Morgan K. Cox v. Beverly V. Cox--Appeal from 216th Judicial District Court of Bandera County

No. 04-97-00951-CV
Morgan K. COX,
Appellant
v.
Beverly V. COX,
Appellee
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. 5868-94
Honorable James C. Onion, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting:

Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Karen Angelini, Justice

Delivered and Filed: October 30, 1998

AFFIRMED.

Morgan Cox appeals from the trial court's divorce decree entered upon a settlement agreement by the parties. In four points of error, Morgan challenges the trial court's interpretation and modification of the agreed settlement and the sufficiency of the evidence to support the entry of the divorce decree. We affirm the trial court's judgment.

facts and procedural background

On March 14, 1996, Morgan Cox and Beverly Cox filed an agreed settlement to their divorce action. On May 29, 1997, Morgan filed a motion for entry of judgment and enforcement of the settlement agreement. In this motion, Morgan requested that the court interpret and enforce the settlement agreement. The trial court held a hearing on this motion on August 18, 1997. Although the parties agreed that the settlement agreement was complete and enforceable, the parties disputed several matters pertaining to the settlement agreement and requested that the court interpret the agreement. The disputed matter pertinent to this appeal relates to a provision in which Morgan agreed to assign his voting rights and control of stock in Mission Technologies, Inc. to Beverly.(1) The settlement agreement as written was silent as to the duration of Morgan's assignment and as to what contingencies terminated the assignment, i.e. Morgan's death, Beverly's death, or sale of the stock. The parties requested the court to supply the missing terms to this provision, if it found the agreement to be unambiguous and complete.

The trial court heard testimony from both parties regarding the agreed settlement and their intent to divorce. At the conclusion, the trial court pronounced the parties divorced and adopted the settlement agreement as the court's in regard to division of property. With respect to the parties' dispute regarding the assignment of voting rights relative to the Mission Technologies stock, the court held that the settlement agreement as written was unambiguous and complete; however, it was silent as to the issue of duration and structure of such transfer. The court ordered the duration and structure of the voting rights be granted according to Beverly's wishes, interpreting the provision term "at her option" to include Beverly's option as to this issue. Morgan objected to the court's ruling on this issue, but did not seek to revoke his consent to the settlement agreement. The trial court ordered Beverly's attorney to prepare the divorce decree based on the settlement agreement and ordered Morgan's attorney to prepare the necessary documentation to facilitate transfer of property. The trial court ordered completion of the process within 30 days.

On October 17, 1997, the trial court held a hearing on Beverly's motion to enter judgment on the settlement agreement of the parties as construed in the August hearing. At this hearing, the trial court entertained Beverly's arguments on a new issue. Beverly requested the court to construe a provision in the settlement agreement requiring forfeiture of rights in the parties' ranch property upon remarriage to be against public policy.(2) Morgan objected to discussion of the issue because Beverly raised it for the first time at the hearing for entry of judgment.

The court held the remarriage-provision to be unintelligible and determined that it prevented either party from ever conveying fee title to the real estate to third parties. The court held that the language prohibiting remarriage be stricken and the settlement agreement be enforced without that provision. Morgan objected to the court's ruling on this issue because it eliminated a "substantial term and reason for the parties to enter into the agreement." The trial court noted Morgan's objection and signed the judgment as modified. Morgan appeals the trial court's entry of final divorce decree. Discussion

In his first point of error, Morgan argues the trial court abused its discretion when it rendered and entered an agreed judgment that did not comply with the terms of the settlement agreement. Morgan first contends the trial court did not have the power to render a judgment on the settlement agreement because the agreement omitted several material terms. Morgan argues that he withdrew his consent to the settlement agreement prior to the court's entry of final judgment, making the judgment void. In his second point of error, Morgan argues that the trial court abused its discretion when it modified the agreed judgment because the court supplied and omitted terms, provisions, and essential details not previously agreed to by the parties.

Morgan's arguments apply to both the August 18, 1997, hearing and the October 18, 1997, hearing. To distinguish the alleged errors as they apply to each hearing, we will first review Morgan's argument as they pertain to the trial court's actions during the August 18, 1997, hearing and then as they pertain to the trial court's actions during the October 17, 1997, hearing.

August 18, 1997, hearing

Although Morgan admits the trial court orally rendered judgment on the parties' settlement agreement at the conclusion of the August 18th hearing, he contends the trial court lacked the power to do so because the parties had not reached a complete agreement. Morgan contends the parties did not reach an enforceable settlement agreement because the agreement lacked the finality required of all material terms.

An agreement between parties is enforceable if it is in writing, is signed by the parties, and is filed as part of the record or recited in open court. Tex. R. Civ. P. 11. Agreements meeting the requirements of Tex. R. Civ. P. 11 are binding on the parties. McLendon v. McLendon, 847 S.W.2d 601, 605 (Tex. App.--Dallas 1992, writ denied). However, a trial court does not have power to render a consent judgment on a settlement agreement until the parties have agreed to all essential and material terms relating to the subject matter of the agreement. Reppert v. Beasley, 943 S.W.2d 172, 174 (Tex. App.--San Antonio 1997, no writ). To constitute a complete agreement, the parties must reach an agreement as to all material terms of the settlement agreement affecting the substantive division of property. McLendon, 847 S.W.2d at 606. The parties need not "dictate and agree to all of the provisions to be contained in all of the documents necessary to effectuate the purposes of the agreement." Id.

Morgan's assertion is dubious because he filed a motion for enforcement of the settlement agreement and entry of judgment, in which he requested that the trial court interpret the parties' intent in relation to the voting trust provision. In this motion, Morgan requested that the court interpret and enforce the settlement agreement. Morgan stated that the settlement agreement was complete and unambiguous; however, the parties were unable to reach an agreement as to the duration of his assignment of voting rights in the Mission Technologies stock and the contingencies upon which the assignment would automatically terminate. Morgan requested the court's intervention due to the parties' inability to agree on the meaning of the terms of the settlement agreement. Morgan requested the court to enter judgment upon its interpretation of this specific provision of the settlement agreement. Morgan now contends on appeal that the trial court did not have the power to enforce the settlement agreement due to the parties' inability to agree as to this term, and he withdrew his consent prior to the trial court's interpretation of the provision.

Under the doctrine of invited error, an appellant may not complain on appeal that a court granted the appellant's own request. International Piping Systems, Ltd. v. M.M. White & Assoc., 831 S.W.2d 444, 449 (Tex. App.--Houston [14th Dist.] 1992, writ denied); Evans v. Covington, 795 S.W.2d 806, 809 (Tex. App.--Texarkana 1990, no writ); Shafer v. Bedard, 761 S.W.2d 126, 131 (Tex. App.--Dallas 1988, no writ); Ideal Mut. Ins. Co. v. Sullivan, 678 S.W.2d 98, 100 (Tex. App.--El Paso 1984, writ dism'd). A party cannot request specific action from the trial court and then complain that the court committed error by granting the requested relief. Austin Transp. Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 689-90 (Tex. App.--Austin 1992, writ denied); Bayoud v. Bayoud, 797 S.W.2d 304, 312 (Tex. App.--Dallas 1990, writ denied).

Because Morgan moved the trial court to interpret the parties' intent in relation to the voting rights provision of the settlement agreement, he cannot now complain on appeal that the trial court erred by doing so or that the trial court lacked power to render judgment on the agreement as interpreted.

Next, Morgan contends he withdrew his consent to the settlement agreement prior to the court's rendition of judgment on August 18, 1998. Morgan objected to the court's interpretation of the voting-trust provision prior to the court's rendition of judgment; however, Morgan's objection did not constitute withdrawal of his consent to the agreement. Following the court's explanation of its interpretation, Morgan's attorney stated, "I understand what you're saying. I just hate to get to an appellate issue on this because I don't think that's right, but that's your call." Morgan did not express desire to withdraw his consent; instead, he expressed intent to appeal the trial court's interpretation and continued with the hearing by presenting evidence upon which the court could enter a divorce decree. Morgan's mere disagreement or dissatisfaction with the court's interpretation of the agreement did not constitute an intent to withdraw consent to the settlement agreement.

October 17, 1997, Hearing

First, Morgan argues that the trial court abused its discretion when the court modified the agreed judgment rendered on August 18, 1997, prior to its entry of the judgment following the hearing on October 17, 1997. Morgan contends the trial court omitted terms, provisions, and essential details that were an essential part of the parties' agreement. Next, Morgan argues he withdrew his consent to the settlement agreement prior to the trial court's entry of the final judgment. The trial court has broad discretion to determine the disposition of property in divorce actions. Cook v. Cook, 888 S.W.2d 130, 132 (Tex. App.--Corpus Christi 1994, no writ). The reviewing court will not overturn a trial court's disposition of property in a divorce action absent an abuse of discretion. Id.

A final judgment rendered upon a settlement agreement must be in strict compliance with the agreement. Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292, 293 (Tex. 1976); Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App.--El Paso 1997, no writ). A trial court has no power to supply or omit terms to a settlement agreement, but must accept the express terms as binding, unless it finds that the agreement is not just and right.(3) Keim, 943 S.W.2d at 946; Tex. Fam. Code Ann. 7.006 (Vernon Supp. 1998). A judgment which alters the terms of a settlement agreement is unenforceable. Tinney v. Willingham, 897 S.W.2d 543, 544 (Tex. App.--Fort Worth 1995, no writ).

Although parties may agree to terms that a trial court cannot order by law, agreements by parties which are in violation of public policy or statute are not enforceable. See Quintero v. Jim Walter Homes Inc., 709 S.W.2d 225, 229-30 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.); Johnson v. U.S. Industries, Inc., 469 S.W.2d 652, 654 (Tex. Civ. App.--Eastland 1971, no writ). Accordingly, a court cannot uphold a settlement agreement provision containing terms that violate public policy.

"A general restraint on marriage is unenforceable whether the restraint results from a promise not to marry or from enforcement of a condition providing for forfeiture of rights in case of marriage." Southwestern Bell Tel. Co. v. Gravitt, 551 S.W.2d 421, 427 (Tex. App.--San Antonio 1976, writ ref'd n.r.e.)(citing 17 C.J.S. Contracts 233a). In addition, a restraint on the alienation of property is unenforceable as against public policy. Id.

We acknowledge that the trial court's rendition of judgment on the parties' settlement agreement at the August 18, 1997, hearing differed from the final judgment signed and entered at the October 17, 1997, hearing. When a written judgment does not comport with the judgment rendered orally, the parties are entitled to have the order reformed to accurately reflect the action taken by the trial court. Cook, 888 S.W.2d at 132. However, a trial court has absolute plenary power to modify a judgment from the oral rendition of judgment for thirty days after the judgment is signed. Id. Therefore, if a written divorce decree differs from the rendition of judgment pronounced orally, the trial court commits no error, and "the judgment entered is presumptively the judgment as [the court] finally intends it, and it ought not to be subject to change on a bare showing that it varies in some particular from the judgment as first announced." Id. In such case, the signed judgment becomes the final, enforceable judgment of the trial court. Id.

The procedural facts in this particular case make the application of these general rules of law precarious. The trial court's judgment as entered modified the parties' settlement agreement by eliminating the remarriage provision. In the event judgment is entered on the parties' settlement agreement, the divorce decree must comport with the parties' agreement, unless such agreement was unenforceable. The provision prohibiting remarriage was violative of public policy as a restraint on marriage. While an agreement in violation of public policy is unenforceable, the trial court had already rendered judgment at the time the public policy concern was raised. Although a party would not ordinarily raise an issue for the first time at a hearing on a motion to enter judgment, a court has authority to modify its judgment as rendered at that time. See Cook, 888 S.W.2d at 132. Accordingly, even though Beverly raised the public policy issue for the first time at the hearing on her motion to enter judgment, the trial court's modification of the settlement agreement based upon public policy concern, though unusual, was not an abuse of discretion. Morgan's first and second points of error are overruled.

In his third point of error, Morgan contends the evidence is legally and factually insufficient to support the trial court's conclusion regarding the duration of the voting-rights provision.(4) Morgan argues that "[t]here was no evidence presented to the trial court concerning the intent of the parties in agreeing to a duration time period in the voting trust provision."

In considering a legal insufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). In considering a factual sufficiency point, we must assess all the evidence and reverse for a new trial only if the challenged finding shocks the conscience, clearly demonstrates bias, or is so against the great weight and preponderance of the evidence that it is manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under this analysis, we are not fact finders, we do not pass upon the credibility of witnesses, nor do we substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex. App.--El Paso 1992, writ denied); Chandler v. Chandler, 842 S.W.2d 829, 832-33 (Tex. App.--El Paso 1992, writ denied). In a non-jury case, a trial court's findings of fact and conclusions of law have the same force and effect as a jury verdict on special issues, Sebesta v. Daniels, 812 S.W.2d 641 (Tex. App.--Houston [14th Dist.] 1991, writ denied), and are reviewable for legal and factual sufficiency by the same standards applied to jury answers to special issues. Id. at 644; Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 744-45 (Tex. App.--Houston [14th Dist.] 1993, writ denied).

In his motion for enforcement of the settlement agreement, in which Morgan requested that the trial court interpret the parties' intent as to the duration of the voting-rights assignment, Morgan attached a copy of a draft of a voting trust agreement, signed by himself. In this draft, Morgan included three options for the termination of the assignment, one of which was Beverly's death. Beverly testified that she abandoned her claim that all of the Mission Technologies stock was her separate property in exchange for Morgan's agreement to assign to her control of the voting rights. Beverly testified that although the settlement agreement did not specify the duration of Morgan's assignment, the intent of the parties behind this agreement was to vest in her control of the stock for the benefit of both parties and the company's other shareholders and to enable Beverly to exercise control of the company on a day to day basis.

We find this evidence constitutes more than a scintilla of evidence in support of the trial court's finding and therefore overrule Morgan's legal sufficiency point. Based on this conclusion, we need not reach Morgan's factual sufficiency point. See Schwartz v. Pinnacle Comm., 944 S.W.2d 427, 432 (Tex. App.--Houston [14th Dist.] 1997, no writ). Morgan's third point of error is overruled.

In his fourth point of error, Morgan contends the evidence is legally and factually insufficient to support the trial court's modification of the settlement agreement omitting the remarriage provision. Because we have concluded that the trial court did not err by omitting the provision based on public policy concern, and the provision was unenforceable for this reason, Morgan's fourth point of error has no merit and is overruled.

Accordingly, the trial court's judgment is affirmed.

Karen Angelini, Justice

DO NOT PUBLISH

1. The language in the settlement agreement stated, "MORGAN K. COX will convey all voting rights and control of his separate property Mission Technologies stock to BEVERLY V. COX by irrevocable proxy or voting trust agreement at her option."

2. The pertinent language in this provision stated, "following the entry of decree of divorce each party will own a one-half undivided interest with 'right of survivorship,' that is upon the death of one party the ownership of his/her one-half undivided interest shall be conveyed to the other and the same immediate conveyance of the one-half undivided interest to the other party shall occur in the event the other party marries as that term is defined in the Texas Family Code." (relevant language in italics).

3. In its conclusions of law, the trial court determined that the settlement agreement was "just and right." This determination is not contested.

4. In the divorce decree, the trial court ordered that the voting-rights assignment terminated upon Beverly's death. Presumably, this termination contingency was Beverly's selection, as ordered by the trial court at the August 18, 1997, hearing because Beverly drafted the divorce decree.

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