in the Interest of M.G.F., a Child ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-241-CV
IN THE INTEREST OF
M.G.F, A CHILD
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Appellant Marvin Fulkerson appeals from the trial court’s order denying
his motion to sign an order reducing his child support obligation and from a
judgment confirming a support arrearage of $48,868.08. We affirm.
Background
Marvin Fulkerson and Linda Jordan divorced in 1993. The final divorce
decree ordered Fulkerson to pay $544 per month as child support for the
1
… See T EX. R. A PP. P. 47.4.
benefit of his and Jordan’s minor son, M.G.F. On September 8, 1995, the trial
court held a hearing at which the parties orally presented an agreement to
reduce Fulkerson’s child support obligation from $544 to $338 per month from
April 26, 1995, through the date of the hearing and to $362 thereafter.
Fulkerson also agreed to furnish Jordan a copy of his 1995 tax return as
evidence of his income, and Jordan agreed to provide Fulkerson proof of her
actual cost of providing health insurance for M.G.F. within thirty days of the
hearing. Both parties were sworn and testified that they accepted the
agreement. At the conclusion of the hearing, the trial court stated on the
record,
The Court will approve the agreement as stated here on the
record in open court and approved by both parties in front of the
Court, and I find that to be at this time in the best interest of the
child, and I will sign a written order to that effect.
Who wishes to prepare it?
The trial court made the following entry on its docket sheet: “9-08-95 Agreed
order modifying child support. J. Pavlik.”
In response to the trial court’s question, “Who wishes to prepare [a
written order],” Fulkerson’s attorney stated that he had already prepared an
order but that he needed to revise it and send it to opposing counsel for review.
But after the hearing, Fulkerson’s counsel sent a letter to Jordan’s counsel
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stating that the $362 recited in the oral agreement was a mistake and
proposing that the support obligation be reduced to $326.50. He later sent
another letter stating that the child support due for April to September 1995
should be further reduced. The parties did not submit a written order to the
trial court, and Fulkerson did not furnish Jordan with a copy of his 1995 tax
return.
In January 2005, the Attorney General filed a motion to confirm
Fulkerson’s child support arrearage, alleging an arrearage of $50,846.70 based
on a child support obligation of $544 per month through November 30, 2003,
the date on which M.F.G. turned eighteen. In response, Fulkerson filed an
answer and a “Motion to Sign Agreed Order Modifying Child Support.”
On March 19, 2007, the trial court heard the Attorney General’s motion
to confirm the support arrearage and Fulkerson’s motion to sign an agreed
order. The Attorney General offered evidence of Fulkerson’s payment record
and arrearage based on a support obligation of $544 per month through
November 2003. Most of the hearing, however, concerned the parties’ 1995
agreement and whether the trial court had orally rendered a judgment approving
the agreement. Fulkerson argued that the trial court had orally rendered a final
judgment approving the agreement at the conclusion of the 1995 hearing.
Jordan and the Attorney General argued that the agreement was merely
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tentative because it was contingent upon the parties’ exchanging
documentation after the 1995 hearing.
On March 22, 2007, the trial court signed an order denying Fulkerson’s
motion to sign an agreed order, and on April 10, 2007, it signed an order
confirming a child support arrearage of $48,868.08 as of February 28,
2007—the amount calculated by the Attorney General for that date based on
a monthly support obligation of $544. Fulkerson filed a request for findings of
fact and conclusions of law, a motion for new trial, and, later, a notice of
appeal.
After Fulkerson filed his brief on appeal, the Attorney General filed an
agreed motion to abate the appeal for findings of fact and conclusions of law.
We granted the motion, and the trial court filed findings of fact and conclusions
of law.2 The trial court found that it did not orally render judgment at the
September 8, 1995 hearing; that its docket entry of the same date was not a
rendition of judgment; and that the parties’ 1995 agreement was contingent
upon Fulkerson’s providing Jordan with proof of diminished income, which he
2
… This renders moot Fulkerson’s fifth issue on appeal, in which he
argues that we should abate the appeal for findings of fact and conclusions of
law, and we overrule his fifth issue.
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failed to do. We gave Fulkerson the opportunity to file a supplemental or
amended brief, but he has not done so.
Discussion
In his first issue, Fulkerson argues that the trial court rendered judgment
on the agreed child support reduction on September 8, 1995, orally and by its
docket entry.
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.
S & A Rest. Corp. v. Leal, 892 S.W .2d 855, 858 (Tex. 1995). In a suit
affecting the parent-child relationship, a trial court may render judgment orally
in the presence of the court reporter or in writing, including on the court’s
docket sheet or by a separate written instrument. T EX. F AM. C ODE A NN.
§ 101.026 (Vernon 2002).
A trial court’s intention to render judgment in the future cannot be a
present rendition of judgment. S & A Rest. Corp., 892 S.W.2d at 858. The
words used by the trial court must clearly indicate the intent to render judgment
at the time the words are expressed. Id. Thus, the words, “[Y]our divorce is
granted,” constitute a rendition of judgment, In re Marriage of Joyner, 196
S.W.3d 883, 887 (Tex. App.—Texarkana 2006, pet. denied) (emphasis added),
but the words, “I am going to grant the divorce in this case,” do not, James v.
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Hubbard, 21 S.W.3d 558, 561 (Tex. App.—San Antonio 2000, no pet.)
(emphasis added).
Whether a particular action constitutes a rendition of judgment is a
question of fact. Joyner, 196 S.W.3d at 887 (citing Bockemehl v. Bockemehl,
604 S.W.2d 466, 469 (Tex. Civ. App.—Dallas 1980, no writ)). When a trial
court makes findings of fact, its findings are reviewable for legal and factual
sufficiency of the evidence to support them by the same standards that are
applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917
S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). When, as here, findings of fact are filed and are unchallenged, they
occupy the same position and are entitled to the same weight as the verdict of
a jury; they are binding on an appellate court unless the contrary is established
as a matter of law or there is no evidence to support the finding. McGalliard
v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Raman Chandler Props., L.C.
v. Caldwell’s Creek Homeowners Ass’n, Inc., 178 S.W.3d 384, 390 (Tex.
App.—Fort W orth 2005, pet. denied). Here, the trial court made findings of
fact that it did not orally render judgment on the agreed child support reduction
at the September 8, 1995 hearing and that its docket entry was not a rendition
of judgment, and Fulkerson has not challenged these findings.
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There is some evidence to support the trial court’s finding that its oral
pronouncement on the record on September 8, 1995, did not constitute a
rendition of judgment. The trial court said, “The Court will approve the
agreement . . ., and I will sign a written order to that effect.” [Emphasis added]
The trial court’s use of the words “will approve” and “will sign” indicate an
intent to render judgment in the future. Cf. James, 21 S.W.3d at 561. The
trial court’s oral pronouncement of its intention to render judgment in the future
could not be a present rendition of judgment. See S & A Rest. Corp., 892
S.W.2d at 858.
The trial court also found that its docket entry was not a rendition of
judgment. The record supports this finding, too. The docket entry merely
states,”Agreed order modifying child support,” without any indication of what
the trial court’s ruling—if any—might have been. Thus, the docket entry
reflects no present intent to render a judgment of any kind. See id.
We hold that the record supports the trial court’s findings that it did not
render judgment orally or by its docket sheet notation on September 8, 1995,
and we overrule Fulkerson’s first issue.
In his second issue, Fulkerson argues that the trial court erred by denying
his 2007 motion to sign a written order reflecting the parties’ agreement
pronounced on the record on September 8, 1995, because the oral agreement
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is an enforceable rule 11 agreement. See T EX. R. C IV. P. 11 (providing that
agreements between parties are enforceable if made in open court and entered
of record). But a judgment cannot be rendered on an agreement, even if it
complies with Rule 11, after any party has withdrawn consent to the
agreement. Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984). It is
apparent from the record of the March 19, 2007 hearing that Jordan had
withdrawn her consent to the September 8, 1995 agreement because Fulkerson
had failed to provide her with a copy of his 1995 tax return showing his
decreased income. Therefore, we hold that the trial court did not err by
denying Fulkerson’s 2007 motion to sign a written order reflecting the 1995
agreement, and we overrule his second issue. Having overruled Fulkerson’s
first and second issues, we also overrule his third, in which he argues that the
trial court erred by not reducing his child support arrearage in accordance with
the 1995 agreement.
In his fourth issue, Fulkerson argues that the trial court erred by excluding
evidence of its September 8, 1995 docket entry. The record is somewhat
unclear, but it appears that the trial court sustained an objection when
Fulkerson’s present attorney asked the attorney who represented him in 1995
to refresh his memory by looking at the 1995 docket entry. But the trial court
later took judicial notice of its own file. Moreover, we have already held that
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the docket entry did not constitute a rendition of judgment; thus, even if the
trial court erred by sustaining the objection, Fulkerson has failed to show harm.
See T EX. R. A PP. P. 44.1 (providing that no judgment may be reversed on the
ground that the trial court made an error of law unless the error probably
caused the rendition of an improper judgment or probably prevented the
appellant from properly presenting the case on appeal). We therefore overrule
his fourth issue.
Conclusion
Having overruled all of Fulkerson’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, HOLMAN, and WALKER, JJ.
DELIVERED: August 28, 2008
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