in the Matter of the Marriage of Valerie Western and Eldon Burnice Western, II

IN THE
TENTH COURT OF APPEALS

No. 10-12-00072-CV

IN THE MATTER
OF THE MARRIAGE OF
VALERIE WESTERN AND ELDON BURNICE WESTERN, II,

From the County Court
Bosque County, Texas
Trial Court No. 11-02-05911-CCL-CV

MEMORANDUM OPINION

In this appeal, appellant, Eldon Burnice Western II, challenges the trial court‟s

final divorce decree. In three issues, appellant argues that: (1) the parties did not enter

into an enforceable Rule 11 Agreement, see TEX. R. CIV. P. 11; (2) the parties‟ agreement,

if any, is unenforceable because it did not include material terms; and (3) the trial

court‟s final divorce decree did not effectuate a fair and equitable division of the marital

estate. We affirm as modified.

I. BACKGROUND

Appellee, Valerie Western, and Eldon were married on May 3, 1987. However,

in March 2011, Valerie filed for divorce. Subsequently, Eldon filed an answer and
counter-petition for divorce. The trial court scheduled a final hearing on this matter for

June 13, 2011.

At the final hearing, Valerie‟s counsel represented to the trial court that the

parties had reached an agreement concerning the division of their community property.

Eldon‟s counsel did not object to Valerie‟s representation about the purported

agreement. Valerie and Eldon testified at the final hearing. Valerie outlined the

provisions of the purported agreement and testified that she believed the agreement to

be fair and equitable to the parties. When the trial court asked what the parties agreed

would happen to the couple‟s house, Valerie‟s counsel explained the purported

agreement, and Eldon‟s counsel agreed and stated on the record, “That‟s right.”

Thereafter, Eldon testified that he understood and agreed that: (1) he is

responsible for the couple‟s house and the note for eighteen months if it is not sold; (2)

half of his retirement would go to Valerie; (3) he is keeping his boat and is responsible

for the note associated with the boat; (4) Valerie would receive all of the household

items, except for the dining room table and chairs; (5) he would keep a Dell laptop and

the couple‟s bedroom furniture; (6) Valerie would receive a 50-inch Samsung television

and a “Longtech Computer”; (7) he would pay Valerie $3,000, unless she fails to pay the

debt owed on the television and the “Longtech Computer”; and (8) Valerie would

receive all of the miscellaneous items listed on page 2 of the “Proposed Property

Division” tendered by Valerie.

Later, the trial court asked about an outstanding debt the couple has.

Apparently, the couple took out a loan in the amount of $7,630 from Gene and Cathy

In the Matter of the Marriage of Western Page 2
Ferguson on August 23, 1988, and, according to the record before us, the couple owed

$4,080 on the loan at the time of the final hearing. During the conversation about the

debt, Eldon stated the following: “Your Honor, I never signed, under oath, I never

signed anything with whatever agreement.” Valerie responded, “Your signature is on

it, Burnie. 25 years ago . . . .” The trial court then interjected:

Mr. Western, it has been represented to me that you-all had an
agreement on this case and I‟m going to go on that assumption. Now if
you don‟t feel like you owe the debt, then, you know, I‟m not going to
order you to do it. I‟m going to rule on it.

The trial court ultimately granted Valerie‟s petition for divorce and divided the

community property according to the alleged agreement between the parties. 1 The trial

court also entered findings of fact and conclusions of law, which included a finding

that: “There was an agreement made by the parties concerning the division of the

marital estate. This agreed[-]to property division was a just and right division of the

parties‟ marital estate having due regard for the rights of each party.”

After obtaining new counsel, Eldon filed a motion for new trial, and shortly

thereafter, the trial court conducted a hearing on Eldon‟s motion. At the hearing on his

motion, Eldon argued that the parties did not agree to the property division.

Nevertheless, Valerie testified regarding the particulars of the parties‟ agreement and

noted that the purported agreement was Eldon‟s proposal. Thereafter, Eldon admitted

1 In her appellee‟s brief, Valerie acknowledges that the final divorce decree contains a clerical

error with regard to the Ferguson loan. At the final hearing, the parties agreed that the note would be
repaid without interest; however, the final divorce decree stated that Eldon‟s repayment of his share of
the loan would be at a 9% interest rate. Because Valerie concedes that the final divorce decree contains an
error, and because the record supports Valerie‟s contention, we modify the final divorce decree to
indicate that Eldon‟s repayment of his share of the Ferguson loan be without interest.

In the Matter of the Marriage of Western Page 3
that he did not tell the trial court at the final hearing that he did not want to enter into

the agreement outlined by Valerie. At the conclusion of this hearing, the trial court

denied Eldon‟s motion for new trial, and this appeal ensued.

II. THE PURPORTED AGREEMENT AND TEXAS RULE OF CIVIL PROCEDURE 11

In his first issue, Eldon contends that the record does not indicate that the parties

entered into an enforceable agreement under Texas Rule of Civil Procedure 11. See id.

In his second issue, Eldon argues that the agreement, if any, is unenforceable because it

did not include all material terms. Valerie counters that Eldon did not preserve his first

issue because his motion for new trial is too general and vague and because he did not

object in the trial court. With regard to Eldon‟s second issue, Valerie asserts that the

agreement contained all material terms and the additions made by the trial judge did

not substantively add or change any of the terms of the agreement.

A. Preservation of Error

The record reflects that Eldon did not object to Valerie‟s testimony about the

details of the purported agreement. In fact, Eldon‟s trial counsel questioned him about

the details of the agreement at the final hearing, and Eldon agreed to the terms. But,

after obtaining new counsel, Eldon filed a motion for new trial, which stated the

following, in its entirety:

1. This motion is presented within the time allowed by law on motions
for new trial. The Final Decree of Divorce in this case having been
rendered on December 2, 2011.

2. The judgment rendered on December 2, 2011, in this case should be set
aside because it is manifestly unfair and unjust. The order is not a fair

In the Matter of the Marriage of Western Page 4
 and equitable division of the parties‟ estate. There is not sufficient
evidence provided at the time of trial to support the judgment.

At no point prior to the trial court‟s signing of the final divorce decree did Eldon argue

that he and Valerie did not have an agreement to divide the community estate. Instead,

Eldon waited until the hearing on his motion for new trial to raise this argument.

Nevertheless, at the hearing on Eldon‟s motion for new trial, Valerie‟s counsel objected

to Eldon‟s motion as being too general. The trial court overruled Valerie‟s objection,

and, after hearing arguments and testimony, denied Eldon‟s motion for new trial.

A point on appeal premised on a trial court‟s ruling on a motion, request, or

objection must be supported by a showing in the record that the motion, request, or

objection was presented to and acted upon by the trial court. TEX. R. APP. P. 33.1(a); see

Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex. App.—Fort Worth 1999, no pet.); see also Hadeler

v. Hadeler, No. 04-06-00459-CV, 2007 Tex. App. LEXIS 4969, at *4 (Tex. App.—San

Antonio June 27, 2007, no pet.) (mem. op.). “It is the appellant‟s responsibility to

preserve error for appeal by taking affirmative steps to ensure that all matters he may

wish to appeal are timely and properly entered into the trial court record.” Guyot, 3

S.W.3d at 248.

While we do not believe that Eldon‟s motion for new trial is a model of clarity

with respect to his first issue on appeal, see TEX. R. CIV. P. 321, 322, the record reflects

that Eldon‟s counsel raised the issue of whether an agreement between the parties

existed at the hearing on his motion for new trial. Thus, we cannot say that Eldon failed

to preserve error in this issue by not making the complaint in the trial court. See TEX. R.

In the Matter of the Marriage of Western Page 5
APP. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (citing TEX. R. APP. P. 33.1); see

also Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—

Dallas 2003, pet. denied) (“Without proper presentation of the alleged error to the trial

court, a party does not afford the trial court the opportunity to correct the error.”); cf. In

re Roberson, No. 05-07-01061-CV, 2008 Tex. App. LEXIS 8471, at **2-5 (Tex. App.—Dallas

Nov. 12, 2008, no pet.) (mem. op.) (concluding that appellant did not preserve for

appellate review an issue because the argument was not raised during trial or in a

motion for new trial). Accordingly, we must address the merits of these issues.

B. The Purported Agreement

Texas Rule of Civil Procedure 11 provides that “[u]nless otherwise provided in

these rules, no agreement between attorneys or parties touching upon any suit pending

will be enforced unless it be in writing, signed and filed with papers as part of the

record, or unless it be made in open court and entered of record.” TEX. R. CIV. P. 11. It

is undisputed that the parties‟ purported agreement was not reduced to writing and

signed by the parties. Instead, Valerie contends that the purported agreement complies

with Rule 11 because it was made in open court and entered of record. See id.

As stated earlier, Valerie testified at the final hearing as to the details of the

couple‟s purported agreement. She even testified that the agreement was drafted by

Eldon. Also during the final hearing, Eldon‟s trial counsel neither objected to Valerie‟s

testimony that an agreement between the parties existed, nor did he contest statements

made by Valerie‟s counsel to the trial court about the agreement. See Am. Home Assur.

Co. v. Rodriguez, 749 S.W.2d 897, 899 (Tex. App.—San Antonio 1988, no writ) (noting

In the Matter of the Marriage of Western Page 6
that, because an attorney is a representative of his client, an attorney‟s actions are

binding upon his client in all matters where by law the client is not specifically required

to act for himself); see also Hadeler, 2007 Tex. App. LEXIS 4969, at **4-5 (same).

Furthermore, on several occasions, the trial court announced that the parties had an

agreement; however, neither Eldon, through his trial testimony, nor his trial counsel

attempted to correct the trial court or refute that representation. See Berg v. Wilson, 353

S.W.3d 166, 173 (Tex. App.—Texarkana 2011, pet. denied) (noting that a settlement

agreement, even though not in writing, is valid and enforceable if it is made in open

court and agreed to by the parties; that settlement agreements are governed by contract

law; and that the settlement agreement must define essential terms with sufficient detail

to allow the trial court to determine the obligations of the parties). In addition, Eldon

did not object to the admission of Petitioner‟s Exhibit 1, which was a “Proposed

Property Division” tendered by Valerie. The “Proposed Property Division” listed the

couple‟s property, debt, and the values for each for the trial court to consider in

dividing the marital estate.

In effect, Eldon is attempting to repudiate the agreement he had with Valerie

after the rendition of the divorce, which runs counter to section 7.006(a) of the Texas

Family Code. See TEX. FAM. CODE ANN. § 7.006(a) (West 2006) (providing that spouses

may enter into agreements concerning the division of the property and that the

agreements may be revised or repudiated before rendition of the divorce or annulment

unless the agreements are binding under another rule of law). Eldon points to the

testimony he provided at the final hearing about the Ferguson loan as proof that no

In the Matter of the Marriage of Western Page 7
agreement existed. However, in reviewing the record, we find that there is ample

evidence to support the trial court‟s conclusion that the parties had entered into an

agreement regarding the division of the property contained in the marital estate.

Further, Eldon‟s attempt to repudiate the agreement during the hearing on his motion

for new trial was untimely, considering the trial court had already signed the final

divorce decree. See id.; Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 241 (Tex.

App.—Austin 2007, pet. denied); Clanin v. Clanin, 918 S.W.2d 673, 677 (Tex. App.—Fort

Worth 1996, no writ) (holding that appellant did not timely repudiate his consent to an

agreement in a divorce case when he did not object at the final hearing, he did not

indicate to the trial court at the final hearing that he was withdrawing his consent, and

he first voiced his dissatisfaction with the divorce decree in his motion for new trial); see

also Vineyard v. Wilson, 597 S.W.2d 21, 23 (Tex. Civ. App.—Dallas 1980, no writ) (noting

that a valid consent judgment cannot be rendered if one of the parties does not consent

and that consent must exist at the very time the court undertakes to make the

agreement the judgment of the court). Accordingly, we overrule Eldon‟s first issue.

C. Whether the Agreement Contained All Material Terms

In his second issue, Eldon argues that the agreement is unenforceable because it

did not contain material terms which were later clarified after the trial court questioned

the parties. See In re Ames, 860 S.W.2d 590, 593 (Tex. App.—Amarillo 1993, no writ) (“In

a judgment by consent, „the court has no power to supply terms, provisions, or essential

details not previously agreed to by the parties.‟”) (quoting Matthews v. Looney, 132 Tex.

313, 317, 123 S.W.2d 871, 872 (1939)). As noted by Valerie, the trial court only asked for

In the Matter of the Marriage of Western Page 8
clarification of the agreement during the final hearing with each party present. In any

event, of all the clarifications provided, Eldon never once objected at the final hearing.

Moreover, we do not believe that these clarifications were of a material nature as to

render the agreement unenforceable.

First, the trial court asked whether the parties put any time limitation on the sale

of the house. Valerie stated that she would agree to the house being sold within

eighteen months. Later, Eldon was asked about the eighteen-month provision, and he

indicated that he understood and ostensibly agreed to the time limitation. At no point

during the final hearing did Eldon object to this provision.

The trial court also asked how the parties intended to file their taxes for the

coming tax year. Eldon asserted that he filed his 2010 tax return separately, and his

attorney stated that the parties would be filing separate tax returns in the future.

Moreover, the trial court inquired about the timing of the payments on the $3,000 debt.

Valerie‟s counsel stated that she thought the payments should be made monthly with a

start date of July 1 and no interest. The trial court then asked Eldon‟s counsel whether a

$250-a-month payment with no interest was okay, to which Eldon‟s counsel replied,

“Yes sir, that‟s fine.”

The other two items about which Eldon complains pertain to the payment of

attorney‟s fees and any debt incurred by the parties after the date of separation. In

response to Eldon‟s complaint, Valerie asserts that the trial court “simply inserted the

default rule regarding payment of debts in a divorce and payment of attorney‟s fees.”

And, with regard to the couple‟s debts, the trial court divided them equally.

In the Matter of the Marriage of Western Page 9
Furthermore, the final divorce decree stated that each party is responsible for their own

“attorney‟s fees, expenses, and costs incurred as a result of legal representation in this

case.”

Other than the provisions for attorney‟s fees and the couple‟s debt accumulated

after separation, we find the trial court‟s clarifications to be minor in nature and not

material so as to render the agreement unenforceable. See Chisholm v. Chisholm, 209

S.W.3d 96, 98 (Tex. 2006) (holding that a trial court cannot supply, modify, or omit

material terms to the settlement agreement). The record indicates that the parties agreed

to the division of all of the property contained in the community estate, but they lacked

a few minor details regarding the division. Moreover, all of the clarifications, other

than the attorney‟s fees and division of the debts incurred after the couple separated,

were announced in open court, acknowledged by the parties, and essentially ratified by

the parties failing to object at the final hearing.

With regard to additional terms or clarifications, such as the attorney‟s fees and

the division of debts incurred after separation in this case, Texas courts have held that

the “court may divide the community estate of the parties upon divorce by itself

partitioning the estate, by setting forth a property settlement agreement in the decree, or

by incorporating such an agreement by reference in the decree.” Clanin, 918 S.W.2d at

677 (citing McCaskill v. McCaskill, 761 S.W.2d 470, 473 (Tex. App.—Corpus Christi 1988,

writ denied)). And, “[a]s to the remainder of the estate, the court must follow the

mandates of sections . . . of the Family Code to make a „just and right‟ division of the

property.” Id.

In the Matter of the Marriage of Western Page 10
 In Clanin, appellant complained that “such subjects as dispute resolution, the

splitting 50/50 of the uninsured health care expenses of the children, awarding financial

accounts solely in any one partys‟ [sic] name to that party, and other similar issues,

were never mentioned in the agreement but appear in the final divorce decree.” Id. at

677. The Fort Worth Court of Appeals, applying the aforementioned principles of

partitioning the estate and following the mandates of the family code regarding the

“just and right” division for the remainder of the estate, concluded that “[t]he other

provisions in the decree reflect the court‟s „just and right‟ division of the rest of the

community estate. None of these provisions either are beyond the scope of the

agreement made by the parties or provide a basis for reversal.” Id. at 678. We find the

trial court‟s provisions in this case for attorney‟s fees and the division of the debts

accumulated after separation to be similar to the provisions added by the trial court in

Clanin. See id. at 677-78. These provisions do not directly contradict the agreement of

the parties, and we do not believe that they somehow render the agreement

unenforceable. See, e.g., Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976)

(holding that, when parties have reached a settlement agreement, a final judgment

based on that agreement must be in “strict or literal compliance with that agreement”).

Accordingly, we overrule Eldon‟s second issue.

III. JUST AND RIGHT DIVISION OF THE MARITAL ESTATE

In his third issue, Eldon contends that the trial court‟s judgment did not result in

a just and right division of the marital estate. In particular, Eldon argues that the trial

court‟s division of the community estate is unfair and unjust because, other than the

In the Matter of the Marriage of Western Page 11
house, the record “does not contain any evidence of values on any of the rest of the

property” and because Valerie was awarded the house, which was worth $73,340, while

Eldon was awarded the debt on the house.

At the outset, we note that our analysis of this issue is based upon the briefs of

the parties, and we do not address the propriety of whether a Rule 11 Agreement must

comply with the normal requirement that a property division must be just and right

with regard to the marital property. See, e.g., Snider v. Snider, 343 S.W.3d 453, 454-57

(Tex. App.—El Paso 2012, no pet.) (analyzing the just and right division of the marital

estate despite a Rule 11 Agreement as to the division of the property); In re Hallman, No.

06-09-00089-CV, 2010 Tex. App. LEXIS 1235 (Tex. App.—Texarkana Feb. 23, 2010, pet.

filed) (mem. op.) (same); Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012) (“Unlike other

settlement agreements in family law, the trial court is not required to determine if the

property division is „just and right‟ before approving an MSA.”).

The party complaining of the trial court‟s division of property must demonstrate

from evidence in the record that the division was so unjust that the trial court abused its

discretion. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet.

denied) (op. on reh‟g). If there is any reasonable basis for doing so, we must presume

that the trial court exercised its discretion properly. Pletcher, 9 S.W.3d at 446. We will

not disturb the trial court‟s division unless the record demonstrates “that the division

was clearly the result of an abuse of discretion.” Id. That is, we will not reverse the case

unless the record clearly shows that the trial court was acting arbitrarily or

unreasonably and that the trial court‟s error materially affected the just and right

In the Matter of the Marriage of Western Page 12
division of the estate. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985); Chavez v. Chavez, 269 S.W.3d 763, 766 (Tex. App.—Dallas 2008, no pet.).

As stated earlier, the parties entered into an agreement with regard to the

division of the community estate, and Eldon did not first complain about the agreement

until after the trial court had rendered its final divorce decree. Nevertheless, Valerie‟s

counsel informed the trial court that the parties had agreed that Eldon would continue

to live in the house after the divorce, while paying all related expenses, including the

water bill, insurance, and taxes. In fact, Eldon told the trial court that he would pay all

expenses associated with keeping up the house. The parties also agreed that the house

would be sold with the equity proceeds going to Valerie. However, it was noted that

the house was encumbered by a $54,568 mortgage, meaning that Valerie would get the

difference between the sales price and the mortgage encumbrance. The parties

estimated that the equity amount would be $18,772, assuming that the house would sell

for $73,340. On the other hand, Eldon was awarded a deep-sea fishing boat valued at

$10,550; deep-sea fishing equipment valued at $6,350, hunting equipment valued at

$10,570, lawn equipment valued at $1,720, tools valued at $1,250, a barbecue grill

valued at $750, and animal mounts valued at $3,075. Each of these values were

contained in the “Proposed Property Division,” which was admitted into evidence at

the final hearing.

Based on our review of Eldon‟s appellate complaints and the record evidence, we

conclude that Eldon has not demonstrated that the property division was so unjust that

the trial court abused its discretion. See Pletcher, 9 S.W.3d at 446; see also Downer, 701

In the Matter of the Marriage of Western Page 13
S.W.2d at 241-42; Chavez, 269 S.W.3d at 766. Accordingly, we overrule Eldon‟s third

issue.

IV. CONCLUSION

Because it is undisputed that the final divorce decree erroneously states that

Eldon must pay 9% interest on the Ferguson loan, and because the record evidence

supports this conclusion, we modify the final divorce decree to reflect that Eldon is

not required to pay interest on the loan. We affirm the judgment of the trial court in

all other respects.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed August 2, 2012
[CV06]

In the Matter of the Marriage of Western Page 14