REV ERSE and RIAD; Opinion; Opinion Filed October 30 2012.
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No. 05-I 1-00560-CV
IN THE INTEREST OF S.L., K.L., A.t. AND E,L., CHILDREN
On Appeal from the 199th District Court
Collin County, Texas
Trial Court Cause No. 199-52973-2008
MEMORANDUM OPINION
Helore Justices Moseley, Fillmore, and Myers
Opinion By Justice Myers
I)avid L. appeals the trial court’s judgment in this suit tor divorce and suit affecting the
parent-child relationship. David brings two issues contending (1) the trial court erred by signing a
decree containing terms different from those in the parties’ agreement; and (2) the provisions of the
decree obligating David’s parents to encumber their property and provide financial support for
Jennifer L., David’s ex-wife, are invalid and unenforceable. We conclude the trial court erred in
entering judgment against David’s parents, and we remand the cause for entry of judgment in
accordance with this Court’s opinion.
BACKGROUND
Jennifer and David married in 1993. They separated in 2003 a few days before Jennifer gave
birth to their fourth child. In 2009, Jennifer filed this suit for divorce and suit affecting the
parent-child relationship asking that she be appointed sole managing conservator over the children
and that l)avid pay her maintenance and child support.
On September 13, 2010, the parties announced in open court they had reached an agreement
on all matters relating to the divorce and the suit affecting the parent-child relationship. David’s
attorney read the agreement into the record in open court, David and Jennifer testified that they
agreed with the terms of the agreement as set tbrth by David’s counsel, and the trial court stated that
the court “will grant the divorce[,J . . . will approve the agreement of the parties with regard to the
custody, support and visitation of the children of the marriage and find those agreements to be in the
best interest of the children[,] ... [and] will approve the property settlement . . . .“ One provision
of the agreement was that Jennifer and the children could continue to reside in the house owned
either by David’s father or a trust he controlled until the children reached the age of majority.
During that time, David’s parents would pay the maintenance, expenses, taxes, utilities, and
insurance for the house. David’s attorney stated that “[pirior to this agreement becoming a final
order, the parties were awaiting “a letter or memorandum of understanding’ from David’s father
permitting Jennifer and the children to remain in the house until the children reach the age of
majority. David’s father never provided the letter or memorandum of understanding.
On December 7, 2010, before the court signed a judgment based on the agreement, Jennifer
notified David and the trial court that she “hereby withdraws her consent to the purported
non-written agreement between the parties.” Jennifer filed a motion to set aside the parties’
agreement, and she filed motions for David to be subjected to drug screening and substance-abuse
evaluations. The trial court held a hearing on the motions on February 16, 2011. At the conclusion
of the hearing, the trial court stated, “We’re going to stick with the agreement that we made with
regard to the kids. They’re going to be joint managing conservators. Mom is going to designate the
tesidence ot the children; live with them.” IThe court also ordered both parents to undergo drug
testing nd that [)avid could not have possession of the children until the testing on him was
completed. The court also required David to attend counseling before he could have unsupervised
possession of the children.
Both sides tiled motions for judgment attaching proposed decrees. David’s proposed decree
followed the parties’ September 13, 2010 agreement: Jennifer’s proposed decree followed the trial
court’s decisions on December 7, 2010. The court’s final judgment states the parties entered into
an agreement that the court approved and that the parties stipulated the agreement was enforceable
as a contract to the extent permitted by law. The judgment also stated that the child support,
conservatorship, and possession was pursuant to the parties’ agreed parenting plan. The judgment
ordered that the parties were joint managing conservators, Jennifer had the right to designate the
children’s primary residence, the parties would have possession of the children under a standard
possession order, and 1)avid would pay child support of $2000 per month. However, David was to
have fl() possession of the children until he passed a drug test, and his possession of the children was
to be supervised until he completed counseling, after which, the parties’ possession of the children
would be under the standard possession order.
The judgment also stated that David would provide Jennifer a Memorandum of
Understanding assuring Jennifer that she and the children may remain in the home until the children
reach the age of majority. Thejudgment stated that David and David’s parents would be responsible
for reimbursing Jennifer “for all expenses and utilities.” The judgment further stated the parties
agreed that David’s parents would pay for all maintenance, repairs, taxes, and insurance on the home
and that David’s parents would reimburse Jennifer for the cost of installing window coverings in the
children’s rooms.
David appears pro se before us. We liberally construe pro se pleadings and briefs however,
we hold pro se litigants to the same standards as licensed attorneys and require them to comply with
applicable lawsand rulesot procedure. In reN.E.B.. 251 S.W.3d21 1.211—12 (Tex. App.—Dallas
2008, no pet.) (citingMans/IeldStateBankv. Cohn, 573 S.W.2d 181, 184—85 (Tex. 1978)). Todo
otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by
counsel. Id. at 212.
ENFORCEMENT OF THE PARTIES’ AGREEMENT
In his first issue, David contends the trial court erred in signing a divorce decree that varied
from the parties’ agreement) David asserts that many provisions in the decree are contrary to the
agreement. David argues that after the court rendered judgment on the agreement at the September
13, 2010 hearing by stating the court approved the agreement, found it to be in the best interest of
the children, and recorded the agreement in the minutes of the court,
2 Jennifer could not revoke the
agreement, and the trial court could not enter judgment contrary to the agreement. David prays that
we modity the judgment to comply with the terms of the parties’ agreements. We conclude the trial
court did not render judgment on the agreement at the September 13, 2010 hearing. Accordingly,
Jennifer could and did revoke the agreement, and the trial court was not required to enter judgment
in accordance with the revoked agreement.
Rule 11 of the Texas Rules of Civil Procedure permits parties to enter into agreements
announced in open court and entered of record. See TEX. R. Civ. P. 11. The Family Code also
David’s tirst issue is: “Ater the parties in a divorce reach an agreement that disposes of all the issues
of the case, and the agreement is
approved and recorded in the minutes of the Court. does the Trial Court commit reversible error when it refuses
to sign a decree that accurately
incorporates the terms of the agreement, and instead signs a wntten decree that containing [sic terms and provisions
hose of the agreement’’
I which differ substantially from
2
Nothing in the record shows the agreement was recorded in the minutes of the court
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Lontains provisions permitting parties to enter into enforceable agreements to resolve matters related
to divorce and suits affecting the parent’child relationship. See TEX. FAM. CODE ANN,
§ 6.604(West
.006) (settlement agreement on suit for dissolution of anarnage); id. § 7.006 (agreement concerning
division of property and liabilities and spousal maintenance); id. § 153.007 (West 2008) (agreed
parenting plan br conservatorship and possession of child); Id. § 154.124 (agreement for child
support).
A party may revoke consent to a settlement agreement at any time before judgment is
rendered. S & .1 Rest. Corp. v. Leul, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam). Thus, the
question is whether the trial court rendered judgment before or after Jennifer revoked consent to the
settlement agreement on December 7, 2010.
“Judgment is rendered when the trial court officially announces its decision in open court or
by written memorandum tiled with the clerk.” Id. [Approval of a settlement does not necessarily
constitute rendition otudgment.” Id. The supreme court has explained that a rendition ofjudgment
is a present act deciding the issues. Id. at 858 (quotIng Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.
1976)). “The judge’s intention to render judgment in the future cannot be a present rendition of
judgment. . . . The words used by the trial court must clearly indicate the intent to renderjudgment
at the time the words are expressed.” Id. (quoting Reese, 534 S.W.2d at 330).
David contends the trial court rendered judgment at the hearing on September 13, 2010.
After David’s attorney read the agreement into the record, David and Jennifer testified the attorney
set forth the terms of their agreement. The trial court then stated,
Okay. I will grant the divorce as requested by the petitioner and the respondent and
dissolve the marriage. Make a finding that there are four children of the marriage,
none are expected nor were adopted.
[will approve the agreement of the parties with regard to the custody, support and
visitation ot the children of the marnage and find those agreements to be in the best
interest ut the children.
Also I will approve the property settlement, distribution of the community estate as
testified to and as set out in the agreement of the parties and award each person the
property they’re now in possession of as their separate property in this case.
Thank you all very much. Thank you for working this out.
The trial court’s statements are set in the future tense: “1 will grant the divorce”; “1 will approv
e the
agreement”; and “I will approve the property settlement.” The trial court’s words do not clearly
indicate a present intent to renderjudgment. Qf Able Cabling Services, Inc. v. Aaron-
Carter Elec.,
mc, 16 S.W.3d 98, 100-01 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (trial court’s
statement, “the judgment will be rendered in accordance with the terms dictated into the record,”
implied rendition would occur at signing of written judgment).
Furthermore. David’s attorney reading the agreement into the record stated, “Prior to thi.c
clgreetnent hecoininç’ a lImit order, we arc awaiting a letter or a memorandum of understanding from
the paternal grandfiither who owns the home that basically assures mother that she will remain in
the
home with the children until they reach the age of majority.” (Emphasis added.) Thus, the trial
court
could accept the agreement at the hearing, but judgment could not be rendered on the agreement
until
the letter or memorandum of understanding was obtained. There tbre, we conclude the trial court
did
not render judgment at the September 13, 2010 hearing.
Nothing in the record shows the trial court rendered judgment before Jennifer notified David
and the trial court on December 7, 2010 that she revoked the agreement. Because judgment
had not
been rendered. Jennifer was free to revoke the agreement at that time. Once the agreement
had been
revoked, the trial court was not required to enter judgment in strict accordance with the agreem
ent.
See .1 Rest. Chirp., 592 S.W.2d at 557,t \Ve conclude the trial court did not err by retlising
to
‘.il.zn a decree that accurately incorporated the tetTfls ot the agreement. We overrule appellant’s first
issue.
JUDGMENT AGAiNST NON-PARTIES
In his second issue, David contends the provisions in the judgment requiring David’s parents
to provide Jennifer financial support and that encumber his parents’ property are invalid.
4
[he tirial judgment stated,
Provisions Related to Children ‘s Gurrent Residence
[he parties agree that Jennifer [L.j will remain in the home in which she
currently resides located at [addressj. David [L.j has agreed to provide Jennifer [L.J
with a Memorandum of Understanding which assures Jennifer [L.J that she will
remain in the home with the children until all of the children reach the age of
majority, and the Memorandum of Understanding must also include the following:
[he parties agree that following Jennifer [L.’sl submission to David [L.] and
his parents fir each month of expenses or receipts for utilities paid, Jennifer
[L.1 will
he reimbursed by David [L. ‘s] father or parents within fourteen (14) days.
l)avid L. 1 anf his parents shall he responsible for reimbursing Jennifer [L.
kr all expenses and utilities paid beginning September 13, 2010. Jennifer [L.J shall
I
submit all receipts for reimbursement fir all expenses and utilities paid for the period
beginning September 13. 2010 through date ofentry of the Final Decree no later than
ten (10) days after the Court signs this final Decree of Divorce.
[he parties further agree that David [L.’s] father or parents shall also pay for
maintenance and repairs on the home, as well as taxes and insurance on the home
on
an annual basis.
In S & I Resluurunt Corp., the supreme court states. ‘A party may revoke its consent to a settlement
agreement at any time before judgment
is rendered on the agreement A judgment rendered atler one of the parties revokes his consent is void.’
S & .4 Rest. Corp.. 892 S.W2d at 857
(citation omitted). David does not argue the judgment is void because the agreement was revoked and the trial
court purported to apply the agreement
in the judgment. Instead, he argues only that the agreement was valid and the trial court was required to follow
the agreement .ccordingly, we do
not address the validity of the judgment based on the agreement but conclude only that the trial court was not
required to follow the revoked agreement
in rendering judgment.
l
David’s second issue is: ‘Are the provisions in the final decree of divorce. which purport to obligate
appellant’s parents to provide appellee
financial support and encumber appellant’s parents[’] separate property invalid?”
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[he parties ftirthcr agree that Jennitër [LI will install blinds or window
LOverinLts in each ot the children’s rooms and will submit receipts tbr those
to the
paternal grandparents who vil1 reimburse her for those expenses.
h)llowing submission of receipts byiennifer[L] as set forth herein, she shall
he reimbursed within fourteen (14) days.
David asserts the judgment is void to the extent it imposes obligations on David’s parents
because they were not parties in the suit and were never served. Texas Rule of Civil Proced
ure 124
prohibits the rendition of judgment against “any defendant unless upon service, or acceptance or
waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where
otherwise expressly provided by law or these rules.” TEx. R. Civ. P. 124. Persons who are not
named or served can become parties to a suit by voluntarily submitting themselves to the trial court’s
jurisdiction. CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d431,434—35(Tex. App.—Austin 1995,
no writ). However, a judgment against a person who is not named or served and never appeared
before the court is void. Schlueter v. Carey, 112 S.W.3d 164, 172 (Tex. App—Fort Worth 2003,
pet. denied).
In this case, David’s parents were not named in the lawsuit, they were not served, and they
(lid not appear heftre the court. Accordingly, the trial court lacked jurisdiction to render judgm
ent
against them, and the judgment is void to the extent it imposes obligations against them.
We sustain appellant’s second issue.
CONCLUSION
We reverse the trial court’s judgment and remand the cause for entry of judgm
ent in
accordance with this Court’s opinion.
LANA MYERS
JUSTICE
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JUDGMENT
IN THE INTEREST OF S.L., K.L.. A.L. AND Appeal from the 199th District Court of Collin
EL.. CHILDREN County. Texas. (Tr.Ct.No. I 99-52973-200X).
Opinion delivered by Justice Myers, .Justices
No. 05-I I-00560-CV Moseley and Fillmore participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause is REMANDED to the trial court for entry ofjudgment in accordance
with this Court’s opinion. It is ORDERED that the parties each hear their own costs of this appeal.
Judgment entered October 30, 201 2.
LANA MYERS
JUSTICE
in the Interest of S.L.,K.L.,A.L. and E.L. Children
Combined Opinion