in the Interest of K.N.M., a Child ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-308-CV
IN THE INTEREST OF K.N.M., A CHILD
------------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
This case involves the attempted withdrawal of consent to a rule 11
settlement agreement in a custody case before entry of a final order. In three
issues, appellant Martha, 2 the child’s mother, challenges the propriety of the
order incorporating the settlement agreement; she contends in a fourth issue
1
… See Tex. R. App. P. 47.4.
2
… For purposes of maintaining the confidentiality of this appeal, we will
refer to all parties by fictitious names. See Tex. R. App. P. 9.8; Tex. Fam.
Code Ann. § 109.002(d) (Vernon 2008).
that the order is not in strict compliance with the settlement agreement. We
affirm.
Background Facts
Martha filed a suit affecting the parent-child relationship (SAPCR) in
November 2006 seeking to be named a parent joint managing conservator of
her daughter Karen, along with Karen’s father Peter. Peter and Martha have
never been married. Martha later amended her petition to seek sole managing
conservatorship of Karen. Martha and Peter subsequently entered into agreed
temporary orders appointing them joint managing conservators, with Martha
having the exclusive right to designate Karen’s residence within Texas.
The trial court referred the case to mediation on September 27, 2007.
The next day, Daphne, Martha’s mother, filed a petition in intervention, seeking
to be named Karen’s sole managing conservator and in the alternative to have
possession of and access to Karen. She alleged that she had standing because
“the child’s present environment presents a serious question concerning the
child’s physical health or welfare.” See Tex. Fam. Code Ann. § 102.004(a)(1)
(Vernon 2008) (providing that a grandparent may file an original suit requesting
managing conservatorship if there is satisfactory proof to the court that “the
order requested is necessary because the child’s present circumstances would
significantly impair the child’s physical health or emotional development”). In
2
an affidavit attached to her petition in intervention, Daphne alleged that she had
had significant contact with Karen since her birth, seeing her every weekend
and a few nights during the week. She also alleged that Karen and Martha had
moved in with her for several months when Karen was almost two years old
and that she had provided significant financial support.
Daphne further alleged that the summer Karen was three years old,
Martha and Peter broke up for good, and Martha and Karen moved in with her
for two months. She took care of Karen because Karen and Martha had a
“terrible relationship”; Daphne alleged that Martha and Karen would scream at
each other and that Martha did not want to be a mother to Karen. Eventually,
Peter began to take Karen three nights a week, Daphne would have her two or
three days a week, and Martha or Martha’s father would have Karen one or two
days a week. Daphne alleged that between August 2005 and March 2006
Martha would spend her nights in the bars and her days sleeping, leaving Karen
to be watched by her grandfather or placed in daycare.
Daphne further alleged that Martha eventually began dating the man who
would become her husband, got a day job, and stopped allowing Daphne to see
Karen as much. Karen would call Daphne screaming that she wanted to see her
and would scream in hysterics when Martha came to pick her up. Daphne
3
further alleged that Martha eventually moved to Dallas 3 and began to restrict
Daphne’s access to Karen, including obtaining temporary orders in the SAPCR
precluding Peter from allowing Karen to stay with or visit Daphne for more than
a four hour period during his periods of possession. Daphne alleges that in
November 2006, about the time Martha filed the SAPCR, Martha told Daphne
that she “could not ever see [Karen] again.” According to Daphne, Karen would
cry and beg Peter to let her see Daphne.
Daphne’s affidavit alleges that Martha continued to threaten that Daphne
would never see Karen again, calling her one time “in a drunken rage.” She
also alleged that Martha told Karen that Daphne did not love Martha and thus
could not be a part of Karen’s family; this upset Karen. Daphne averred that
Karen told her that Martha locks her in her room at night so that she will not
get up. She also accused Martha of drinking and taking Xanax and stated that
“[w]ith the exception of the two year period of time when she was pregnant
with [Karen] and the first year and a half after, [Martha] has taken many drugs
while [Karen] was in her care.” According to Daphne, Martha uses the
television and computer to entertain Karen and “has no interaction with [her]
at all.”
3
… Peter and Daphne live in the Houston area.
4
Daphne concluded her affidavit by averring that if Karen were kept from
her, it would break the bond between the two of them, detrimentally affecting
Karen. According to Daphne, she has
been the only stable person in [Karen’s] life since birth. [Her] home
has been the only place [Karen] felt totally safe. She loves her
father and has a bond with him, but even he has not been the
person she depends on. Because of all the turmoil in her little life,
to remove [Daphne] from [Karen’s] life would change her forever.
A mediation occurred on October 24, 2007, but no settlement was
reached. It is unclear which parties participated in the mediation. In January
2008, Daphne filed a petition in intervention for grandparent possession or
access, alleging that “[d]enial of possession or access . . . will significantly
impair [Karen’s] physical health or emotional well-being” and that she has had
a “significant past relationship” with Karen since her birth. See id.
§ 102.004(b).
Neither party objected to the petitions in intervention or filed a motion to
strike. Instead, on March 31, 2008, at the final hearing set for the case,
Martha, Peter, and Daphne all testified that they had reached an agreement for
Martha and Peter to be named joint managing conservators of Karen with
Martha having the primary right to determine Karen’s residence and
incorporating the standard possession order for parents living more than 100
miles apart. In addition, Daphne would be granted four consecutive days’
5
visitation with Karen during the summer: two days during Peter’s possession
and two days during Martha’s possession. They additionally agreed that if any
conservator was to have Karen stay overnight in someone else’s care that
“everyone [was] to be notified of that.” Peter was to pay child support and
health care insurance for Karen, and uninsured medical expenses were to be
split 50/50. Further, Martha was to have the right to make decisions regarding
Karen’s education. All parties agreed on the record that Daphne would be
responsible for making sure Karen was picked up and delivered safely to and
from the respective parents’ residences before and after Daphne exercised her
visitation and that if the parties wanted to provide Daphne “with more time
outside of her four consecutive days that they [would be] free to do that.”
After the parties finished putting their settlement agreement on the
record, the trial court stated,
All right. Somebody’s going to prepare an order which reflects
this. Is that correct?
....
All right. Then based upon the testimony of all the parties
involved, the court will approve the agreements as they have been
stated for the record, and I will make it the written order of the
court when it is submitted. [Emphasis added.]
6
A draft order was not immediately presented to the trial court.4
Thereafter, on May 28, 2008, Martha filed a “Notice of Withdrawal of
Consent to Oral Agreement.” In it, she purported to withdraw her consent to
the settlement agreement because of Daphne’s “continued lack of
communication and cooperation, for more than a year, with” Martha; Daphne’s
not having Karen overnight for more than a year; Martha’s feeling “pressured
into” entering the agreement; and Martha’s better understanding of Troxel v.
Granville, 530 U.S. 57 (2000).
Thereafter, Daphne filed a “Motion to Enter Final Order,” asking the trial
court to enter a written order reflecting the settlement agreement and attaching
a form order. The motion states that it is Daphne’s way to enforce the rule 11
settlement agreement. Martha responded, citing Padilla v. LaFrance and
contending that she had withdrawn her consent before the trial court rendered
judgment. 907 S.W.2d 454 (Tex. 1995). She also requested a jury trial.
Daphne objected to Martha’s attempt to withdraw her consent to the
settlement agreement.
The trial court held a hearing on Daphne’s motion to enter a final order,
during which Peter agreed with Daphne that Martha could not withdraw her
4
… The parties appear to agree that Martha’s counsel was to be
responsible for preparing the order.
7
consent to the agreement because the trial court approved the “agreement here
in the court, and that is on the record.” However, Martha and Peter also
argued that they had agreed to certain terms that were not included in the rule
11 agreement, but they never stated what those terms are. At the end of the
hearing, the trial court stated,
I agree the order should have been entered. But it wasn’t.
And I don’t have any problem giving y’all some additional time
before the dismissal docket to try to reach an agreed order. . . .
. . . [L]ooking at the record of this, it says - - it does say the
court will approve the agreements and I will make it the written
order of the court when it is submitted. That’s not like rendering
a judgment as of that date. And, you know, I think the law is that
they can withdraw it before [a] final order is entered.
. . . [I]f you have a specific case that you want to refer me
to that I can look at more carefully to support your position,
obviously I want to follow the case law as closely and carefully as
possible, and I’ll be happy to review anything that you want me to
review. But that’s my understanding of the law, especially if there
are still issues that are unresolved. And just looking back through
here, it does appear to me that there were some loose ends as
stated on the record.
The trial court did not rule on the motion, however; instead, it gave Daphne the
opportunity to file a bench brief in support of her position, which she did.
Despite the trial court’s comments at the end of the hearing, the trial
court subsequently signed an order dated July 16, 2008, naming Martha and
Peter joint managing conservators, incorporating the standard possession order
8
for parents living more than 100 miles apart, providing for Daphne to have
possession of Karen for two consecutive days of her choice during Peter’s
summer possession and two consecutive days of her choice during Martha’s
summer possession, ordering Peter and Martha to surrender Karen to Daphne
at their respective residences, and ordering Daphne to return Karen to Peter’s
and Martha’s respective residences. The order also provided that if Karen
would be staying in someone else’s care overnight during one parent’s time of
possession and access, that parent should notify the other parent. It also
incorporated the child support provisions agreed to by Martha and Peter. The
order requires Peter to provide health insurance for Karen and requires Martha
and Peter to each pay fifty percent of any uninsured expenses.
Martha filed a motion for new trial, which the trial court denied after a
hearing.
Standing
In her first issue, Martha contends that the trial court abused its discretion
by allowing Daphne to maintain the suit when she failed to plead facts or
submit any evidence supporting her alleged standing under chapter 102 of the
family code. 5
5
… Because standing involves subject matter jurisdiction, we address the
issue on appeal even though Martha failed to file a motion to strike the
9
Daphne alleged standing under family code section 102.004, subsections
(a) and (b). Tex. Fam. Code Ann. § 102.004(a)–(b). A party meeting the
standards of section 102.004(a) has standing to file an original SAPCR,
whereas a party must meet only the more relaxed requirements of section
102.004(b) to intervene in a pending SAPCR. Id.; see In re N.L.G., 238 S.W.3d
828, 830 (Tex. App.—Fort Worth 2007, no pet.); Whitworth v. Whitworth,
222 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Under
section 102.004(b), a grandparent may intervene in a pending SAPCR if the
grandparent has had substantial past contact with the child and appointment
of one or both parents as managing conservators would significantly impair the
child’s physical health or emotional development. Tex. Fam. Code Ann.
§ 102.004(b); In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.—Fort Worth
2008, no pet.). Here, because there is no evidentiary record on standing, we
review the standing issue by construing the pleadings in favor of the petitioner
and looking to the pleader’s intent. See In re A.M.S., 277 S.W.3d 92, 95 &
n.3 (Tex. App.—Texarkana 2009, no pet.); M.J.G., 248 S.W.3d at 757.
intervention in the trial court. See Whitworth v. Whitworth, 222 S.W.3d 616,
621 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re Pringle, 862 S.W.2d
722, 724 (Tex. App.—Tyler 1993, no writ).
10
Here, Daphne averred in an affidavit attached to her first petition that her
past contact with Karen included seeing her regularly on weekends and a few
nights during the week. She also averred that Karen and Martha had lived with
her for several months beginning when Karen was almost two. Martha did not
begin restricting Daphne’s access to Karen until after she had started dating her
fiancé, now husband. In addition, Daphne alleged that Peter had attempted to
allow Daphne access during the pendency of this suit even though Daphne is
Martha’s mother, not Peter’s. We conclude and hold that, construing the
pleadings in the light most favorable to Daphne, Daphne alleged sufficient facts
to support the conclusion that she had had substantial past contact with Karen.
See Villarreal v. Villarreal, No. 14-04-00071-CV, 2005 WL 3116218, at *2
(Tex. App.—Houston [14th Dist.] Nov. 23, 2005, no pet.) (mem. op.).
Daphne also alleged that Martha had taken drugs in the past in and out
of Karen’s presence. She also alleged that Martha’s withholding access was
causing emotional trauma to Karen. She averred that she was the only stable
person in Karen’s life and that Martha was still drinking and taking Xanax. She
also alleged that Martha uses the television and computer to entertain Karen
and that she has no interaction with Karen at all. Based on the foregoing, we
conclude and hold that Daphne sufficiently alleged that appointing Martha as
a managing conservator would significantly impair Karen’s physical health or
11
emotional development. Cf. Kushner v. Kushner, No. 03-06-00634-CV, 2008
WL 615422, at *1–3 (Tex. App.— Austin Mar. 7, 2008, no pet.) (mem. op.)
(holding that trial court did not abuse its discretion by denying motion to strike
under section 102.004(b) when grandfather’s petition alleged that mother was
an alcoholic, had been intoxicated when caring for child, had exposed child to
violent boyfriend, had lied during proceedings, and had child removed once by
CPS).
Accordingly, we conclude and hold that Daphne alleged sufficient facts
to show standing to intervene under section 102.004(b). We overrule Martha’s
first issue.
Rule 11 Agreement
In her third issue, Martha contends that the trial court abused its
discretion by entering an order incorporating the parties’ rule 11 agreement
because she validly withdrew her consent before the trial court rendered a final
order.
A rule 11 settlement agreement is not binding if a party withdraws its
consent before the trial court has rendered judgment unless the other party
successfully sues to enforce the settlement agreement as a contract. See
Padilla, 907 S.W.2d at 461–62; Brooks v. Brooks, 257 S.W.3d 418, 421–22
(Tex. App.—Fort Worth 2008, pet. denied); see also Tex. Civ. Prac. & Rem.
12
Code Ann. § 154.071(a) (Vernon 2005) (regarding settlement agreements
entered into after mediation).6 Once the trial court renders judgment based on
a rule 11 settlement agreement, the parties cannot revoke their consent to the
agreement. Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 821 (Tex.
App.—Fort Worth 2001, no pet.).
Judgment is “rendered” when the trial court officially announces its
decision on the matter submitted to it in open court or by written memorandum
filed with the clerk. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.
1995); Cook v. Cook, 243 S.W.3d 800, 801 (Tex. App.—Fort Worth 2007, no
pet.); Alcantar, 47 S.W.3d at 821.7
The rendition of the trial court’s decision, whether in open
court or by official document of the court, is the critical moment
when the judgment becomes effective. The subsequent reduction
of the rendered judgment to writing is typically carried out by the
party favored by the judgment. The signature of the trial court
upon the writing is merely a ministerial act of the court conforming
to the provision of Rule 306a(2) of the Texas Rules of Civil
Procedure which calls for “all judgments, decisions and orders of
6
… This was not a mediated settlement agreement under either section
6.602 or section 153.0071(c)–(e-1) of the family code. See Tex. Fam. Code
Ann. § 6.602 (Vernon 2006), § 153.0071(c)–(e-1) (Vernon 2008).
7
… A judgment routinely goes through three stages: rendition, reduction
to writing and judicial signing, and entry. In re Bill Heard Chevrolet, Ltd., 209
S.W.3d 311, 314 n.5 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding);
Wittau v. Storie, 145 S.W.3d 732, 735 (Tex. App.—Fort Worth 2004, no pet.);
Henry v. Cullum Cos., 891 S.W.2d 789, 792 (Tex. App.—Amarillo 1995, writ
denied).
13
any kind to be reduced to writing and signed by the trial judge with
the date of signing stated therein.” The trial judge’s signature upon
the written judgment does not affect or change the date of the
rendition of the judgment. A judgment is “entered” when it is
recorded in the minutes of the trial court by a purely ministerial act
of the trial court’s clerk, thereby providing enduring evidence of the
judicial act.
Henry v. Cullum Cos., 891 S.W.2d 789, 792 (Tex. App.—Amarillo 1995, writ
denied) (citations omitted) (cited in Alcantar, 47 S.W.3d at 821 nn.28–29).
Thus, the date a trial court signs a judgment controls subsequent new trial and
appellate deadlines rather than determines when a judgment is rendered.
Alcantar, 47 S.W.3d at 821; Henry, 891 S.W.2d at 792.
An intent to render judgment in the future does not equal rendition,
however. S & A Rest. Corp., 892 S.W.2d at 858; Cook, 243 S.W.3d at 801.
The words spoken or written by the trial court must evince a present act that
effectively decides the issues before the court. S & A Rest. Corp., 892 S.W.2d
at 858; Cook, 243 S.W.3d at 801. In other words, the trial court’s words must
“clearly indicate the intent to render judgment at the time the words are
expressed.” S & A Rest. Corp., 892 S.W.2d at 858. But what the trial court
believes to be the legal effect of its act is not dispositive. Id. (“The fact that
14
the trial court believed that he had rendered judgment during the May 14
hearing is not dispositive.”).8
Here, the issues to be resolved by the trial court were conservatorship,
child support, and other issues related to an original SAPCR, as well as
Daphne’s intervention seeking conservatorship or possession and access. The
case was set for a final hearing the day the parties were questioned about and
agreed to the settlement on the record in court. No issues were left open for
resolution, and the trial court’s language at the end of the hearing—“upon the
testimony of all the parties involved, the court will approve the agreements as
8
… In S & A Rest. Corp., the trial court had asked the plaintiff whether
she realized that once the judgment had been signed and the trial court
approved it, then, at that point, everything was “full, final and complete” and
she could not “come back later and say, ‘Well I made a mistake,’ or ‘We should
have gone for more.’” Id. at 857. Even though the trial court stated in the
motion for new trial hearing, “I approved the settlement. I also rendered
[j]udgment,” the supreme court held that what the trial court believed was not
dispositive because that belief was not reflected in the trial court’s spoken
words. Id. at 858. But see Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.
1986) (holding, in deciding whether judgment nunc pro tunc was proper, that
“whether the court pronounced judgment orally and the terms of the
pronouncement are questions of fact”); Hernandez v. Lopez, No. 01-06-00901-
CV, 2009 WL 793635, at *4 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(op. on reh’g) (same). Thus, it appears that the trial court, in making findings
of fact regarding whether it rendered judgment orally, and if so what the terms
of that judgment are, must rely solely on what the record reflects the trial court
did and said, rather than the trial court’s independent recollection of those
facts. See S & A Rest. Corp., 892 S.W.2d at 858; Escobar, 711 S.W.2d at
232; Hernandez, 2009 WL 793635, at *4.
15
they have been stated for the record, and I will make it the written order of the
court when it is submitted”—indicates a present intent to orally render
judgment on the parties’ agreement and an intent to sign a “written”
memorialization of the present order at a later date. See Patel v. Eagle Pass
Pediatric Health Clinic, Inc., 985 S.W.2d 249, 251–52 (Tex. App.—Corpus
Christi 1999, no pet.) (holding the following words showed a present intent to
orally render judgment, “Settlement is approved and ordered. Mr. Rhodes, . .
. you draft the order, circulate it, and let’s have it within five working days.”);
Arriaga v. Cavazos, 880 S.W.2d 830, 832–33 (Tex. App.—San Antonio 1994,
no writ) (holding the following sufficient to show present intent to orally render
judgment: “[T]he court will order $4,259 payable no later than ten days.”).
Our conclusion is further supported by the trial court’s docket sheet entry
for that day: “Final Hearing - Parties appeared w/ attys & testified; All matters
agreed - Ct. approved agreements; Order to be presented.” See Tex. Fam.
Code Ann. § 101.026 (Vernon 2008); Henry, 891 S.W.2d at 793.
The facts in this case, including the actual words spoken by the trial
court, distinguish it from Cook, 243 S.W.3d at 801–02, in which a majority of
the panel held that the trial court did not indicate a present intent to render
judgment when it stated that “[u]pon submission of the final decree and signed
by the Court, the divorce will be granted at that time, not today.” But see
16
Cook, 243 S.W.3d at 805 (Livingston, J., dissenting) (urging that trial court’s
approval of settlement agreement as “just and right” and statement that
“agreement . . . is approved” had legal effect of granting divorce). Here, the
trial court clearly distinguished between its oral rendition at the hearing and the
need for a written memorialization of that order, stating, “I will make it the
written order of the court when it is submitted.” [Emphasis added.]
Accordingly, we conclude and hold that the trial court rendered a final
order in the case on March 31, 2008 in open court, and, therefore, Martha did
not timely withdraw her consent to the rule 11 settlement agreement. We
overrule Martha’s third issue.
In her second issue, Martha contends that the trial court abused its
discretion by signing a final order giving Daphne a superior right of possession
to Karen without proper pleadings or evidence under chapter 153, denying
Martha her Fourteenth Amendment due process rights. She specifically cites
sections 153.002, 153.432, and 153.433 of the family code. 9
9
… Section 153.002 states that the trial court shall always make the
child’s best interest its primary consideration in determining issues of
conservatorship and access. Tex. Fam. Code Ann. § 153.002 (Vernon 2008).
Section 153.432 authorizes a grandparent to file either an original or
modification suit for possession of or access to a grandchild, and section
153.433 requires the trial court to order grandparent access if the grandparent
“overcomes the presumption that a parent acts in the best interest of the
parent’s child by proving by a preponderance of the evidence that denial of
17
To the extent that Martha’s argument in her second issue is contingent
on her contention that she validly withdrew her consent to the rule 11
agreement, we overrule her second issue for the reasons set forth above. To
the extent that Martha’s argument is based on her contention that Daphne did
not overcome the chapter 153 presumption that a parent acts in his or her
child’s best interest, permitting a grandparent to obtain court-ordered access
only upon a showing that denial of access will “significantly impair the child’s
physical health or emotional well-being,” we hold that the issue was resolved
by the settlement agreement. See Tex. Fam. Code Ann. §§ 153.007, 153.433
(Vernon 2008); In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig.
proceeding).
The public policy of the State of Texas is that the best interest of the
child is the primary consideration of the court in determining conservatorship
issues. Tex. Fam. Code Ann. § 153.002 (Vernon 2008); Garcia-Udall v. Udall,
141 S.W.3d 323, 331 (Tex. App.—Dallas 2004, no pet.); see In re C.A.P., Jr.,
233 S.W.3d 896, 902 (Tex. App.—Fort Worth 2007, no pet.). An agreement
on conservatorship issues that is not in the child’s best interest violates public
policy and is unenforceable. Garcia-Udall, 141 S.W.3d at 331 (citing Leonard
possession of or access to the child would significantly impair the child’s
physical health or emotional well-being.” Id. §§ 153.432, 153.433.
18
v. Lane, 821 S.W.2d 275, 278 (Tex. App.—Houston [1st Dist.] 1991, writ
denied); Hill v. Hill, 819 S.W.2d 570, 572 (Tex. App.—Dallas 1991, writ
denied)).
The trial court specifically found that
possession of the Child by [Daphne] is in the best interest of the
Child because as all parties involved, through their own free will
and after being questioned by their respective attorneys in open
court, created a Rule 11 Agreement in the presence of the Court by
testifying that it was their desire to allow such possession because
they felt it would be in the best interest of the Child. Said
possession was not created nor forced upon the parties; rather, the
Court accepted their testimony that the possession was in the best
interest of the Child and concurred with their decision.
Martha does not challenge this finding; thus, it is binding on us unless the
contrary is established as a matter of law or there is no evidence to support the
finding. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986);
Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, 178
S.W.3d 384, 390 (Tex. App.—Fort Worth 2005, pet. denied). Considering the
parties’ agreement and the policies set out in the family code, Martha has not
made such a showing. We conclude and hold that the trial court did not abuse
its discretion by approving the parties’ settlement agreement and thus granting
Daphne the possession and access agreed to by the parties. See Tex. Fam.
Code Ann. § 153.007(a)–(b) (providing that parties may amicably settle
conservatorship and possession disputes by agreement and that trial court shall
19
render order accordingly if agreement is in child’s best interest). We overrule
her second issue.
Conformance of Final Order to Rule 11 Agreement
In her fourth issue, Martha complains that the final order is incomplete
and does not strictly conform to the parties’ agreement. When parties reach
a settlement agreement, the judgment must conform to that agreement.
Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006); Vickrey v. Am. Youth
Camps, Inc., 532 S.W .2d 292, 292 (Tex. 1976); Tinney v. Willingham, 897
S.W.2d 543, 544 (Tex. App.—Fort Worth 1995, no writ). Martha contends
that the final order does not conform to the settlement agreement in numerous
ways; we will examine each one in turn.
Daphne’s Attorney
Martha says that the final order reflects the wrong attorney for Daphne.
But the attorney listed is the one who actually represented her at the March 31
hearing during which the parties testified to their settlement agreement,
although her counsel has since changed. The inclusion of this attorney’s name
lends further support to our conclusion that the trial court rendered judgment
orally on that date as that attorney was the one who argued at the “final
hearing” rather than the subsequent motion to enforce hearing. Additionally,
the presence of her attorney’s name as of March 31, 2008 in the order
20
accurately reflects her representation as of that date as shown in the record. 10
Martha also claims that the order inaccurately reflects that a jury was waived;
however, at the time the order was rendered, the parties had waived a jury by
entering into the agreed settlement and allowing the trial court to render
judgment.11 See Solares v. Solares, 232 S.W.3d 873, 882 (Tex. App.—Dallas
2007, no pet.); Massey v. Galvan, 822 S.W.2d 309, 318 (Tex. App.—Houston
[14th Dist.] 1992, writ denied). Thus, we conclude that the final order is not
nonconforming in these respects.
Agreed Parenting Plan
Martha contends that “[t]he Parenting Plan [referenced on page 2 of the
order] was not agreed to by the parties on the Record or otherwise.” This is in
reference to the following statement in the order: “The Court finds that the
provisions in these orders relating to conservatorship, possession of and access
to the child, child support, and a dispute resolution process to minimize future
disputes constitute the parties’ agreed parenting plan.”
10
… Moreover, even if the order did not accurately reflect Daphne’s
attorney’s name, such an error would be clerical rather than judicial. See
McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ
denied).
11
… Martha did not request a jury until after she attempted to withdraw
her consent to the settlement agreement.
21
Family code section 153.007 provides that the parties to a dispute
regarding conservatorship, or possession and access, or both, may amicably
settle their disputes by entering into an agreed parenting plan, subject to the
trial court’s approval after considering the child’s best interest. Tex. Fam. Code
Ann. § 153.007; Lane v. Hart, 651 S.W.2d 419, 421 (Tex. App.—Eastland
1983, writ ref’d n.r.e.) (holding that oral agreement qualifies as agreed
parenting plan under former version of section 153.007); see McLendon v.
McLendon, 847 S.W.2d 601, 608 (Tex. App.—Dallas 1992, writ denied)
(noting that rule 11 itself “equates a written agreement with the ‘open court
and entered of record’ portion of [the] rule”). Here, the parties entered into a
rule 11 settlement agreement on the record, disposing of all the
conservatorship, possession, and access issues, which the trial court approved,
finding that it was in Karen’s best interest. Accordingly, we conclude and hold
that this statement in the final order is in conformance with the parties’
agreement and comports with section 153.007. See Tex. Fam. Code Ann.
§ 153.007(a), (b).
Child’s Residence Limited to Texas
Martha contends that the following was not agreed to, on the record or
otherwise:
22
The Court finds that, in accordance with section 153.001 of the
Texas Family Code, it is the public policy of Texas to assure that
children will have frequent and continuing contact with
conservators who have shown the ability to act in the best interest
of the child, to provide a safe, stable, and nonviolent environment
for the child, and to encourage conservators to share in the rights
and duties of raising the child. IT IS ORDERED that the primary
residence of the child shall be the state of Texas, and the parties
shall not remove the child from the state of Texas for the purpose
of changing the primary residence of the child until modified by
further order of the court of continuing jurisdiction or by written
agreement signed by the parties and filed with the court.
It is unclear which part of this statement Martha challenges. However, as to
the second sentence regarding residency, Peter agreed on the record that
Martha would have the primary right to determine Karen’s residence “within the
state of Texas,” and Martha testified that she agreed with “everything that’s
been said.” [Emphasis added.] As to the first sentence, it merely restates the
public policy of the State as to conservatorship issues and does not mention
possession and access by nonconservators, such as Daphne is here. As such,
it is difficult to ascertain how it conflicts with the parties’ agreement at trial or
how it could have caused an improper judgment. See Tex. R. App. P.
44.1(a)(1). We conclude and hold that this provision does not conflict with or
impermissibly add to the parties’ agreement.12
12
… Martha also contends that the order erroneously states that Peter
lives out of state, but this is simply a misreading of the language, which states
that the geographical restriction will be lifted if, at any time Martha wants to
23
Conservators Living 100 Miles or Less Apart
Martha contends that the parties did not agree on the standard
possession schedule for parties living 100 miles or less apart. We agree. Peter
testified that the parties agreed that Peter will have standard possession for
parents living over a hundred miles apart. Although both schedules are included
in the order, the schedule for parents living less than 100 miles apart
specifically says that it does not apply when Peter lives more than 100 miles
away. It is undisputed that Peter lives in Houston, and Martha lives in the
Metroplex area. Accordingly, we conclude and hold that this provision
conforms to the parties’ agreement.
Daphne’s Possession
Martha claims that the parties never agreed that Daphne would have a
superior right of possession to Karen, that she was to surrender Karen at either
Peter’s or Martha’s house, depending on whose period of possession it was, or
that Daphne was to have exclusive periods of possession.
The part of the order giving Daphne possession states as follows:
[Daphne] shall have a superior right of possession of the child as
follows:
move out of state, Peter is then living out of state.
24
1. Summer Possession by [Daphne] - [Daphne] shall have
possession of the child for a period of two consecutive days of her
choice during [Peter’s] summer possession and a period of two
consecutive days of her choice during [Martha’s] summer
possession, totaling a period of four days each year . . . .
2. Surrender of Child by [Martha] and [Peter] - [Martha]
and [Peter] are ORDERED to surrender the child to [Daphne] at the
beginning of each period of [Daphne’s] possession at their
residence.
[3]. Return of Child by [Daphne] - [Daphne] is ORDERED to
return the child to [Peter] and/or [Martha], if [Peter] or [Peter13 ] are
entitled to possession of the child, at the end of each of [Daphne’s]
exclusive periods of possession, at their residence.
Peter testified that the parties agreed that Daphne would “exercise two
of [his] 42 days in the summer for the purpose of her having a little bit of
visitation” and that Martha would “be surrendering two of her days.” When
asked if she understood that Daphne would “be exercising possession, two of
those days coming out of [Martha’s] summer possession and two days coming
out of [Peter’s] summer possession,” Martha answered, “Yes.” Thus, Peter and
Martha each agreed that they would surrender two of their days of possession
to Daphne so that Daphne could exercise “possession” of Karen. A person with
rights to “possession of” a child may exercise possession and control of the
13
… This should reference Martha and is clearly a typo based on the rest
of the sentence. Although invited to do so by the trial court, Martha declined
to file a motion asking the trial court to correct any nonjudicial errors in the final
order. See McLendon, 847 S.W.2d at 610.
25
child, to the exclusion of all other persons including the managing conservator,
during periods of possession. E.C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d
825, 831 (Tex. App.—Corpus Christi 2000, no pet.); Hopkins v. Hopkins, 853
S.W.2d 134, 137 (Tex. App.—Corpus Christi 1993, no writ). Moreover, the
parties specifically agreed that Daphne would be allowed additional access
during either parent’s period of possession if that parent so consented.
Although there was some confusion at first as to whether Daphne would
be allowed to travel with Karen by airplane, Daphne eventually testified that she
understood that she would pick up and return Karen to the residence of the
parent who was surrendering his or her period of possession. When Peter’s
counsel asked Daphne if she understood that she was “responsible for picking
up [Karen] at - - in Flower Mound and dropping her off there as well,” Martha’s
counsel interjected, “Or wherever she is.” He did not object to the questions
or Daphne’s subsequent testimony that she was “fine with that,” and it is clear
on the record that the parties had agreed on this arrangement as well.
We conclude and hold that this part of the final order conforms with the
parties’ agreement.
General Terms and Conditions
Martha contends that the parties did not agree to the “General Terms and
Conditions,” which state that they apply to possession regardless of the
26
distance between the parties “[e]xcept as otherwise explicitly provided in this
Standard Possession Order.” But these conditions are statutorily- required parts
of the standard possession order regardless of distance, and the parties agreed
to the standard possession order for parents living more than 100 miles apart.
See Tex. Fam. Code Ann. § 153.316 (Vernon 2008); In re Lester, 254 S.W.3d
663, 664 n.1 (Tex. App.—Beaumont 2008, orig. proceeding). Therefore, this
provision does not conflict with the parties’ agreement.
Health Care Provisions
Martha contends that the parties did not agree to the health care
provisions on pages 18–26 of the final order. Our review of the order indicates
that it contains the agreement that Peter testified to and Martha agreed with:
that Peter would provide Karen’s health care insurance and that any uninsured
expenses would be split 50/50 between Peter and Martha. Martha does not
explain how the provisions differ from the parties’ agreement. See Tex. R. App.
P. 38.1(i); Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth
2004, pet. denied); see also Haynes v. Haynes, 180 S.W.3d 927, 930 (Tex.
App.—Dallas 2006, no pet.) (explaining that provisions not explicitly agreed to
in settlement agreement but that have the effect of carrying out the essential
terms agreed upon do not impermissibly vary or add to settlement agreement).
27
Miscellaneous Child Support Provisions
Martha additionally challenges the miscellaneous child support provisions
as conflicting. The child support provisions incorporate the statutory provisions
of family code sections 154.006, 154.013, and 154.015 regarding the status
of child support obligations upon an obligor’s or obligee’s death and upon
marriage of the conservators. Tex. Fam. Code Ann. § § 154.006, 154.013,
154.015 (Vernon 2008). Nowhere in the parties’ agreement do they purport
to change the family code’s provisions regarding child support obligations;
rather, Peter testified that he was paying current child support of $165 per
month and working down an arrearage of $100 per month, both of which he
paid directly to the state disbursement unit, and that he wanted the court to
suspend withholding because he was self-employed. Accordingly, we conclude
and hold that the provisions of the final order incorporating the family code’s
requirements concerning termination and/or continuation of child support do not
conflict with the parties’ agreement.14
14
… Daphne concedes that the paragraph “No Credit for Informal
Payments” is not included in any statutory provision. This paragraph requires
Peter to pay child support in the manner required by the final order and does not
give him credit for payment made directly to Martha or for money spent on
Karen during his periods of possession. Not only does this provision not
conflict with Peter’s testimony that he paid child support directly to the state
disbursement unit, it also has not been challenged by Peter and is clearly in
Karen’s best interest and to the benefit of Martha. Accordingly, we conclude
28
Medical Notification Provisions
Martha further contends that the provision (1) requiring the parents to
give each other notice if Karen requires surgical intervention or hospitalization
or both, (2) requiring them to sign any necessary HIPAA releases, and (3)
requiring each of them to designate the other as a person to whom protected
health care information may be disclosed is in conflict with the parties’
agreement. Martha fails to explain how this provision fails to effectuate the
parties’ agreement regarding their joint managing conservatorship or Karen’s
best interest. See Tex. Fam. Code Ann. § 153.001(a)(3) (Vernon 2008)
(providing that state’s public policy is to “encourage parents to share in the
rights and duties of raising their child after the parents have separated”);
Haynes, 180 S.W.3d at 930. Thus, we conclude and hold that this provision
does not impermissibly conflict with the rule 11 settlement agreement.
Discharge from Discovery Retention Requirements
Finally, Martha complains that the parties did not agree to the provision
discharging them from retaining discovery under rule 191.4, which allows the
trial court to so order. Tex. R. Civ. P. 191.4. We fail to see how this provision
impermissibly alters or adds to the parties’ agreement, especially considering
and hold that that portion of the order is likewise not in conflict with the
parties’ agreement. See Haynes, 180 S.W.3d at 930.
29
that Martha has not raised any discovery-related issues on appeal. See Haynes,
180 S.W.3d at 930.
Miscellaneous
Martha also includes argument in her brief that Peter’s weekends of
possession were changed from the second, fourth, and fifth weekends, as set
forth in the agreed temporary orders, to the first, third, and fifth weekends as
set forth in the standard possession order. See Tex. Fam. Code Ann.
§ 153.313 (Vernon 2008). However, Peter and Martha both specifically agreed
to the standard possession order on the record; thus, the trial court did not err
by rendering an order entitling Peter to possession on the first, third, and fifth
weekends rather than the second, fourth, and fifth. See id.; Alcantar, 47
S.W.3d at 821.
Martha further complains that the order does not include provisions for
Daphne to give any specified prior notice before exercising her possession.
Because the parties did not agree on any such provision, we cannot conclude
that the trial court abused its discretion by failing to include such a provision in
the final order. We do note, however, that the entire tone of the trial court’s
order—as well as the provisions of the family code—urges and promotes
cooperation between the parties and the amicable settlement of any disputes,
with the paramount interest being the best interest of the child in the conduct
30
of all affairs; Daphne’s voluntarily providing prior notice, although not required,
would certainly be in keeping with the spirit of the final order incorporating the
parties’ agreement. We overrule Martha’s fourth issue.
Conclusion
Having overruled Martha’s four issues, we affirm the trial court’s final
order.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: July 23, 2009
31