Cook v. Cook
Jeffrey D. COOK, Appellant v. Barbara J. COOK, Appellee
Attorneys
Mary D. McKnight, Law Office of Mary D. McKnight, P.C., Dallas, TX, for Appellant., McCurley Orsinger, McCurley Nelson & Downing, L.L.P., Brad M. Lamorgese, Laurence A. Deplaza P.C., Laurence A. Deplaza and Sheila O’Connor, Dallas, TX, for Appellee.
Full Opinion (html_with_citations)
OPINION
In fourteen issues, Appellant Jeffrey Cook appeals from the trial court’s “Agreed Decree of Divorce.” Jeffrey mainly complains that the trial court entered the decree despite his prior revocation of his consent to the agreement. Because we hold that Jeffrey withdrew his consent to the agreement before the trial court granted the divorce and rendered judgment, we reverse the trial court’s judgment as void and remand this case for a new trial.
In his thirteenth issue, Jeffrey challenges findings of fact number thirty-one and number thirty-two, set out below:
31. The Court rendered judgment on the property division and the issues concerning the Suit Affecting the Parent-Child relationship on July 29, 200[5].
32. The agreement of the parties was unrevoked at the time of rendition of judgment.
Jeffrey contends that he revoked his consent prior to rendition of the judgment, basing his argument on the fact that on July 29, 2005, after approving the settlement agreement, the visiting trial judge stated, “[ujpon submission of the final decree and signed by the Court, the divorce will be granted at that time, not today.”
Section 7.006(a) of the family code provides,
To promote amicable settlement of disputes in a suit for divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law.1
The record shows that the divorce was expressly not rendered on July 29, 2005. Instead, under the particular facts of this case, the only evidence shows that the trial court granted the divorce when the visiting trial judge signed the decree on December 2, 2005. Jeffrey filed his “Objection to the Entry of Judgment and Motion for a New Trial,” contending that “agreement[s] as to many of the[] issues [in the proposed agreed judgment] were not negotiated with [him, and many] of the ‘stipulations’ on record took place without [his] participation ...,” on November 8, 2005. Consequently, we agree with Jeffrey that he repudiated the agreement (that is, revoked his consent) prior to the time of rendition.
The fact that the trial court approved the settlement agreement on July 29, 2005 does not transform such approval into a rendition of judgment. As the Texas Supreme Court has held,
[Ajpproval of a settlement does not necessarily constitute rendition of judgment. Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.The judge’s intention to render judgment in the future cannot be a present rendition of judgment. The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made.2
Appellee Barbara A. Cook argues that Jeffrey never revoked his consent to the agreement because his complaints ■ were vague and voiced too late. We held above that Jeffrey’s complaints were timely under the statute, and our review of his “Objection to the Entry of Judgment and Motion for a New Trial” shows that he challenges the entire agreement, except his designation as joint managing conservator, based on voluntariness (contending that “agreements as to many of the[ ] issues [in the proposed agreed judgment] were not negotiated with [him, and many] of the ‘stipulations’ on record took place without [his] participation”). Accordingly, we hold that his complaints were not so vague that the trial court was not sufficiently apprised of them.
Having held that Jeffrey revoked his consent before the divorce was rendered and therefore before judgment was rendered, we sustain Jeffrey’s thirteenth issue. We do not reach his remaining issues.
Barbara argues that we should not reverse and remand this case for a new trial because she would be entitled to enforce the rule 11 agreement as a contract anyway; therefore, she argues, there could be no harm in denying all of Jeffrey’s issues. Alternatively, Barbara argues that we could modify the judgment and affirm it as modified. A judgment rendered after one of the parties revokes his consent is void.
The fact that the judgment is void
does not preclude the [trial] court, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one side no longer consents to the settlement. The judgment in the latter case is not an agreed judgment, but rather is a judgment enforcing a binding contract.
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An action to enforce a settlement agreement, where consent is withdrawn, must be based on proper pleading and proof.7
Padilla [had] filed a counterclaim seeking enforcement of the parties’ agreement, and both sides moved for summary judgment on that claim.... [T]he summary judgment evidence established an enforceable settlement agreement as a matter of law. The trial court therefore should have granted Padilla’s motion for summary judgment and enforced the agreement.8
Our review of the record before us, however, does not show that Barbara sought enforcement of the agreement as a contract through pleadings and proof. We can therefore not determine at this time that enforcing a void judgment against Jeffrey would be harmless.
Accordingly, we reverse and remand this case for a new trial, without prejudice to the parties’ rights to seek or avoid the enforcement of the agreement as a contract.
LIVINGSTON, J., filed a dissenting opinion.
. Tex. Fam.Code Ann. § 7.006(a) (Vernon 2006) (emphasis added).
. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857-58 (Tex.1995) (citations omitted).
.James v. Hubbard, 21 S.W.3d 558, 561 (Tex.App.-San Antonio 2000, no pet.) (citing Leal, 892 S.W.2d at 857); see also Tri v. J.T.T., 162 S.W.3d 552, 561 (Tex.2005) (“A trial court’s judgment is the final indication of what relief it granted or denied with regard to specific causes of action.”) (emphasis added); Woods v. Woods, 167 S.W.3d 932, 934 (Tex.App.Amarillo 2005, no pet.) ("As can be seen, the italicized passages contain words short of evincing a clear intent to finally adjudicate (at the time the words were uttered) the rights involved.”) (emphasis added).
. See Leal, 892 S.W.2d at 858 ("The fact that the trial court believed that he had rendered judgment during the ... hearing is not dis-positive.”).
. See Tex.R.App. P. 47.1.
. Leal, 892 S.W.2d at 857.
. Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995); see also Woods, 167 S.W.3d at 933 n. 2 (stating same).
. Padilla, 907 S.W.2d at 462.
. See Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 841 (Tex.App.-Houston [14th Dist.] 2006, original proceeding) ("Because the order is void, it cannot be enforced against appellants.”); see also Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (Tex. 1932) ("[A] void judgment is one entirely null within itself, and which is not susceptible of ratification or confirmation, and its nullity cannot be waived.”).
.See Padilla, 907 S.W.2d at 462.