreement, but in the absence of a writing, there could be no enforceable agreement.

Was the Agreement a Rule 11 Agreement?

The ex-husband did say in court that there had been an agreement. The ex-wife claimed that the ex-husband’s statement amounted to a Rule 11 agreement. Rule 11 of the Texas Rules of Civil Procedure states that to be enforced, agreements must be in writing and signed and filed with the court, or stated in open court and entered of record. Thus, the agreement might have been a Rule 11 agreement, but the ex-husband withdrew his consent to the agreement prior to judgment.

Withdrawal of Consent Prior to Judgment

Withdrawing consent to a Rule 11 agreement prior to judgment prevents judgment from being entered on the agreement. As the court said,

The problem with this contention is that if a party revokes its consent to a Rule 11 agreement at any time before judgment is entered in the case, the agreement can no longer simply be “approved” by the court; instead, the enforcement mechanism is through a separate breach of contract action.

No Enforceable Agreement

So if there was an MSA, it was not in writing. If there was a Rule 11 agreement, the ex-husband withdrew his consent prior to judgment. Thus, the court of appeals reversed the child support issue and remanded it to the trial court for further proceedings.

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