Harold Ray Thomas v. Ruth Ann Thomas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-158-CV

HAROLD RAY THOMAS,

Appellant

v.

RUTH ANN THOMAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 5068-93

O P I N I O N

The court granted Ruth Ann Thomas and Harold Ray Thomas an agreed divorce, divided their property according to an agreed property settlement, and changed Ruth Ann's surname to Neel. Harold attacks the judgment in five points of error, claiming that the court erred by failing to divide a bank account and a business owned and operated by Ruth Ann, awarding her a house as separate property when there was insufficient evidence to support the award, granting the divorce on insufficient evidence, and approving the property division without discovering that he had not consented to the judgment. We affirm.

Harold and Ruth Ann married on May 17, 1990 and separated on January 30, 1993. Ruth Ann filed for divorce on February 5, 1993. At the final hearing on the divorce, held on May 28, 1993, the parties presented the court with an agreed divorce decree. Ruth Ann and Harold each signed the decree as "approved as to form and to content." Both parties testified at the hearing. During Ruth Ann's testimony, her attorney reviewed the provisions of the agreed decree and asked if she was "in agreement with all that, and you're asking the Court to approve the decree that we've submitted." She responded "Yes, sir."

When Harold testified, his attorney asked, "It's my understanding that while you're not the least bit anxious for this divorce to be granted, assuming that it is, then you wish the Judge to enter the decree awarding the property as it's been set out; is that correct?" Although Harold did not verbally respond to the question, the statement of facts indicates that, "Witness nods head." In his brief, Harold agrees that he nodded his head in response to this question. At the conclusion of the hearing the court approved the parties' agreement and granted the divorce. The court signed the judgment on the same day.

On June 28, Harold moved for a new trial, requesting that the court set aside the divorce decree because he had not had adequate time to confer with his attorney and, so, had not been able to tell the attorney that he did not wish to consent to the agreed decree. Additionally, he alleged that the decree did not divide all of the property. After a hearing the court denied Harold's motion.

Although the general rule is that an agreed judgment waives all error in rendering the judgment, a party's consent to a judgment can be attacked on appeal. See Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291-92 (1951). In point four, Harold claims that he did not consent to the judgment. He admits, however, that he nodded his head in agreement when his counsel inquired whether he was asking the court to divide the property in accordance with the agreed property division. Thus, to prevail on this point, he must show that the court had information which was "reasonably calculated" to cause it to inquire concerning his consent to the judgment and that the inquiry would have disclosed his lack of consent. See id. at 292.

Essentially, he argues that the remark made by his attorney while questioning him about whether he consented to the property division i.e., that he was "not the least bit anxious" to get the divorce should have alerted the court that further inquiry was needed concerning his consent. We disagree. That he was "anxious" about the divorce being granted would not reasonably cause the court to question his consent to the decree, especially in light of the undisputed evidence that he clearly evidenced his consent by affirmatively nodding his head and by personally signing the judgment. The court did not abuse its discretion in denying the motion for a new trial based on a lack of consent. Point four is overruled.

Agreed judgments excuse error and operate to end the controversy between the parties. See Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979); Boyett v. Boyett, 799 S.W.2d 360, 362 (Tex. App. Houston [14th Dist.] 1990, no writ). Even if there is error in an agreed judgment, it cannot be attacked on appeal. See Boyett, 799 S.W.2d at 363-64. Thus, because he agreed to the judgment, Harold cannot attack the division of the property or the grant of the divorce. Points one, two, three and five, all of which attack the judgment, are overruled.

If, as Harold argues, he has an unadjudicated claim in Ruth Ann's separate property business, his remedy is to file suit to have the court divide any undivided property. // See Tex. Fam. Code Ann. 3.90(a) (Vernon 1993).

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 30, 1994

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