What controls when the Decree entered varies from the MSA in the property division?

It’s a tug-o-war! A recent case out of the 11th Court discusses this. Which prevailed? Take a look at Upton v. Upton (Tex. App. 2021), No. 11-19-00025-CV in the 11th Court of Appeals. Procedurally in the trial court Wife filed a Motion to Clarify the Decree while the Court still had plenary power. This will become important. The case can be found here. The Decree had a typical merger clause making the Decree controlling in the event of a discrepancy between it and the MSA.

[Wife appellant] alleged in the motion that the final decree of divorce did not reflect the parties’ agreement as reflected in the mediation agreement. Specifically, she asserted that the decree did not confirm items of separate property that were confirmed as her separate property in the mediation agreement. Conversely, [husband] asserted that the mediation agreement did not confirm the items as Tamara’s separate property.

The MSA had an exhibit that listed 65 items of Wife’s items to be confirmed as her separate property. The appellate court had to interpret the MSA and did so using the traditional rules of construction of an agreement. In doing so the Court held for Wife that the MSA reflected an intent to confirm those items as her separate.

The merger clause

In the main point (for this blog at least) Husband asserted that the following merger clause

This Final Decree of Divorce is stipulated to represent a merger of a mediated settlement agreement dated September 18, 2018 between the parties. To the extent there exist any differences between the mediated settlement agreement and this Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.

meant that the Decree, now signed and entered, was controlling. “[Husband relied] on Wiegrefe v. Wiegrefe, No. 03-16-00665-CV, 2017 WL 3908645 (Tex. App.—Austin Aug. 29, 2017, no pet.) (mem. op.), to support his claim based on the merger clause.”

At first blush you might say “of course.” Not so fast, Buckwheat! Here is the important part of that opinion, in my opinion:

Because of its procedural posture, we find Wiegrefe to be distinguishable. Wiegrefe was an appeal from a bill of review. Id. at *1. The appellant in Wiegrefe did not discover the discrepancy between the mediated settlement agreement and the decree until after the trial court’s plenary power had expired. Id. at *1. As a result, the appellant was restricted to a bill of review proceeding in order to attempt to correct the discrepancy. Id. at *1-2. The court determined that the appellant had not made the required showing in order to obtain relief by way of a bill of review. Id. at *5.

        Here, Tamara filed her motion seeking to correct the discrepancy between the mediation agreement and the divorce decree while the trial court still had plenary power. See TEX. R. CIV. P. 329b. Thus, she was not required to make a showing for a bill of review like the appellant in Wiegrefe was required to do in order to obtain relief. Furthermore, we disagree with Wiegrefe’s comment that a property division in a divorce decree with a merger clause can supplant a conflicting property division in a mediated settlement agreement. As noted in recent cases from the Texas Supreme Court, a mediated settlement agreement that meets the statutory formalities of Section 6.602 is binding on the parties and the trial court. See Highsmith, 587 S.W.3d at 775; Loya, 526 S.W.3d at 451; Milner, 361 S.W.3d at 618. Thus, the trial court is without authority to enter a divorce decree that contains a property division that conflicts with the terms of a mediated settlement agreement that meets the requirements of Section 6.602. Accordingly, the trial court did not err by determining that the merger clause of the final decree of divorce did not preclude an order to carry out the terms of the parties’ mediation agreement. We overrule Anderson’s second issue. Upton v. Upton (Tex. App. 2021)

Important points, I think:

• Merger clause might be a good idea.
• But make sure the Decree accurately reflects the MSA, and
• If not, get to it while the Court still has plenary power.