BRYAN D. BACHUS v. SHARLA D. BACHUS--Appeal from 24th District Court of Victoria County

 NUMBER 13-01-00628-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

BRYAN D. BACHUS, Appellant,

v.

SHARLA D. BACHUS, Appellee.

 On appeal from the 24th District Court of Victoria County, Texas.

 O P I N I O N

 Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Hinojosa

This is an appeal from a divorce decree entered by the trial court pursuant to a settlement agreement. By eight issues, appellant, Bryan D. Bachus, contests the validity of the divorce decree and complains of the denial of his motion for new trial. We affirm in part and reverse and remand in part.

A. Background

Appellee, Sharla D. Bachus, and appellant were married on March 10, 1990. Two children were born of the marriage. On February 7, 2000, appellee filed for divorce, claiming insupportability.

Prior to trial, the parties reached a mutual settlement agreement. The agreement deviated from both the standard support and visitation guidelines provided in the family code.[1] Appellant agreed to pay more child support than the amount set out in the standard child support guidelines, and appellee agreed to give appellant more possession of the children than set out in the standard visitation guidelines. The settlement agreement also contained provisions for life insurance, tax deductions, division of property, debts, and living arrangements.

On October 18, 2000, the parties presented the settlement agreement to the trial court for final approval. At the conclusion of the hearing, the trial court granted the divorce and approved the settlement agreement on the record. On May 4, 2001, prior to the trial court=s signing the decree of divorce, appellant filed a AMotion to Revoke Rule 11 Agreement/Motion for New Trial,@ and a notice of appearance of co-counsel, William Patterson.[2] The trial court signed the decree of divorce on May 8, 2001.

B. Newly Discovered Evidence

In his first issue, appellant complains the trial court erred by denying his Motion for New Trial, based on newly discovered evidence. Specifically, appellant asserts that appellee=s former boyfriend, John C. Dobbins, possessed significant and material information concerning appellee=s continued drug and alcohol abuse and her inability to properly care for the children and the content of this testimony was unknown to him until after the settlement agreement had been reached. He argues this evidence should be considered Anewly discovered evidence.@

A party seeking a new trial on the ground of newly discovered evidence must satisfy the court that: (1) the evidence came to his knowledge since the trial, (2) it was not because of lack of due diligence that it did not come sooner, (3) the new evidence is not cumulative, and (4) the new evidence is so material that it would probably produce a different result if a new trial was granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); Lopez v. Lopez, 55 S.W.3d 194, 202 (Tex. App.BCorpus Christi 2001, no pet.). The trial court has wide discretion in ruling on a motion for new trial, and its action will not be disturbed on appeal absent a showing of an abuse of discretion. In re Bayerische Motoren Werke, 8 S.W.3d 326, 327 (Tex. 2000); Lopez, 55 S.W.3d at 202.

At the hearing on the motion for new trial, appellant called John C. Dobbins, appellee=s former boyfriend, who testified that appellee continued to abuse alcohol and drugs on a daily basis, including while she had custody of the children. Appellant testified that he did not know the content of Dobbins=s testimony, until approximately six months after he had agreed to the settlement agreement, when Dobbins=s sister telephoned him and told him what appellee and Dobbins had been doing. Appellant contends that since he did not know the content of Dobbins=s testimony until after the settlement agreement had been reached, this constitutes Anewly discovered evidence.@ We disagree.

The record establishes that appellant knew of appellee=s past drug problem and the possibility of continued use. Appellant testified that he and appellee had used drugs in the past. Further, the parties= contemplation of such a drug problem is evidenced by the very terms of their settlement agreement. The agreement provides that each party will submit to random drug tests at the request of the other party. Thus, any evidence of appellee=s drug use was not Anewly discovered@ evidence. See Nautical Landings Marina, Inc. v. First Nat=l Bank, 791 S.W.2d 293, 300 (Tex. App.BCorpus Christi 1990, writ denied) (Aa party seeking a new trial because of newly discovered evidence must establish that he had no notice of the existence of the evidence prior to trial@). We hold that appellant has failed to satisfy his burden under the Jackson test. Appellant=s first issue is overruled.

C. Withdrawal of Settlement Agreement

In his second issue, appellant contends the trial court erred by signing the decree of divorce after appellant withdrew his consent to the settlement agreement.

In order for a valid consent judgment to exist, the parties must explicitly and unmistakably give consent at the time the trial court renders judgment on that agreement. Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984); Patel v. Eagle Pass Pediatric Health Clinic, 985 S.W.2d 249, 251 (Tex. App.BCorpus Christi 1999, no pet.). A party may revoke his consent to a settlement agreement at any time before judgment is rendered on the agreement. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857-58 (Tex. 1995). To that effect, a pleading filed prior to rendition of judgment which alleges a party=s revocation of consent or a motion opposing the entry of judgment on said grounds is sufficient to effectively withdraw consent to the agreed judgment. Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex. App.BCorpus Christi 1995, no writ).

In the instant case, the parties presented their settlement agreement to the trial court on October 18, 2000. After hearing both parties testify that they agreed with the settlement agreement, the trial court approved the agreement on the record and ordered it to be effective that day. The trial court also granted the divorce on the record and said it would Asign a decree that confirms and conforms with today=s agreement and today=s order when it is presented to me.@ The trial court was informed that appellee=s attorney would prepare the decree. On May 4, 2001, appellant attempted to revoke his consent by filing his AMotion to Revoke Rule 11 Agreement/Motion for New Trial.@ Four days later, the trial court signed the decree of divorce.

Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk. S & A Rest., 892 S.W.2d at 857-58. The rendition of judgment is a present act that decides the issues upon which the ruling is made, and the words used by the trial court must clearly indicate its intent to render judgment at that time, rather than in the future. Id.; Patel, 985 S.W.2d at 252. Once the trial court renders judgment based on the parties= settlement agreement, the parties cannot revoke their consent to the agreement. Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex. 1982); Patel, 985 S.W.2d at 252. However, the mere approval of a settlement agreement does not necessarily constitute rendition of judgment. S & A Rest., 892 S.W.2d at 857-58; Patel, 985 S.W.2d at 252.

Here, after both parties testified that they agreed with the settlement agreement, the trial court stated:

The agreement of the parties is approved and ordered entered of record today. The divorce is granted today. I will sign a decree that confirms and conforms with today=s agreement and today=s order when it is presented to me.

We conclude the trial court clearly indicated his present intention to render judgment at that time, leaving no doubts as to the finality of his judgment. Thus, the trial court=s signing of the decree of divorce was merely a ministerial act. See Alcantar v. Okla. Nat=l Bank, 47 S.W.3d 815, 821 (Tex. App.BFort Worth 2001, no pet.). We hold the trial court rendered judgment on October 18, 2000, and the parties could not thereafter revoke their consent to the agreement. See Samples, 640 S.W.2d at 874-75; Patel, 985 S.W.2d at 252. Appellant=s second issue is overruled.

D. Authority of Co-Counsel

In his fifth issue, appellant contends the trial court erred in signing the decree of divorce because his attorney, Elliott Costas, did not have authority to present the decree of divorce to the trial court.

After appellant reached a settlement agreement with appellee, and the agreement was presented to and approved by the trial court, appellant hired William Patterson as additional counsel. On May 4, 2001, appellant filed a notice and informed the trial court that Patterson would be co-counsel in the case. On May 7, 2001, both Costas and Patterson appeared in court on behalf of appellant to present his AMotion to Revoke Rule 11 Agreement/Motion for New Trial.@ The following day, the trial court signed the decree of divorce.

As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion stating the grounds for the ruling that the complaining party sought from the trial court. Tex. R. App. P. 33.1(a)(1)(A).

Here, appellant failed to object to the actions of his co-counsel, Elliott Costas. On July 9, 2001, appellant filed a supplemental motion to revoke rule 11 agreement and supplemental motion for new trial, but he did not object to any action taken by Costas on his behalf. Accordingly, we hold he has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a)(1)(A). Appellant=s fifth issue is overruled.

E. Variance Between Settlement Agreement and Decree

By his seventh issue, appellant complains that the decree of divorce does not conform to the agreed upon terms of the settlement agreement.

When a trial court renders judgment on a settlement agreement of the parties, the judgment must be in strict or literal compliance with the terms of the agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976); Nuno v. Pulido, 946 S.W.2d 448, 451 (Tex. App.BCorpus Christi 1997, no writ). Where the judgment does not conform to the settlement agreement, the judgment will be rendered unenforceable. Nuno, 946 S.W.2d at 451. In addition, while a clerical error made by the trial court in reducing the settlement agreement to a written judgment may be corrected by modification of that judgment in the appellate court, a judgment based on judicial error must be reversed and remanded to the trial court for entry of an agreed judgment that conforms to the terms of the parties= agreement. Donzis v. McLaughlin, 981 S.W.2d 58, 63 (Tex. App.BSan Antonio 1998, no pet.); McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.BDallas 1992, writ denied).

According to the settlement agreement, appellant was to have possession of the children during the summer months:

beginning the first Sunday after school releases for the summer and last until (14) fourteen days before school begins the next school session.

Sharla Bachus will have the same visitation during the summer months Bryan Bachus normally has.

1. First, second, third, and fifth weekends of the month.

2. Tuesday and Wednesday evenings during the week so the children can attend church.

Instead of the above agreed-upon terms, the decree of divorce orders standard possession during the summer months. The decree requires appellant to give appellee written notice by April 1, specifying a thirty-day period of possession during the summer months. Appellant=s possession of the children during the summer months is significantly less than what was agreed to by the parties. Accordingly, we conclude that this provision in the decree of divorce is not in strict or literal compliance with the settlement agreement. See Vickrey, 532 S.W.2d at 292; Nuno, 946 S.W.2d at 451.

Further, appellant testified that he did not want restrictions on his visitation rights should he and the children reside more than 100 miles apart. Appellee does not dispute that this was part of the agreement. However, the decree of divorce incorporates language from the standard possession order that if the children reside more than 100 miles apart, appellant=s visitation is restricted to certain weekends. We conclude this provision is also not in strict or literal compliance with the settlement agreement. See Vickrey, 532 S.W.2d at 292; Nuno, 946 S.W.2d at 451.

Accordingly, we hold the trial court=s decree of divorce is not in strict or literal compliance with the terms of the parties= settlement agreement. We sustain appellant=s seventh issue.

F. Denial of Motion for New Trial

By his third, fourth, sixth, and eighth issues, appellant complains of the trial court=s denial of his motion for new trial. Specifically, appellant contends the trial court erred in denying his motion for new trial because: (1) he had withdrawn his consent to the settlement agreement prior to the court=s signing of the decree of divorce, (2) the evidence established that appellee actively engaged in conduct designed to deprive appellant access to John C. Dobbins in order to elicit his testimony concerning appellee=s continued drug abuse, (3) attorney Costas did not have the authority to present the decree of divorce to the trial court, and (4) the decree of divorce contains terms not agreed upon by the parties.

Because a trial court has wide discretion in denying a motion for new trial, we will not disturb its ruling absent a clear abuse of discretion. See Director, State Employees Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Coastal Banc SSB v. Helle, 48 S.W.3d 796, 800 (Tex. App.BCorpus Christi 2001, pet. denied).

In light of our holdings above, we hold the trial court did not abuse its discretion in denying appellant=s motion for new trial. Appellant=s third, fourth, sixth, and eighth issues are overruled.

G. Conclusion

We reverse that portion of the trial court=s decree of divorce which deviates from the parties= agreement relating to appellant=s possession of the parties= children, and remand the case to the trial court with instructions to enter a possession order consistent with the parties= settlement agreement and this opinion. We affirm the remaining portions of the trial court=s decree of divorce.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

22nd day of August, 2002.

[1]See generally Tex. Fam. Code Ann. '' 153.311 - 153.317, 154.121 - 154.132 (Vernon 1996 & Supp. 2002).

[2]Prior to May 4, 2001, appellant was represented solely by attorney, Elliott Costas. The AAppearance of Co-Counsel@ added Patterson as appellant=s counsel.