Texas Judiciary Online - HTML Opinion

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Affirmed and Memorandum Opinion filed = May 31,=20 2007.

In The

Fourteenth=20 Court of Appeals

____________

NO. 14-06-00081-CV

____________

PAUL=20 ZAVALA, = Appellant

V.

EVELYN=20 ZAVALA, = Appellee

On Appeal from the = 246th District Court

Harris County, = Texas

Trial Court Cause = No. 2004-66150

M E M O R=20 A N D U M O P I N I O N

This is an=20 appeal from a final decree of divorce awarding the equity in the=20 couple=3Ds marital=20 home to appellee, Evelyn Zavala. The trial court based its = award on=20 the parties=3D = stipulation, and appellant Paul Zavala contends the award is = erroneous=20 because his trial attorney lacked authority to consent to the = division of=20 the equity. We affirm.

I. =20 Factual and Procedural Background

Paul=20 Zavala filed a suit for divorce from his wife Evelyn Zavala. = Evelyn=20 answered and filed a counter-petition. When the case was called = for trial,=20 the trial court heard preliminary stipulations from the=20 parties=3D = attorneys=20 regarding the division of the assets of the marital estate. = The=20 transcript reflects the following exchange that is pertinent to = this=20 appeal:

Court: =20 = &= nbsp; =20 And if we have any preliminary stipulation[s], = gentlemen.

Evelyn=3Ds attorney: = We do,=20 Your Honor.

Paul=3Ds attorney:=20 We do, Judge.

Evelyn=3Ds attorney: = May=20 I?

Court: =20 = &= nbsp; =20 Mr. Baughman.

Evelyn=3Ds = attorney: We=20 have agreed on the division of the property. House will be = awarded=20 to the wife, 100 percent, subject to the debt. She is to = take her=20 retirement up to $9,500. Anything over $9,500 will be split = 50/50=20 between the parties. He is to be awarded, he being Mr. = Zavala, first=20 $34,000 in his retirement plan and anything over $34,000 will be = split=20 50/50. He represents that he has approximately $60,000 and is not=20 participating in the drop program.

Wife will be = awarded the Ford=20 F‑150 pickup truck and the Harley Davidson = motorcycle=20 subject to the debt. Husband is = awarded the=20 87 pickup truck and the ‑ ‑ can I call my = client?

Court:=20 = &= nbsp; =20 Sure. Bring your clients up.

Evelyn=3Ds attorney: = She gets ‑=20 ‑ you get the F‑150 ‑ ‑

Evelyn:=20 = &= nbsp; =20 Yes.

Evelyn=3Ds = attorney: ‑ ‑=20 the Crown Vic and the Harley. He gets the 87 pickup truck; = is that=20 correct?

Evelyn: =20 = &= nbsp; =20 Yes.

Evelyn=3Ds = attorney: He=20 gets the big screen TV; and they are to divide their annuities, if = any,=20 50/50. If she defaults 30 days on the payment of that Harley = motorcycle payment, Judge, then Mr. Zavala has the right to = repossess that=20 and make those payments. Each will take the property in = their=20 possession. Husband had some rings.

She is [sic] agreed = to turn=20 those over when she finds them but makes no representation ‑ = ‑ as a matter=20 of fact, you are saying you don=3Dt have = them?

Evelyn: =20 = &= nbsp; =20 No, I have not.

Evelyn=3Ds attorney: = But if you=20 do find them, you will be glad to turn them over?

Respondent: =20 Right.

Evelyn=3Ds attorney: = I think=20 that=3Ds it, = isn=3Dt it?

Paul=3Ds attorney: =20 Yes.

Evelyn=3Ds attorney: = Can I ask=20 her ‑ ‑

Court: =20 = &= nbsp; =20 Yes.

Evelyn=3Ds attorney: =20 Ma=3Dam, you heard that=20 stipulation. That is your agreement?

Evelyn: =20 = &= nbsp; =20 Yes, sir.

Evelyn=3Ds attorney: = Do you=20 have any questions about that?

Evelyn: = = &= nbsp; =20 No, sir.

Paul=3Ds attorney: =20 That is your agreement, Mr. Zavala?

Paul: =20 = &= nbsp; =20 Yes, sir.

The trial court = then stated=20 on the record, AThat agreement is = approved by=20 the Court, and that leaves our issues to the conservatorship [of = the=20 children].@ Following = the trial=20 court=3Ds approval of = these=20 stipulations, a jury was selected and trial began on the = conservatorship=20 issues. Evelyn=3Ds attorney = cross‑examined=20 Paul during the trial, on the same day the stipulations were read = into the=20 record. The following is an excerpt from the trial = transcript: =20 Evelyn=3Ds = attorney: So=20 the jury has a better idea, the house is going to go to your wife; = isn=3Dt that = true?

Paul: =20 = &= nbsp; =20 She wants it, yes.

Evelyn=3Ds = attorney: Mr.=20 Zavala, you stipulated to that before the jury came in that she = would get=20 the house, lock, stock, and barrel; isn=3Dt that = correct?

Paul: =20 = &= nbsp; =20 I don=3Dt recall lock, = stock, and=20 barrel. I believe ‑ ‑

Evelyn=3Ds attorney: = 100=20 percent?

Paul: =20 = &= nbsp; =20 Other than me getting my equity out of there, yes.

Evelyn=3Ds = attorney: There=20 wasn=3Dt any mention in = the=20 stipulation about any equity in the house, was=20 there?

Paul: =20 = &= nbsp; =20 I was under the impression that there was.

Evelyn=3Ds = attorney: You=20 approached the Bench with your lawyer about two hours ago, at = 1:30, and=20 indicated that you had an agreement for the division of the = property;=20 isn=3Dt that = correct?

Paul: =20 = &= nbsp; =20 Yes.

Evelyn=3Ds = attorney: And=20 the agreement that was recited in the record is that the house = went to=20 your wife, 100 percent; isn=3Dt that = correct?

Paul: =20 = &= nbsp; =20 Well, I knew she wanted to get ‑ ‑

Evelyn=3Ds attorney: =20 Nonresponsive, Judge.

Paul: = =20 I was misinformed because I thought I was going to get my equity = out of=20 the house.

Evelyn=3Ds attorney: = You=20 understand that the Judge accepted your stipulation?

Paul: =20 = &= nbsp; =20 Yes.

Evelyn=3Ds attorney: = You=20 understand your lawyer asked you if that was your = agreement?

Paul: =20 = &= nbsp; =20 Yes, and --

Evelyn=3Ds = attorney: And=20 he asked you if you understood it fully and completely, = didn=3Dt he?

Paul: =20 = &= nbsp; =20 Yes, sir, he did.

On the=20 second day of trial, the jury returned a verdict on the = conservatorship=20 issues, which the trial court accepted. In due course, the = court=20 rendered its final decree of divorce. As is pertinent to = this=20 appeal, the decree awarded the marital home to Evelyn and imposed = on=20 Evelyn the debt associated with the home. The decree makes = no direct=20 reference to the equity in the home. But, by awarding to = Evelyn, and=20 divesting Paul of, Aall right,=20 title, interest and claim in and to@ = the=20 marital real estate and home, the decree effectively awards = the=20 equity to Evelyn.

Paul moved=20 for a new trial; the motion was overruled by operation of law and = this=20 appeal ensued.^{^[1]}

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

II. =20 Issue Presented

Paul=3Ds sole=20 issue on appeal is Awhether=20 the husband=3Ds trial=20 counsel possessed the requisite authority to compromise the=20 husband=3Ds legal=20 rights by entering into a stipulation with the wife=3Ds counsel=20 concerning the division of the marital=20 home . . . .@ =20

III. =20 Standard of Review

The trial=20 court=3Ds=20 Adecision=20 whether a settlement agreement should be enforced as an agreed = judgment or=20 must be the subject of a contract action requiring additional = pleadings=20 and proof is subject to the abuse of discretion standard of=20 review.@ =20 Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. = App.CDallas=20 2006, pet. denied) (citing Mantas v. Fifth Court of = Appeals, 925=20 S.W.2d 656, 659 (Tex. 1996)). Because a trial court has no=20 discretion in determining what the law is or in applying the law = to the=20 facts, a trial court=3Ds failure=20 to analyze or apply the law correctly is an abuse of = discretion. =20 In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 = (Tex.=20 2001); Appleton v. Appleton, 76 S.W.3d 78, 86 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.).

IV. =20 Analysis

Section=20 7.006 of the Texas Family Code provides:

(a) =20 To promote amicable settlement of disputes in a suit for divorce = or=20 annulment, the spouses may enter into a written agreement = concerning the=20 division of the property and the liabilities of the spouses and=20 maintenance of either spouse. The agreement may be revised = or=20 repudiated before rendition of the divorce or annulment unless the = agreement is binding under another rule of = law.

(b) =20 If the court finds that the terms of the written agreement in a = divorce or=20 annulment are just and right, those terms are binding on the = court. =20 If the court approves the agreement, the court may set forth the = agreement=20 in full or incorporate the agreement by reference in the final=20 decree.

Tex.=20 Fam. Code ' = 7.006(a)=20 & (b) (Vernon 2006). Although the statute references a = written=20 agreement, an oral agreement that is read into the record in open = court=20 satisfies the provision. McLendon v. McLendon, 847 = S.W.2d=20 601, 606B07 (Tex.=20 App.CDallas=20 1992, writ denied).

On appeal,=20 Paul contends the trial court erred because its judgment is based = on a=20 stipulation that his attorney was not authorized to make. As = noted,=20 Paul argues in his sole issue that his trial counsel did not = possess the=20 requisite authority to enter into a stipulation with his = wife=3Ds counsel=20 concerning the division of the equity in the marital home.^{^[2]} =20

Paul faces=20 two problems. First, he did not apprise the trial court of = any claim=20 that his counsel had acted beyond the bounds of his = authority. =20 Although he became aware during cross-examination that the = pretrial=20 stipulation was being construed as addressing the division of = equity in=20 the marital home, Paul raised no issue during the three month = period=20 between trial and rendition of judgment regarding his = attorney=3Ds=20 purported lack of authority to agree to any such division. = Further,=20 even in his motion for new trial in which he was represented by = new=20 counsel, Paul did not complain that his original attorney lacked = authority=20 to enter into the stipulation on which the trial court based its = award to=20 Evelyn of equity in the marital home. By failing to alert = the trial=20 court to the contention that his attorney was not authorized to = make a=20 stipulation concerning the division of equity, Paul has waived = that=20 argument for purposes of appeal. See Tex. R. App. P.=20 33.1(a).

Second,=20 Paul personally consented to the stipulation on the = record.=20 Paul discounts his action by claiming he did not hear the = portion of=20 the stipulation concerning the marital home, but the record shows = Paul was=20 present when the attorneys approached the bench to make = preliminary=20 stipulations. During the stipulations, Paul and Evelyn were = called=20 to the bench to clarify Evelyn=3Ds=20 attorney=3Ds=20 understanding of the disposition of certain motor vehicles. =20 Evelyn=3Ds attorney=20 continued to recite the stipulations for the record, and = ultimately each=20 party to the divorce was asked if he or she agreed to the stated=20 stipulations. Paul answered affirmatively, without = qualification or=20 question.

In Paul=3Ds motion for new = trial and in=20 his appellate briefing, we glean an argument=20 that his=20 cross-examination testimony constitutes revocation of consent to = the=20 stipulation as it concerns equity in the marital home. An = agreed=20 judgment may not be entered where consent to the agreement has = been=20 revoked or withdrawn. Quintero v. Jim Walter Homes, = Inc., 654=20 S.W.2d 442, 444 (Tex. 1983); Burnaman v. Heaton, 150 Tex. = 333, 240=20 S.W.2d 288, 291 (1951); Farr v. McKinzie, 477 S.W.2d 672, = 676 (Tex.=20 Civ. App.BHouston=20 [14th Dist.] 1972, writ ref=3Dd=20 n.r.e.). But if such revocation or withdrawal of consent is = not=20 effectively communicated to the court, a judgment entered in = accordance=20 with the agreement will stand. See First Heights Bank, = FSB v.=20 Marom, 934 S.W.2d 843, 845 (Tex. App.CHouston=20 [14th Dist.] 1996, no writ); see also Trevathan v. Akins, = 712=20 S.W.2d 559, 560 (Tex. App.CHouston=20 [1st Dist.] 1986, no writ) (AWhen a=20 trial court has knowledge that one of the parties does not = consent=20 to a judgment, the trial court should refuse to . . . make it the = judgment=20 of the court.@)=20 (emphasis added); Sohocki v. Sohocki, 897 S.W.2d 422, 424 = (Tex.=20 App.CCorpus=20 Christi 1995, no writ) (AThe proper inquiry is = whether=20 the information in the trial court=3Ds possession is = clearly=20 sufficient and of such a nature as to put the court on notice that = a=20 party=3Ds consent is lacking = and to=20 require the court to make further inquiry before rendering=20 judgment.@). =20

Viewed in=20 context, Paul=3Ds=20 cross-examination testimony does not constitute effective = revocation of=20 consent. At most, Paul=3Ds=20 testimony suggests that he had not considered division of the = equity or=20 did not perceive that an agreement had been reached as to the=20 equity. At the same time, however, Paul confirmed his = earlier=20 agreement to the stipulation that awarded the home to Evelyn = A100=20 percent, subject to the debt.@ =20 While Paul=3Ds=20 confirmation of his agreement to the stipulation may have been the = product=20 of leading questions posed by Evelyn=3Ds=20 attorney, Paul made no effort in his re-direct or rebuttal = testimony to=20 re-urge an objection to division of the equity. Furthermore, = between=20 the date of trial and the trial court=3Ds=20 rendition of judgment, Paul filed no pleadings or documents = affirmatively=20 revoking consent to the stipulation or to the division of equity = pursuant=20 to that stipulation. See, e.g., Sone v.=20 Bartley, 608 S.W.2d 240, 242 (Tex. App.CSan=20 Antonio 1980, no writ) (court erred in rendering agreed judgment = when=20 plaintiff had filed letters objecting to the purported settlement=20 agreement, paid jury fee, and requested case be set for trial on = jury=20 docket). Under these circumstances, we cannot say the trial = court=20 abused its discretion by entering judgment based on the = stipulation. =20 See Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex. = App.CSan=20 Antonio 1983, no writ).

CONCLUSION

For the=20 reasons set forth above, we affirm the trial court=3Ds=20 judgment.

____________________________Eva=20 M. Guzman

Justice

Judgment rendered = and=20 Memorandum Opinion filed May 31, 2007.

Panel consists of = Justices=20 Frost, Seymore, and Guzman.

^{^[1]} In a reply point, = Evelyn=20 asserts that this appeal should be dismissed because = Paul=3Ds acceptance of = benefits=20 under the trial court=3Ds judgment estops = him from=20 seeking reversal of that judgment. See Carle v. = Carle, 149=20 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950) (AA litigant cannot = treat a=20 judgment as both right and wrong, and if he has voluntarily = accepted the=20 benefits of a judgment, he cannot afterward prosecute an appeal=20 therefrom.@). While we = acknowledge=20 the rule pronounced in Carle and its progeny, we have not = been=20 presented with relevant facts demonstrating Paul=3Ds voluntary = acceptance of=20 benefits of the judgment. See Rogers v. = Rogers, 806=20 S.W.2d 886, 889B90 (Tex. = App.BCorpus Christi = 1991, no writ)=20 (no basis for dismissal of appeal where appellee failed to file = motion=20 with supporting affidavits showing appellant=3Ds acceptance of = specific=20 benefits under judgment); Miller v. Miller, 569 S.W.2d 592, = 593=20 (Tex. Civ. App.BSan Antonio 1978, = no writ)=20 (denying motion to dismiss appeal where record contained no = evidence of=20 acceptance of any benefits under the judgment). Therefore, we deny = Evelyn=3Ds request for = dismissal of=20 this appeal.

^{^[2]} Paul does not allege that his = consent to=20 the stipulation was procured by fraud. Cf. Salinas v.=20 Beaudrie, 960 S.W.2d 314, 320 (Tex. App.CCorpus Christi 1997, no pet.) (where=20 party=3Ds false representations induce another = party to=20 contract, second party=3Ds failure to read contract will not bar = equitable=20 relief of enforcement against fraudulent=20 party).

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