Martha C. Batchelor v. Kenneth Leon Batchelor--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00865-CV
Martha C. BATCHELOR,
Appellant
v.
Kenneth L. BATCHELOR,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-05228
Honorable Rene Diaz, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: December 12, 2007

 

AFFIRMED

This is an appeal from a final divorce decree. In three issues, appellant, Martha Batchelor, argues: (1) the trial court erred in entering judgment in accordance with a Rule 11 settlement agreement that she repudiated before the court's rendition of judgment; (2) the trial court abused its discretion by failing to divide the community estate in a just and right manner; and (3) the trial court abused its discretion when it denied her leave to amend her pleadings. We affirm.

Background

Martha Batchelor filed for divorce from Ken Batchelor. Two days before trial, Martha requested leave of court to file an amended pleading, which added multiple new claims against Ken. Ken objected to Martha's attempt to amend her pleadings, and the trial court denied Martha leave to file her amended pleading.

When the underlying case was called for trial, the parties and their attorneys, in open court, informed the trial court that a Rule 11 settlement agreement had been reached regarding the conservatorship, possession, and support of Martha and Ken's minor child. Counsel for the parties specified the terms of the agreement, which were dictated into the record, and the trial court questioned both sides, as well as the attorney ad litem representing the parties' minor child, as to their understanding of the terms of the settlement and their willingness to enter into the agreement. Satisfied that the parties understood and consented to the agreement, the trial court approved the settlement agreement and informed the parties that the issues relating to the parties' minor child were resolved.

The remaining issues in the case, which concerned the characterization and division of the parties' property, were tried to the court. After the parties closed, Martha's counsel advised the trial court that Martha wanted to withdraw her consent to the parties' Rule 11 settlement agreement concerning the parties' minor child. The court, however, refused to allow Martha to withdraw her consent to the parties' settlement agreement. The trial court subsequently granted the parties a divorce and issued its ruling relating to the division of the parties' property. Shortly thereafter, the court signed a final decree of divorce, which incorporated both the court's property division and the terms of the parties' Rule 11 settlement agreement relating to their minor child. Martha brought this appeal after the trial court denied her motion for new trial. Settlement Agreement In her first issue, Martha argues the trial court erred in entering judgment for Ken in accordance with the parties' Rule 11 settlement agreement because she withdrew her consent to the agreement before judgment was rendered on the agreement. (1) Once a court orally renders judgment on a settlement agreement, the parties may not revoke consent to the agreement. S&A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam). A judgment is rendered when a trial court makes an official announcement, either orally in open court or by written memorandum filed with the clerk, of its decision upon the matters submitted for adjudication. Id. With respect to oral renditions by a trial court, "Texas law does not require specific words of rendition." Golodetz Trading Corp. v. Curland, 886 S.W.2d 503, 505 (Tex. App.--Houston [1st Dist.] 1994, no writ). The words used by the court, however, "must clearly indicate the intent to render judgment at the time the words are expressed." S&A, 892 S.W.2d at 858. Once a judgment is rendered by the trial court, the entry of judgment is purely a ministerial act. Golodetz Trading, 886 S.W.2d at 505.

The parties disagree as to when judgment was rendered on their Rule 11 agreement concerning their minor child. Martha argues that judgment was not rendered on the parties' settlement agreement until the trial court signed the final divorce decree, which was after she had withdrawn her consent to the agreement. Ken argues that judgment was rendered on the parties' Rule 11 agreement the same day it was stated on the record, confirmed by the parties, and approved in open court by the trial court, which was long before Martha withdrew her consent. To resolve this dispute, we must examine the exchange between the court and the parties when the Rule 11 agreement was announced to the court. The relevant excerpts from this exchange are as follows:

The Court: All right. Okay. I will approve the agreement as a Rule 11 Agreement, and I'll find that its in the best interest of the child.

***

[Martha's Attorney]: And, you know, for the record here, this is an agreement with regard to part of the case. We still have the other property issues.

The Court: The issues of conservatorship of the children.

[Martha's Attorney]: Right. And the property issues we're reserving.

The Court: The property issues are reserved for a bench trial at a later date.

 
***

[Martha's Attorney]: All right.

The Court: Okay. So we've resolved everything except for the property issues.

[Martha's Attorney]:Yes, Judge.

***

[Attorney Ad Litem]: Your Honor, I feel compelled at this point -- and I would ask [Ken's attorney]. But at the same time, the child support issues, health -- I mean, we should probably deal with the health insurance on the record. I don't know if they want to do that.

The Court: Right.

[Attorney Ad Litem]: But I feel compelled to do it because I don't want y'all to move on thinking all of the issues are disposed of.

 

The Court: Yes. Let's be clear what is not resolved today.

 

[Ken's Attorney]: Yes.

The Court: The only thing we're resolving are the conservatorship issues.

 
***

The Court: Okay. So the property --essentially the property issues are what's going to be resolved.

 

[Martha's Attorney]: I think we resolved all the issues regarding the child at this time.

The Court: Okay. All right. Then everything is resolved.

***

[Ken's Attorney]: Your Honor, one last thing is that under Rule 11 of the rules, it says that when you accept it, that you enter it, even if -- even if it's made in open court, that you enter it of record. Will you order it entered of record then, the agreement?

The Court: Yes. Since it was on the record in open court, it is entered of record, and I approve it as such.

We believe the language used by the trial court after the parties announced their Rule 11 agreement to the court constituted a rendition of judgment by the trial court. The record shows the trial court expressly approved the parties' settlement agreement and told the parties that: "The property issues are reserved for a bench trial at a later date . . . So we've resolved everything except for the property issues . . . The only thing we're resolving are the conservatorship issues." Although the trial court did not use the specific word "render" or state that it "now renders judgment," such language is not required under the law to constitute a rendition of judgment by the court. (2) The trial court's word choice need only demonstrate a present intent to make a decision upon the issues before it to constitute a rendition of judgment by the court, see Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976), which the court's use of the word "resolved" undeniably does in this instance. Because we believe the trial court expressed a clear intent to render judgment on the parties' Rule 11 agreement immediately after the agreement was announced to the court, we conclude Martha's repudiation of the settlement agreement came too late. Indeed, Martha's conduct following the announcement of the Rule 11 agreement indicates that she, too, believed the trial court had rendered judgment. At this point in the proceedings Martha proceeded to trial on the property issues, offered no evidence on the conservatorship issues, and rested her case without ever re-visiting the Rule 11 agreement. We therefore hold the trial court properly entered judgment in accordance with the parties' Rule 11 settlement agreement. Martha's first issue is overruled.

Just and Right Division

Martha also contends the trial court abused its discretion by failing to divide the parties' community estate in a just and right manner. The trial court is required to divide the community estate in a manner that is just and right having due regard for the rights of each party. Tex. Fam. Code Ann. 7.001 (Vernon 2006). The trial court has broad discretion in dividing the community estate, and we presume the trial court exercised its discretion properly. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). "The party who complains of the trial court's division of property must demonstrate from evidence in the record that the division was so unjust that the trial court abused its discretion." Prague v. Prague, 190 S.W.3d 31, 40-41 (Tex. App.--Dallas 2005, pet. denied). We consider every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing the community estate. Murff, 615 S.W.2d at 699; Prague, 190 S.W.3d at 41.

Martha claims the trial court awarded Ken $465,075 (60%) of the total net community estate while it awarded her only $311,412 (40%) of the total net community estate. Martha argues the trial court's division of the marital estate is not just and right because the court awarded Ken a disproportionate share of the community estate despite the fact that he: (1) earns almost $1,000,000 per year; (2) has a separate property estate worth nearly $1,000,000; (3) has substantial business opportunity; (4) is the party who is in better physical condition; and (5) has no need for future support. The record, however, does not support Martha's contention that the trial court's property award disproportionately favors Ken.

The record indicates that Martha's determination of the value of the total net community estate awarded to Ken is overstated by $323,073. Although the trial court determined the parties' community estate contributed $323,073 for improvements to Ken's separate property, the court made no reimbursement or economic contribution awards to the community estate for this amount because Martha's pleadings did not include any claims for economic contribution or reimbursement. See Huval v. Huval, No. 09-06-023-CV, 2007 WL 1793771, *2 n.5 (Tex. App.--Beaumont 2007, no pet.) (mem. op.) ("The party asserting claims for reimbursement or economic contribution must plead and prove the claims."). Therefore, it is improper for Martha to consider the $323,073 amount as a community asset awarded to Ken since she failed to plead and prove a claim for economic contribution or reimbursement. When the $323,073 amount Martha erroneously attributes to Ken is disregarded from her calculations, it appears the trial court actually awarded Ken only $142,002 (32%) of the total net community estate while it awarded Martha $311,412 (68%) of the total net community estate. Because the trial court's division of the marital estate disproportionately favors Martha -- not Ken -- we are unpersuaded by Martha's contention that the trial court failed to divide the community estate in a just and right manner. Martha's second issue is overruled.

Amendment of Pleadings

Finally, Martha contends the trial court abused its discretion when it denied her leave to amend her pleadings before trial. (3) Texas Rule of Civil Procedure 63 provides that any amendment "offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." Tex. R. Civ. P. 63. The supreme court has indicated that:

[t]he right of amendment under Rule 63 is subject to the opposing party's right to show surprise, as determined in the exercise of the trial court's discretion. This showing may be based on the trial court's conclusion that the amendment on its face is calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.

 

Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980). When the trial court refuses an amendment that introduces new substantive matter, the complaining party has the burden of showing the trial court abused its discretion. Id. We will not disturb the trial court's ruling on appeal "unless the complaining party clearly shows an abuse of discretion." Id.

 

Here, Martha filed a motion for leave to amend along with a second amended petition, which

sought to add new claims against Ken for economic contribution and reimbursement, two days before trial. (4) Martha's amended petition would have injected new matters into the case that would have reshaped the lawsuit, prejudicing Ken and unnecessarily delaying the trial. Martha made no disclosures during the discovery period which would have put Ken on notice of her economic contribution or reimbursement claims, nor did Martha file an inventory and appraisement describing such claims. In light of the circumstances presented, we conclude the trial court did not abuse its discretion when it denied Martha leave to amend her pleadings. See generally Duwe v. Duwe, No. 2-06-053-CV, 2007 WL 174407, *4 (Tex. App.--Fort Worth 2007, no pet.) (mem. op.) (holding trial court did not abuse its discretion in denying wife's motions for leave to file a late counter-petition and to make a trial amendment because the counter-petition and trial amendments "reshaped the claim for divorce by presenting a new ground, fault based on cruel treatment, and new claims for economic contribution, reimbursement, and spousal maintenance."). Martha's third issue is overruled.

Conclusion Based on the foregoing, the judgment of the trial court is affirmed.

 

Catherine Stone, Justice

 

1. Ken and Martha's settlement agreement complied with Rule 11 of the Texas Rules of Civil Procedure inasmuch as the agreement was made in open court and approved by the trial court and entered of record as the agreement of the parties. See Tex. R. Civ. P. 11 ("Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.").

2. Although the supreme court has not required it, we encourage trial courts to nonetheless use the specific word "render" and state unequivocally that it "does now render judgment" whenever the court intends to render judgment on a settlement agreement. By using such language, trial courts can eliminate any uncertainty as to their true intentions. See Galerie D'Tile, Inc. v. Shinn, 792 S.W.2d 792, 794 (Tex. App.--Houston [14th Dist.] 1990, no writ) ("[I]t is always preferable for the trial judge to use the specific word 'render' and to state unequivocally that he or she 'does now render judgment' in the case.").

3. Martha refers to various documents in her brief that she believes demonstrate the trial court abused its discretion in denying her motion for leave to amend her pleadings. These documents, however, are not part of the appellate record. Consequently, we may not consider these documents as support for Martha's contention on appeal. See Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.--Dallas 2006, no pet.) ("The Court cannot consider documents that are not properly included in the appellate record.").

4. Martha's pleadings included several other claims and causes of action against Ken. Martha, however, has limited her appellate complaint to the trial court's refusal to allow her to amend her pleadings to add her economic contribution and reimbursement claims.