Dominic Charles Gaudin v. Arwen Andrial Berry--Appeal from 353rd District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-103-CV
DOMINIC CHARLES GAUDIN,

APPELLANT

 
vs.
ARWEN ANDRIAL BERRY,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. 482,889, HONORABLE PETE LOWRY, JUDGE

PER CURIAM

 

Appellant Dominic Charles Gaudin appeals from a final decree in a paternity suit brought by appellee Arwen Andrial Berry. See Tex. Fam. Code Ann. 13.01, 13.42 (Supp. 1991). In pertinent part, the trial court found that Gaudin was the father of the child, appointed Berry managing conservator and Gaudin possessory conservator, and provided for visitation and support. We will affirm the order of the trial court.

In three points of error, Gaudin contends that the trial court erred in accepting stipulations without insuring that he was in agreement and in rendering judgment based on the stipulations. Parties may enter into agreements in open court to limit the issues in dispute. Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979). To be enforceable, such agreements must be in writing, signed and filed with the papers as part of the record or made in open court and entered of record. Tex. R. Civ. P. Ann. 11 (Supp. 1991); Clear Creek, 589 S.W.2d at 677; Trois v. Synnott, 758 S.W.2d 384, 386 (Tex. App. 1988, no writ).

In the instant cause, Berry's attorney stated, "Your Honor, we have several agreements that we made prior to the announcements in this case, and we would like to read those into the record, if we could, and get Counsel's concurrence on our agreements." The attorney then listed the issues on which the parties agreed, including: (1) Gaudin acknowledged that he is the father, (2) the amount of past-due child support, (3) that the child's surname be changed to "Gaudin," and (4) Gaudin would be granted standard visitation. Gaudin's attorney added the agreement that Berry be named managing conservator and Gaudin possessory conservator.

The court then received evidence on issues that were still disputed. At the close of the hearing, the court asked, "Are you all, the lawyers, satisfied that your agreement is on the record and that it's pinned down?" Counsel for Berry and Gaudin replied, "Yes." The trial court then issued its judgment that incorporates the parties' agreements and the court's rulings on the disputed issues.

In his brief, Gaudin asserts that his testimony indicated to the trial court that the terms of the agreement were in dispute (1) and that the court never obtained his assent to the agreements. Counsel did set out the terms agreed upon in open court and on the record. Rule 11. Our review of the record does not show that Gaudin objected to these terms or to the judgment. Furthermore, we do not find that Gaudin raised a question as to his attorney's authority to agree on Gaudin's behalf. See Tex. R. Civ. P. Ann. 7 (1979); Cleere v. Blaylock, 605 S.W.2d 294 (Tex. Civ. App. 1980, no writ); Walden v. Sanger, 250 S.W.2d 312, 316 (Tex. Civ. App. 1952, no writ). We overrule points of error one, two, and three.

In points of error four and five, Gaudin complains that there was no evidence or insufficient evidence to support the award of medical expenses in the amount of $1500.00 to Berry. Pursuant to Tex. Fam. Code Ann. 13.42(a) (Supp. 1991), a court may order a party to pay an equitable portion of all prenatal and postnatal related health care expenses of the mother and the child.

In deciding a no evidence point, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). To determine whether the evidence was factually sufficient, this Court must consider and weigh all the evidence, and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). Because Gaudin raises both a legal and a factual sufficiency point of error, we first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).

Gaudin contends that there is no evidence to support the award of medical expenses because the trial court improperly based the award on medical bills not admitted into evidence. Berry offered, but the trial court did not admit, a summary of medical expenses, supported by statements, for herself and the child. The trial court also sustained Gaudin's objection to Berry's testimony as to the reasonableness and necessity of the expenses.

Berry did testify, without objection, that she had incurred the amount of $6,254.64 in medical expenses for the support of her son and that her insurance had not reimbursed her for $3,037.53 of that amount. Berry testified further that her father actually paid the $3,000.00 of expenses not reimbursed; that he expected her to repay him; and that the expenses were for "the prenatal and postnatal and medical expenses up until now." Because there is more than a scintilla of evidence, apart from the summary of medical expenses, to support an award in the amount of $1500.00, we overrule point of error three.

Gaudin's factual sufficiency argument must also fail. The record does not contain any evidence that contradicts Berry's testimony as to the amount and purpose of the medical expenditures. See 13.42(a). Accordingly, the judgment is not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule point of error four.

The order of the trial court is affirmed.

 

[Before Justices Powers, Jones and B. A. Smith]

Affirmed

Filed: December 11, 1991

[Do Not Publish]

1. On questioning by his attorney, Gaudin testified:

 

Q Do you have any doubt now, after having taken the blood test -- which we did agree to do. Isn't that correct?

 

A Yes, we did agree.

 

Q -- that the child is yours?

 

A Yes.

 

Q Do you want to start a relationship with your child?

 

A Yes.

 

Q And that's why we're asking for the visitation as agreed?

 

A Correct.

 

Q Do you have any problem at all in doing everything necessary to cooperate in any way that you can to have your son avail himself of the medical benefits of the service?

 

A No, I'm willing to cooperate.