Edna Sue Anderson Woods v. Danny Craig Woods ( 2005 )

NO. 07-03-0363-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 12, 2005 ______________________________

EDNA SUE ANDERSON WOODS,

Appellant

v.

DANNY CRAIG WOODS,

Appellee

_________________________________

FROM THE 356^TH DISTRICT COURT OF HARDIN COUNTY;

NO. 42,804; HON. BRITT PLUNK, PRESIDING _______________________________

Opinion _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Edna Sue Anderson Woods (Edna) appeals from a final divorce decree. Through two issues, she contends that the trial court erred in 1) "denying [her] Motion to Withdraw Consent and . . . entering the Final Decree of Divorce" and 2) concluding that it rendered judgment on the day it approved an agreement pertaining to the division of the marital estate. We reverse and remand in part and affirm in part.

Background

After petitioning for divorce but before expiration of the mandatory 60-day waiting period, see Tex. Fam. Code Ann. §6.702(a) (Vernon 1998) (requiring the court to wait 60 days from the date suit is filed before granting a divorce), Edna and her husband, Danny Craig Woods, agreed to a particular division of their marital estate. The agreement was transcribed into the record at a hearing conducted by the trial court on November 21, 2002, a date some five weeks before expiration of the waiting period. And, though all recognized that a final judgment could not be entered upon the agreement at the time of the hearing, each acceded to the execution of temporary orders incorporating it. Then, the trial court not only approved the accord but also informed the litigants that their bargain would be incorporated into a final judgment when the prescribed waiting period lapsed.

After the temporary orders were executed but before the trial court signed a written judgment, Edna moved to withdraw her consent to the agreement. A hearing was held on the motion, after which it was denied. Subsequently, the trial court signed a final decree of divorce. Therein, it stated that the parties previously had "entered into an Agreement Incident to Divorce . . .," that the trial court had approved the agreement, and that the property division reflected in the document was "in accordance with the agreement."

Authority

According to the Texas Supreme Court, one may revoke consent to a settlement agreement at any time before judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). This is so because a trial court cannot render a valid agreed judgment absent the consent of the parties at the time it is rendered. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). That the litigants may have satisfied the elements of Texas Rule of Civil Procedure 11 in arriving at the accord matters not; consent at the time judgment is rendered must still exist. ⁽¹⁾ Id. Moreover, a judgment rendered after one party revokes his consent is void. ⁽²⁾ S & A Restaurant Corp. v. Leal, 892 S.W.2d at 857.

Next, a trial court renders judgment when it officially announces its decision in open court or by written memorandum filed with the clerk. Id. An intent to render judgment in the future does not satisfy this test, however. Id. at 857-58; quoting, Reese v. Piperi, 534 S.W.2d 329 (Tex. 1976). Rather, the words spoken or written by the trial court must evince a present, as opposed to future, act that effectively decides the issues before the court. Id. In other words, it must "clearly indicate the intent to render judgment at the time the words are expressed." Id.

Application of Authority

Here, the record clearly illustrates that Edna withdrew her consent to the November 21, 2002 agreement before the trial court signed the final decree. Yet, Danny argues that this is unimportant since the trial court actually rendered judgment during the November 21^st hearing. We disagree.   

At the end of the November hearing, the following discourse occurred:

COURT: Okay. Are we going to do one of two things, No. 1, we can just go ahead and approve the agreement as to a temporary basis and enter the temporary orders or we can approve the agreement as to a temporary basis, enter the temporary orders, and I can make a finding that the evidence substantiates the granting of the divorce and grant the divorce contingent on the expiration of the 60 days and the submission of the decree and the people will not have to come back.

Counsel: That was our intent, Your Honor, the latter, the temporary as well as - -

COURT: Is that what you folks want me to do? In other words, make a finding that based on what I have heard so far, you have satisfied the Texas Family Code and your evidence substantiates the granting of the divorce but you're not divorced. You will not be divorced until after January the 1^st of 2003, at which time Mr. Butler [Edna's attorney] and Mr. Ratliff [Danny's attorney] would submit a decree to the Court and at that time I would sign the decree and your divorce would be granted upon signature and entry of the decree. So, in effect, you would be held under and bound under these temporary orders pending the signing of the decree at which time your divorce will be final. Is that what you folks want to do?

[Edna]: That's fine.

[Danny]: Yes, sir.

* * *

COURT: Okay. The Court then this date based on the evidence submitted to the Court, the Court makes a finding that the evidence substantiates the granting to Edna Sue Anderson Woods a divorce from Danny Craig Woods. As to a temporary basis and to a permanent dissolution of the community property, the Court approves the parties [sic] agreement all as per the record made this date.

Whenever the temporary orders are signed and approved by the attorneys as to form, they will forward it to me and I will sign it and you will be bound by these temporary orders during the pendency of the divorce. Whenever the 60 days expire, which will be January the 1^st, 2003, they will submit a final decree to me that has the property division all as per the record made this date in the decree. I will sign it, and your divorce will be final at that time upon signature and entry of the decree.

(Emphasis added). As can be seen, the italicized passages contain words short of evincing a clear intent to finally adjudicate (at the time the words were uttered) the rights involved. Indeed, the trial court recognized that it could not so resolve the issues at that time. Thus, it decided to issue "temporary orders" memorializing the agreement "during the pendency of the divorce." And, once the requisite 60-day period lapsed, the parties were to then "submit a final decree . . . that has the property division . . .", which decree the trial court would sign to finalize the divorce. Explicit in these words was the need for further action, though the trial court obviously revealed the nature of the decision that would be encompassed by that action. And, the action consisted of the execution of a written decree containing the parties' agreement. Because of that, we cannot say that the trial court rendered judgment at the November 21^st hearing. ⁽³⁾

In sum, the trial court erred by incorporating into its judgment an agreement which Edna had previously revoked. Accordingly, we reverse that portion of the judgment that divides the marital estate of Edna and Danny Woods, affirm the remainder of the decree, and remand the cause for further proceedings.

Brian Quinn

Chief Justice

1. Per Rule 11, ". . . 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." Tex. R. Civ. P. 11.

2.

Though the judgment may be void, that does not necessarily render the underlying agreement unenforceable. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995) (stating that although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude it, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one side no longer consents to it). However, an attempt to enforce it must be based upon proper pleadings and proof. Id. at 462.

3.

Though the trial court stated in its conclusion of law number six that it rendered judgment on November 21, 2002, the determination does not bind us. This is so because what it believed the legal effect of its action to be is not dispositive. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (stating that "[t]he fact that the trial court believed that he had rendered judgment . . . is not dispositive").

Upon being advised of appellant’s decision, the trial court proceeded to admonish appellant regarding the effect a plea of no contest could have on his residence status, if he were not a U.S. citizen. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon 2009). Further, the trial court admonished appellant that the court would not accept the plea unless appellant appeared to be mentally competent and that the plea was freely and voluntarily made. See art. 26.13(b). During the same period of questioning, the trial court also inquired about appellant’s signature on certain plea papers. Appellant acknowledged that he understood the constitutional rights that he was giving up and it was his expressed desire to waive those rights and enter the plea of no contest. The trial court then stated, “All right. All right. I will accept your plea of no contest. I will approve the waiver of jury. We will proceed in a non-jury trial with a plea of no contest.” The trial court then dismissed the waiting jury. Upon arriving back in the courtroom, the trial judge made the following statement, “Okay. All right. This is an open plea. It’s a plea of no contest. The Court has accepted the defendant’s plea of no contest. The State’s intent is to put on all of your evidence at this time.” After the State answered the trial court, the judge again stated he had accepted the plea and further found appellant guilty of the offense of forgery as alleged in the first paragraph of the indictment. Upon inquiring with trial counsel, whether or not appellant intended to plead true to the enhancement paragraphs, the trial judge was informed that appellant did intend to plead true to the enhancement paragraphs. The trial court then stated the following, “If all of these enhancement allegations are found to be true, then the range of punishment is two to ten years in the penitentiary and an optional fine of up to $10,000. Do you understand that to be the range of punishment.” Appellant answered that he understood that to be the range of punishment applicable to himself. Further, appellant answered in the affirmative when asked if he and the trial court had talked about the range of punishment earlier in the proceeding. Finally, the trial court made the following inquiry, “Okay. Understanding all of that, is it still your desire to enter your plea of true to these enhancement allegations along with your plea of no contest to the initial charge of forgery?” Appellant answered yes sir to the question asked.

          With this record before us, appellant asserts that he was not properly admonished and there was no substantial compliance with the applicable statutory requirements for admonishment. See art. 26.13(c). Appellant contends this to be so because, the trial court’s admonishment as to the range of punishment came after the plea of guilty to the offense of forgery had been accepted by the court.

Admonishments

          Appellant contends that the plea of no contest was invalid on both federal constitutional and state statutory grounds. We will review each claim in turn.

Due Process Claim

          Appellant contends that the plea entered was not entered knowingly or voluntarily. However, appellant’s brief on this issue consists of the above statement and a citation to two United States Supreme Court cases about the requirement that a plea be entered voluntarily. From these general statements, appellant makes the conclusion that, because the range of punishment was not explained “about the offense to which appellant entered a no contest plea,” the plea was involuntary. However, appellant is wrong.

          The range of punishment for the “offense to which appellant entered a no contest plea” is not the range of punishment applicable to appellant. Appellant pleaded no contest to forgery, a state jail felony, which carried a possible punishment of 180 days to two years in a state jail facility. See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2008). An admonishment on this range of punishment would not have advised appellant of the direct consequences of entering his plea of no contest and plea of true to the enhancement provisions. See Bousley v. United States, 523 U.S. 614, 619, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). Because the indictment against appellant had three prior state jail felonies alleged for enhancement purposes, the applicable punishment range was, as explained by the trial court, not more than 10 years nor less than two years in the institutional divison, with an optional fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.34 (Vernon 2003). Accordingly, we find that the admonishment given by the trial court, while not the model by which to train judges, did in fact advise appellant of the direct consequences of his plea of no contest and true and, therefore, did not violate appellant’s due process rights. Bousley, 523 U.S. at 619. Therefore, appellant’s first issue is overruled.

Non-constitutional Statutory Violations

          Appellant also contends that the action of the trial court did not conform to the requirements of article 26.13. Again, the purpose of this statutory scheme is to ensure that the appellant’s plea of no contest is entered into with full knowledge of the consequences of the plea. See State v. Jimenez, 987 S.W.2d 886, 888 (Tex.Crim.App. 1999). In the case before the court, the consequence in question was the applicable punishment range. Appellant desires to couch the inquiry as to the charge appellant formally uttered the phrase no contest to which, as pointed out above, did not include the applicable range of punishment. The only direct consequence of appellant’s plea of no contest and true to the enhancement allegations was the length of any incarceration and fine. Id. at n.6, citing United States v. Kikuyama, 109 F.3d 536, 537 (9^th Cir. 1997). A review of the record demonstrates that, before appellant had completed his plea of no contest, the direct consequences of the plea were known to him. The fact that the applicable range of punishment was not fully explained until the issue of the enhancements paragraphs was considered does not impact the fact that prior to finishing the plea, appellant was in full possession of all the information regarding the direct consequences of the plea. With the knowledge of those facts, appellant continued to insist on entering the plea. Therefore, this plea was in substantial compliance with the statutory scheme. See art. 26.13(c). Accordingly, appellant’s second issue is overruled.

          Furthermore, we note that even if we found that the trial court’s efforts at admonishing appellant were not in substantial compliance with the statutory scheme, the record before us does not support the conclusion that such defective admonishment affected a substantial right of appellant. See Tex. R. App. P. 44.2(b). When we consider the record as a whole, we have better than a fair assurance that the appellant’s decision to enter a plea of no contest would not have changed had the trial court admonished appellant exactly as required under the statute. See Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006). Accordingly, we conclude that error, if any, was harmless. See Tex. R. App. P. 44.2(b).

Conclusion

          Having overruled appellant’s issues, we affirm the judgment of the trial court.

                                                                           Mackey K. Hancock

                                                                                     Justice

Do not publish.