Background
David Cortez appealed a default divorce decree entered by the 438th Judicial District Court in Bexar County. While the appeal was pending, David and Alicia Cortez successfully mediated their dispute.
The parties jointly asked the Fourth Court of Appeals to render judgment according to their settlement and dismiss the appeal. Their proposed agreed judgment included conservatorship and child-support findings and an agreed parenting plan.
The Court’s Holding
The court declined to render the parties’ proposed judgment itself. Under the Texas Family Code, an agreed parenting plan addressing conservatorship and possession requires trial-court approval based on a finding that the plan serves the child’s best interest.
Because an appellate court cannot make that factual determination in the first instance, the court set aside the existing judgment without regard to the merits and remanded the case. The trial court may render judgment according to the settlement, subject to its approval of the parenting plan after finding that the plan is in the child’s best interest.
Key Takeaways
- Parties may resolve a pending divorce appeal through a mediated settlement that includes an agreed parenting plan.
- An agreed parenting plan is not effective merely because both parents consent; the trial court must find that it serves the child’s best interest.
- An appellate court may vacate and remand to permit the trial court to make the required findings, but it cannot make those findings in the first instance.
Why It Matters
The decision underscores that settlement does not displace the trial court’s statutory responsibility to protect a child’s best interest. Even when parents agree on conservatorship and possession, judicial approval remains necessary.
For practitioners settling family-law matters during an appeal, the proper disposition may be vacatur and remand when the agreement requires factual findings that an appellate court cannot make.