No.

14-0192


IN THE SUPREME COURT OF TEXAS


ANDREA CROWSON,

Petitioner,

v.

THOMAS CROWSON,

Respondent.


On Appeal from the Cause No. 03-11-795-CV
in the Third District Court of Appeals


ANDREA CROWSONS PETITION FOR REVIEW


LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
Michael S. Truesdale
State Bar No. 00791825
801 West Avenue, Suite 201
Austin, TX 78701
512-482-8671
866-847-8719 (fax)
mike@truesdalelaw.com
COUNSEL FOR PETITIONER

FILED
14-0192
SUPREME COURT OF TEXAS
AUSTIN, TEXAS
4/21/2014 7:49:46 PM
BLAKE HAWTHORNE
CLERK
i
IDENTITY OF PARTIES AND COUNSEL

Petitioner
(Appellant below)

Andrea Crowson

Petitioners Counsel LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
Michael S. Truesdale
801 West Avenue, Suite 201
Austin, TX 78701
512-482-8671
866-847-8719 (fax)
Counsel in the Supreme Court

Erin Thrash
3 Lakeway Center Ct., Suite 200
Austin, TX 78734
512-263-5400
512-263-5402 (fax)
Counsel in the trial court and court of appeals


Respondent
(Appellee below)

Thomas Crowson

Respondents Counsel GRAY & BECKER, P.C.
Richard E. Gray
Monte L. Swearengen
Patricia Dixon
900 West Avenue
Austin, TX 78701
512-482-0061
512-482-0924 (fax)

ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS.......................................................................................... ii
INDEX OF AUTHORITIES....................................................................................iii
STATEMENT OF CASE ......................................................................................... v
STATEMENT OF JURISDICTION........................................................................ vi
ISSUES PRESENTED...........................................................................................viii
STATEMENT OF FACTS ....................................................................................... 1
SUMMARY OF ARGUMENT.............................................................................. 10
A. This Court should grant review and hold that a trial court may
decline to enforce a mediated settlement agreement, otherwise
irrevocable by statute, that is the product of fraud, duress,
coercion or other improper means. ............................................................... 11
1. Section 6.602 settlement agreements and why they are
favored................................................................................................ 11
2. Competing policies justify the recognition of exceptions
to section 6.602s irrevocability provision......................................... 12
3. Exceptions to the universal enforcement of section 6.602
settlement agreements allow courts to avoid absurd
results.................................................................................................. 13
4. Appellate courts have rightly recognized that not all
section 6.602 MSAs must be enforced. .............................................. 14
5. This Court should grant review to give trial courts the
flexibility to enter judgments that reject MSAs when
necessary to avoid absurd results. ...................................................... 16
B. This Court should correct the erroneous conclusion below that
Andrea failed to make a sufficient showing to justify a ruling by
the trial court refusing to enforce the MSA. ................................................. 18
PRAYER FOR RELIEF ......................................................................................... 20
CERTIFICATE OF SERVICE............................................................................... 22
CERTIFICATE OF COMPLIANCE...................................................................... 22
APPENDIX........................................................................................................... Tab
iii
INDEX OF AUTHORITIES
Cases
Andrea Crowson v. Thomas Crowson,
No. 03-11-00195-CV (Tex. App.Austin, Dec. 13, 2013,
rehg denied, Jan. 31, 2014) .............................................................v, 9

Boyd v. Boyd,
67 S.W.3d 398 (Tex. App.Fort Worth 2002, no pet.)... vi, vii, 13, 14

In re Kasschau,
11 S.W.3d 305 (Tex. App.Houston [14
th
Dist.] 1999,
orig. proceeding)............................................................................vi, 15

In re Lee,
411 S.W.3d 445 (Tex. 2013) ........................................................vii, 13

In re Marriage of Joyner,
196 S.W.3d 883 (Tex. App.Texarkana 2006, pet. denied) ..............vi

Milner v. Milner,
361 S.W.3d 615 (Tex. 2012) ............................................ vi, vii, 12, 14

Morse v. Morse,
349 S.W.3d 55 (Tex. App.El Paso, 2010, no pet.) ..........................vi

Padilla v. LaFrance,
907 S.W.2d 454 (Tex. 1995) ..............................................................12

Spiegal v. KLRU Endowment Fund,
228 S.W.3d 237 (Tex. App.Austin 2007, pet. denied) ....................vi

Spradley v. Spradley,
No. 03-13-00745-CV (Tex. App.Austin, March 26, 2014,
no pet. hist.) ........................................................................................vii




iv
Statutes
TEX. CIV. PRAC. & REM. CODE ANN. 154.002............................................12
TEX. FAM. CODE ANN. 6.602...............................................................passim
TEX. FAM. CODE ANN. 153.0071..........................................................vii, 12
TEX. GOV'T CODE 22.001(a)(6) ...................................................................vi
Rules
TEX. R. APP. P. 56.1(a)(6) ..............................................................................vi
TEX. R. CIV. P. 11..........................................................................................11
Treatises
AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (4
th
ed. 2000) .....................................................18

Ashley E. Lowe and Nina Dodge Abram, Should We Mediate
Cases Involving Domestic Violence?, OAKLAND CTY BAR
ASSN, (Nov. 2011).............................................................................16

DOMESTIC VIOLENCE & THE COURTROOM: KNOWING THE ISSUES,
UNDERSTANDING THE VICTIM (2013) .................................................18

Leigh Goodmark, Alternative Dispute Resolution and the Potential
for Gender Bias, 21-22, JUDGES J. (Spring 2000) .............................16


v
STATEMENT OF CASE

Nature of the case

This is a divorce proceeding, in which Andrea Crowson
sought to withdraw her consent to a Mediated
Settlement Agreement (MSA) with Thomas Crowson on
the grounds that her consent was the product of fraud,
duress, or coercion.
1


Course of
proceedings
After instances of family violence culminating in a
brutal beating of Andrea by Thomas,
2
Andrea filed for
divorce.
3
At the conclusion of a two-day mediation, the
parties signed an MSA. Andrea thereafter withdrew her
consent to the MSA on the grounds that it was the
product of fraud, coercion or duress given that her
consent was the result of a PTSD episode triggered
during the mediation. Andrea sought to set aside the
MSA, but the trial court, Honorable John Dietz, received
it and admitted it, rendered judgment according to its
terms, and later compelled the parties to arbitrate
disputes about the terms of the MSA.
4
After the
arbitration, Andrea moved for new trial,
5
and the trial
court overruled her motion.
6


Disposition on
appeal
The Third Court of Appeals affirmed the trial courts
enforcement of the MSA by way of a memorandum
opinion authored by Justice Goodwin and joined by
Chief Justice Jones and Justice Rose. Andrea moved for
rehearing, and that motion was denied on January 31,
2014. Andrea Crowson v. Thomas Crowson, No. 03-11-
00195-CV (Tex. App.Austin, Dec. 13, 2013, rehg
denied, Jan. 31, 2014).

1
See, e.g., CR 619-24, 825-33.
2
See CR 23-26.
3
CR 28.
4
4 RR 43-44; 5 RR 8; CR 617.
5
CR 825-35.
6
CR 836-37.
vi
STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to Texas Government Code
section 22.001(a)(6) as the case presents an error of law committed by the
court of appeals of such importance to the jurisprudence of the state as to
warrant correction by this Court. The error derives from an open question of
law identified, but not reached, by this Court in its recent opinion in Milner
v. Milner, 361 S.W.3d 615, 619 (Tex. 2012) , properly considered by this
Court pursuant to Texas Rule of Appellate Procedure 56.1(a)(6).
In Milner, this Court recognized opinions from five intermediate
appellate courts suggesting that section 6.602 of the Texas Family Code
does not require the enforcement of a [Mediated Settlement Agreement
(MSA)] that is illegal in nature or procured by fraud, duress, coercion, or
other dishonest means.
7
However, because the Milner case did not directly
present that issue, this Court left for another day the question whether such
grounds might allow a party to withdraw consent to, and empower a trial
court to decline to enforce, an MSA that would otherwise be irrevocable.

7
Id. (citing Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.El Paso, 2010, no
pet.); Spiegal v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App.
Austin 2007, pet. denied); In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex.
App.Texarkana 2006, pet. denied); Boyd v. Boyd, 67 S.W.3d 398, 403-05 (Tex.
App.Fort Worth 2002, no pet.); In re Kasschau, 11 S.W.3d 305, 312 (Tex.
App.Houston [14
th
Dist.] 1999, orig. proceeding)).
vii
While the issue remains unaddressed by this Court, this Court has
noted the policy reasons for recognizing the construction requested by this
petition. Appellate courts have justified an exception to section 6.602 when
necessary to prevent an absurd result that would flow if trial courts lacked
any power to reject mediated settlement agreements regardless of the
circumstances under which they were created.
8
Members of this Court
recently recognized a similar rationale in guiding their construction of
section 153.0071 of the Texas Family Code so as to avoid absurd results.
9

However, this Court has not been squarely presented with the issue below,
namely whether a trial court may refuse to enforce a mediated settlement
agreement that is the product of fraud, duress, coercion or other improper
means. As the issue remains unresolved by this Court, and as questions
concerning the enforceability of MSAs continue to arise,
10
now is the time to
addresses the question deferred by Milner, as presented below.

8
See, e.g., Boyd, 67 S.W.3d at 403 (rejecting construction of section 6.602 that
would require enforcement of a settlement agreement that was illegal or the
product of fraud, duress, coercion, or other dishonest means, as such a result
would be absurd).
9
See In re Lee, 411 S.W.3d 445, 480 (Tex. 2013) (Green, J., dissenting) (noting a
broad construction of section 153.0071 could lead to absurd results); id. at 463-64
(Guzman, J., concurring) (agreeing with dissent that it would be absurd to construe
section 153.0071 in a manner that offends a competing policy).
10
See, e.g., Spradley v. Spradley, No. 03-13-00745-CV (Tex. App.Austin,
March 26, 2014, no pet. hist.) (remanding to allow arbitrator to decide whether
MSA was improperly procured).
viii
ISSUES PRESENTED
During a mediation in a divorce case stemming from family violence,
Andrea was caused to suffer a PTSD incident by activities undertaken by
Thomass criminal defense lawyer requests made by fax and phone that
she sign affidavits of non-prosecution for Thomas pending criminal trial.
Andrea was left fearful, intimidated, threatened, and suffering flashbacks,
rendering her signature on the resulting MSA the product of duress. This
petition asks the following questions:
Can a trial court decline to enforce a mediated settlement agreement,
otherwise subject to sections 6.602 of the Texas Family Code, on the
ground that the agreement was the product of fraud, duress, coercion
or other improper means, as the majority of intermediate courts
considering the issue have held?

If so, did Andrea make a sufficient showing so as to render erroneous
the trial courts ruling binding her to the MSA she sought to rescind?

Unbriefed issue:
Must a party, who seeks to withdraw consent to an MSA and moves
for new trial on the ground that the MSA was improperly induced,
also seek to vacate an intervening arbitration award construing the
MSA in order to preserve for appeal a complaint that the MSA never
should have been enforced at all?

1
STATEMENT OF FACTS
Andrea Crowson filed for divorce in April 2010, days after her
husband Thomas severely beat her.
11
Her attempts to call 911 were thwarted
by her husband, and the attack only stopped when the couples then 9-year
old son interrupted the assault.
12
Her husband was arrested after the police
arrived, and she filed for divorce after going to the hospital. Thomas was
then subjected to protective orders,
13
but Andrea remained terrified about her
own safety and the safety of her three young sons.
14
Andreas divorce
counsel retained personal injury attorneys on her behalf to prosecute tort
claims arising from the instances of abuse.
15

As the divorce case proceeded, Andreas divorce counsel was allowed
to withdraw a matter of days before a mediation scheduled for July 14-15,
2011.
16
Andrea was represented at the mediation by newly-retained divorce
counsel, and her personal injury attorneys also attended.
17
In the meantime,
the criminal case against her husband for family violence advanced.
Early on the second day of the mediation, the attorney defending
Thomas in his criminal case sent a fax to Andreas counsel attending the

11
CR 23-36.
12
CR 24-25.
13
E.g., CR 6-13.
14
CR 139-60.
15
4 RR 4-14.
16
CR 241-43.
17
See CR 244-25.
2
mediation, proposing that she sign an affidavit of non-prosecution in the
case against Thomas.
18
Andreas meeting with her lawyer was interrupted
by the delivery of the fax and a message that Thomass counsel was on the
phone asking about the fax. When Andrea learned about the fax, who was
on the phone, and what was being requested, she was shaken to the core.
19

She was utterly terrified of Thomas and viewed the faxes and phone calls as
reminders of the night of the attack and of what he had done to her during
their marriage.
20
Thomass criminal defense counsel sent a second fax in the
afternoon, reinforcing and compounding Andreas earlier reaction.
21

The faxes and calls, coupled with Andreas proximity to Thomas
during the mediation, triggered flashbacks to the night of Thomass last
attack. As a result, Andrea suffered a PTSD episode during which she could
not breath, focus, or concentrate. By Friday afternoon, Andrea had mentally
withdrawn.
22
Later in the afternoon, the mediator had to leave to honor an
earlier commitment, and before doing so, told Andrea that Thomas was
getting mad, that he was going to walk, and that the parties needed to reach

18
See 4 RR 18-20.
19
4 RR 20, 30.
20
7 RR 20-22, 69.
21
4 RR 20.
22
4 RR 20, 30.
3
some resolution.
23
Those comments reinforced her PTSD event, leaving her
even more concerned of the consequences to her and her children if she did
not agree. Several hours after the mediator left, at around 9:30 that night,
the parties signed a Mediated Settlement Agreement (MSA).
24

The product of that mediation, the MSA, is noteworthy in the
following respects. First, despite the pending indictment against Thomas for
family violence and the then-pending protective order, the MSA purported to
expand his visitation rights, changing them from supervised to unsupervised,
and made him joint conservator.
25
Second, though shortly before the divorce
Thomas had filed sworn application for a bank loan listing average monthly
income of $154,000 over the prior years and community estate assets of
roughly $21 million,
26
the MSA purported to divide a much smaller estate,
allocating to Andrea (the victim of domestic violence) an amount payable
over 13 years, valued in present dollar terms at approximately $1.5 million.
27

(When viewed against a $21 million community estate, the MSA allocated
7% of that estate to Andrea and 93% to Thomas). Finally, the MSA was

23
7 RR 22.
24
7 RR 22-23.
25
CR 271-72, 285-87.
26
8 RR 52-63.
27
8 RR 30.
4
notable in that it required Andrea and her three sons to move out of the
family home, and to do so just before the start of a new school year.
28

After the mediation, Andrea attempted to revoke her consent to the
agreement before it was presented to the court.
29
However, her divorce
counsel indicated he would withdraw from her representation if she did.
30

At the prove-up hearing that followed, the trial court asked Andrea a series
of questions regarding the MSA. While she indicated at that time that she
had no complaints with her legal representation and was not being
compelled into having the court review the MSA and in going forward to
resolve the divorce,
31
she explained that she had no choice but to go forward,
as her lawyer had said he would withdraw if she did not accept the MSA and
she lacked the financial means to seek new counsel.
32
Against that
backdrop, she sought to explain why she wanted to withdraw her consent to
the MSA.
In response to additional questions from the court, Andrea recognized
that the MSA contained bold-faced, anti-revocation language as set forth in

28
4 RR 27; 7 RR 32.
29
CR 355-56.
30
4 RR 3.
31
4 RR 9, 10.
32
4 RR 11.
5
section 6.602, and that she and her attorney signed the agreement.
33
She
indicated that while she presently understood the MSA, she did not at the
mediation.
34
She explained that by the second night of the mediation, things
were not clear to her, she was not focused and was not comprehending
matters, and that when she signed the MSA she did not remember
understanding what she was signing.
35
She explained that when her counsel
received the faxes and phone calls from Thomass criminal defense lawyer,
she became scared on her behalf and on behalf of her children, and was left
not comprehending or focused enough to fully participate.
36

The trial court then engaged in an extensive questioning of Andrea on
a variety of topics, including her background and her recollections of events
surrounding the mediation. The court explained:
And so what Im trying to figure out is, is what youre
describing for me, something to me, something that prevented you to
understand that this agreement is not subject to revocation. And I
have to tell you that in my where I am currently, is currently, Im
not thinking that Im hearing enough that causes me to doubt that you
understood this agreement is not subject to revocation, in which case,
then I have to uphold this and bind you and enter a judgment if
necessary.
37



33
4 RR 15.
34
4 RR 16.
35
4 RR 16-18.
36
4 RR 20-21.
37
4 RR 26-27.
6
Andrea explained that she couldnt keep herself present, did not know the
MSA was going to be binding and would have never agreed to move her
kids out of their home in August just as school was starting.
38
The court
resumed its examination of Andrea, asking her numerous questions about
her recollection of events during the mediation from what the parties were
wearing, who was in attendance, the layout of the mediation facility, and
other details of the day.
39
Thereafter, the court ruled that the MSA complied
with section 6.602 and chapter 153 of the Texas Family Code and was not
subject to revocation.
40
The court found that Andrea was of above-average
intelligence, had a recollection of the day of mediation, was not cognitively
impaired and was not operating under any intoxicants or other things that
would have vitiated her consent, and granted the divorce.
41

At a hearing on a motion to compel arbitration, the court noted it had
overruled Andreas motion to set aside the MSA, rejected requests to defer
arbitration pending her challenge to the MSA, and compelled the parties to

38
4 RR 27.
39
4 RR 25-30, 33-43.
40
4 RR 43.
41
4 RR 47-488.
7
arbitrate.
42
After the arbitration, the court entered an order of divorce
reflecting the arbitrators ruling.
43

Andrea later presented evidence at the hearing on her motion for new
trial on the issue of her capacity as of the date she signed the MSA. She
personally recounted the events on the second day of the mediation.
Specifically, she testified that upon the receipt of the faxes and calls from
Thomass criminal defense counsel she couldnt catch her breath and
couldnt remember other details of the day thereafter.
44
She also recounted
her reaction when the mediator told her that Thomas was mad and that the
dispute needed to settle. She explained her diagnosis of PTSD and that her
counselor at the battered womens shelter explained that the symptoms she
described were those of a PTSD event.
45

Andrea also discussed how, had she been fully composed, she would
have never agreed to the financial terms of the settlement as discussed
above.
46
She also noted that the MSA left her to pay for her own medical
expenses stemming from Thomas assault and for her own attorneys fees,

42
5 RR 6-10.
43
See CR 692-755.
44
7 RR 20-22.
45
7 RR 23.
46
7 RR 25-30.
8
and expanded Thomass visitation rights from supervised to unsupervised.
47

She explained she would have never agreed to such terms had she been in
command of her faculties.
Dr. Allisa Sherry, a psychologist on faculty at the University of Texas
with experience in diagnosing and treating victims of trauma and domestic
violence, also testified on Andreas behalf.
48
(Earlier in the case she had
been appointed by the court to examine and prepare a psychological
evaluation of Andrea.
49
) Based on her evaluation of Andrea as well as on
interviews with others, she had diagnosed Andrea with PTSD, ADD, and
dependent personality traits.
50
She explained that in a relationship where
there has been ongoing abuse, Andreas PTSD likely would make her shut
down to protect herself, make it difficult for her to make rational decisions,
and put her at great risk of not being able to assert her own needs and
leaving her fearful to do so in any event.
51
As to how that diagnosis might
affect Andreas ability to participate in a mediation with Thomas, Dr. Sherry
testified generally that when confronted with Thomas, it would be very
difficult for Andrea to stand her ground, and that she would likely

47
7 RR 30-32.
48
8 RR 65-74; 7 RR 33-35.
49
CR 91.
50
8 RR 83.
51
7 RR 41-42.
9
experience floods of anxiety, making it hard for her to make decisions, and
that the longer a mediation would go on, the harder it would be for a
traumatized person to hold herself together.
52
She explained that victims of
PTSD can experience symptoms internally and will disassociate, check-out,
and not remember what is taking place as a self-protection mechanism.
53

After hearing the evidence, the trial court concluded it still considered
Andrea to have had capacity to contract when she signed the MSA, that she
did so knowingly, intentionally, and voluntarily, and that no new evidence
warranted a new trial.
54

The court of appeals affirmed. It first concluded that Andrea had
waived a complaint that the MSA was induced by fraud, duress, or coercion
by not challenging the divorce decree or arbitration award that set forth its
terms.
55
It then found substantial evidence supported the trial courts
decision not to set aside the MSA on grounds of fraud, duress or coercion
and that the court did not abuse its discretion in so deciding.
56
Rejecting
Andreas other arguments, the court affirmed the trial courts final divorce
decree.

52
7 RR 45-46.
53
7 RR 47-48.
54
7 RR 88.
55
Slip Op. at 12-13.
56
Id. at 14-15.
10
SUMMARY OF ARGUMENT
This Court should grant review to answer a recurring and yet
unresolved question threshold to this dispute: whether a mediated settlement
agreement that conforms with section 6.602s anti-revocation provisions,
may nevertheless be revoked on grounds of fraud, duress, coercion, or other
improper means leaving a trial court with the power to reject a mediated
settlement agreement so predicated.
Though this Court has yet to expressly address the issue, the majority
of courts that have done so recognize that trial court should be allowed to
decline the enforcement of an MSA induced by fraud, duress and coercion,
the language of section 6.602 notwithstanding, to avoid imputing to the
Legislature an intention to allow the absurd results that would otherwise
follow. This Court should grant review to validate the reasoning used by
these courts.
On concluding that an improperly-induced MSA may be rejected, this
Court should grant review to articulate what must be done to support a
partys request to do so. Here, the evidence offered at the prove-up hearing
and then at the hearing on Andreas motion for new trial confirmed not only
that Andrea suffered from PTSD, but she had an event triggered by actions
11
undertaken on behalf of Thomas, resulting in the execution of an MSA she
would have never signed had she been in full control of her faculties.
Finally, this Court should grant review to clarify what a party must do
to preserve an attempt to avoid an MSA, and whether a partys earlier
complaint that the MSA should be rejected preserves appellate review of the
final decree based on the MSA as clarified by arbitration without also
seeking to vacate the arbitration award that underpins the trial courts later
decree.
ARGUMENT AND AUTHORITIES
A. This Court should grant review and hold that a trial court may
decline to enforce a mediated settlement agreement, otherwise
irrevocable by statute, that is the product of fraud, duress,
coercion or other improper means.
1. Section 6.602 settlement agreements and why they are
favored
Petitioner recognizes the role mediated settlement agreement play in
divorce actions, and the elevated position they enjoy in the hierarchy of
settlement mechanisms. When a mediated settlement agreement complies
with section 6.602(b) of the Texas Family Code, the agreement is
immediately binding, does not require court approval, and is not subject to
repudiation. See TEX. FAM. CODE ANN. 6.602(c). A trial court may not go
behind the terms of a compliant agreement to test whether the agreement is
12
fair on its merits, but must render judgment consistent with the parties
agreement. Milner, 361 S.W.3d at 616.
These rules differentiate section 6.602 agreements from other
settlements. As a general rule, a party may withdraw consent to a settlement
agreement before judgment is rendered on the agreement, leaving the
agreement to be enforced as a contract that complies with Texas Rule of
Civil Procedure 11. See, e.g., Padilla v. LaFrance, 907 S.W.2d 454, 461
(Tex. 1995). But, given the policies governing mediations in the family law
context, section 6.602(b) bypasses this step and prohibits parties from
withdrawing consent, rendering agreements enforceable without the need for
a separate suit.
This Court has recognized the policy goals advanced by the non-
revocation procedures of section 6.602 and its counterpart, Texas Family
Code section 153.0071. Those statutes advance the articulated policy of
encouraging the peaceful resolution of disputes and the early settlement of
pending litigation through voluntary settlement procedures. See TEX. CIV.
PRAC. & REM. CODE ANN. 154.002.
2. Competing policies justify the recognition of exceptions to
section 6.602s irrevocability provision
But the premises behind such laudable policy goals are not advanced
in every circumstance in which parties sign mediated settlement agreements
13
complying with section 6.602. Appellate courts have refused to construe
section 6.602(c) so literally as to universally require the enforcement of all
compliant agreements. An interpretation of section 6.602 requiring
enforcement of all compliant MSAs could require the enforcement of an
agreement that was illegal or that was procured by fraud, duress, coercion or
other dishonest means, a result that would impart to the Legislature an
intention to allow for an absurd result in enacting section 6.602. Boyd, 67
S.W.3d at 403; see also In re Lee, 411 S.W.3d 445, 471 (Tex. 2013) (Green,
J., dissenting) (declining to interpret section 153.0071 in a manner that
would generate an absurd result) see also id. at 464 (Guzman, J. concurring)
(noting the dissent convincingly argues against an interpretation that
would generate an absurd result). This petition thus presents an opportunity
for this Court to address an important question it has not squarely addressed
before.
3. Exceptions to the universal enforcement of section 6.602
settlement agreements allow courts to avoid absurd results.
An absurd result would flow if section 6.602(c) were construed to
obligate a trial court to give effect to a mediated settlement agreement
procured by fraud, duress, coercion or other improper means. Whether the
policies of encouraging early and peaceful resolution of dispute would be
served by prohibiting a party from withdrawing consent to an improperly-
14
procured settlement agreement, other controverting policies would be
offended by such an outcome.
For example, no policy reason would justify binding a spouse to a
settlement agreement where the other spouse affirmatively misrepresented
the contents of the estate to be divided to induce the agreement.
57
Nor, as
extreme outliers, would any policy reason be advanced by binding a party
who signed a mediated settlement agreement under the threat of immediate
violence, or to an agreement that required parties to commit illegal acts.
Instead, the competing interests offended by such outcomes would surely
outweigh any expedient resolution to litigation advanced by enforcing such
an induced agreement.
4. Appellate courts have rightly recognized that not all section
6.602 MSAs must be enforced.
Appellate courts have recognized that other policies may conflict with
those supporting the irrevocability of mediated settlement agreements. For
example, in Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex. App.Fort Worth
2002, no pet.), the court explained that [c]onstruing the phrase
notwithstanding rule 11 or another rule of law to mean that a mediated

57
Milner did not present this scenario, but instead involved ambiguity in how the
estate was to be divided. Thus, this Court bound the parties to the MSA, but
remanded the case for an arbitration, as provided in the MSA to construe the
disputed terms. See, e.g., Milner, 361 S.W.3d at 616.
15
settlement agreement that complies with section 6.602(a) must be entered no
matter what the circumstances could require enforcement of an agreement
that was illegal or that was produced by fraud, duress, coercion, or other
dishonest means. We do not believe that the Legislature intended such an
absurd result in enacting section 6.602.
And in In re Kasschau, 11 S.W.3d 305 (Tex. App.Houston [14
th

Dist.] 1999, orig. proceeding), the court noted that a contract to do an illegal
act is void and violates public policy. Id. at 312. Given that contravening
public policy, it held that a trial court did not commit clear and prejudicial
error of law by declaring a mediated settlement agreement illegal and
unenforceable on a finding that it called for a violation of a provision of the
Texas Penal Code. The court ultimately observed:
[W]e recognize that there are competing public policy interests at
stake here. On the one hand, courts are responsible for carrying out
the states policy of encouraging the peaceful resolution of disputes
involving the parent-child relationship through voluntary settlement
procedures. On the other hand, public policy prohibits courts from
enforcing illegal contracts. Here, we are unable to find that the trial
court violated the public policy encouraging settlements by refusing to
enforce a settlement agreement that it found contained an illegal
provision.

Id. at 314.
16
5. This Court should grant review to give trial courts the
flexibility to enter judgments that reject MSAs when
necessary to avoid absurd results.
This petition asks this Court to recognize that trial judges must
balance interests that often arises when policies clash, and that as a part of
that balancing, they must retain the power to refuse to enforce mediated
settlement agreements that are improperly induced. Such a recognition is
necessary to ensure that an otherwise laudable legislative policy of
encouraging peaceful resolutions of disputes is not misused to generate
absurd and unconscionable outcomes.
The need to address this question is particularly important given the
number of divorce cases that involve some component of domestic violence.
Domestic violence equally affects all aspects of our society, rich or poor,
regardless of race, ethnicity, religion or national origin.
58
While even in
cases involving domestic violence mediations may allow parties to
determine their own outcomes, such outcomes are tenuous in light of
significant power imbalances as between the victim and the abusing
spouse.
59


58
Ashley E. Lowe and Nina Dodge Abram, Should We Mediate Cases Involving
Domestic Violence?, OAKLAND CTY BAR ASSN, (Nov. 2011) at 9.
59
Id. at 11.
17
In situations involving domestic violence, the need for a way to check
consent given to a mediated settlement agreement is all the more compelling
because what may appear to be freely-given consent may often be consent
given only as a result of duress psychological pressures that may not even
be apparent to those around:
[B]ecause domestic violence is mostly a private occurrence, even
highly-trained mediators may not comprehend when the victim is
acting out of fear of retribution or conflict avoidance. Memories of
the batterers power, and the way he used that power, trigger fear of
the abuser. . .. These memories may render the victim inarticulate or
angry, making it difficult for her to express her position during the
mediation. The victim may feel pressure to settle or to compromise,
continuing to believe that the abuse . . . will stop if she simply
decreases her demands.
60


If duress resulting from family violence is not recognized as a
legitimate basis to decline enforcement of an MSA, then victims of domestic
violence will be locked in to settlement agreements entered into under duress
only as last-ditched efforts to make abuse stop. Such a result should not be
mandated by a construction of a statute favoring a goal of encouraging
peaceful resolution of disputes through mediation, because, in the end, such
resolutions are not in fact peaceful and arise only by ceding other competing
interests.

60
Id. at 13 (quoting Leigh Goodmark, Alternative Dispute Resolution and the
Potential for Gender Bias, 21-22, JUDGES J. (Spring 2000)(omissions in original).
18
B. This Court should correct the erroneous conclusion below that
Andrea failed to make a sufficient showing to justify a ruling by
the trial court refusing to enforce the MSA.
By its questioning of Andrea about the mediation at the prove-up
hearing,
61
the trial court tried to do the right thing. Unfortunately, the
courts inquiries and findings avoided the ultimate issue: the consequences
of Andreas diagnosis of PTSD, by way of the court-ordered examination of
her, on her decision-making capabilities. More specifically, while the
questioning focused on her recollections surrounding the mediation, it did
not address whether a PTSD event had been triggered during the mediation
by the faxes sent by Thomass lawyer, and whether such an event rendered
any consent she may have given to the MSA the product of fraud, duress, or
coercion.
Post-traumatic Stress Disorder is a stress and anxiety condition that
results from exposure to an overwhelming traumatic event, and is coupled
with feelings of utter helplessness.
62
One symptom of a PTSD episode, the
flight response, manifests with denial, disassociation, and other ways by
which the suffering party attempts a psychological escape from a perceived

61
See generally, 4 RR 10-30, 33-43.
62
AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, 467-68 (4
th
ed. 2000).
19
threatening situation. And an even more significant characteristic of a PTSD
event affects cognitive and memory capabilities:
The victim may have trouble following his or her thoughts in a logical
way, being distracted by intrusive memories that may be flashbacks to
previous battery incidents. The victim may dissociate himself or
herself when faced with painful events, memories, reoccurring
nightmares or other associates not readily apparent to the observer.
63


While the trial court found that Andreas testimony did not reflect
any impairment, her testimony, and that of Dr. Sherry, demonstrated that
she had experienced a textbook scenario of a triggered PTSD event, with
impacts not readily available to those around her.
As to whether the MSA was the product of a PTSD episode, Andrea
testified that upon the requests made by Thomass counsel that she sign an
affidavit of non-prosecution, she became terrified, she could not breath, she
could not focus or concentrate, and in essence, she checked out.
64
Those
symptoms reflected classic manifestations of a triggered PTSD event that
undermined the legitimacy of any purported consent to the MSA.
And Andreas testimony about what she experienced first-hand was
validated by testimony from the court-appointed psychologist, describing

63
DOMESTIC VIOLENCE & THE COURTROOM: KNOWING THE ISSUES,
UNDERSTANDING THE VICTIM (2013).
64
4 RR 18, 30.
20
what a victim of PTSD likely would experience during a triggered event.
65

Dr. Sherry not only testified that, several months earlier, she had diagnosed
Andrea as suffering from PTSD, but that the reaction to the mediation
described by Andrea was consistent with what she would anticipate a victim
of PTSD to experience during a triggered event, and that as a prolonged
mediation like the one with Andrea and Thomas progressed, the reactions
would be compounded, making it more difficult for a victim to make any
free and informed decisions.
Ultimately, the only evidence in the record on the key question
established that Andrea did suffer from PTSD, that a PTSD event was
triggered during the mediation, that it was triggered in part by the non-
prosecution requests, and that the event undermined her ability to focus and
to give informed consent. Any consent she may have given was the product
of fraud, duress, or coercion, having been the product of a PTSD event
triggered by the conduct of Thomass criminal defense attorney. The trial
court erred in holding otherwise based upon the evidence presented.
PRAYER FOR RELIEF
Wherefore, Andrea Crowson respectfully prays that this Court request
briefing on the merits, and thereafter grant review, reverse the judgment of

65
See 8 RR 33-52, 58-64.
21
the court of appeals, and remand this matter to the trial court for additional
proceedings.
Respectfully submitted,

/S/ Michael S. Truesdale
Michael S. Truesdale

LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
State Bar No. 00791825
801 West Avenue, Suite 201
Austin, TX 78701
512-482-8671
866-847-8719 (fax)
mike@truesdalelaw.com
COUNSEL FOR ANDREA CROWSON

22
CERTIFICATE OF SERVICE

On April 21, 2014, the undersigned certifies that he served a copy of
this Brief of Appellants on the following in the manner listed below, in
compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

/S/ Michael S. Truesdale
Michael S. Truesdale
SBN 00791825

GRAY & BECKER, P.C.
Richard E. Gray
Monte L. Swearengen
Patricia Dixon
900 West Avenue
Austin, TX 78701
512-482-0061
512-482-0924 (fax)
(Counsel for Respondent Thomas Crowson)

CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the word
limitation contained in Texas Rule of Appellate Procedure 9.4(i)(2)(E) in
that the brief contains a total of 4,256 words, excluding parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1), as calculated by the word count tool
of Microsoft Word (2008) for Mac.
/s/ Michael S. Truesdale
Michael S. Truesdale

APPENDIX
Tab 1 Order denying Motion to Set Aside Mediated Settlement
Agreement (CR 823)

Tab 2 Final Decree of Divorce (CR 760)

Tab 3 Order denying Motion for New Trial (CR 836)

Tab 4 Opinion of Court of Appeals

Tab 5 Judgment of Court of Appeals

Tab 6 Order denying motion for rehearing










Tab 1 Order denying Motion to Set Aside
Mediated Settlement Agreement (CR 823)

DC BK11256 PG334
NO. D-I-FM-IO-002071
ORDER DENYING PETITIONER ANDREA A. CROWSON'S
MOTION TO SET ASIDE OR DECLINE TO ENFORCE
A MEDIATED SETTLEMENT AGREEMENT
II
" I IN THE MATTER OF
. \1 THEMARRIAGEOF
-It A. CROWSON
THOMAS D. CROWSON
it.:'
,. - :
.-
:; .-::: R
: .',,"; w , CHILDREN

HQ!!2@g
)000::...,

IN THE DISTRICT COURT

353RD JUDICIAL DISTRICT
TRAVIS COUNTY, TEXAS
On this day the Court considered Petitioner Andrea A. Crowson's Motion to Set
Aside or Decline to Enforce a Mediated Settlement Agreement filed on August 23, 2011,
and the Court, having considered the Motion and the other pleadings and orders on file,
has detennined that the Motion should be denied. ..D(;OtlU-
J

J. L.'1'tI26/J ,?y{/AIM -11...; It7 "!-tk Ml>+(dYI.J Irs 4(u f GA;
4:!uuJ:
Z
3,261/. Jc:1)
o Accordingly, IT IS ORDERED, A15JUDGED AND DECREED that Petitioner
Andrea A. Crowson's Motion to Set Aside or Decline to Enforce a Mediated Settlement
Agreement is DENIED.
SIGNED on September r:;
1111111111111111111111111111111111111111111111111111111
002181314
,2011.
823
823
._--
DC BK11256 PG335
APPROVED AS TO FORM ONLY:
THRASH LAW FIRM
3 Lakeway Center Ct., Suite 100
Austin, Texas 78734
Tel. (513)463-5400 "'''-'.
Fax 540 /'
/.
11-<r1'''''I\.II. Thrash
State Bar No. 14420300
ATTORNEY FOR ANDREA A CROWSON A. CROWSON
GRAY AND BECKER, P.C.
900 West Avenue
Austin, Texas 78703
Tel. (512) 482-0061
Fax (512) 482-0904
By:

Richard E. Gray, III
State Bar No. 08328300
Patricia Dixon
State Bar No. 24072068
ATTORNEYS FOR THOMAS D. CROWSON, JR.
BARRETT AND COBLE
Attorneys at Law
700 Lavaca, Suite 605
Austin, Texas 78701
Tel. (512) 482-8193
Fax (512) 482-0525
By:
--------------
John Barrett
State Bar No. 01816300
Kathleen Debra Coble
State Bar No. 24049063
INTERVENERS
824
824










Tab 2 Final Decree of Divorce (CR 760)

DC BK11256 PG1252

RE
JliL
CAUSE NO. D-I-FM-IO-002071
"
.... ,
-'--0" ' ..
....or. ';:,':::'
353
RD
JUDICIAL DISTRICT

...
.,
TRAVIS COUNTY, T E X AS, "
IN THE DISTRICT COURT OF

ANDREA A. CROWSON
AND
THOMAS D. CROWSON, JR.
IN THE MATTER OF
THE MARRIAGE OF
FINAL DECREE OF DIVORCE
-
-
!!!!!!!!!!!!!!!
-
-
-
On __, 2011, this case came on for hearing.
Appearances
Petitioner, ANDREA A. CROWSON, Social Security number xxx-xx-559 I,
appeared in person in person and by and through her attorney of record Erin Thrash.
-
iiiiiiiiiii
--- -
Respondent, THOMAS D. CROWSON, JR., Social Security number xxx-xx-
6429, appeared by and through his attorney of record, Richard E. Gray, III.
-
-
Record
= .....
iiiiiiiiiii N
_0
=:=0
The record of testimony was duly reported by the court reporter for the 250
th
Judicial District Court
Jurisdiction and Domicile
The Court finds that the pleadings of Petitioner, ANDREA A. CROWSON, are in
due form and contain all the allegations, information, and prerequisites required by law.
The Court, after receiving evidence, finds that it has jurisdiction of this case and of all the
parties and that at least 60 days have elapsed since the date the suit was filed. The Court
finds that Petitioner, ANDREA A. CROWSON, has been a domiciliary of Texas for at
fMMO Andrea Crowson and Thomas Crowson, Jr. -Final Decree of Divorce Page I
760
760
DC BK11256 PG1312
Clari(ving Orders
Without affecting the finality of this Decree of Divorce, this Court expressly
reserves the right to make orders necessary to clarify and enforce this decree.
ReliefNot Granted
IT IS ORDERED that all relief requested in this cause and not expressly granted is
denied.
Date ofJudgment
This Decree of Divorce SIGNED AND RENDERED in open court at Austin,
Travis County, Texas, on , 20 II.
I
JUD
IMMO Andrea Crowson and Thomas Crowson, Jr. -Final Decree of Divorce
820
Page 61
820










Tab 3 Order denying Motion for New Trial (CR
836)

CAUSE NO. D-I-FM-IO-002071
353
RD
JUDICIAL DISTRICT
TRAVIS COUNTY, T E X A S
Filed in The Difitrict Court
of Travis County, Texas
. NOV 1l. f&JA
Jo\t " M
Amalia Rodriguez.MeildOZalC'erk
IN THE DISTRICT COURT OF

DC BK11321 PG1265
IN THE MATTER OF
THE MARRIAGE OF
1
ANDREA A. CROWSON
AND
i THOMAS D. CROWSON, JR.
z
-
>-
~
"
ORDERDENYING MOTION FOR NEW TRIAL
On this day the Court considered Petitioner Andrea A. Crowson's Motion for New Trial
filed on October 5, 2011. Movant, ANDREA A. CROWSON, appeared in person and through
attorney of record, Erin M. Thrash. Respondent, THOMAS D. CROWSON, JR. appeared in
person and through attorney of record, Richard E. Gray, III.
The Court, having considered the Motion, the evidence, and the other pleadings and
orders on file, has determined that the Motion should be denied.
Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that Petitioner Andrea A.
Crowson's Motion for New Trial is DENIED.
SIGNED on l l N ~ I ~ 2011.
Order Denying Motion for New Trial
IMMO IITIO Crowson
Page 1 of2
836
836
..
DC BK11321 PG1266
AGREED AS TO FORM:
THRASH LAW FIRM
3 Lakeway Center Ct., Suite 100
Austin, Texas 78734
(512) 263-5400
(512) 263-5402 - fax
By:. _
Erin M. Thrash
State Bar No. 14420300
Attorneyfor Andrea A. Crowson
GRAY & BECKER, P.C.
900 West Avenue
Austin, Texas 78703
(512) 482-0061
(512) 482-0924 - fax
By: _
Richard E. Gray, III
State Bar No. 08328300
Patricia J. Dixon
State Bar No. 24072068
Monte L. Swearengen
State Bar No. 18871700
Attorneys for Respondent
Thomas D. Crowson, Jr.
Order Denying Motion for New Trial
IMMO IITIO Crowson
837
Page 2of2
837









Tab 4 Opinion of Court of Appeals

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00795-CV
Andrea A. Crowson, Appellant
v.
Thomas D. Crowson, Jr.; Barrett and Coble, Attorneys at Law; John Barrett; and
Kathleen Debra Coble, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-FM-10-002071, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Andrea A. Crowson appeals the trial courts final decree of divorce awarding custody
and visitation and dividing the marital estate pursuant to the terms of a mediated settlement
agreement (the MSA). In five issues, Andrea challenges the trial courts enforcement of the MSA.
1
For the reasons that follow, we affirm the trial courts final decree of divorce.
2
We refer to the parties by their first names for clarity.
1
Barrett and Coble, Attorneys at Law; John Barrett; and Kathleen Debra Coble, named
2
herein as appellees, intervened in the divorce proceeding, and the final decree of divorce awarded
them judgment against Andrea for attorneys fees. Because Andrea does not attack the validity of
the judgment in their favor, the award of attorneys fees is not before us.
FACTUAL AND PROCEDURAL BACKGROUND
Andrea and Thomas were married in 1994. Three children were born of the
3
marriage. On April 16, 2010, Andrea obtained a temporary ex parte protective order on the grounds
of family violence and filed a petition for divorce. The parties subsequently entered into an agreed
final protective order that included a finding that Thomas had committed family violence and agreed
temporary orders that required Thomass possession of the minor children to be supervised. Andrea
amended her petition to include tort claims, and the final protective order was modified. At a
hearing on May 9, 2011, the parties confirmed that mediation would occur on or before
July 15, 2011. At another hearing on July 6, two of Andreas four attorneys were permitted to
withdraw, with Andreas consent. New counsel entered an appearance on Andreas behalf (Andreas
divorce counsel), and Andrea continued to be represented by two other attorneys with regard to her
tort claims (Andreas tort counsel). Andreas divorce counsel requested a continuance of the
trial setting, which was denied. None of Andreas attorneys requested a continuance of the
mediation date.
On July 1415, 2011, the parties attended mediation, at which Andrea was
represented by both her divorce counsel and her tort counsel. In addition, a financial business
valuation expert was present to assist in valuing the parties property. At the conclusion of the
4
mediation, the parties entered into the MSA, which stated in large bold letters on page one that
The facts stated herein are taken from the record on appeal. We accept as true the facts
3
stated in the parties briefs unless another party contradicts them. See Tex. R. App. P. 38.1(g).
Andrea later testified that she was unsure as to whether the expert was her expert or she
4
and Thomas shared him.
2
THIS AGREEMENT IS NOT SUBJECT TO REVOCATION. The MSA divided the
community property, provided for conservatorship and support of the children, and set out the
possession schedule. The final protective order, as modified, was to remain in effect except where
inconsistent with the MSA. The MSA phased out the requirement that Thomass possession of the
children be supervised.
Prove-up Hearing
On July 21, 2011, Andreas divorce counsel filed a motion to withdraw and sent a
letter to counsel for Thomas stating that Andrea was repudiating the MSA. The next day, Andreas
tort counsel filed a motion to withdraw. On July 29, 2011, at a hearing to prove-up the MSA, the
trial court granted the motion to withdraw of Andreas tort counsel, to which Andrea agreed.
Andreas divorce counsel withdrew his motion to withdraw, stating that Andrea had agreed that the
MSA was irrevocable and he would continue to represent her to wrap things up. The trial court
questioned the parties and confirmed that they were not intoxicated or under the influence of any
substance that would impair their thinking, that there was no mental process, either emotional or
cognitive, that prevented the parties from understanding the proceeding, and that neither party had
any complaints concerning the services of his or her attorneys. Andrea testified that she understood
that the essence of mediation is compromise, she was not being compelled to go forward in the
Courts receiving the MSA and resolving the divorce proceedings, and she was doing so freely and
voluntarily. She further stated that, other than believing that her husband had not told the truth
during the course of the proceedings, no one had materially misrepresented anything to her or failed
3
to tell her the truth. Andrea also testified that the MSA contained a statement in boldface capital
letters that it was not subject to revocation and that she and her attorney had signed it.
Andrea testified that although she understood the agreement at the time of the hearing,
she had not understood at the mediation that it was not subject to revocation or further mediation.
She stated that by the end of the mediation she wasnt comprehending and wasnt focused. She
acknowledged signing the MSA but stated that she did not remember understanding what she signed.
She testified that during the mediation her divorce counsel twice received by fax an affidavit of
nonprosecution concerning pending criminal charges against Thomas, her divorce counsel told her
not to worry about it, but it scared her. Andrea also testified that she had been diagnosed
with post-traumatic stress disorder (PTSD) and that she now understood that she had been
experiencing PTSD symptoms during mediation. She also stated that she was not on any medication
during mediation.
The trial court questioned her on her education and details of what took place on the
days of the mediation, indicating it was trying to determine whether Andrea suffered any impairment
during the mediation. Andrea testified that she has a bachelor of science degree in accounting and
approximately two years toward an MBA and masters in accounting. She also testified as to when
the mediation began each day, where it was conducted, how she got there, who attended, clothing
worn by those in attendance, where the parties were in relation to each other, artwork on the wall in
the conference room, the length of the mediation, lunch breaks, discussions with the mediator, taking
care of her children the evening of the first day, and when the MSA was executed. She stated that
there were things in the MSA that she wouldnt have agreed to and that she wasnt able to pull
4
it together sometimes and had to go back into the bathroom and just try to get a deep breath and
just pray that it would stop. Andrea also testified that she was represented at mediation by her
divorce attorney and her tort attorneys, was advised by a financial advisor, and signed or initialed
every page of the MSA.
5
The trial court concluded that Andreas testimony did not establish any impairment
and that she understood that the MSA was irrevocable. The court found that the MSA contained a
prominently displayed statement in boldface type that it was not subject to revocation, was signed
by each party and by the attorneys in compliance with sections 6.602 and 153.0071 of the Family
Code, and was the agreement of the parties regarding the just and right division of their community
estate and the conservatorship, support, and visitation of the children. See Tex. Fam. Code 6.602
(mediation procedures in suit for dissolution of marriage), 153.0071 (alternate dispute resolution
procedures in suit affecting parent-child relationship). The trial court accepted the MSA and
rendered judgment according to its terms.
Arbitration
The MSA provided that Andreas counsel would draft the proposed decree of divorce.
Drafting disputes arose, which the parties were unable to resolve. The MSA provided that disputes
concerning the form of the decree would be resolved by binding arbitration to be conducted by the
person who had acted as mediator. Thomas filed a motion to compel arbitration. At the hearing on
the motion, Andreas divorce counsel was permitted to withdraw and new divorce counsel appeared
As previously stated, Andrea testified that she was unsure as to whether the financial expert
5
was her expert or she and Thomas shared him.
5
on Andreas behalf. Noting that it had previously enforced the MSA, the trial court ordered the
parties to arbitration on September 1, 2011. The arbitration resulted in an arbitration award setting
out the form of the final decree of divorce. On September 2, 2011, Thomas filed a motion to enter
the final decree of divorce pursuant to the arbitration award.
Andrea did not seek to have the arbitration award modified, corrected, or vacated.
See Tex. Civ. Prac. & Rem. Code 171.054 (arbitrator may modify or correct award), .088 (court
may vacate award), .091(court shall modify or correct award in specified circumstances). However,
on August 23, 2011, prior to the arbitration, Andrea filed a Motion to Set Aside or Decline to
Enforce a Mediated Settlement Agreement. On September, 8, 2011, at the hearing on Thomass
motion to enter, Andrea requested that the trial court also enter an order on her motion to set aside
the MSA. The trial court stated that the issues in Andreas motion had been determined during the
July 29 hearing to enforce the MSA and it was res judicata. However, at the request of counsel
for Andrea that there be an order for the record, the trial court signed an order denying Andreas
motion to set aside and interlineated that [t]he divorce was rendered on July 29, 2011, prior to the
filing of the motion to set aside which was filed August 23, 2011. The trial court also signed the
final decree of divorce in the form set out in the arbitration award. Although Andrea filed a Notice
of Lack of Capacity to Consent and Notice of Withdrawal of Consent to Mediated Settlement
Agreement on the day of the hearing, she did not ask the trial court to consider it and did not object
to the entry of the decree at the hearing.
6
Motion for New Trial
On October 5, 2011, Andrea filed a motion for new trial asserting several grounds,
including contractual defenses of lack of capacity, duress, coercion, undue influence,
unconscionable terms, and fraud. At a hearing on the motion, Andrea testified concerning
allegations of family violence by Thomas culminating in an assault on April 14, 2010. She also
stated that on the first morning of mediation she could hear Thomas talking and was nervous and
scared being in that close proximity to him and that the second day of the mediation was very,
very bad and she couldnt stop thinking of the assault. Andrea further testified that there was
a lot of buzzing and she did not remember much of the second day. She stated that the mediator
left around 4:00, 4:30, and before leaving told her that the divorce really need[ed] to be
mediated. She further stated that she signed the MSA and initialed the pages but couldnt tell you
what [she] was signing or what was discussed or anything. She testified that after mediation, she
saw a counselor who explained PTSD symptoms to her and she now understood that she had been
experiencing those symptoms during mediation. She further testified that prior to the prove-up
hearing, her divorce counsel had threatened to withdraw and she would not have agreed to
enforcement of the MSA if she had thought she would have an attorney. She offered into evidence
a financial statement Thomas had provided to a bank in August 2010 indicating a net worth in excess
of $21 million and a loan application dated October 2009 reflecting monthly income in excess
of $150,000.
On cross-examination, Andrea testified that she had been represented by three
attorneys at the mediation, there was a break room between the room where she was located and the
7
room where Thomas was located, and she had attended a significant number of hearings where
Thomas was present, as well as his deposition, but never looked at him and didnt have to talk.
She stated that she had been provided copies of the financial statement and loan application prior to
mediation. She further testified that she stood by her testimony at the prove-up hearing.
In support of her motion, Andrea called the court-appointed psychologist,
Alissa Sherry, who had conducted examinations of both parties. She testified that she had diagnosed
Andrea with PTSD and dependent personality traits. She stated that PTSD is a stress disorder
resulting from a traumatic event and persons with PTSD are likely to become anxious or shut down
when confronted with things that remind them of the traumatic event and can become unable to
make rational decisions. She testified that mediation could trigger PTSD symptoms and it could be
impossible for a partys attorney to recognize the symptoms. On cross-examination, Sherry testified
that she had not examined Andrea since November 2010 and was not present at the mediation. On
questioning by the court, Sherry testified that she had not been provided new data since her
examination of Andrea or any information about Andreas state of mind at the time of mediation and
had no opinion as to her mental state during mediation.
Following testimony, the trial court reviewed what had transpired at the prove-up
hearing, attached a copy of the transcript of that hearing as an exhibit in the record, stated that there
was no new evidence that had not been presented at the July 29 prove-up hearing, and denied the
motion for new trial. Andrea requested findings of fact and conclusions of law, which the trial court
denied as not proper under Rule 296 as to a hearing on a motion for new trial. See Tex. R. Civ. P.
296. This appeal followed.
8
STANDARD OF REVIEW
Whether a mediated settlement agreement complies with the requirements of the
Texas Family Code is a question of law that we review de novo. Spiegel v. KLRU Endowment Fund,
228 S.W.3d 237, 241 (Tex. App.Austin 2007, pet. denied); Betts v. Betts, No. 14-11-00267-CV,
2012 Tex. App. LEXIS 5395, at *4 (Tex. App.Houston [14th Dist.] July 10, 2012, pet. denied)
(mem. op). We review a trial courts decision not to set aside a mediated settlement agreement for
abuse of discretion. R.H. v. Smith, 339 S.W.3d 756, 765 (Tex. App.Dallas 2011, no pet.); In re
C.H., Jr., 298 S.W.3d 800, 804 (Tex. App.Dallas 2009, no pet.). A trial court does not abuse its
discretion if there is some substantive, probative evidence to support its decision. Granger
v. Granger, 236 S.W.3d 852, 85556 (Tex. App.Tyler 2007, pet. denied); Echols v. Olivarez,
85 S.W.3d 475, 477 (Tex. App.Austin 2002, no pet.).
DISCUSSION
In a divorce action, the parties can enter into a mediated settlement agreement. See
Tex. Fam. Code 6.602. Section 6.602 provides that a mediated settlement agreement is binding
on the parties if the agreement provides in prominently displayed boldface type that the agreement
is not subject to revocation and is signed by each party and each partys attorney who is present. See
id. 6.602(b). The mediated settlement agreement is immediately binding, does not require approval
of the court, and is not subject to repudiation. See id.; Spiegel, 228 S.W.3d at 241; In re Marriage
of Joyner, 196 S.W.3d 883, 889 (Tex. App.Texarkana 2006, pet. denied); Cayan v. Cayan,
38 S.W.3d 161, 16566 (Tex. App.Houston [14th Dist.] 2000, pet. denied.). Section 6.602 also
provides that if a mediated settlement agreement meets the statutory requirements a party is entitled
9
to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil
Procedure, or another rule of law. Tex. Fam. Code 6.602(c). Thus, the statute requires the trial
court to render judgment on a section 6.602 mediated settlement agreement even if one party
attempts to withdraw consent. Joyner, 196 S.W.3d at 890; see Mullins v. Mullins, 202 S.W.3d 869,
876 (Tex. App.Dallas 2006, pet. denied) (unilateral withdrawal of consent does not negate
enforceability of mediated settlement agreement in divorce proceedings). However, a trial court is
not required to enforce a mediated settlement agreement if it is illegal in nature or was procured by
fraud, duress, coercion, or other dishonest means. Spiegel, 228 S.W.3d at 241; Joyner, 196 S.W.3d
at 889; Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex. App.Fort Worth 2002, no pet.).
6
Duress, coercion, or other dishonest means
The undisputed facts establish that the MSA in this case met the statutory
requirements of section 6.602(b). However, in her first two issues, Andrea argues that,
notwithstanding the MSAs compliance with section 6.602(b), the trial court abused its discretion
Section 153.0071 of the Family Code provides for binding mediated settlement agreements
6
in suits affecting the parent-child relationship, provided the same three statutory requirements set
forth in section 6.602(b) are met. See Tex. Fam. Code 153.0071(d). In a suit involving the
parent-child relationship, a trial court may decline to render judgment on a mediated settlement
agreement if it finds that a party to the agreement was a victim of family violence and that
circumstance impaired the partys ability to make decisions and that the agreement is not in the
childs best interest. See id. 153.0071(e-1); In re C.H., Jr., 298 S.W.3d 800, 804 (Tex.
App.Dallas 2009, no pet.). Although Andrea challenged the MSA as to conservatorship and
possession in her motion to set aside the MSA and motion for new trial, raising best interests
concerns, she does not raise that issue on appeal and challenges the MSA only as to the property
division under section 6.602.
10
in enforcing the MSA because it was procured by duress, coercion, and undue influence. Andrea
7
contends that she experienced severe duress, coercion, and undue influence during the mediation
resulting from Thomass assault on her that was the culmination of years of physical and emotional
abuse. She cites her diagnosis of PTSD and the testimony of Sherry that mediation could trigger
PTSD symptoms and make a person with PTSD feel undue influence and have difficulty making
rational decisions. Andrea also cites her own testimony that she was scared, could not stop thinking
about the assault, could not catch her breath, could not remember agreeing to the MSA, and was
unable to make rational decisions. Andrea contends that this evidence established that she was the
victim of duress, coercion, and undue influence during the mediation.
8
Andrea also asserts that the agreement was obtained by fraud but in her opening brief does
7
not cite to any evidence of fraud in the record and has therefore waived this argument. See Tex. R.
App. P. 38.1(i). In her reply brief, Andrea cites to the financial statement and loan application
Thomas produced, which indicated a higher net worth and income than the valuation to which he
averred during the proceeding. However, Andrea testified that she was aware of those documents
prior to mediation, and the record shows that the financial expertwho was either Andreas expert
or the parties shared expertoffered a similar lower valuation of the parties community property
at the time of the mediation. In addition, Andrea testified that although she believed her husband
had not been truthful during the proceeding, no one had materially misrepresented anything to her
or failed to tell her the truth concerning the MSA. Thus, even were we to consider the evidence
Andrea cites in her reply brief, we would conclude that it does not establish that the MSA was
procured by fraud. See In re Fannette, No. 10-12-00141-CV, 2013 Tex. App. LEXIS 8558, at
*1620 (Tex. App.Waco July 11, 2013, no pet.) (mem. op.) (upholding trial courts enforcement
of mediated settlement agreement where there was conflicting evidence and wife did not meet
burden of establishing fraud); Torres v. Torres, No. 14-12-00436-CV, 2013 Tex. App. LEXIS 2003,
at *67 & n.2 (Tex. App.Houston [14th Dist.] Feb. 28, 2013, no pet.) (mem. op.) (no fraud where
evidence showed failure to understand terms of agreement, not intentional nondisclosure of assets);
cf. Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex. App.Fort Worth 2002, no pet.) (upholding trial courts
determination that agreement was unenforceable based on fraud where evidence showed husband
failed to disclose all marital property and intentionally represented that he had).
Andrea also complains that the mediation was conducted without the implementation of
8
any measures to protect her. Section 153.0071(f) provides that in a suit affecting a parent-child
relationship, a party may object to a referral to mediation and if mediation is held over the partys
11
As an initial matter, we consider Thomass argument that Andrea has waived her
complaints about the divorce decree by failing to seek to vacate the arbitration award. Although
prior to the arbitration, Andrea filed a Motion to Set Aside or Decline to Enforce a Mediated
Settlement Agreement asserting facts she now urges to support her claims of fraud, duress, and
undue influence, she did not seek modification, correction or vacation of the arbitration award setting
out the form of the divorce decree in accordance with the MSA. Nor did she object to the entry of
the final decree of divorce based on the MSA and in the form set forth in the arbitration award.
Having failed to challenge the arbitration award or the entry of the divorce decree, Andrea has
waived her complaints concerning the final decree of divorce on appeal. See Tex. Civ. Prac. & Rem.
Code 171.0054(a)(c) (arbitrator may modify or correct award on application of party within
20 days after award), .087 (unless grounds for vacating, modifying, or correcting award are offered,
court shall confirm award), .088(b) (party must make application to vacate award within 90 days
after award), .091(a), (b) (court shall modify or correct award in specified circumstances on
application of party within 90 days after award); Tex. R. App. P. 33.1; Ewing v. Act
Catastrophe-Texas L.C., 375 S.W.3d 545, 549 (Tex. App.Houston [14th Dist.] 2012, pet. denied)
objection, the court shall order appropriate measures to ensure the physical and emotional safety of
the objecting party. See Tex. Fam. Code 153.0071(f). However, the record does not reflect that
Andrea objected to mediation or otherwise requested any protective measure, nor does she offer any
authority in support of this argument. In addition, although Andrea complains that the trial court
ordered the parties to mediation only eight days after her divorce counsel withdrew and was replaced
by new counsel, the record reflects that the parties attended mediation by agreement or in accordance
with Travis County Local Rule 13.3 requiring mediation of all cases, and that none of her attorneys
requested a continuance of the mediation. Therefore, Andrea has waived these arguments on appeal.
See Tex. R. App. P. 33.1, 38.1(i); Travis (Tex.) Dist. Ct. Loc. R. 13.3(a) (available at
http://www.supreme.courts.state.tx.us/rules/local/Travis/travis-dc.pdf (last accessed Nov.26, 2013).
12
(party failed to preserve error by failing to object to confirmation of arbitration award); Kline
v. OQuinn, 874 S.W.2d 776, 79091 (Tex. App.Houston [14th Dist.] 1994, writ denied) (party
waived grounds for appeal not included in motion to modify or vacate). However, even if Andrea
had not waived her complaints, we would conclude that the evidence does not support her claims
of duress, coercion, and undue influence.
Duress occurs when some kind of threat renders a person incapable of exercising free
agency and unable to withhold consent. Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868,
878 (Tex. 2005); In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.Fort Worth 2009, pet. denied);
Arnett v. Arnett, No. 03-05-00056-CV, 2008 Tex. App. LEXIS 3184, at *4 (Tex. App.Austin
May 2, 2008, pet. denied) (mem. op.). Coercion occurs if someone is compelled to perform an act
by force or threat. In re D.E.H., 301 S.W.3d at 828; Arnett, 2008 Tex. App. LEXIS 3184, at *4
(quoting In re D.E.H., 301 S.W.3d at 828). [T]he essence of an undue influence claim is
overcoming the free will of an individual and substituting the will of another, thereby causing a
person to do an act which he would not otherwise have done. In re D.E.H., 301 S.W.3d at 828
(quoting B.A.L. v. Edna Gladney Home, 677 S.W.2d 826, 831 (Tex. App.Fort Worth 1984, writ
refd n.r.e.) (internal quotations omitted)).
At the prove-up hearing, the trial court questioned Andrea thoroughly concerning the
mediation and the MSA. Although Andrea stated that she wasnt focused during mediation and
did not remember understanding what she signed, she recited in considerable detail the events of the
day. She testified that she had read and understood the MSA, it contained a prominently displayed
statement in boldface type that it was not subject to revocation, she and her attorney had signed it,
13
and she was not being compelled to go forward with the approval of the MSA but was doing so
freely and voluntarily. Further, at the hearing on her motion for new trial, Andrea testified that she
stood by her testimony at the prove-up hearing. Although she testified that being near Thomas and
hearing his voice had made her anxious and scared, there is no evidence of any force or threat or that
Andrea lacked free will or was unable to withhold consent to the MSA. Therefore, had Andrea
preserved this complaint, we would conclude that there is some substantive, probative evidence to
support the trial courts decision not to set aside the MSA on those grounds. See Granger,
236 S.W.3d at 85556; In re Fannette, No. 10-12-00141-CV, 2013 Tex. App. LEXIS 8558, at
*1620 (Tex. App.Waco July 11, 2013, no pet.) (mem. op.) (upholding trial courts enforcement
of mediated settlement agreement where agreement stated that parties signed without duress and
husband refuted wifes testimony that wife was exhausted, confused, and coerced when she signed
agreement and that husband was under undue influence from third parties to dispose of parties
home); Zimmerman v. Zimmerman, No. 04-04-00347-CV, 2005 Tex. App. LEXIS 6064, at *10 (Tex.
App.San Antonio Aug. 3, 2005, pet. denied) (mem. op) (trial court did not err in finding mediator
did not coerce husband to sign agreement where husbands attorney testified retired judge mediator
imparted his impression of what could possibly happen at jury trial); Durham v. Durham,
No. 03-03-00303-CV, 2004 Tex. App. LEXIS 2609, at *3, 1011(Tex. App.Austin Mar. 25, 2004,
no pet.) (mem. op) (upholding trial courts finding wifes testimony regarding duress from economic
circumstances and coercion by mediator not credible); see also Bolton, 185 S.W.3d at 878; In re
D.E.H., 301 S.W.3d at 829; Arnett, 2008 Tex. App. LEXIS 3184, at *49. We would further
14
conclude the trial court did not abuse its discretion in declining to set aside the MSA on those
grounds. See Echols, 85 S.W.3d at 477. We overrule Andreas first and second issues.
Mediated Settlement Agreement within the Meaning of Section 6.602
In her third issue, Andrea argues in the alternative that although the MSA appears on
its face to meet the requirements of section 6.602, it was not a mediated settlement agreement
because the mediator left at approximately 4:00 p.m., and the negotiations continued until
approximately 9:30 p.m., at which time the parties executed the agreement. Having failed to raise
this argument in the trial court, Andrea has waived this issue on appeal. See Tex. R. App. P. 33.1;
Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (per curiam) (on motion for rehearing). Even if
Andrea had not waived this issue, we would conclude that the MSA is a mediated settlement
agreement within the meaning of section 6.602. See Tex. Fam. Code 6.602(b). Andrea testified
that the parties mediated for nine hours on the first day and for twelve hours on the second day. She
also testified that the mediator was present on the first day and until 4:00 p.m. on the second day.
The MSA is entitled Mediated Settlement Agreement, recites that the parties mediated this case
and that the agreement is not subject to revocation pursuant to sections 153.0071 and/or 6.602 of the
Texas Family Code, and refers to the mediator who facilitated the agreement. Thus, the dispute
resolution process involved intervention between conflicting parties . . . to promote reconciliation,
settlement, compromise, or understanding and a neutral third party who trie[d] to help the
disputing parties reach a mutually agreeable solution. See Websters Third New Intl Dictionary
1402 (2002) (definition of mediation); Blacks Law Dictionary 107071 (9th ed. 2009) (same). We
overrule Andreas third issue.
15
Withdrawal of Consent to MSA
In her fourth issue, Andrea argues further in the alternative that because the MSA was
not mediated so as to fall within the scope of section 6.602, it was subject to the general contract
defense that she withdrew her consent prior to the trial courts approval of the MSA. However, we
have already rejected the argument that the agreement was not mediated. Further, the undisputed
facts establish that the MSA meets the statutory requirements, and we have already concluded that
the trial court did not abuse its discretion in deciding not to set aside the MSA based on these
grounds. Therefore, the MSA was binding on the parties and not subject to repudiation, and the trial
court was required to render judgment on the MSA even though Andrea attempted to withdraw
consent. See Tex. Fam. Code 6.602(b)(1)(3); Spiegel, 228 S.W.3d at 241; Mullins, 202 S.W.3d
at 876; Joyner, 196 S.W.3d at 88990; Cayan, 38 S.W.3d at 16566. We overrule Andreas
fourth issue.
Reversal on Equitable Grounds
In her fifth issue, Andrea contends that the terms of the MSA are grossly unfair and
unconscionable and the MSA should be set aside on equitable principles. However, the Texas
Supreme Court has held that if a mediated settlement agreement meets the statutory requirements,
the trial court will not go behind the signed agreement to evaluate its merits but must render
judgment on the parties agreement. Milner v. Milner, 361 S.W.3d 615, 616 (Tex. 2012). Section
6.602 has been described as a procedural shortcut for enforcement of mediated settlement
agreements in divorce cases. See Joyner, 196 S.W.3d at 891; Cayan, 38 S.W.3d at 166. The court
is not allowed to modify Section 6.602 agreements as it sees fit, and it has no authority to enter
16
a judgment that varies from their terms. Joyner, 196 S.W.3d at 89091; see Toler v. Sanders,
371 S.W.3d 477, 480 (Tex. App.Houston [1st Dist.] 2012, no pet.) (family code does not authorize
court to modify mediated settlement agreement before incorporating it into decree). Nor is the trial
court required to determine if the MSA is just and right as it is with other settlement agreements
in family law. Milner, 361 S.W.3d at 618; Joyner, 196 S.W.3d at 889, 891; Cayan, 38 S.W.3d at
166. Thus, Andreas challenge to the fairness of the MSA has been foreclosed by the legislature,
and the trial court had no discretion to reject the MSA. See Kott v. Kott, No.03-06-00398-CV,
2008 Tex. App. LEXIS 1464, at *67 (Tex. App.Austin Feb. 29, 2008, no pet.) (mem. op.)
(partys challenge to mediated settlement agreement on grounds that the property division
was not just and equitable foreclosed by section 6.602 and to conclude otherwise would
imply trial court discretion to reject such agreement); Carson v. Carson, No. 03-04-00521-CV,
2005 Tex. App. LEXIS 9250, at *3 (Tex. App.Austin Nov. 4, 2005, no pet.) (mem. op.) (to extent
appellant sought to disturb the contents of mediated settlement agreement, issues were barred by
statute and language of agreement). We overrule Andreas fifth issue.
CONCLUSION
Having overruled Andreas issues, we affirm the trial courts final divorce decree.
9
Thomas has pending before this Court Appellees Motion to Strike Material Outside the
9
Appellate Record and Appellees Motion to Strike Matters Outside the Record on Appeal, or in the
Alternative Motion for Leave to File Sur-Reply Brief. We dismiss the motions as moot.
17
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed
Filed: December 13, 2013
18










Tab 5 Judgment of Court of Appeals
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


JUDGMENT RENDERED DECEMBER 13, 2013


NO. 03-11-00795-CV


Andrea A. Crowson, Appellant

v.

Thomas D. Crowson, Jr.; Barrett and Coble, Attorneys at Law; John Barrett; and
Kathleen Debra Coble, Appellees



APPEAL FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE JONES, JUSTICES ROSE AND GOODWIN
AFFIRMED -- OPINION BY JUSTICE GOODWIN



This is an appeal from the final divorce decree signed by the trial court on September 8, 2011.
Having reviewed the record and the parties arguments, the Court holds that there was no
reversible error in the courts final divorce decree. Therefore, the Court affirms the trial courts
final divorce decree.

The appellant shall pay all costs relating to this appeal, both in this Court and the court below.










Tab 6 Order denying motion for rehearing

COURT OF APPEALS
THIRD DISTRICT OF TEXAS
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
www.3rdcoa.courts.state.tx.us
(512) 463-1733
J. WOODFIN JONES, CHIEF JUSTICE
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
JEFF L. ROSE, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
JEFFREY D. KYLE, CLERK
January 31, 2014
Ms. Erin Thrash
Thrash Law Firm
3 Lakeway Center Ct., Suite 200
Austin, TX 78734
Mr. John Barrett
Barrett & Coble
7200 N. Mopac Expressway, Suite 440
Austin, TX 78731
Ms. Monte L. Swearengen
Gray & Becker, P.C.
900 West Avenue
Austin, TX 78701
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-11-00795-CV
Trial Court Case Number: D-1-FM-10-002071
Dear Counsel:
Appellant's motion for rehearing and request for en banc review was denied by this Court on
the date noted above.
Very truly yours,
JEFFREY D. KYLE, CLERK
BY: E. Talerico
Liz Talerico, Deputy Clerk
Style: Andrea A. Crowson
v. Thomas D. Crowson, Jr.; Barrett and Coble, Attorneys at Law; John Barrett; and
Kathleen Debra Coble
FILE COPY