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This Final Decree of Divorce is stipulated to represent
a merger of a mediation agreement between the parties.
To the extent there exist any differences between the
mediation agreement and this Final Decree of Divorce,
this Final Decree of Divorce shall control in all
instances.
The parties used the terms “mediation” and “arbitration”
interchangeably when referring to the March 13 arbitration. For
example, the memorandum that Mr. Ray’s divorce counsel prepared in
advance of the March 13 arbitration was labeled “Mediation
Memorandum” rather than “Arbitration Memorandum”. Although the
arbitration agreement was not labeled as the “mediation
agreement”, both parties intended it as such.
Merger, with respect to the law of contracts under Texas law,
refers to the extinguishment of one contract by its absorption
into another contract and is largely a matter of the intention of
the parties. Smith v. Smith, 794 S.W.2d 823, 827-828 (Tex. App.
1990). Before one contract is merged into another, the last
contract must be between the same parties as the first, must
embrace the same subject matter, and must have been so intended by
the parties. Id. at 828.
When an agreement is incorporated into a divorce decree, the
decree is a consent judgment. McGuire v. McGuire, 4 S.W.3d 382,
386 (Tex. App. 1999); Rivera v. Office of Attorney General, 960
S.W.2d 280, 283 (Tex. App. 1997). Once the court approves the
agreement and makes it a part of the judgment, the agreement is no
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