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 CROWSON’S 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

FILED14-0192

SUPREME COURT OF TEXASAUSTIN, TEXAS

4/21/2014 7:49:46 PMBLAKE HAWTHORNE

CLERK

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IDENTITY OF PARTIES AND COUNSEL

Petitioner (Appellant below)

Andrea Crowson

Petitioner’s 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

Respondent’s 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)

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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 6.602’s 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  

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INDEX OF AUTHORITIES Cases  Andrea Crowson v. Thomas Crowson, No. 03-11-00195-CV (Tex. App.—Austin, Dec. 13, 2013, reh’g 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 [14th 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

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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 ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS (4th ed. 2000) .....................................................18 Ashley E. Lowe and Nina Dodge Abram, Should We Mediate Cases Involving Domestic Violence?, OAKLAND CTY BAR ASS’N, (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, JUDGE’S J. (Spring 2000) .............................16

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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 court’s 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, reh’g 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.

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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 [14th Dist.] 1999, orig. proceeding)).

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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).

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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

Thomas’s 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 court’s 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?

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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 couple’s 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 Andrea’s 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, Andrea’s 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 Andrea’s 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 Andrea’s meeting with her lawyer was interrupted

by the delivery of the fax and a message that Thomas’s 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 Thomas’s criminal defense counsel sent a second fax in the

afternoon, reinforcing and compounding Andrea’s earlier reaction.21

The faxes and calls, coupled with Andrea’s proximity to Thomas

during the mediation, triggered flashbacks to the night of Thomas’s 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.

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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.

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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 Thomas’s 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 I’m trying to figure out is, is what you’re 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, I’m not thinking that I’m 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 couldn’t 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 Andrea’s 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.

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arbitrate.42 After the arbitration, the court entered an order of divorce

reflecting the arbitrator’s 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

Thomas’s criminal defense counsel she couldn’t catch her breath and

couldn’t 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 women’s 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 Thomas’s 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 Andrea’s 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, Andrea’s 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 Andrea’s 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 court’s

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

Andrea’s other arguments, the court affirmed the trial court’s 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.

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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 6.602’s 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

party’s request to do so. Here, the evidence offered at the prove-up hearing

and then at the hearing on Andrea’s 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 party’s 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 court’s 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 6.602’s irrevocability provision

But the premises behind such laudable policy goals are not advanced

in every circumstance in which parties sign mediated settlement agreements

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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 [14th

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 state’s 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.

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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 ASS’N, (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 batterer’s 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, JUDGE’S 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

court’s inquiries and findings avoided the ultimate issue: the consequences

of Andrea’s 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 Thomas’s 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 ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 467-68 (4th 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 Andrea’s 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 Thomas’s 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 Andrea’s 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 Thomas’s 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'SMOTION TO SET ASIDE OR DECLINE TO ENFORCE

A MEDIATED SETTLEMENT AGREEMENT

~' II" I IN THE MATTER OF. \1 THEMARRIAGEOF

0.';)~ -It ~~REA A. CROWSON

::J~.~~~ THOMAS D. CROWSONit.:'

,. - :~ .-~:;B

:; .-::: ~:, R: .',,"; ~~ w , CHILDREN;L'..~~<.!.lHQ!!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(~/x!:~t:-cfl

J. L.'1'tI26/J ,?y{/AIM -11...; It7 "!-tk Ml>+(dYI.J Irs~d 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:;

1111111111111111111111111111111111111111111111111111111002181314

,2011.

823 823

._--

DC BK11256 PG335

APPROVED AS TO FORM ONLY:

THRASH LAW FIRM3 Lakeway Center Ct., Suite 100Austin, Texas 78734Tel. (513)463-5400 "'''-'.Fax (512)'J~3 540 /'

/.

11-<r1'''''I\.II. ThrashState Bar No. 14420300ATTORNEY FOR ANDREA A CROWSON A. CROWSON

GRAY AND BECKER, P.C.900 West AvenueAustin, Texas 78703Tel. (512) 482-0061Fax (512) 482-0904

By:------------~

Richard E. Gray, IIIState Bar No. 08328300Patricia DixonState Bar No. 24072068ATTORNEYS FOR THOMAS D. CROWSON, JR.

BARRETT AND COBLEAttorneys at Law700 Lavaca, Suite 605Austin, Texas 78701Tel. (512) 482-8193Fax (512) 482-0525

By:--------------John BarrettState Bar No. 01816300Kathleen Debra CobleState Bar No. 24049063INTERVENERS

824 824

Tab 2 Final Decree of Divorce (CR 760)

DC BK11256 PG1252

D!~C

REJliL

CAUSE NO. D-I-FM-IO-002071

".... ,

-'--0" ' ......or. ';:,':::'

353RD JUDICIAL DISTRICT

~

r:,~ ~~ ~ ...

.,TRAVIS COUNTY, T E X AS, "

IN THE DISTRICT COURT OF§§§§§§§§§§§§

ANDREA A. CROWSONANDTHOMAS D. CROWSON, JR.

IN THE MATTER OFTHE MARRIAGE OF

FINAL DECREE OF DIVORCE

--!!!!!!!!!!!!!!!---

On _?---,--~_~_;;_I,,-'I__,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 250th

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 ------"'j"""-LJu~~2:!:::...''---- , 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

353RD JUDICIAL DISTRICT

TRAVIS COUNTY, T E X A S

Filed in The Difitrict Courtof Travis County, Texas

. NOV 1l. f&JAJo\t " MAmalia Rodriguez.MeildOZalC'erk

IN THE DISTRICT COURT OF§§§§§§§§§§§§

DC BK11321 PG1265

IN THE MATTER OFTHE MARRIAGE OF

1

ANDREA A. CROWSONAND

i THOMAS D. CROWSON, JR.

z->-~"

ORDER DENYING 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 llN~/I~, 2011.

Order Denying Motion for New TrialIMMO IITIO Crowson

Page 1 of2

836 836

..DC BK11321 PG1266

AGREED AS TO FORM:

THRASH LAW FIRM3 Lakeway Center Ct., Suite 100Austin, Texas 78734(512) 263-5400(512) 263-5402 - fax

By:. _

Erin M. ThrashState Bar No. 14420300Attorneyfor Andrea A. Crowson

GRAY & BECKER, P.C.900 West AvenueAustin, Texas 78703(512) 482-0061(512) 482-0924 - fax

By: _Richard E. Gray, IIIState Bar No. 08328300Patricia J. DixonState Bar No. 24072068Monte L. SwearengenState Bar No. 18871700Attorneys for RespondentThomas D. Crowson, Jr.

Order Denying Motion for New TrialIMMO 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; andKathleen Debra Coble, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICTNO. 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 court’s 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 court’s enforcement of the MSA. 1

For the reasons that follow, we affirm the trial court’s 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, named2

herein as appellees, intervened in the divorce proceeding, and the final decree of divorce awardedthem judgment against Andrea for attorney’s fees. Because Andrea does not attack the validity ofthe judgment in their favor, the award of attorney’s fees is not before us.

FACTUAL AND PROCEDURAL BACKGROUND

Andrea and Thomas were married in 1994. Three children were born of the3

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 Thomas’s 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 Andrea’s four attorneys were permitted to

withdraw, with Andrea’s consent. New counsel entered an appearance on Andrea’s behalf (Andrea’s

divorce counsel), and Andrea continued to be represented by two other attorneys with regard to her

tort claims (Andrea’s tort counsel). Andrea’s divorce counsel requested a continuance of the

trial setting, which was denied. None of Andrea’s attorneys requested a continuance of the

mediation date.

On July 14–15, 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 the4

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 facts3

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 she4

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 Thomas’s possession of the

children be supervised.

Prove-up Hearing

On July 21, 2011, Andrea’s 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, Andrea’s

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 Andrea’s tort counsel, to which Andrea agreed.

Andrea’s 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

Court’s 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 “wasn’t comprehending” and “wasn’t 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 “wouldn’t have agreed to” and that she “wasn’t 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 Andrea’s 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 Andrea’s 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, Andrea’s 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 expert5

was her expert or she and Thomas “shared him.”

5

on Andrea’s 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 Thomas’s

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 Andrea’s 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 Andrea’s

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 “couldn’t 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 “couldn’t 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 “didn’t 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 party’s 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 Andrea’s 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 court’s 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, 855–56 (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 party’s 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, 165–66 (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 MSA’s compliance with section 6.602(b), the trial court abused its discretion

Section 153.0071 of the Family Code provides for binding mediated settlement agreements6

in suits affecting the parent-child relationship, provided the same three statutory requirements setforth in section 6.602(b) are met. See Tex. Fam. Code § 153.0071(d). In a suit involving theparent-child relationship, a trial court may decline to render judgment on a mediated settlementagreement if it finds that a party to the agreement was a victim of family violence and thatcircumstance impaired the party’s ability to make decisions and that the agreement is not in thechild’s 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 andpossession in her motion to set aside the MSA and motion for new trial, raising best interestsconcerns, she does not raise that issue on appeal and challenges the MSA only as to the propertydivision under section 6.602.

10

in enforcing the MSA because it was procured by duress, coercion, and undue influence. Andrea7

contends that she experienced severe duress, coercion, and undue influence during the mediation

resulting from Thomas’s 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 does7

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 applicationThomas produced, which indicated a higher net worth and income than the valuation to which heaverred during the proceeding. However, Andrea testified that she was aware of those documentsprior to mediation, and the record shows that the financial expert—who was either Andrea’s expertor the parties’ shared expert—offered a similar lower valuation of the parties’ community propertyat the time of the mediation. In addition, Andrea testified that although she believed her husbandhad not been truthful during the proceeding, no one had materially misrepresented anything to heror failed to tell her the truth concerning the MSA. Thus, even were we to consider the evidenceAndrea cites in her reply brief, we would conclude that it does not establish that the MSA wasprocured by fraud. See In re Fannette, No. 10-12-00141-CV, 2013 Tex. App. LEXIS 8558, at*16–20 (Tex. App.—Waco July 11, 2013, no pet.) (mem. op.) (upholding trial court’s enforcementof mediated settlement agreement where there was conflicting evidence and wife did not meetburden of establishing fraud); Torres v. Torres, No. 14-12-00436-CV, 2013 Tex. App. LEXIS 2003,at *6–7 & n.2 (Tex. App.—Houston [14th Dist.] Feb. 28, 2013, no pet.) (mem. op.) (no fraud whereevidence 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 court’sdetermination that agreement was unenforceable based on fraud where evidence showed husbandfailed to disclose all marital property and intentionally represented that he had).

Andrea also complains that the mediation was conducted without the implementation of8

any measures to protect her. Section 153.0071(f) provides that in a suit affecting a parent-childrelationship, a party may object to a referral to mediation and if mediation is held over the party’s

11

As an initial matter, we consider Thomas’s 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 ofthe objecting party. See Tex. Fam. Code § 153.0071(f). However, the record does not reflect thatAndrea objected to mediation or otherwise requested any protective measure, nor does she offer anyauthority in support of this argument. In addition, although Andrea complains that the trial courtordered the parties to mediation only eight days after her divorce counsel withdrew and was replacedby new counsel, the record reflects that the parties attended mediation by agreement or in accordancewith Travis County Local Rule 13.3 requiring mediation of all cases, and that none of her attorneysrequested 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 athttp://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. O’Quinn, 874 S.W.2d 776, 790–91 (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

ref’d 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 “wasn’t 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 court’s decision not to set aside the MSA on those grounds. See Granger,

236 S.W.3d at 855–56; In re Fannette, No. 10-12-00141-CV, 2013 Tex. App. LEXIS 8558, at

*16–20 (Tex. App.—Waco July 11, 2013, no pet.) (mem. op.) (upholding trial court’s enforcement

of mediated settlement agreement where agreement stated that parties signed without duress and

husband refuted wife’s 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 husband’s 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, 10–11(Tex. App.—Austin Mar. 25, 2004,

no pet.) (mem. op) (upholding trial court’s finding wife’s 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 *4–9. 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 Andrea’s 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 Webster’s Third New Int’l Dictionary

1402 (2002) (definition of mediation); Black’s Law Dictionary 1070–71 (9th ed. 2009) (same). We

overrule Andrea’s 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 court’s 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 889–90; Cayan, 38 S.W.3d at 165–66. We overrule Andrea’s

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 890–91; 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, Andrea’s 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 *6–7 (Tex. App.—Austin Feb. 29, 2008, no pet.) (mem. op.)

(party’s 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 Andrea’s fifth issue.

CONCLUSION

Having overruled Andrea’s issues, we affirm the trial court’s final divorce decree.9

Thomas has pending before this Court Appellee’s Motion to Strike Material Outside the9

Appellate Record and Appellee’s Motion to Strike Matters Outside the Record on Appeal, or in theAlternative 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 court’s final divorce decree. Therefore, the Court affirms the trial court’s

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 APPEALSTHIRD DISTRICT OF TEXASP.O. BOX 12547, AUSTIN, TEXAS 78711-2547

www.3rdcoa.courts.state.tx.us (512) 463-1733

J. WOODFIN JONES, CHIEF JUSTICEDAVID PURYEAR, JUSTICEBOB PEMBERTON, JUSTICEJEFF L. ROSE, JUSTICEMELISSA GOODWIN, JUSTICESCOTT K. FIELD, JUSTICE

JEFFREY D. KYLE, CLERK

January 31, 2014

Ms. Erin ThrashThrash Law Firm3 Lakeway Center Ct., Suite 200Austin, TX 78734

Mr. John BarrettBarrett & Coble7200 N. Mopac Expressway, Suite 440Austin, TX 78731

Ms. Monte L. SwearengenGray & Becker, P.C.900 West AvenueAustin, TX 78701* DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-11-00795-CVTrial 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. TalericoLiz 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