Fredrick Lawerence Cooper v. Renee Hunter Cooper ( 2021 )


Menu:
  • Affirmed and Remanded and Opinion Filed May 4, 2021
    In the
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-20-00507-CV
    FREDRICK LAWRENCE COOPER, Appellant
    V.
    RENEE HUNTER COOPER, Appellee
    On Appeal from the 429th Judicial District Court
    Collin County, Texas
    Trial Court Cause No. 429-51931-2018
    MEMORANDUM OPINION
    Before Justices Schenck, Reichek, and Carlyle
    Opinion by Justice Carlyle
    In this divorce action, appellant Fredrick Lawrence Cooper contends, among
    other things, that the trial court erred by entering an agreed judgment when his
    consent had been revoked prior to the judgment’s rendition. We reverse in part and
    remand in this memorandum opinion. See TEX. R. APP. P. 47.4.
    Background
    Appellee Renee Hunter Cooper filed a petition for divorce against Mr. Cooper
    on March 29, 2018. Mr. Cooper filed a timely general denial answer.
    At a July 9, 2019 hearing, the parties told the trial court they had reached an
    agreement regarding the division of their marital estate. Ms. Cooper’s counsel stated:
    Your Honor, the parties have agreed to—concerning the marital
    residence, the house is being awarded to Wife subject to her attempting
    to refinance the house. She has 30 days to begin the refinance process
    to obtain approval. If she fails to obtain approval within that 30 days,
    the house would then be put on the market for sale and the parties will
    split the proceeds.
    The parties are dividing up their various retirement accounts.
    There’s three known accounts. . . . The parties are going to provide
    updated statements that would determine the current value of those
    accounts. All of the awards of the accounts are as of today’s date.
    Ms. Cooper’s counsel also stated that the agreement’s terms required Mr. Cooper to
    produce his bank statements dating back to March 29, 2018, for inspection regarding
    “any wild withdrawals or transfers” that might “affect the distribution of the
    agreement.”
    Mr. Cooper and Ms. Cooper testified they accepted the agreement recited into
    the record. The trial court stated, “Then, based on the testimony, the Court does
    accept and approve the agreement of the parties and I adopt and render them as the
    order of the Court. I also grant the divorce today and will sign the order whenever
    it’s submitted to me.” Additionally, after a brief discussion with the parties’ counsel,
    the trial court set the “motion to enter” for early September and stated, “Obviously,
    if you reach an agreement before then, I will happily sign the order so no one has to
    appear on that date.”
    The motion to enter was continued to October 18, 2019. At the start of that
    proceeding, Ms. Cooper’s counsel asked the trial court for a “reset” because “we
    can’t settle the case without the additional documents, bank records that we were
    going to get and agreed to before the Court at the time when we read the agreements
    –2–
    of the parties on the record.” Mr. Cooper’s counsel asserted he had provided all
    records required under the agreement. Ms. Cooper’s counsel disagreed and stated,
    “[W]e’re asking the Court to maybe set a final trial and hear our motion going
    forward as we just don’t have the [July 9, 2019 transcript] today to determine what
    the agreement we reached was.” The trial court stated it would “set this for final
    trial” in forty-five days.
    On November 22, 2019, the parties appeared before a visiting judge regarding
    several motions to compel discovery. The parties stated they had reached an
    agreement “to abide by what was read into the record in terms of the agreements for
    the divorce on July 9th of 2019.” Mr. Cooper and Ms. Cooper each testified they
    agreed. The visiting judge stated, “Okay. The agreements of the parties, as far as
    these property issues, is approved. So, if you’ll incorporate that into the decree, then
    it will be signed whenever you submit it.”
    On February 3, 2020, both parties’ counsel appeared at a “motion to enter”
    proceeding without their clients present. The trial court stated it had the transcript
    from “the July divorce prove-up.” The parties’ counsel disagreed in several respects
    as to “what the decree should look like.” In particular, Mr. Cooper’s counsel argued
    that because Ms. Cooper did not “actually complete” refinancing within thirty days
    after the July hearing, the marital residence should be sold and the proceeds divided
    equally. Ms. Cooper’s counsel asserted she was required only to “begin the refinance
    process” within thirty days and had met that deadline. The refinancing was currently
    –3–
    pending. The trial court stated “[w]e will use wife’s language” as to the refinancing
    requirement. The parties’ counsel also disputed whether all retirement accounts had
    been disclosed. They agreed that any undisclosed retirement accounts that were not
    otherwise separate property would be awarded to the opposing party. The trial court
    directed the parties’ counsel to “sit down in one of these rooms and go over [the
    decree] to interlineate,” then “bring the decree back to the bailiff.”
    In a February 4, 2020 letter filed in the trial court, Mr. Cooper’s counsel stated:
    The following provision was left out of the proposed decree at page 5
    of 14:
    R-8. Upon the sale or refinance of the real property, indicated in P-1,
    [Mr. Cooper] is to receive Fifty-Percent (50%) of the net sales or cash-
    out proceeds (defined as the gross sales price or loan appraised value
    less cost of sale or loan amount refinanced and full payment of any
    mortgage indebtedness or liens on the property).
    There is also an edit to Undisclosed Assets, page 8 - Should it be
    determined that any non-disclosing party has not disclosed a known
    retirement account that would not otherwise be separate property,
    including 401(k)s, IRA’s, pensions, etc., existing prior to the date of
    entry of this decree, then in such case that asset shall be awarded to the
    other party.
    I have attached the correct version of the decree for the Court’s
    signature on Thursday, February 6th, with the appropriate language.
    Thank you. If there are any questions, please do not hesitate to contact
    me.
    On February 6, 2020, Mr. Cooper obtained new counsel, who entered an
    appearance and filed an “Objection to Entry of Final Decree” that morning. The
    objection stated, “The current form of the Final Decree of Divorce is not in
    –4–
    conformity with the agreements made in this matter. . . . Fredrick Cooper respectfully
    requests that this Court not sign the Final Decree of Divorce . . . .”
    The trial court signed the “Agreed Final Decree of Divorce” on February 6,
    2020. A provision in the decree stated it was “approved as to form only” by the
    parties’ attorneys, with undated signatures of Ms. Cooper’s counsel and Mr.
    Cooper’s former counsel. Neither party signed the decree. The decree did not contain
    the edits Mr. Cooper’s former counsel requested in the February 4 letter, but rather
    awarded Ms. Cooper the marital residence subject to her “refinancing the mortgage
    note in [her] sole name.”
    On February 10, 2020, Mr. Cooper requested findings of fact and conclusions
    of law and filed a “Motion to Modify, Correct, or Reform Judgment.” His motion
    contended that the property awarded to him “should include an award of fifty percent
    (50%) of the community equity in the residence . . . upon refinance or sale of the
    residence by [Ms. Cooper].” Following a hearing, the trial court denied that motion.
    Mr. Cooper filed a March 3, 2020 motion for new trial based on that same
    contention. In his reply to Ms. Cooper’s response to that motion, he stated, “There
    was ongoing issues regarding the interpretation of the decree terms which prohibited
    an agreed decree being entered.” The trial court denied Mr. Cooper’s motion for new
    trial. The trial court also issued March 19, 2020 findings of fact and conclusions of
    law in which it stated:
    6. The Court finds the parties entered into an agreement on July 9, 2019,
    in which the parties appeared with counsel and wherein the parties were
    –5–
    sworn and their testimony heard; the agreement of the parties was read
    into the record; the Court accepted and approved the agreement of the
    parties and further adopted the agreement and rendered it as an order of
    the Court on that date.
    7. The Court finds the parties entered into a further agreement on
    November 19, 2019 [sic] in which the parties appeared with counsel
    and wherein the parties were sworn and their testimony heard; the
    further agreement of the parties was read into the record; the Court
    accepted and approved the further agreement of the parties and further
    adopted the agreement and rendered it as an order of the Court on that
    date.
    ....
    9. The parties submitted an Agreed Final Decree of Divorce, signed by
    counsel of the parties. At the time of submission of the final decree of
    divorce, counsel for both parties stipulated the submitted final decree
    of divorce represented the parties’ agreement.
    Analysis
    A Rule 11 agreement is an agreement between parties or attorneys touching
    any pending suit that, to be enforceable, must be either (1) in writing, signed and
    filed as part of the record, or (2) made in open court and entered of record. TEX. R.
    CIV. P. 11. Even if the parties enter into a valid Rule 11 agreement to settle a case,
    the parties must consent to the agreement at the time the trial court renders judgment.
    Kennedy v. Hyde, 
    682 S.W.2d 525
    , 528 (Tex.1984). “For a valid consent judgment
    to exist, it is not sufficient that the parties may have at some time consented; the
    parties must explicitly and unmistakably give consent, and their consent must exist
    at the very moment the court undertakes to make the agreement the judgment of the
    court at rendition.” Sohocki v. Sohocki, 
    897 S.W.2d 422
    , 424 (Tex. App.—Corpus
    Christi–Edinburg 1995, no writ) (citing Kennedy, 682 S.W.2d at 528).
    –6–
    A rendition of judgment is the pronouncement of the trial court of its decision
    upon the matters submitted to it for adjudication. Gamboa v. Gamboa, 
    383 S.W.3d 263
    , 270 (Tex. App.—San Antonio 2012, no pet.). The decision can be oral or
    written. S&A Rest. Corp. v. Leal, 
    892 S.W.2d 855
    , 857–58 (Tex. 1995) (per curiam).
    “Regardless of the language used and the trial court’s pronouncements, judgment is
    not rendered unless the trial court acts with the present intent to render a full, final,
    and complete judgment that resolves all issues.” In re Rivkin, No. 05-20-00124-CV,
    
    2020 WL 2316071
    , at *2 (Tex. App.—Dallas May 11, 2020, orig. proceeding) (mem.
    op.); see S&A Rest. Corp., 892 S.W.2d at 858 (“The words used by the trial court
    must clearly indicate the intent to render judgment at the time the words are
    expressed.”). For example, a ruling is not considered final when it includes language
    indicating a final order will be rendered in the future. Rivkin, 
    2020 WL 2316071
    , at
    *2; see Gamboa, 
    383 S.W.3d at 270
     (concluding trial court did not render final
    judgment despite stating it was “granting the divorce effective today” and approving
    settlement agreement, when it also stated it wanted to get final agreement done, set
    deadline for parties to complete final agreement, and told them they could return to
    court if they could not agree on resolution of issues). In determining whether
    judgment was rendered, “[a]n appellate court may consider the pronouncements of
    the trial court in the context in which they occurred.” In re Penney, No. 05-14-00503-
    CV, 
    2014 WL 2532307
    , at *2 (Tex. App.—Dallas June 4, 2014, orig. proceeding)
    (mem. op.).
    –7–
    A party has the right to revoke his consent at any time before the court renders
    judgment. Sohocki, 897 S.W.2d at 424 (citing Samples Exterminators v. Samples,
    
    640 S.W.2d 873
    , 874 (Tex. 1982) (per curiam)). “A judgment based on an agreement
    cannot be rendered, even if the requirements of Rule 11 are met, if the consent of
    one of the parties has either been withdrawn or is lacking at the time the agreed
    judgment is rendered; such judgment is void.” 
    Id.
     (citing Kennedy, 682 S.W.2d at
    528–529; Samples, 640 S.W.2d at 875). When a trial court has knowledge that a
    party to a suit does not consent to a judgment, it should refuse to sanction the
    agreement by making it the judgment of the court. Id. (citing Burnaman v. Heaton,
    
    240 S.W.2d 288
    , 291 (Tex. 1951)). The proper inquiry is whether the information in
    the trial court’s possession is clearly sufficient and of such a nature as to put the court
    on notice that a party’s consent is lacking and to require the court to make further
    inquiry before rendering judgment. 
    Id.
     An agreed judgment will be set aside if
    rendered “when the court is in possession of information which is reasonably
    calculated to prompt the court to make further inquiry into the party’s consent
    thereto, which inquiry, if reasonably pursued, would disclose the want of consent.”
    Burnaman, 240 S.W.2d at 291–92; see also Le Jeune v. Robbins, No. 10-16-00360-
    CV, 
    2021 WL 824991
    , at *2 (Tex. App.—Waco Mar. 3, 2021, no pet.) (mem. op.)
    (“[T]he trial court is on notice that mutual consent is lacking when parties to a
    settlement agreement submit conflicting motions for entry of judgment.”).
    –8–
    Generally, family law issues are reviewed under an abuse of discretion
    standard. See In re W.R.B., No. 05-12-00776-CV, 
    2014 WL 1008222
    , at *2 (Tex.
    App.—Dallas Feb. 20, 2014, pet. denied) (mem. op.); see also Tidwell v. Tidwell,
    No. 08-17-00120-CV, 
    2019 WL 4743685
    , at *2 (Tex. App.—El Paso Sept. 30, 2019,
    no pet.) (mem. op.) (trial court’s decision regarding enforcement of Rule 11
    agreement is reviewed for abuse of discretion). A trial court abuses its discretion
    when it acts arbitrarily or unreasonably or without any reference to guiding rules and
    principles. E.g., Gonzalez v. Gonzalez, 
    331 S.W.3d 864
    , 866 (Tex. App.—Dallas
    2011, no pet.). In family law cases, the abuse of discretion standard of review
    overlaps with the traditional sufficiency standards of review. E.g., In re I.B., No. 05-
    18-01429-CV, 
    2019 WL 5884406
    , at *2 (Tex. App.—Dallas Nov. 12, 2019, no pet.)
    (mem. op.). As a result, legal and factual sufficiency are not independent grounds of
    reversible error, but instead constitute factors relevant to our assessment of whether
    the trial court abused its discretion. 
    Id.
     (citing Moroch v. Collins, 
    174 S.W.3d 849
    ,
    857 (Tex. App.—Dallas 2005, pet. denied)). To determine whether the trial court
    abused its discretion we consider whether the trial court (1) had sufficient evidence
    on which to exercise its discretion and (2) erred in its exercise of that discretion. 
    Id.
    (citing In re A.B.P., 
    291 S.W.3d 91
    , 95 (Tex. App.—Dallas 2009, no pet.)).
    In his first issue, Mr. Cooper asserts the trial court abused its discretion by
    entering the judgment in question because he “revoked his consent to any settlement
    agreement before judgment was rendered.” He contends that though “the trial court
    –9–
    purports to have rendered judgment on July 9,” he and Ms. Cooper “still had to agree
    to a series of remaining items before a decree could be drafted.”
    The record shows that as of July 9, 2019, the parties had not completed
    production of documents that could affect the terms of the agreement. At the hearing
    on that date, the trial court stated that “based on the testimony, the Court does accept
    and approve the agreement of the parties and I adopt and render them as the order of
    the Court. I also grant the divorce today and will sign the order whenever it’s
    submitted to me.” But the trial court then set the “motion to enter” for eight weeks
    away and stated, “Obviously, if you reach an agreement before then, I will happily
    sign the order so no one has to appear on that date.” On October 18, 2019, Ms.
    Cooper’s counsel asked the trial court for a “reset” because “we can’t settle the case
    without the additional documents.” Thus, the record demonstrates the trial court and
    parties were aware that all issues had not been resolved as of July 9, 2019.
    “Regardless of the language used and the trial court’s pronouncements,
    judgment is not rendered unless the trial court acts with the present intent to render
    a full, final, and complete judgment that resolves all issues.” Rivkin, 
    2020 WL 2316071
    , at *2; see also Penney, 
    2014 WL 2532307
    , at *2 (appellate court “may
    consider the pronouncements of the trial court in the context in which they
    occurred”). Here, the record does not show that on July 9, 2019, the trial court acted
    with “the present intent to render a full, final, and complete judgment that resolves
    all issues.” Rivkin, 
    2020 WL 2316071
    , at *2; see Gamboa, 
    383 S.W.3d at 270
    ; see
    –10–
    also S&A Rest. Corp., 892 S.W.2d at 858 (fact that trial court believed it had rendered
    judgment during hearing was not dispositive).
    Ms. Cooper argues that on November 22, 2019, “[t]he court again rendered
    judgment . . . in conformity with request of the parties and their announced
    agreement.” Though the record shows the visiting judge at the November 22, 2019
    hearing stated that “[t]he agreements of the parties, as far as these property issues, is
    approved,” approval of a settlement does not necessarily constitute rendition of
    judgment. S&A Rest. Corp., 892 S.W.2d at 857. “The words used by the trial court
    must clearly indicate the intent to render judgment at the time the words are
    expressed.” Id. at 858. Nothing in the record shows that the visiting judge’s
    “approval” of the parties’ agreements regarding certain property issues indicated
    “the present intent to render a full, final, and complete judgment.” Rivkin, 
    2020 WL 2316071
    , at *2.
    Additionally, the trial court stated in its findings of fact, “At the time of
    submission of the final decree of divorce, counsel for both parties stipulated the
    submitted final decree of divorce represented the parties’ agreement.” But the critical
    point at which consent must exist is rendition. See Sohocki, 897 S.W.2d at 424. Prior
    to the trial court’s February 6, 2020 rendition of judgment in this case, Mr. Cooper’s
    counsel filed the February 4, 2020 letter describing provisions “left out of the
    proposed decree.” At the very least, this put the trial court on notice to inquire as to
    Mr. Cooper’s lack of consent to the submitted decree. See Burnaman, 240 S.W.2d at
    –11–
    291–92; Le Jeune, 
    2021 WL 824991
    , at *2. Thus, the trial court abused its discretion
    by rendering an agreed judgment based on the parties’ purported property settlement
    agreement. In light of that conclusion, we need not address Mr. Cooper’s two
    remaining issues, which assert independent challenges to that purported agreement.
    Conclusion
    The only issue we sustain on appeal affects the division of property. 1 See
    Gamboa, 
    383 S.W.3d at 274
    . The Texas Rules of Appellate Procedure provide that
    if an error affects part but not all of the matter in controversy and that part is
    separable without unfairness to the parties, the judgment must be reversed and a new
    trial ordered only as to the part affected by the error. TEX. R. APP. P. 44.1(b); see also
    Gamboa, 
    383 S.W.3d at 274
    ; Brown v. Brown, 
    917 S.W.2d 358
    , 363 n.4 (Tex. App.—
    El Paso 1996, no writ) (recognizing that appellate court may reverse one portion of
    divorce decree while affirming remainder).
    Thus, in accordance with Rule 44.1(b), we reverse the portion of the trial
    court’s judgment pertaining to the division of property and remand this cause to the
    trial court for further proceedings regarding the property division. See TEX. R. APP.
    P. 44.1(b). We affirm the trial court’s divorce judgment in all other respects,
    including the granting of the divorce and Ms. Cooper’s name change.
    /Cory L. Carlyle//
    200507f.p05                                                       CORY L. CARLYLE
    JUSTICE
    1
    During oral submission before this Court, counsel for Mr. Cooper stated he is not challenging the trial
    court’s granting of the divorce and does not contest that divorce was properly granted.
    –12–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    FREDRICK LAWRENCE COOPER, Appellant                     On Appeal from the 429th Judicial District
    Court, Collin County, Texas
    No. 05-20-00507-CV         V.                           Trial Court Cause No. 429-51931-2018.
    Opinion delivered by Justice Carlyle. Justices
    RENEE HUNTER COOPER, Appellee                           Schenck and Reichek participating.
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment
    regarding the division of property. In all other respects, the trial court’s judgment is AFFIRMED. We
    REMAND this cause to the trial court for further proceedings regarding the property division consistent
    with this opinion.
    It is ORDERED that each party bear its own costs of this appeal.
    Judgment entered this 4th day of May, 2021.
    –13–
    

Document Info

Docket Number: 05-20-00507-CV

Filed Date: 5/4/2021

Precedential Status: Precedential

Modified Date: 5/12/2021