Peggy D. Parham v. Roland Carrol Parham--Appeal from 264th District Court of Bell County

PARHAM V. PARHAM TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00617-CV
Peggy D. Parham, Appellant
v.
Roland Carrol Parham, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 138,271-D, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING

The trial court signed a decree granting a divorce between Peggy Parham, appellant, and Roland Parham. Because Mr. Parham was deceased at the time the district court rendered judgment, and because we conclude that no valid Rule 11 agreement existed between the parties, we will reverse and remand.

 
FACTUAL AND PROCEDURAL BACKGROUND

On May 18, 1992, Roland Parham filed a petition for divorce. Appellant filed an answer and counter-petition for divorce. On September 9, 1992, the Parhams appeared in open court and filed a document signed by their attorneys regarding the division of a portion of their property. No record was made of this hearing, although the trial judge noted the following on the docket sheet: "Divorce. Parties & attys present, heard on cross petition. Divorce granted, no children. Property as per agreed decree. C. W. Duncan, Judge Presiding."

No written decree had been signed when Roland Parham died on October 15, 1992. On December 28, 1992, Mr. Parham's attorney filed a "Motion to Sign Decree of Divorce" and submitted a draft of a decree containing numerous terms that were not addressed in the memorandum on file with the court. Appellant's attorney filed a response to this motion, raising various issues that had caused her to withdraw her consent to the agreement. She contended that the September 9, 1992 agreement was not sufficiently detailed to constitute or authorize a consent decree. On July 28, 1993, the trial court signed a divorce decree that contained provisions that were not a part of the September 9, 1992 memorandum filed with the court. (1) Appellant filed a timely motion for new trial asserting that she had withdrawn her consent to any property rights settlement embodied in the decree, that she had the right to withdraw her consent, that Mr. Parham had obtained her consent by fraud and misrepresentation, and that the purported Rule 11 agreement did not suffice to authorize a consent decree over her objection. After a hearing, the trial court overruled the motion.

In three points of error, appellant contends that the district court erred by: (1) signing the decree of divorce after she had withdrawn consent to the settlement agreement; (2) signing a decree containing additional terms that the court lacked authority to supply; and (3) refusing to grant appellant's motion for a new trial, because her consent to the agreement was obtained by fraud and misrepresentation.

 
DISCUSSION

The death of either party prior to rendition of a divorce decree withdraws the subject matter of the litigation from the jurisdiction of the court. Thus, if the present judgment was not rendered before October 15, 1992, the trial court had no jurisdiction to render judgment after that date. The power to settle claims between the parties is merely incidental to the primary object of changing the status or relation of the parties, and this power abates automatically upon the death of either party. Garrison v. Garrison, 568 S.W.2d 709, 710 (Tex. Civ. App.Beaumont 1978, no writ); Garrison v. Texas Commerce Bank, 560 S.W.2d 451, 453 (Tex. Civ. App.Houston [1st Dist.] 1977, writ ref'd n.r.e.); Parr v. White, 543 S.W.2d 445, 448 (Tex. Civ. App.Corpus Christi 1976, writ ref'd n.r.e.).

Likewise, a party may revoke his or her consent at any time before the court renders judgment on an agreement between the parties. Here, if judgment was not rendered before appellant repudiated her consent to the property settlement agreement, then rendering judgment on such agreement was improper. A judge cannot render a consent judgment when one party does not consent at the time he actually renders judgment, even though that party may have previously consented to the agreement, because consent must exist at the moment the court renders judgment. Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951); Cary v. Cary, 894 S.W.2d 111, 112 (Tex. App.Houston [1st Dist.] 1995, no writ); Formby's KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 431 (Tex. App.Dallas 1987, no writ); Hahne v. Hahne, 663 S.W.2d 77, 79 (Tex. App.Houston [14th Dist] 1983, no writ); Vineyard v. Wilson, 597 S.W.2d 21, 23 (Tex. Civ. App.Dallas 1980, no writ); Carter v. Carter, 535 S.W.2d 215, 217 (Tex. Civ. App.Tyler 1976, writ ref'd n.r.e.). Unless it rendered judgment on September 9, 1992, the trial court was not authorized to render an agreed judgment without appellant's consent once she made it known that she was repudiating the settlement agreement. We must set aside any alleged consent decree rendered under such circumstances. Burnaman, 240 S.W.2d at 291-92; Jones v. American Motorists Ins. Co., 769 S.W.2d 617, 619 (Tex. App.Houston [14th Dist.] 1989, no writ); Vineyard, 597 S.W.2d at 23; Carter, 535 S.W.2d at 217.

On the other hand, when judgment has already been rendered, neither death nor the withdrawal of consent undermines the rendering of judgment. The death of one of the parties does not abate a divorce action when a judge has rendered a prior order disposing of all issues. Novotny v. Novotny, 665 S.W.2d 171, 173-74 (Tex. App.Houston [1st Dist.] 1983, writ dism'd). Furthermore, a party may not repudiate consent to the settlement agreement after judgment is rendered thereon. Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex. 1969); Giles v. Giles, 830 S.W.2d 232, 237 (Tex. App.Fort Worth 1992, no writ); Novotny, 665 S.W.2d at 174; Hahne, 663 S.W.2d at 79.

In the present case, therefore, the critical issue is whether the trial court actually rendered judgment on September 9, 1992. Mr. Parham argues that the memorandum filed on September 9, 1992, represents a valid Rule 11 agreement and that the trial court approved this agreement and rendered judgment at that time. See Tex. R. Civ. P. 11. On its face, Rule 11 forbids enforcement of an agreement unless it is: (1) in writing, signed and filed with the papers as part of the record; or (2) made in open court and entered of record. Jones, 769 S.W.2d at 618; Formby's KOA, 730 S.W.2d at 429. Rule 11 is a minimum requirement for enforcement of all agreements concerning pending suits, including, but not limited to, agreed judgments. The clear language of the rule indicates that compliance with Rule 11 is a general prerequisite for any judgment enforcing an agreement touching a pending suit. Kennedy v. Hyde, 682 S.W.2d 525, 528-29 (Tex. 1984). The rationale underlying Rule 11 is sensible and contributes to efficient court administration. Courts welcome agreements and stipulations because they limit the matters in controversy and expedite trial proceedings. Rule 11 ensures that such agreements do not themselves become sources of controversy, impeding rather than advancing the resolution of lawsuits. The requirements of Rule 11 are not onerous, and the benefits are substantial. Id. at 530. The supreme court's opinion in Matthews v. Looney, 123 S.W.2d 871 (Tex. 1939), demonstrates that an agreement not in compliance with the rule will not support an agreed judgment. Thus, as a general rule compliance with Rule 11 is necessary, but not necessarily sufficient, to support an agreed judgment.

The parties in the present case appeared in open court. Although the trial court heard testimony and made some pronouncements, no record was made of that proceeding. Accordingly, the requirement that the agreements be made "in open court and entered of record" was not satisfied. Without a valid Rule 11 agreement sufficient to supply all of the terms at the time judgment was rendered, the court could not render judgment thereon.

In order to be final, a judgment must dispose of all issues and parties in the case. Garrison v. Texas Commerce Bank, 560 S.W.2d at 453. A memorandum that is dispositive of all issues in a case is a valid Rule 11 agreement only when the formal signing of a written judgment is merely a ministerial act. In this connection, the memorandum is analogous to an oral pronouncement of judgment by the court. Dunn, 439 S.W.2d at 832-33; Novotny, 665 S.W.2d at 173. The signing of a written judgment is a ministerial act only when the court has already determined and announced the rights of all parties and the disposition of all issues, so that the court need take no future action to settle and determine the entire controversy. Novotny, 665 S.W.2d at 174.

It is absolutely essential that the parties themselves agree on all the settlement terms, provisions, and conditions; the trial court has no power to supply terms, provisions, or conditions that the parties did not previously agree to, and the court has no authority to render an agreed judgment that does not fall strictly within the terms of the agreement that the parties themselves dictated into the record. Vineyard, 597 S.W.2d at 23. In the present case, the purported Rule 11 agreement did not state which party would receive the portion of their property not mentioned in the agreement. (2)

The lack of detail of the settlement agreement distinguishes this case from Hollaway v. Hollaway, 792 S.W.2d 168 (Tex. App.Houston [1st Dist.] 1990, writ denied). In Hollaway, the parties dictated the settlement agreement into the record in great detail, precluding any necessity for further court consideration. The trial judge stated on the record that the signing of the decree would be a ministerial act and that "it's over and done with." Thus, the court had enough detail in the settlement agreement to render judgment without adding terms and provisions to the decree. Id. at 170. In contrast, the September 9, 1992 memorandum lacks the requisite detail to suffice as a valid Rule 11 agreement.

Moreover, the record in the present case is insufficient to establish that the district court rendered judgment on September 9, 1992, even if there had been a valid Rule 11 agreement. The rendition of judgment is a present act, either by spoken word or signed memorandum, that decides the issues on which the ruling is made. The opportunities for error and confusion may be minimized if judgments will be rendered only in writing and signed by the trial judge after careful examination. Judges must orally render judgment in and by spoken words, not in mere cognition, and such a rendition can have effect only insofar as the words state the pronouncement to be a present rendition of judgment. Giles, 830 S.W.2d at 235-36; Formby's KOA, 730 S.W.2d at 430.

A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidancewhether orally or by written memorandumthe sentence of the law pronounced by him in any cause. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970); Formby's KOA, 730 S.W.2d at 429-30; Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 483 (Tex. App.Houston [14th Dist.] 1986, writ ref'd n.r.e.); Novotny, 665 S.W.2d at 173.

In the present case, the September 9, 1992 hearing was not reported. Therefore, the court's spoken word cannot be analyzed. This further distinguishes this case from Hollaway, where the court's precise words at the hearing's conclusion were: "I'll grant the Divorce and approve the settlement. It's on the Record. I will approve the settlement in January. However, it's my intention the Divorce is rendered today. . . . The agreement is entirely dictated on the Record." Hollaway, 792 S.W.2d at 169.

Mr. Parham suggests that this case is the mirror image of Giles. The facts in the instant case, however, are distinct from those in Giles. In Giles, the parties' consent agreement was announced in open court and dictated into the record. 830 S.W.2d at 233. The parties were sworn as witnesses and testified they approved the terms of the agreement. Id. at 234. At the conclusion of the hearing, the trial judge granted the divorce, effective immediately, and stated that the parties' agreement was approved. Id. The court ordered the attorneys to prepare and approve the decree and stated that the divorce decree would not require the signatures of either of the parties. Additionally, the court stated: "So far as the two of you are concerned, your divorce is granted today." Id. Finally, the court signed a docket notation affirmatively granting the divorce and stating that the property was divided according to the terms read into the record. Id.

In the present case, the only similar fact favoring a conclusion that the district court rendered judgment on September 9, 1992 is the docket entry. That docket entry alone cannot suffice to support a conclusion that the court rendered judgment, however, because the record does not show that the parties made any agreement "in open court" or memorialized the terms of that agreement by reading it into the record. Jones, 769 S.W.2d at 619. The trial judge did not render judgment by his docket sheet notation. A mere docket entry is generally not sufficient to constitute a judgment or decree of the court. Formby's KOA, 730 S.W.2d at 430-31. Here, the record contains no indication that the trial court called the docket notation to the parties' attention in open court or filed the docket sheet with the clerk as his judgment. The docket notation appears to be no more than a conventional reminder to the trial judge of the terms of the agreement announced by the parties. Id. at 430.

We conclude, therefore, that the trial court did not render judgment on September 9, 1992. The written judgment signed on July 18, 1993, supplied terms that were not contained in the original agreement and that were added after Mr. Parham died and appellant withdrew her consent. Appellant's first and second points of error are therefore sustained. In light of this holding, we need not address point of error three.

 
CONCLUSION

The judgment of the district court is reversed, and the cause is remanded for further proceedings.

 

J. Woodfin Jones, Justice

Before Justices Aboussie, Jones and Kidd

Reversed and Remanded

Filed: May 17, 1995

Do Not Publish

1. The final decree contains the following provisions that are either not included in the original memorandum or do not specify the party to whom they would be awarded: (1) that on October 1, 1992, Mr. Parham paid $750.00 interest to Mrs. Parham on real property awarded to him; (2) that Mrs. Parham would be awarded a 1981 GMC van; (3) that the cash in Mrs. Parham's possession would be awarded to her; and (4) that Mr. Parham's retirement benefits are awarded to him.

2. For example, the September 9, 1992 memorandum referred to "[a]ll property in his possession" without stating which party was to be awarded that property. Nor did the memorandum divide the household goods and personal effects of the parties, yet the divorce decree purports to award such property. In addition, the memorandum recites "$1500 cash for bldg. on his place payable $750/mo," without stating to which party this award was made nor the date such payments were to begin. The decree of divorce signed by the judge supplies these terms. Finally, the memorandum also refers to $2,200.00 from a tax refund without naming the party to whom this asset was awarded.