In Re Wayne A. Montgomery v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
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No. 11-24-00102-CV
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IN RE WAYNE A. MONTGOMERY

Original Mandamus Proceeding

MEMORANDUM OPINION
This mandamus proceeding originates from a pending divorce action between
Relator, Wayne A. Montgomery, and Real Party in Interest, Jean E. Montgomery.
Wayne has filed a petition for writ of mandamus requesting that we order the
Honorable Jason Cashon, the presiding judge of the 266th District Court in Erath
County, to (1) make certain findings, (2) sign his proposed final divorce decree, and
(3) pronounce that the parties are divorced. We conditionally grant Wayne’s petition
in part, and we deny it in part.
I. Factual Background
Wayne filed a petition for divorce from Jean in August 2023. In November
2023, Wayne and Jean signed a final decree that they intended to submit to Judge
Cashon; however, prior to Judge Cashon’s approval of the decree, Jean wished to
revoke her signature on and approval of the decree because an issue arose regarding
one of the properties that the parties owned (the Florence property). The parties
subsequently agreed to attend mediation. On February 26, 2024, Wayne and Jean,
along with their attorneys of record and the mediator, signed and agreed to be bound
by an irrevocable mediated settlement agreement (MSA) that settled all claims and
controversies between them in the pending divorce action.
The MSA provides in bold and conspicuous capital letters, as it should, that it
was enforceable and not subject to revocation unless the trial court declined to enter
judgment on the agreement pursuant to Section 153.0071(e-1) of the Family Code.1
Also in bold and capital letters, the MSA “confirm[ed] and acknowleg[ed] that each
party has freely and voluntarily entered into and executed [the MSA]” and that “there
was no duress or undue influence exerted by” the mediator, the attorneys, or any
party during the mediation. The parties mutually agreed to divide their marital
estate, and their property division was listed in an attachment to the MSA that was
incorporated into it. The MSA provides that either party could use the MSA as a
basis for a motion to enforce and it recited that Wayne would draft the necessary
final divorce decree within ten days of the MSA’s execution unless otherwise agreed

1
As Wayne notes in his petition, this section and the exception within it only applies to SAPCRs.
The applicable Family Code section here, Section 6.602, does not include the same or a similar exception.
Instead, Section 6.602(d) only allows a party to object to a trial court’s referral of a case to mediation if
family violence has been committed. Further, unlike Section 153.0071(e-1), Section 6.602(d) does not
permit a trial court to decline to enter judgment on the MSA in certain circumstances. TEX. FAM. CODE
ANN. § 6.602(d) (West 2020), § 153.0071(e-1) (West Supp. 2023) (the trial court may decline to enter
judgment on the MSA if it finds that certain specific circumstances exist). Therefore, if the MSA signed
by the parties in this case complies with the requirements of Section 6.602(b), the agreement is binding and
enforceable without a statutory exception.
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to by the parties. The MSA also provides that, should either party intend to dispute
any term of the agreement, they must schedule a teleconference with the mediator to
discuss their concerns and to interpret the MSA’s terms before seeking court
intervention.
On March 4, Wayne filed a “Motion for Entry of Final Decree of Divorce”
and requested that Judge Cashon sign “the Final Decree of Divorce” he submitted.
In support, the motion stated that the parties had signed and approved an MSA, and
that Jean’s attorney had signed the proposed final divorce decree submitted to the
trial court by Wayne. Wayne’s proposed divorce decree, which was signed by
everyone but Jean, was attached to his motion. The “Motion for Entry of Final
Decree” was set for a hearing on March 18.
At the hearing on his motion, Wayne testified that an agreement was reached
for the division of the parties’ marital property and that all parties had signed and
approved the MSA, and he requested that Judge Cashon “grant this divorce and
approve this final decree of divorce, which is [sic] culminated in the -- from the
[MSA].” Wayne testified that he had access to snacks, water, and restrooms, and
that he was free to leave at any time during the mediation, and he stated that he did
not “hear any type of duress argument” from Jean, her attorney, or the mediator
during the mediation.
Jean testified and agreed that she signed the MSA; however, she stated that
she signed it under duress—economic duress, physical duress, and “[p]sychological
duress.” Jean was combative and, at times, vague when her attorney inquired about
her claims of duress, and she complained about the quality of his representation
while he questioned her. She criticized her attorney during his questioning and said
that, if he had taken the time to meet with her, they could have discussed this
“background.”

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Regarding her claim of economic duress, Jean testified that she would have
filed for divorce first, but “Wayne took [her] retirement money” and placed it in an
account that she did not have access to. She also testified: “When my assets to be
able to fight [Wayne] on this have been taken from [me] and no one calls him to
accountability, it’s economic distress for me.” For physical duress, she stated that
Wayne was on probation “for running drugs” when they first met and that she
“know[s] what he’s capable of doing.” She testified that he said, “more than once
in the past year,” that if she causes him “any drama, [she] will not be here.”
However, she also testified that she is “not afraid of [Wayne],” that she sleeps with
a “.35” and that she can take care of herself. She stated that, “in the back of [her]
mind, that’s the physical threat. That is in the background.” Jean did not present
any evidence as to the alleged “psychological” duress.
Jean and her attorney then began arguing about how much contact they had
during the attorney’s representation. In the midst of their ranting, Judge Cashon
eventually intervened and ended the hearing before Jean’s testimony had concluded.
The following exchange occurred:
THE COURT: All right. I’ve heard enough. I’m [done] with
this. I’m not going to approve it. I’m going to set it for a bench trial.
We’ll let the chips fall where they may.

[JEAN MONTGOMERY]: All I wanted was --
THE COURT: You can step down and you can be quiet. I’ve
heard enough. You probably want to hire another lawyer too.

[JEAN MONTGOMERY]: Well, I really do feel like I need to.
THE COURT: Ms. Clements.

[WAYNE’S ATTORNEY]: Yes, sir, Your Honor.

THE COURT: Get with the court coordinator, get another final
setting and I’ll get it signed and entered and we’ll send it out.

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[WAYNE’S ATTORNEY]: Yes, sir, Your Honor.

THE COURT: Here. You can have this piece of paperwork
back. I don’t need that.
(End of proceedings)

Wayne filed this petition for writ of mandamus, alleging that Judge Cashon abused
his discretion by “disregarding” the MSA and refusing to sign his proposed divorce
decree. We issued a stay of the proceedings pending our disposition of Wayne’s
petition.
II. Standard of Review
Mandamus is an extraordinary remedy that is issued at the discretion of the
court. In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021)
(orig. proceeding). “It is meant for circumstances ‘involving manifest and urgent
necessity and not for grievances that may be addressed by other remedies.’” In re
Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding) (quoting
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). To obtain
mandamus relief, the relator must show that (1) the trial court clearly abused its
discretion and (2) the relator does not have an adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
A trial court abuses its discretion when its ruling is arbitrary and unreasonable or is
made without regard for guiding legal principles or supporting evidence. In re
Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).
“Similarly, a trial court abuses its discretion when it fails to analyze or apply the law
correctly.” Id.; see also In re Geomet Recycling LLC, 578 S.W.3d 82, 91 (Tex. 2019)
(orig. proceeding).
Mandamus relief is available if a trial court erroneously refuses to enter
judgment based on an enforceable MSA. In re Lee, 411 S.W.3d 445, 450 n.7 (Tex.

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2013) (orig. proceeding). Additionally, mandamus relief is available when a
trial court erroneously sets aside an enforceable MSA. In re Torres, 688 S.W.3d
359,368−69 (Tex. App.—Dallas 2024, orig. proceeding); In re Young, No. 12-18-
00341-CV, 2019 WL 141380, at *1 (Tex. App.—Tyler Jan. 9, 2019, orig.
proceeding) (mem. op.) (mandamus relief is available for trial court’s refusal to enter
judgment on an MSA because the parties will have lost the benefit of a settlement if
they are required to expend resources to appeal the error; the same is true when a
trial court erroneously sets aside an MSA); In re Lauriette, No. 05-15-00518-CV,
2015 WL 4967233, at *5 (Tex. App.—Dallas Aug. 20, 2015, orig. proceeding)
(mem. op.) (same).
III. Analysis
In his petition, Wayne contends that Judge Cashon abused his discretion when
he (1) “disregarded a binding [MSA] with no evidence of duress or coercion,” and
(2) refused to sign the divorce decree Wayne submitted “that was substantially in
compliance with the parties’ binding [MSA].” He requests that we order Judge
Cashon to “rescind [his] refusal” to find the MSA valid, to sign the proposed divorce
decree Wayne submitted, and to pronounce that the parties are divorced based on the
terms of the MSA.
Jean responds and reiterates that she signed the MSA under duress, albeit in
several respects. Alternatively, Jean argues that the MSA is “too ambiguous” to
determine whether the “proposed decree substantially complies with the terms of the
MSA.” In this regard, Jean contends that (1) neither the MSA nor the proposed
divorce decree address how the proceeds from the sale of the Florence property will
be distributed, and (2) the MSA states that Wayne is “indemnified from any liability
for past, present or future on the Florence home” and that Jean “will be 100%
responsible for all legal bills regarding the Florence lease.” Jean argues that, as a

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result, the MSA is ambiguous because the “proposed divorce decree attempts to fill
in the MSA’s missing sales proceeds information, but still remains ambiguous and
unclear regarding the Florence property.”
In his reply, Wayne avers that Jean improperly raises the issue of ambiguity
in a mandamus proceeding. Wayne contends that, consistent with the MSA, the
proper procedure to raise that issue would have been to confer with the mediator, as
the MSA requires, or for Jean to file a motion for clarification rather than seeking
court intervention.
A. Mediated Settlement Agreements in Divorce Proceedings
It is well-settled that an MSA in a suit for the dissolution of marriage is
enforceable and binding on the parties when, as here, the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced
type or capital letters or underlined, that the agreement is not subject
to revocation;

(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the time
the agreement is signed.
FAM. § 6.602(b); Highsmith v. Highsmith, 587 S.W.3d 771, 774–75 (Tex. 2019);
Milner v. Milner, 361 S.W.3d 615, 618–19 (Tex. 2012). If the MSA meets these
requirements, “a party is entitled to judgment on the [MSA] notwithstanding
Rule 11, Texas Rules of Civil Procedure, or another rule of law.” FAM. § 6.602(c).
“The trial court does not have authority to modify the MSA, order the parties to
modify the MSA, or enter a decree that varies from the terms of the MSA.” Torres,
688 S.W.3d at 366 (citing In re Marriage of Joyner, 196 S.W.3d 883, 890–91 (Tex.
App.—Texarkana 2006, pet. denied)).
However, a party may challenge the validity of a Section 6.602 MSA through
applicable contract defenses, such as illegality, fraud, duress, or coercion. See In re

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Marriage of Coppedge, No. 11-13-00116-CV, 2014 WL 4662373, at *4 (Tex.
App.—Eastland Sept. 18, 2014, no pet.) (mem. op.); Levisay v. Ferguson, No. 11-
10-00343-CV, 2012 WL 5439258, at *3 (Tex. App.—Eastland Nov. 1, 2012, no
pet.) (mem. op); see also Torres, 688 S.W.3d at 366 and n.1; In re Marriage of
Moncur, 640 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2022, no pet.).
“Duress” in this context occurs “when, due to some kind of threat, a person is
incapable of exercising her free agency and [is] unable to withhold consent.” In re
Lechuga, No. 07-15-00088-CV, 2015 WL 2183744, at *2 (Tex. App.—Amarillo
May 7, 2015, orig. proceeding) (quoting In re D.E.H., 301 S.W.3d 825, 829 (Tex.
App.—Fort Worth 2009, pet. denied)); see Weinberg v. Baharav, 553 S.W.3d 131,
134 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“While there are several
applications and definitions of duress, ‘[A] common element of duress in all its
forms . . . is improper or unlawful conduct or [the] threat of improper or unlawful
conduct that is intended to and does interfere with another person’s exercise of free
will and judgment.’ The threat must also be imminent.”) (internal citations omitted).
“[D]uress must be established based on the conduct of the party accused of duress,
not the emotions of the purported victim.” Weinberg, 553 S.W.3d at 134.
B. Judge Cashon Abused his Discretion as to the MSA
Here, during the hearing on Wayne’s motion, Jean testified that she signed the
MSA under duress and she presented some testimony on the issue; however, Judge
Cashon intervened, concluded the hearing prematurely, and announced that a final
hearing would be set for this case. In this regard, Judge Cashon did not rule on or
make any findings regarding whether (1) the MSA is enforceable, or (2) Jean had
properly and sufficiently challenged the validity of the MSA based on her claims of
duress before setting this matter for a final hearing. Indeed, one or both findings
was essential because, without sufficient evidence of duress, the MSA between the

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parties is binding on them. See FAM. § 6.602(b); Torres, 688 S.W.3d at 364;
Coppedge, 2014 WL 4662373, at *3–4.
Therefore, Judge Cashon clearly abused his discretion when he failed to
(1) rule on the issues stated above prior to setting the case for a final hearing and
(2) state a basis for his determination that the case should proceed to a final hearing
notwithstanding the MSA.2 Wayne does not have an adequate remedy by appeal to
cure Judge Cashon’s abuse of discretion because Judge Cashon set the matter for a
final, and presumably contested, hearing. See Torres, 688 S.W.3d at 368–69; Young,
2019 WL 141380, at *1; Lauriette, 2015 WL 4967233, at *5. Accordingly, we
conditionally grant Wayne’s mandamus petition in part on this basis.
C. Judge Cashon did not Abuse his Discretion when he Refused to Sign
Wayne’s Proposed Final Divorce Decree
Nevertheless, Judge Cashon did not abuse his discretion when he refused to
sign Wayne’s proposed divorce decree because the decree, as submitted, deviates in
various respects from the terms of the MSA. 3 As we have said, the trial court does
not have the authority to enter and sign a judgment, including a divorce decree, that

2
In her response, Jean contends that the MSA contains ambiguities. We note that the trial court
cannot enter judgment based on the terms of an MSA if there is an unresolved dispute concerning a possible
ambiguity in the MSA. Cf. Rustic Nat. Res. LLC v. DE Midland III LLC, 669 S.W.3d 494, 500, 503 (Tex.
App.—Eastland 2022, pet. denied, mtn. for reh’g filed). The trial court must first consider whether an
ambiguity exists, and if one does, it must either address and resolve the issue or refer the matter to the
mediator to clarify or resolve. Loya v. Loya, 526 S.W.3d 448, 450 (Tex. 2017); Milner, 361 S.W.3d at
619, 622; Maraio-Wilhoit v. Wilhoit, No. 11-18-00312-CV, 2021 WL 389243, at *3 (Tex. App.—Eastland
Feb. 4, 2021, no pet.) (mem. op.). The MSA in this case requires that if a dispute arises after the MSA is
executed, the parties must confer with the mediator in an effort to resolve the dispute before seeking court
intervention.
3
At the conclusion of the hearing on Wayne’s motion for entry of the proposed decree, Judge
Cashon stated, “I’ve heard enough. I’m [done] with this. I’m not going to approve it. . . . You can have
this piece of paperwork back.” As a result, Judge Cashon was somewhat vague as to which document he
was referring—the divorce decree or the MSA. Given that the hearing pertained to Wayne’s motion to
enter the proposed decree and that Wayne’s attorney presented the proposed decree to Judge Cashon before
asking him to grant the divorce and “approve this final decree of divorce,” we could presume that Judge
Cashon was referring to Wayne’s proposed decree.

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varies from the terms of the MSA. Torres, 688 S.W.3d at 366; Joyner, 196 S.W.3d
at 890–91; Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.—Dallas 2004,
no pet.).
Wayne argues that the final decree “substantially complies” with the terms of
the MSA and thus substantial compliance is sufficient. We disagree. His proposed
decree includes several additional terms that were not included in the MSA,
including language for the payment of and indemnification for the listed debts and
the sale of the parties’ residences, notice provisions, the assessment of attorneys’
fees, and language for how community income will be treated or allocated for
income tax purposes. In the absence of consent from all signatories to the MSA,
which is lacking here, one party cannot later include additional terms or conditions
in the parties’ formal settlement agreement, the final judgment, or the final decree
that are beyond the scope of the MSA, because the trial court’s final judgment must
be rendered in strict compliance with the MSA’s expressed terms and conditions.
Wilhoit, 2021 WL 389243, at *4 (citing Milner, 361 S.W.3d at 616); Joyner, 196
S.W.3d at 890–91. Accordingly, Judge Cashon did not abuse his discretion when
he refused to sign the final decree submitted by Wayne because it did not strictly
conform to the terms of the MSA that the parties signed. Accordingly, we deny
Wayne’s mandamus petition in part on this basis.
D. Conclusion
We conclude that Judge Cashon abused his discretion when he failed to
(1) rule on the enforceability of the MSA and the related duress complaints prior to
setting this case for a final hearing, and (2) state a basis for his determination that
this case should proceed to a final hearing notwithstanding the MSA. We further
conclude that Wayne lacks an adequate remedy by appeal to cure Judge Cashon’s
abuse of discretion.

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Therefore, we direct Judge Cashon to conduct a hearing and entertain
evidence regarding the enforceability of the MSA and the duress complaints raised
by Jean and make necessary findings before he may grant the parties’ divorce and
dispose of their marital property.4 In this regard, before the underlying divorce
proceeding may conclude in the trial court, the record on the MSA’s enforceability
and the duress complaints must be developed and any alleged ambiguities in the
MSA must be resolved. As such, Judge Cashon must determine and make findings
as to whether: (1) the MSA is enforceable, and if not, on what ground(s) it should be
set aside; (2) Jean executed the MSA while under any form of duress as she claims;
(3) the substance of the proposed final decree submitted by Wayne is consistent with
the MSA’s terms and conditions as stated in the agreement; and (4) ambiguities exist
in the MSA and, if so, whether the parties first consulted with and sought
clarification from the mediator on this issue prior to seeking court intervention as
required by the MSA. If Judge Cashon finds that the MSA executed by the parties
is enforceable but that the decree as presented by Wayne is inconsistent with the
MSA, he must then direct the parties to submit a proposed decree that is consistent
with the MSA’s terms.
IV. This Court’s Ruling
For the reasons stated above, we conditionally grant Relator’s petition for
writ of mandamus in part, and we deny it in part. A writ of mandamus will issue
only if Judge Cashon fails to comply with this court’s directives on or before
September 23, 2024.

By this opinion, we do not decide or express whether Jean’s testimony sufficiently established that
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she signed the MSA under duress. We note, however, that Jean did not testify about any alleged
“psychological duress,” nor did she provide any evidence that indicated an imminency of any physical
threat.
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We further vacate the order that we issued on April 24, 2024, that stayed the
proceedings in the trial court below.

W. STACY TROTTER
JUSTICE

July 25, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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