Affirmed in Part, Reversed and Remanded in Part, and Memorandum 

Opinion filed July 11, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00854-CV

TIFFANY DIGGS, Appellant

V.

RANDOLPH DIGGS, JR., Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2009-81634

M E M O R A N D U M O P I N I O N

Appellant Tiffany Diggs challenges the portion of the Final Decree of 

Divorce pertaining to the division of the marital estate. She and appellee, 

Randolph Diggs, Jr. (“Randy”), entered into a mediated settlement agreement (the 

“MSA”) dividing their property. In five issues, she challenges the enforceability of 

the MSA by asserting (1) it was procured with the use of an unqualified mediator, 

(2) the trial court erred by refusing to permit Tiffany to present evidence tha the 
2

mediator was disqualified at the hearing on her motion for new trial, (3) the trial 

court signed the divorce decree when the MSA was never made a part of the trial 

court’s record, (4) the property division in the divorce decree does not properly 

reflect the terms provided in the MSA, and (5) the language of the MSA is 

ambiguous and Randy is prevented from using the unqualified mediator as an 

arbitrator pursuant to the terms of the MSA. Because we conclude that the trial 

court erred in dividing the parties’ marital estate, we reverse and remand only that 

portion of the divorce decree relating to the division of property.

1

BACKGROUND

Tiffany and Randy married in January 1994. In December 2009, Randy 

filed his original petition for divorce. In his petition, he stated that he believed that 

the dispute could be resolved amicably by using the collaborative law process as 

provide in sections 6.6034 and 163.0072 of the Texas Family Code. Tiffany filed 

an original counter petition for divorce in February 2010, in which she stated that 

she believed she and Randy would enter into an agreement for the division of their 

estate and that if they did, she requested that the court approve the agreement and 

divide the estate in a manner consistent with the agreement. 

Tiffany’s original counsel moved to withdraw due to “ineffective 

communication” with Tiffany in September of 2010; Tiffany opposed his 

withdrawal. After a hearing conducted on October 6, 2010, the trial court signed 

an order permitting Tiffany’s counsel to withdraw. On December 13, 2010, 

Tiffany designated new counsel. Tiffany filed an amended counter petition on 

January 18, 2011, in which, as is relevant here, she requested that the court make a 

 

1

The parties have three children of the marriage, but there is no dispute about the portion 

of the divorce decree concerning their children. We therefore affirm the remainder of the 

divorce decree.
3

just and right division of the marital estate. Two days later, Randy filed an 

opposed motion to compel mediation. However, at the hearing on the motion held 

on January 25, counsel for Tiffany stated, “We’re not opposed to [mediation] at all. 

As a matter of fact, we’ve agreed to it. . . . Absolutely, we want to go to 

mediation.” Trial was scheduled for February 14, 2011. 

On January 27, Tiffany’s counsel sent a letter via facsimile to Randy’s 

counsel, stating:

We are in agreeance [sic] with your suggestion of Randy 

Wilhite to mediate this matter. We did have a discussion with him 

when we were retained by our client asking him to possibly assist out 

with a business evaluation. We did not go any further with the matter 

after one phone call discussion. After speaking with Mr. Wilhite, he 

does not feel that there is a conflict of interest in mediating the matter, 

nor do we. He is available for mediation on February 4, 2011 for a 

full day of mediation.

Our suggested mediator is Judge Squire. He is available in the 

afternoon on February 10th, all day February 11th and in the afternoon 

on February 12th.

Please let us know which mediator you would like to use so we 

can set up mediation immediately.

Tiffany filed a motion for fees for mediation on January 28. In this motion, 

she requested that Randy pay all fees and expenses for mediation. Tiffany noted 

that she had recommended an alternative mediator, Judge Squire,2 who charges 

less than the mediator selected by Randy, Randall Wilhite. Tiffany did not object 

to the use of Wilhite as a mediator in this motion. The court heard this motion on 

February 3, 2011. Tiffany was present at this hearing, but did not testify. 

Tiffany’s counsel stated that Randy’s counsel had contacted Mr. Whilhite’s office 

and engaged him for mediation without her knowledge. She went on to state, “We

 

2

Judge Squire’s name is spelled both “Squire” and Squier” in the record.
4

are requesting because my client does not have access to resources that [Randy] 

has, [he] pay the mediator. We have no problems mediating with Randall 

[Wilhite]. We made that clear.” (emphasis added). Randy’s counsel stated that the 

parties were scheduled to mediate with Wilhite at 9:00 the next morning. The trial 

court denied Tiffany’s motion and ordered the parties to split the mediation fees 

and costs equally.

At a motions hearing held on February 10, 2011, at which both Tiffany and 

Randy were present, counsel for Tiffany stated that the parties planned to mediate 

with Wilhite on Saturday, February 12. The record reflects that the mediation that 

had been scheduled with Wilhite on Friday, February 4, 2011 was cancelled due to 

inclement weather.3 The trial court reiterated at the close of this hearing that trial 

was set to begin the following Monday, February 14.

Both Randy and Tiffany filed their inventory and appraisements and 

proposed property divisions on February 11. They, along with their counsel,

attended mediation with Wilhite on February 12. At the end of the day-long 

mediation, Randy, Tiffany, and their counsel executed the MSA, pursuant to 

section 6.602 of the Texas Family Code. In pertinent part, the MSA provides:

5. Final Documents. Attorneys for Petitioner shall prepare the 

first drafts of the Final Decree of Divorce, the Agreement Incident to 

Divorce, and all conveyancing documents or assignments necessary to 

effect the establishment of the award of all property herein awarded to 

petition. Attorneys for Respondent shall prepare the first draft of all 

conveyancing documents necessary to effect the establishment of the 

award of all property herein awarded to Respondents. Both parties 

agree to execute all other documents reasonably required to effectuate 

the provisions of this settlement agreement. . . . If requested by either 

 

3

Tiffany’s affidavit attached to her motion for new trial, in which she challenges the 

qualifications of Wilhite as a mediator, states that Judge Squier was the mediator scheduled for

the canceled February 4th mediation, despite the indications in the record from the hearing on 

February 3rd and February 10th that Wilhite was the scheduled mediator for that date.
5

party, the Final Decree of Divorce will only refer to an Agreement 

Incident to Divorce, which will not be filed among the papers in this 

suit.

6. Arbitration. The parties shall submit (a) all drafting disputes, 

(b) issues regarding the interpretation of this settlement agreement, 

and (c) issues regarding the intent of the parties reflected in this 

settlement agreement to Randall B. Wilhite as an arbitrator, whose 

decision shall be binding on the parties, including decisions on the 

payment of attorney’s fees and arbitration costs incurred as a result of 

the arbitration.

7. Immediate Effect; Complete Agreement; Right to 

Judgment. This agreement is effective upon signing and supersedes 

and supplants all other agreements, written or otherwise, between the 

parties. This agreement constitutes the full agreement between the 

parties and no evidence shall be admissible to vary the terms of this 

agreement. A party is entitled to judgment based on this settlement 

agreement.

. . .

16. Agreement Signed Freely and With Approval of Attorney. 

Each party to this settlement has entered into same freely and without 

duress after having consulted with professionals of his or her choice. 

Each party hereto has been advised by the Mediator that the Mediator 

is not the attorney or accountant for any party, hereby releases the 

mediator from any possible action or claims, and acknowledges that 

they have been advised that each party should have this agreement 

approved by that party’s attorney prior to executing same.

. . .

18. THIS AGREEMENT IS NOT SUBJECT TO 

REVOCATION

As part of the MSA, Tiffany and Randy agreed to divide their community 

assets and liabilities pursuant to an attached spreadsheet, marked as “Exhibit A.” 

Exhibit A was taken directly from Randy’s Inventory and Appraisement and 

Proposed Division of Community Assets and Liabilities (“Randy’s Proposed 
6

Division”), with some interlineations and handwritten additions.4 Both Tiffany and 

Randy initialed each page of the MSA, as well as all three pages of Exhibit A. 

Handwritten “Additional Terms” on page three of Exhibit A provide that Randy 

was to pay Tiffany (a) $1,000,000 cash on the day the divorce decree was signed or 

thirty days from the signing of the MSA, whichever was sooner, (b) $500,000 by 

noon on December 31, 2011, and (c) $170,000 by noon on June 30, 2012. 

On February 16, the parties and their counsel appeared for trial. Prior to voir 

dire, counsel for Randy presented a motion to re-commit the parties to mediation to 

resolve the remaining parent-child issues. According to Randy’s counsel, the 

parties had initially agreed to mediate these issues before Judge Squire beginning 

that morning, but Tiffany’s counsel had left him a voice mail message the prior 

evening canceling the mediation. Randy’s counsel sought an order from the trial 

court compelling the parties to mediate the parent-child issues. Tiffany’s counsel 

responded that the parties had participated in mediation with Wilhite the previous 

Saturday “for over eight hours,” during which time issues concerning child custody 

were also addressed. “Mr. Wilhite felt that there was an impass[e] with regards to 

that issue.” The trial court denied Randy’s motion to compel the parties to return 

to mediation on the parent-child issues. Shortly after denying the motion to 

compel, counsel for both Randy and Tiffany agreed that they were bound by the 

MSA. Tiffany was present when her counsel acknowledged that the parties were 

bound by the MSA. Tiffany and Randy proceeded to a jury trial on February 16, 

17, and 18 solely on the issue of which joint managing conservator would have the 

exclusive right to designate the primary residence of their children. 

 

4 As discussed in more detail below, Exhibit A to the MSA is missing a page that is 

contained in Randy’s Proposed Division.
7

The parties returned to court on June 6, 2011 to move forward with the 

remaining issues concerning the children. At that hearing, counsel for Randy 

informed the court that pursuant to the MSA, he had prepared an Agreement 

Incident to Divorce (the “AID”), which incorporated the terms of the property 

division of the MSA. He stated that both he and Tiffany’s counsel believed that 

the AID accurately reflected the agreement of the parties, but that Tiffany refused 

to sign it. He requested that the trial court order the parties to sign the AID.

Tiffany’s counsel called her to testify at this hearing. Tiffany acknowledged

that she had signed the MSA after spending numerous hours in mediation. Tiffany 

testified that she believed that she had reason to revoke the MSA because she did 

not feel that it was a just and right division of the estate. She stated, “If I can 

revoke it, I would like to.” She also acknowledged that she had received a copy of 

the AID, but stated that there had been “too many changes” made to it and she was 

“not sure” if there was any incorrect language in it. She declined to return to 

mediator Randall Wilhite for decisions or changes regarding the MSA or AID. 

When asked if she needed more time to review the AID, Tiffany replied that she 

could not afford any more time. Finally, when asked why she refused to sign the 

AID, she responded, “I never wanted a divorce in the first place.”

The trial court informed Tiffany that once she had signed the MSA, it was 

binding on her and on the court. The trial judge stated that if there were drafting 

issues, he could send the parties back to the mediator, but that Tiffany had not 

identified any drafting issues. The trial court then stated, 

I don’t know about an Agreement Incident to Divorce, Mr. Tindall 

[counsel for Randy]. . . . It’s okay if they agree. But when they don’t 

agree, I don’t believe the Court can order her to sign a document. 

Although the Court can sign a Divorce Decree which incorporates the 

Mediated Settlement Agreement.
8

. . .

[T]he Court approves and orders that the Mediated Settlement 

Agreement is approved by the Court, and will be signed by the Court 

because it is, Mom, not revocable. You cannot revoke it at this point 

without taking additional steps.

Because the parties had other issues for the trial court to determine regarding the 

children, the trial court re-set the remaining issues for hearing on June 13. 

At the June 13th hearing, the trial court decided several issues concerning 

the rights and duties of the parents. Tiffany testified regarding the MSA. She 

again acknowledged that she had entered into the MSA. She stated that she would 

like to withdraw her consent to the MSA. The trial judge simply stated that 

Tiffany could request that relief, but that he could not grant it to her. Tiffany 

reiterated that she never wanted a divorce and that she never agreed to the use of 

“collaborative or corroborative law.” At the end of this hearing, the trial court set 

the case for entry of judgment on July 1, 2011. 

The trial court signed the final decree of divorce on July 1. In a section 

entitled “Agreement of Parties,” the following language regarding the MSA is 

provided:

The Court finds that the parties signed and entered into a valid and 

enforceable partition and exchange agreement as contained in the 

Mediated Settlement Agreement dated February 12, 2011. The Court 

has approved the agreement and partition and exchange agreement of

the parties and hereby incorporates all of those provisions with regard 

to the division of property as if set out verbatim herein. The court 

finds that the Mediated Settlement provides for a just and right 

division of the parties’ marital assets and liabilities, having due regard 

for the rights of each party and the children of the marriage.

The “Division of Marital Estate” section provides as follows:
9

The Court finds that the parties entered into a partition and exchange 

agreement in accordance with the Mediated Settlement Agreement 

dated February 12, 2011. The Court has approved the agreement and 

partition and exchange agreement of the parties and hereby 

incorporates all of those provisions with regard to the division of

property as if set out verbatim herein. The court finds that the 

Mediated Settlement provides for a just and right division of the 

parties’ marital assets and liabilities, having due regard for the rights 

of each party and the children of the marriage. IT IS THEREFORE 

ORDERED AND DECREED that all property is hereby divided as 

between the parties in accordance with the provisions of the Mediated 

Settlement Agreement signed by both parties and their respective 

attorneys on February 12, 2011.

The divorce decree also ordered each party to execute and have acknowledged 

certain documents attached to the decree. As is relevant to this appeal, Tiffany was 

ordered to complete the appropriate paperwork to assign her interest in several 

companies, described more fully below, to Randy. Neither Tiffany nor Randy 

signed the decree of divorce. Counsel for each of them signed the divorce decree, 

approving it “as to form only.”5 

On August 1, 2011, Tiffany, represented by new counsel,6filed a 

“withdrawal of consent” to the MSA and a motion for new trial related only to 

property issues. In this motion, for the first time Tiffany asserted that the 

mediation process was tainted by the use of a mediator who was not qualified. 

Specifically, Tiffany complained that Wilhite had received a “great deal of 

privileged information” from her former counsel and was going to act as cocounsel. According to Tiffany, Wilhite was unable to attend a scheduled meeting 

 

5 On Tiffany’s motion, the trial court signed a judgment nunc pro tunc on August 10, 

2011, correcting an error in the portion of the decree concerning the parent-child relationship. 

The judgment nunc pro tunc is again signed “approved as to form” by counsel for Randy and 

Tiffany, but it is not signed by either of them.

6

The trial court did not sign the order granting Tiffany’s substitution of counsel until 

August 17, 2011.
10

with her and her former counsel, and Tiffany requested that no second meeting be 

scheduled. Tiffany asserted that she never knowingly waived her right to the 

attorney-client privilege that arose from Wilhite’s assistance as an advocate for her 

in this case. Tiffany further alleged that there was legally and factually insufficient 

evidence to support the property award found in the divorce decree because the 

MSA was not presented to the trial court at or prior to the trial court signing the 

decree. Finally, Tiffany contended that the decree does not properly reflect the 

MSA based on the ordered assignment to Randy of eight companies that were not 

included in the MSA.

The trial court heard the motion for new trial on September 14, 2011. 

Tiffany, Randy, and their attorneys were present. After hearing the argument of 

counsel and inquiring whether counsel had “anything else” to present, the court 

orally denied the motion.7 The trial court signed an order denying the motion for 

new trial on September 20, 2011. This appeal timely followed.

DISQUALIFICATION OF MEDIATOR

In Tiffany’s first issue, she asserts that the trial court abused its discretion by 

basing its property division on an MSA procured with the use of an unqualified 

mediator. In this issue, she attempts to invalidate the MSA by asserting, nearly six 

months after she signed the MSA, that the mediator, Randall Wilhite, was

disqualified due to a conflict of interest. In her related second issue, she argues 

that the trial court abused its discretion by refusing to permit her to present 

 

7 After a recess, the parties returned to the bench. Tiffany’s counsel requested that the 

court sign late-filed findings of fact and conclusions of law, although he acknowledged that he 

had failed to give notice that they were past due. The trial court declined to sign the findings and

conclusion because the notice of past-due findings was not filed. Tiffany’s counsel then asked, 

“Judge, can I put on a Bill of Exception in terms of [Tiffany’s] testimony about consent on the 

Motion for New Trial, just to show that she was not doing an informed consent?” Opposing 

counsel objected on the grounds that the trial court had already ruled on the motion for new trial 

and that the hearing was not an evidentiary one. The trial court denied the request. 
11

evidence at the hearing on her motion for new trial in support of her allegations 

that Wilhite was disqualified. We begin our analysis of these two issues with an 

overview of the law concerning mediated settlement agreements under section 

6.602 of the Texas Family Code.

An MSA is immediately binding on the parties if the agreement:

(1) provides in a prominently displayed statement that is in boldfaced type, capital 

letters, or underlined, that the agreement “is not subject to revocation”; (2) is 

signed by the parties; and (3) is signed by the parties’ attorneys who are present at 

the time of signing. Tex. Fam. Code § 6.602(b). If an MSA meets these 

requirements, a party is entitled to judgment notwithstanding Rule 11 of the Texas 

Rules of Civil Procedure or another rule of law. Id. § 6.602(c). Compliance with 

section 6.602 makes the agreement an exception to Family Code sections 7.001 

and 7.006, which allow revision and repudiation of settlement agreements. See id.

§§ 7.001, 7.006; In re Joyner, 196 S.W.3d 883, 889 (Tex. App.—Texarkana 2006, 

pet. denied). But a court is not required to enforce an MSA if it is illegal in nature 

or procured by fraud, duress, coercion, or other dishonest means. Joyner, 196 

S.W.3d at 890; Boyd v. Boyd, 67 S.W.3d 398, 404–05 (Tex. App.—Fort Worth 

2002, no pet.) (determining that section 6.602 MSA may be subject to rescission 

due to intentional nondisclosure.); In re Kasschau, 11 S.W.3d 305, 312 (Tex.

App.—Houston [14th Dist.] 1999, orig. proceeding) (holding that a section 6.602 

MSA may be set aside on the ground of illegality).

Tiffany does not dispute that the MSA meets all the requirements of Texas 

Family Code section 6.602. Further, Tiffany does not complain that the MSA is 

illegal or that it was procured by fraud, duress, coercion, or some other dishonest 
12

means.

8

Thus, it does not appear that she has presented appropriate grounds for 

revocation of the MSA. Instead, as noted above, she challenges the validity of the 

MSA based on a last-minute attempt to disqualify the mediator.

Even if this complaint were a ground for revoking the MSA, an issue we do 

not address, Tiffany has waived any alleged conflict of interest resulting from 

Wilhite’s alleged involvement with her case and subsequent mediation of the 

division of the marital estate. First, as discussed above, her counsel specifically 

stated on two separate occasions that they agreed to the use of Randall Wilhite as a 

mediator: in the January 27, 2011 letter and at the February 3, 2011 hearing. 

Second, Tiffany was present at the February 3 and February 10 hearings, both 

described above, where mediation with Wilhite was discussed. She made no 

complaints or objections to the use of Wilhite as a mediator. Third, she attended 

mediation on February 12 and signed the MSA. 

According to the Ethical Guidelines for Mediators, promulgated by the 

Supreme Court of Texas, a mediator should disclose possible conflicts:

Prior to commencing the mediation, the mediator should make full 

disclosure of any known relationships with the parties or their counsel 

that may affect or give the appearance of affecting the mediator’s 

neutrality. A mediator should not serve in the matter if a party makes 

 

8

Tiffany asserts in her pro se reply brief that the MSA was procured by fraud, duress, 

and coercion, but these issues were not presented to the trial court or in her initial brief. Thus, 

we do not consider them on appeal. See Tex. R. App. P. 33.1 (requiring that, as a general 

prerequisite to appellate review, an issue must first be timely presented to the trial court); Tex. R. 

App. P. 38.3; Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, 

pet. denied) (“The Texas Rules of Appellate Procedure do not allow an appellant to include in a 

reply brief a new issue not raised in the appellant’s original brief.”). 

We further note that Randy filed a motion to strike the documents Tiffany attached to her 

reply brief. To the extent that any documents attached to her reply brief are not included in our 

record, we do not consider them. See San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 

815 n.14 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Accordingly, we deny Randy’s 

motion as moot.
13

an objection to the mediator based upon a conflict or perceived 

conflict.

Ethical Guidelines for Mediators, Misc. Docket No. 05-9107 (June 13, 2005),

available at www.supreme.courts.state.tx.us/MiscDocket/05/05910700.pdf.

Nothing in our record indicates that Tiffany ever objected to Wilhite based upon a 

conflict or perceived conflict at any time before the mediation occurred and she 

signed the MSA.

9

 Further, as noted supra, Tiffany did not speak up on February 

16 when her counsel acknowledged that the parties were bound by the MSA, 

which appears to be the first opportunity she had to express her dissatisfaction with 

Wilhite on the record after the mediation.

Indeed, Tiffany expressed her desire to “revoke” the MSA for the first time 

on June 6, 2011, nearly four months after signing it. At the hearing on this date, 

she stated that she wanted to revoke the MSA because it was not a just and right 

division of the marital estate and because she “never wanted a divorce in the first 

place.”10 But unlike other family law settlement agreements, the trial court need 

not determine if the property division is “just and right” before approving an MSA, 

and once signed, an MSA cannot be revoked like other settlement agreements. 

Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012).11

Tiffany did not challenge the qualifications of Wilhite as a mediator until 

she filed her motion for new trial on August 1, 2011, a month after the decree of 

 

9 We note that the parties were ordered to attend mediation, not to reach a mediation 

agreement. 

10 She reiterated these reasons for “withdrawing” her consent to the MSA at the June 13, 

2011 hearing.

11 The Milner Court went on to note that several courts of appeals have concluded that 

section 6.602 does not require the enforcement of an MSA that is illegal in nature or procured by 

fraud, duress, coercion, or other dishonest means, but left the applicability of those defenses for 

another case because the appeal at issue did not involve any of those allegations. Milner, 361 

S.W.3d at 619.
14

divorce incorporating the MSA by reference was signed by the trial court and 

nearly six months after the MSA was signed. For the first time, she alleged that 

Wilhite was disqualified due to a conflict of interest based on her alleged attorneyclient relationship with him.12

 

Attorney conflicts of interest are governed by the Texas Disciplinary Rules 

of Professional Conduct. Complaints based on violations of these rules are waived 

if not timely raised. E.g., Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012) (“The 

court of appeals held that Buck’s unexplained seven-month delay in seeking the 

attorney’s disqualification [based on an alleged conflict of interest] was sufficient 

to establish waiver. We have held that a delay of even less time waives a motion to 

disqualify.” (emphasis added).); Vaughan v. Walther, 875 S.W.2d 690, 690–91 

(Tex. 1994) (orig. proceeding) (holding that delay of six and a half months 

between time that party became aware of possible conflict of interest and seeking 

to disqualify attorney resulted in waiver of that party’s right to disqualify attorney); 

see also Jones v. Lurie, 32 S.W.3d 737, 744 (Tex. App.—Houston [14th Dist.] 

2000, no pet.) (op. on reh’g). Tiffany waited nearly six months after Wilhite 

conducted the mediation to complain that he was disqualified by an alleged 

conflict of interest. Thus, she has waived any alleged conflict of interest regarding 

Wilhite. Buck, 381 S.W.3d at 528. Because Tiffany waived any alleged conflict of 

interest regarding Wilhite, he was not an unqualified mediator. Accordingly, the 

trial court did not abuse its discretion in basing its property division on the MSA.

 

12 In her motion for new trial, Tiffany stated that her prior attorney had initiated 

conversations with Wilhite in an effort to obtain Wilhite’s assistance as co-counsel and had 

shared a “great deal of privileged information” with him. However, these allegations are 

contrary to her counsel’s description of Wilhite’s involvement in Tiffany’s case: “We did have a 

discussion with him when we were retained by our client asking him to possibly assist out with a 

business evaluation. We did not go any further with the matter after one phone call discussion.” 
15

For the foregoing reasons, we overrule Tiffany’s first issue. Additionally, 

because Tiffany waived her right to disqualify Wilhite by failing to timely raise it, 

the trial court did not abuse its discretion by refusing to allow her to present 

evidence after it denied her motion for new trial in support of her disqualification 

allegations.13 Accordingly, we overrule her second issue. 

APPROVAL OF THE MSA

In her third issue, Tiffany contends that the trial court erroneously signed the 

divorce decree allegedly containing the terms of the MSA because the MSA was 

not part of the trial court’s record when it signed the decree. We begin by noting 

that Tiffany does not claim that the trial court did not see or approve the MSA 

before incorporating it by reference into the divorce decree; instead, she claims that 

the trial court could not have performed the “ministerial act” of signing the divorce 

decree because the MSA was not made a part of the record before the decree was 

signed.

It is undisputed that the parties signed the MSA on February 12, 2011. 

Tiffany admitted she signed the MSA in open court. When the parties appeared 

before the court on February 16, Randy’s counsel announced that they had settled 

all property issues. Tiffany’s counsel unequivocally stated that the MSA meets the 

requirements of the Family Code and that the court can approve it as a “ministerial 

 

13 As noted above, Tiffany’s counsel attempted to make a “bill of exception” after the 

trial court had denied her motion for new trial. Generally, to preserve error in the exclusion of 

evidence, a party must attempt during the evidentiary portion of the trial to introduce the 

evidence. Ulogo v. Villanueva, 177 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2005, no 

pet.) (op. on reh’g) (citing Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. 

App.—Houston [14th Dist.] 2004, no pet.) and Tex. R. App. P. 33.1(a)). Further, when the trial 

court denied Tiffany’s attempted bill of exception, she still could have filed a formal bill of 

exception. See Tex. R. App. P. 33.2. Such a bill is appropriate to complain on appeal about a 

matter that would not otherwise appear in the record and must be filed no later than thirty days 

after the filing party’s notice of appeal is filed. Tex. R. App. P. 33.2.
16

act.” Her counsel further acknowledged more than once that the parties were

bound by the MSA. The trial court announced on February 16 that it would “honor 

and approve” the MSA as a “ministerial act” of the court. Thereafter, the parties 

proceeded with a jury trial only on the issue of primary conservatorship. During 

the jury trial, Tiffany acknowledged that property issues had been resolved “in 

another manner.” 

After the jury trial, the parties proceeded before the bench only on matters of 

support and possession of their children. Although Tiffany attempted to orally 

“withdraw” her consent to the MSA, the trial court explained that she could not do 

so and that it was binding on all parties immediately upon signing. Additionally, 

section 6.602 entitles a party to judgment based on an MSA if it meets certain 

requirements. Tex. Fam. Code § 6.602(c). As noted above, Tiffany does not 

dispute that the MSA meets all the requirements of section 6.602. The trial court 

does not have to determine if the property division is “just and right” before 

approving an MSA, and once signed, an MSA cannot be revoked like other 

settlement agreements. Milner, 361 S.W.3d at 618. Further, the record contains a 

copy of the MSA attached to proposed findings of fact and conclusions of law filed 

by Randy’s counsel on August 31, 2011.14 Thus, the MSA was made a part of the 

record prior to the hearing on Tiffany’s motion for new trial conducted on 

September 14, 2011.15 

 

14 These findings and conclusions were not signed by the trial court because Tiffany’s 

counsel failed to file a notice of past due findings pursuant to Texas Rule of Civil Procedure 297. 

15 Interestingly, as described above, the MSA provides that the first drafts of the decree of 

divorce and the AID—which, as noted above, Tiffany refused to sign—would be prepared by 

Randy’s counsel. On the request of either party, the final divorce decree “will only refer to” the 

AID, “which will not be filed among the papers in this suit.” Thus, in drafting the MSA, the 

parties specifically contemplated that the AID would not be included in the papers filed with the 

court. 
17

Finally, the MSA explicitly states that it functions as a partition and 

exchange agreement pursuant to Texas Family Code section 4.102:

Partition and Exchange Agreement. The provisions of this 

agreement serve[] as a partition and exchange agreement of all 

property set forth herein to the person to whom such property is 

awarded. All future income of a party and/or from any property 

herein awarded to a party is partitioned to the person to whom the 

property is awarded. All future earnings from each party are 

partitioned to the person providing the services giving rise to the 

earnings. This partition and exchange agreement is pursuant to Texas 

Family Code, Section 4.102 and in this respect, each party waives 

further disclosure of property and debts of the other party. A spouse 

holding title to property herein awarded or confirmed to the other 

spouse shall hold such property as a constructive trustee until such 

time that title to or other muniment to the property can be transferred 

to the spouse to whom such property is awarded or confirmed.

See Tex. Fam. Code § 4.102 (providing that spouses may partition or exchange 

between themselves at any time all or part of their community property and that 

property transferred by a partition and exchange agreement becomes that spouse’s 

separate property). A partition agreement does not require judicial approval. 

Hopkins v. Hopkins, No. 03-03-00629-CV, 2006 WL 112622, at *4 (Tex. App.—

Austin April 27, 2006, pet. denied). Thus, at the time they signed the MSA, the 

Diggs also signed a partition and exchange agreement, which, without judicial 

approval, operated as of February 12, 2011 to partition all of their community 

property into separate property as reflected in Exhibit “A” attached to the MSA. 

Cf. id. (finding partition and exchange agreement dividing community property 

into separate property legally enforceable at time it was signed); Tex. Fam. Code 

§ 6.604(d) (providing that, once a trial court approves a written informal settlement 

agreement, it “may set forth the agreement in full or incorporate the agreement by 

reference in the final decree”).
18

In light of the above, we fail to see how the trial court reversibly erred by 

signing the divorce decree incorporating the property division reflected in the MSA 

by reference when the court had already approved it, the partition and exchange 

agreement within it needed no judicial approval to effectuate the division of the 

parties’ marital estate, and a copy of the MSA is contained in our record. See Tex. 

R. App. P. 44.1(a) (stating that no judgment may be reversed on appeal on the 

ground that the trial court erred unless the court of appeals concludes that the error 

probably caused the rendition of an improper judgment or probably prevented the 

appellant from properly presenting her case to the court of appeals). Accordingly, 

we overrule Tiffany’s third issue.

TERMS OF THE MSA

In her fourth issue, Tiffany asserts that the property division in the divorce 

decree does not properly reflect the terms of the MSA, and thus she is entitled to 

set aside the award of property not found in the MSA. She contends that Randy is 

precluded from returning to Wilhite for binding arbitration pursuant to section 6 of

the MSA in her fifth issue. We consider these related issues concerning the 

interpretation of the MSA together.

We interpret the MSA under rules of contract interpretation. See Milner, 

361 S.W.3d at 619. If the agreement’s language can be given a certain and definite 

meaning, the agreement is not ambiguous, and its construction is a matter for the 

court. Id. If the agreement is susceptible to more than one reasonable 

interpretation, then the agreement is ambiguous, which creates a fact issue on the 

parties’ intent. Id. We may not consider extrinsic evidence for the purpose of 

creating an ambiguity or giving the MSA a meaning different from that which its 

language imports. See Toler v. Sanders, 371 S.W.3d 477, 480–81 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).
19

This dispute centers around item 23 listed on Exhibit A attached to the 

MSA, described as “MoBetter Meat Company, Inc. and Affiliated Companies.” 

This item was awarded to Randy; the estimated value of this item states, “See 

attached Spreadsheet.” As noted supra, Exhibit A is Randy’s Proposed Division, 

with some interlineations and handwritten additions.16 However, Randy’s 

Proposed Division included a spreadsheet entitled “MoBetter Meat Company, Inc. 

and Affiliated Companies Net Assets.” Randy acknowledges in his appellate brief 

that the MSA executed by the parties and their counsel on February 12, 2011 did 

not include a copy of this additional spreadsheet. 

In addition to MoBetter Meat Company, eight other companies are listed on 

this spreadsheet (collectively, the “MoBetter Meat Companies”). The eight other 

companies include: RD Rentals Ltd.; Allegiance Holdings, Ltd.; Allegiance 

Management, Inc.; Absolute Executive Services, Inc.; Purpose Driven Investments, 

LP; Randy’s Fine Foods Inc.; Randy’s Fine Homes LLC; and Great Pacific 

Investments, LLC. Randy lists the net assets of the MoBetter Meat Companies as 

$3,757,636.00. Tiffany included the MoBetter Meat Companies on her inventory 

and proposed division of property. She identified these companies under the term,

“Business Interests.” Her inventory and proposed division indicated that Randy 

proposed that he be awarded these companies, but she did not propose a division of 

these companies. She provided Randy’s valuation of these companies, but listed 

her valuation as “TBD.” 

Tiffany asserts that the “affiliated companies” included on the spreadsheet 

attached to Randy’s Proposed Division were not divided by the MSA. She argues 

 

16 As is relative to this particular item, on Randy’s Proposed Division, this item is 

designated as Randy’s Separate Estate, while on Exhibit A to the MSA, this designation has been 

struck out and next to the line describing this item, an “X” is placed in the column indicating it 

has been awarded to Randy.
20

that the trial court, by ordering her to execute an assignment of interest detailing 

the identity of the eight companies not specifically identified in the MSA, 

impermissibly modified the MSA. The Family Code does not authorize a court to 

modify an MSA, to resolve ambiguities or otherwise, before incorporating it into a 

decree. See Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex. App.—Houston [14th 

Dist.] 2006, pet. denied) (observing that trial court’s modifications to settlement 

agreements are typically grounds for reversal where modifications “add terms, 

significantly alter the original terms, or undermine the intent of the parties”).

Randy, on the other hand, points out that the MSA explicitly states, “Each 

party represents and warrants to the other party that he/she has made a full 

disclosure of all property and obligations of the parties (both community and 

separate) and that this settlement agreement divides, confirms and/or allocates all 

such items.”17 He argues that the “affiliated companies” were detailed and 

 

17 Randy also asserts that because Tiffany’s counsel approved the final divorce decree as 

to form, Tiffany is bound by the judgment. But signing a judgment with the notation “approved 

as to form only,” as Tiffany’s counsel did here, manifests a party’s intent to initiate the appellate 

process without being bound by the terms of the judgment. See Soon Phat, L.P. v. Alvarado, 396 

S.W.3d 78, 95–96 (Tex. App.—Houston [14th Dist.] 2013, pet. filed) (citing First Nat’l Bank of 

Beevile v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam)). Thus, we do not consider 

Tiffany bound by the decree because she did not sign it herself, and her counsel only approved it 

as to form. See id.

Randy further contends that Tiffany approved the MSA, her counsel approved the AID, 

the record reflects that Tiffany was aware of Randy’s claim that the eight companies she was 

ordered to assign to Randy were “affiliated companies,” Randy stated on the record that he 

owned at least seven business entities other than MoBetter Meats and Randy’s Fine Foods, and 

Tiffany had “a duty to speak” if she was uncertain of the meaning of “Affiliated Companies.” 

Most of these arguments would require us to refer to extrinsic evidence, which we may not do 

when considering the meaning of an MSA. See Toler, 371 S.W.3d at 480–81. Moreover, 

Tiffany, when faced with the divorce decree for the first time, refused to sign it. Additionally, 

she filed a motion for new trial raising her complaint regarding the inclusion of these eight 

companies in the division of property in the divorce decree. Although Tiffany approved the 

MSA, she did not sign the divorce decree, and she raised this specific complaint in her motion 

for new trial. Thus, she sufficiently preserved this complaint for our review. See Tex. R. App. 

P. 33.1(a)(1)(A); see also Brantley v. Brantley, No. 14-11-00583-CV, 2012 WL 727700, at *3 

(Tex. App.—Houston [14th Dist.] March 6, 2012, no pet.) (“To preserve a complaint of error in a 
21

disclosed by each party within their respective sworn inventories and 

appraisements. Randy asserts that the final judgment does not add or significantly 

alter the terms of the MSA or undermine the intent of the parties. See Beyers, 199 

S.W.3d at 362. Thus, according to Randy, the trial court did not impermissibly 

modify the MSA by ordering Tiffany to assign her interest in the MoBetter Meat 

Companies to Randy; rather, it simply effectuated the intent of the parties as 

expressed in the MSA.

Under line item 23 on Exhibit A to the MSA, Randy is awarded “MoBetter 

Meat Company, Inc. and Affiliated Companies.” No other companies are listed 

anywhere else in the division of property in the MSA. The MSA apparently 

contemplates that Randy was to be awarded more than just MoBetter Meat 

Company. But without reference to extrinsic evidence, such as the reporter’s 

record, items in the clerk’s record including the parties’ inventories and 

appraisements, or Tiffany’s affidavit, we cannot determine what other companies 

the parties intended to convey to Randy in the property division contained in the 

MSA.18 We conclude that because the MSA purports to convey more than just 

MoBetter Meat Company to Randy, but does not establish what other companies 

are to be conveyed to him, its meaning is ambiguous and the parties’ intent is 

therefore a question of fact. See Milner, 361 S.W.3d at 622. 

Because there was a fact question regarding the parties’ intent, the trial court 

should not have determined which companies, other than MoBetter Meat 

Company, were to be awarded to Randy in the final decree of divorce. 

 

judgment, a party must apprise the trial court of its objection by a motion to amend or correct the 

judgment, a motion for new trial, or some other similar method.” (internal quotations and citation 

omitted)).

18 As noted above, both parties identified eight other business entities in their inventories 

and proposed property divisions. 
22

Accordingly, we sustain Tiffany’s fifth issue. We reverse only that portion of the 

divorce decree concerning the division of the marital estate and remand for 

proceedings consistent with this opinion.

However, pursuant to section 6 of the MSA, the parties are required to return 

to the mediator for binding arbitration in the event of a dispute regarding the 

drafting of the MSA, issues regarding interpretation of the MSA, and issues 

regarding the intent of the parties as reflected in the MSA. We have determined 

that there is a fact question regarding the intent of the parties as reflected in the 

MSA regarding what companies, in addition to MoBetter Meat Company, if 

any,

19were awarded to Randy. The parties should be ordered to return to mediator 

Randall Wilhite for binding arbitration to resolve this issue Thus, we overrule 

Tiffany’s fifth issue, in which she asserts that Randy is precluded from insisting 

that they return to Wilhite for arbitration.

 

19 If the mediator determines that the parties did not intend to award all or any of the eight 

companies, other than MoBetter Meat Company, to Randy in the MSA, section 12 of the MSA 

provides for the following post-decree proceedings regarding division of property:

b. Both parties reserve all rights to divide property not divided or awarded to a 

party in the Final Decree of Divorce and Agreement Incident to Divorce.

c. A party seeking to divide property not divided or awarded to a party shall give 

written notice to the other party of their intention to mediate issues regarding a 

post-decree division of property. If, within ten days after receipt of the written 

notice, the parties cannot agree on a mediator or the other party does not agree to 

mediation or fails to attend a scheduled mediation of the controversy, the party 

seeking a post-decree division of property shall be released from the obligation to 

mediate and shall be free to file suit.

d. Exclusive venue for any post-decree proceeding shall be in the county where 

the Final Decree of Divorce was rendered.
23

In summary, we have overruled Tiffany’s first, second, third, and fifth 

issues. However, we have sustained her fourth issue. Accordingly, we reverse and 

remand only that portion of the divorce decree concerning the division of the 

parties’ marital estate for proceedings consistent with this opinion. We affirm the 

remainder of the divorce decree.

/s/ Tracy Christopher

Justice

Panel consists of Justices Brown, Christopher, and McCally.