Judy Hart v. Rueben Reyes ( 1994 )

hart v. reyes IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-160-CV





JUDY HART,

APPELLANT

vs.

REUBEN REYES,

APPELLEE

FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT

NO. 9873, HONORABLE H.R. TOWSLEE, JUDGE PRESIDING

Judy Hart, appellant, the mother and managing conservator of Nicholas Anthony Hart and Claire Elizabeth Reyes, applied for a protective order in the trial court. Claiming that her ex-husband, Reuben Reyes, appellee, had engaged in conduct constituting family violence, Hart sought a court order giving her exclusive possession of both children. Before the trial court made a decision regarding the application, the parties reached an agreement providing, among other things, that Reyes's visitation rights regarding Nicholas would be determined by an independent counselor after the counselor's evaluation of the situation. Hart later sought to withdraw from the agreement and filed a motion for new trial. The trial court signed an order in accordance with the parties' agreement and denied Hart's motion for new trial. Hart appeals, asserting that the trial court's order is void and that the trial court erred in denying her motion. We will dismiss Hart's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Hart divorced Reyes on April 22, 1991. As part of the divorce, the parties agreed that Hart would be the managing conservator of the two children and that Reyes would be the possessory conservator with visitation rights. In 1992 Nicholas told his mother that Reyes had asked him to touch Reyes's genitals. Hart reported these allegations to the Texas Department of Human Services, which initiated an investigation. On the basis of Nicholas's outcry of sexual abuse, Hart also filed an application for a protective order in which she requested that the court grant her exclusive custody of both children. Apparently pursuant to a temporary court order, Reyes was permitted supervised visitation with the children during the pendency of Hart's application.

On October 14, 1992, the trial court conducted a hearing at which the parties stated they had reached an agreement. The attorneys for the parties read the agreement into the record, and both Hart and Reyes personally ratified the agreement under oath. The agreement concerned issues of visitation, counseling, and criminal charges previously filed by Hart against Reyes. Part of the agreement concerned whether and how long Reyes would have to continue supervised visitation with the children. Both parties agreed that this issue would be resolved by Jose Cardenas, a counselor recommended by a doctor already involved in the case. The parties recited the following agreement into the record:

MS. NELSON [Reyes's attorney]: . . . . The third category is how long the supervised visitation is to continue, and we have agreed that the supervised visitation will continue until at least October--the weekend of October the 30th. We know for sure it's going to continue until then. That by October the 28th Mr. Cardinas [sic], who is [a] counselor and who the children will be seeing, and that's another part of the order I will be announcing, he is to issue a written report to the parties as to whether the supervised visitation should continue or be discontinued. And whatever he recommends from then on is what the parties will abide by.

. . . .

THE COURT: What was the doctor's name again?

MS. NELSON: His name is Jose Card[e]nas.

THE COURT: Is it Doctor Card[e]nas?

MS. NELSON: No, sir, he is a counselor . . . .

THE COURT: If he recommends that they cease the supervised visits then the parties have agreed that they will cease, that is supervised visits?

MS. NELSON: Yes.

. . . .

. . . .

. . . . And we have also agreed that there will be three dates [that Nicholas] Anthony will see Jose Card[e]nas, who Dr. Poole and Dr. Hickman have both approved of and who Dr. Poole recommended.

It is also agreed that between now and October the 27th that there will be three dates of counseling with Mr. Card[e]nas and that Mrs. Hart, because she takes the child, will arrange those three dates and set those dates today before we leave the courthouse so that we have notice of what those dates are.

The agreement set forth a specific visitation schedule pending Cardenas's recommendation, and also two different schedules for "supervised" and "unsupervised" visitation, one of which would later become effective depending on Cardenas's recommendation. In addition, the parties agreed that Hart would request that a pending simple assault charge against Reyes be dismissed. After the parties testified under oath that they agreed to these terms, the court stated:

THE COURT: . . . . I consider this to be a Rule 11 agreement and I find it to be reasonable and I'm here and now entering judgment in accord therewith. So it will take a new trial if you want to change it. It's sealed and delivered right now.

The meetings between Cardenas, Reyes, and Nicholas occurred as contemplated in the parties' agreement. At some point, however, Hart became dissatisfied with the manner in which Cardenas was investigating her son's situation. At the end of October, Cardenas recommended that the children begin unsupervised visitation with their father. After Cardenas issued his recommendation, Hart complained to her attorney and, ultimately, to the trial judge. Hart expressed her reservations regarding Cardenas to the judge and informed him that she no longer consented to the October 14 agreement.

On December 16 the trial court signed an order despite Hart's objections. The order set forth terms for both supervised and unsupervised visitation, in accordance with the parties' agreement, by Reyes with the children. The order then provided:

C. TERM OF SUPERVISED VISITATION

Supervised visitation of Reuben Reyes with both Nicholas Anthony Hart and Claire Elizabeth Reyes is to continue until at least October 25, 1992. Mr. Jose Cardenas, counselor for Anthony Nicholas Anthony Hart [sic] and Reuben Reyes, is to issue a written report to the parents no later than October 28, 1992, as to whether supervised visitation should continue or not continue.

If supervised visitation is not to continue beyond October 25th, Reuben Reyes will exercise visitation with Nicholas Anthony Hart and Claire Elizabeth Reyes as provided in this order under unsupervised visitation beginning Friday, October 30, 1992.

The December 16 order did not incorporate Cardenas's recommendation, which by then was a month and a half old. Before signing the order, the court struck a statement reciting that it was the agreement of the parties. Hart filed a motion for new trial, which the trial court denied, and brought this appeal.

DISCUSSION

In five points of error, Hart asserts that (1) the trial court's order is void because Hart withdrew her consent before the court rendered judgment; (2) the court's order is void because the court improperly delegated its judicial authority to Cardenas; (3) the court erred in denying Hart's motion for new trial on the basis of newly discovered evidence; (4) the agreed order, as a contract, is void on the ground that a unilateral mistake or mutual mistake of fact existed at the time the parties reached the agreement; and (5) the portion of the order requiring the parties to request dismissal of all criminal charges violated the Penal Code, causing the order to be void due to illegality. We will not reach the merits of Hart's points of error, because we conclude that the trial court's order is not final and appealable.

In order to be final for appeal purposes, a judgment must fully dispose of all issues and all parties in the lawsuit. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893 (Tex. 1966).

"A judgment must [also] be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment to execution without ascertainment of facts not therein stated." Thus, a judgment cannot condition recovery on uncertain events, or base its validity on what the parties might or might not do post-judgment.

Hinde, 701 S.W.2d at 639 (quoting Steed v. State, 183 S.W.2d 458, 460 (Tex. 1944)); see also Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). A purported judgment expressly referring to an undecided issue is plainly interlocutory. McCormick Operating Co. v. Gibson Drilling Co., 717 S.W.2d 425, 426 (Tex. App.Tyler 1986, no writ) (citing Dimerling v. Grodhaus, 261 S.W.2d 561 (Tex. 1953)); Taylor v. Hicks, 691 S.W.2d 839, 840 (Tex. App.Fort Worth 1985, no writ) (holding credit contingent on purchase of land rendered order not final); see Roberts v. Brittain, 659 S.W.2d 750, 751 (Tex. App.Tyler 1983, no writ) (holding judgment containing options for boundary line depending on whether parties built fences was so uncertain and indefinite as to be void).

The visitation provisions of the trial court's December 16 order are not definite or certain, nor do they provide a definite means of ascertaining visitation so that ministerial officers can enforce the order without independently ascertaining Cardenas's decision. ⁽¹⁾ The order expressly refers to an uncertain event Cardenas's determination regarding visitation. Thus, the December 16 order is interlocutory and is not appealable.

We recognize that "a judgment which settles all the legal issues and rights between the parties is final and appealable `though further proceedings may be necessary in the execution of it or some incidental or dependent matter may still remain to be settled.'" Hinde, 701 S.W.2d at 639 (citation omitted); see Ferguson v. Ferguson, 338 S.W.2d 945 (Tex. 1960). In contrast to such a judgment, the December 16 order does not settle the legal issues and rights of the parties regarding visitation. The order does not decide the issue of visitation. Further proceedings to ascertain and incorporate Cardenas's recommendation into an order are needed, and will constitute a substantive change to the order. Cf. Tex. Fam. Code Ann. § 11.22 (West Supp. 1994) (providing for clarification of orders not specific enough to be enforced by contempt). Finally, the issue of visitation, which remained to be settled, was not merely incidental to the order, but was a primary issue disputed by the parties.

Hart asserts that the order is void. We do not agree. An order may be void if it is outside the trial court's authority. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) ("A judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court."). Pursuant to the December 16 order, Hart, Reyes, and Nicholas were to meet with Cardenas. The order specified a visitation schedule for the period before Cardenas's decision, and set forth both supervised and unsupervised visitation schedules to take effect later depending on Cardenas's recommendation. The trial court had authority to make the order and approve Hart and Reyes's agreement to submit their dispute to Cardenas, if it was in the children's best interest. See Tex. Fam. Code Ann. § 11.11(a) (West Supp. 1994) (authorizing court in a suit affecting the parent-child relationship to make any temporary order for the safety and welfare of the child). Thus, the order was within the court's judicial authority.

An order also may be void if it is too indefinite or uncertain. Stewart, 870 S.W.2d at 20. For example, in Stewart, the trial court signed a captionless order of dismissal which did not identify any party or cause number. Id. After the order was signed, a computer list of over a dozen cases was attached; the order, however, did not incorporate the attachment by reference. Id. The Texas Supreme Court held that such an order was void because it was too indefinite and uncertain. Id. Similarly, in Steed v. State, the supreme court remanded a cause to the trial court where an order committed a juvenile to a state school until his twenty-first birthday, but did not include his birth date. 183 S.W.2d at 460. In both cases the trial court's order purported to decide the issues, but the order was so indefinite and uncertain that the order could not be carried into execution without ascertaining additional facts. Because the orders in Stewart and Steed were void, and therefore of no force and effect, they were reversed and the causes remanded to the trial courts. Stewart, 870 S.W.2d at 20; Steed, 183 S.W.2d at 460. In contrast, when an order is not void, but instead is interlocutory, the proper remedy is to dismiss the appeal. Dimerling, 261 S.W.2d at 562. The order in this case is not void, but merely interlocutory. The order does not purport to presently decide the issue of visitation, but instead leaves the issue contingent on Cardenas's recommendation.

Because the order is not final, we do not address the merits of Hart's complaints. The trial court was not bound by Hart's and Reyes's agreement, but had a duty to decide whether the agreement was in the children's best interest. Similarly, the court had a duty to review Cardenas's decision, find whether the decision actually made by Cardenas was in the children's best interest, and then issue an order setting out the visitation terms and finally disposing of the case. See Tex. Fam. Code Ann. § 14.07(a) (West Supp. 1994) (providing that best interest of child shall always be primary consideration of court in determining access to child). At the trial court's review of Cardenas's decision, Hart may raise any complaints she feels are appropriate, including complaints that she is not bound by the parties' agreement to submit their dispute to Cardenas, that a mistake of fact existed at the time of the agreement, that the portion of the agreement requiring the parties to request dismissal of all criminal charges violated the Penal Code, or that Cardenas's decision is not in the children's best interest.

CONCLUSION

We conclude that the trial court's judgment is not final for purposes of appeal; therefore, we dismiss Hart's appeal.

J. Woodfin Jones, Justice

Before Justices Powers, Aboussie and Jones

Appeal Dismissed

Filed: August 31, 1994

Do Not Publish

1. Cardenas's written recommendation is not in the appellate transcript and apparently was not filed with the trial court prior to the December 16 order. Our knowledge is based on deposition testimony admitted at a hearing on Hart's motion for new trial.