Opinion
No. 04-05-00906-CV
Delivered and Filed: October 18, 2006.
Appeal from the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 05-0743-CV, Honorable Frank Follis, Judge Presiding.
Affirmed in Part and Reversed and Remanded in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION ON REHEARING
This case is before us on both parties' motions for rehearing. We grant appellant's motion for rehearing, deny appellee's motion, withdraw our opinion and judgment dated July 19, 2006, and substitute the following in their place:
Neil Rosales sued his wife, Jamie Rosales, for divorce and for primary custody of their two year-old child. Prior to the beginning of trial, the parties negotiated a settlement agreement which was read into the record. The trial court approved the settlement agreement and orally pronounced judgment granting the divorce, establishing conservatorship of the child, and dividing the property. Subsequently the court signed a written judgment ostensibly pursuant to the agreement. Jamie appeals the divorce decree entered by the trial court, contending it does not comport with the terms of the parties' agreement. She also challenges the sufficiency of the evidence, and the court's denial of her motion for new trial. Because the judgment includes material terms that were not part of the settlement agreement, we affirm in part and reverse and remand in part.
Factual and Procedural Background
Neil filed a petition for divorce which was eventually set for hearing on August 18, 2005. At this hearing the parties informed the judge that they could "come up with an agreement." The parties were then given time to confer, and ultimately they entered into a settlement agreement. This agreement was read into the record by Neil's attorney. The trial court approved the agreement and later signed a final decree of divorce, which notes that the parties had "reached agreement of all issues pending in this case." Thereafter, Jamie filed a motion for new trial, which the trial court denied.
On appeal, Jamie argues: 1) the trial court erred in refusing to grant her motion for new trial because the trial court's decree contains terms contrary to or beyond the scope of those contained in the settlement agreement; 2) the evidence was factually insufficient to support the terms added by the trial court; 3) the trial court erroneously added terms to its decree that were not previously agreed to by parties; and 4) the trial court erred when it entered a judgment which provided relief not plead for by the petitioner.
Settlement Agreement
Each of Jamie's issues revolves around the trial court's decree as having added to or modified the terms of the settlement agreement. A settlement agreement between parties is enforceable if it is written and filed as part of the record or if it is recited in open court. Tex. R. Civ. P. 11. These agreements are binding on the parties. McLendon v. McLendon, 847 S.W.2d 601, 605 (Tex.App.-Dallas 1992, writ denied). A final judgment rendered upon a settlement agreement must be in strict and literal compliance with the agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 293 (Tex. 1976). A trial court has no power to supply terms, provisions, or conditions not previously agreed upon by the parties. Donzis v. McLaughlin, 981 S.W.2d 58, 63 (Tex.App.-San Antonio 1998, no pet).
As a general rule, modifications to settlement agreements are grounds for reversal where the modifications "add terms, significantly alter the original terms, or undermine the intent of the parties." Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex.App.-Houston [1st Dist.] 2006, pet. filed) (citing Keim v. Ames, 943 S.W.2d 938, 946 (Tex.App.-El Paso 1997, no pet.); In re Marriage of Ames, 860 S.W.2d 590, 592-93 (Tex.App.-Amarillo 1993, no writ)). If the terms of the trial court's judgment conflict with the terms of the settlement agreement, the judgment is unenforceable. Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex.App.-Fort Worth 1996, no writ). If a discrepancy in the terms results from a clerical error, the appellate court may modify the conflicting terms to conform to the agreement. See McLendon, 847 S.W.2d at 610 (showing that the court of appeals deleted certain terms added by the trial court in order to make the trial court's decree comport with the parties' settlement agreement). On the other hand, a judgment based on judicial error must be reversed and remanded if the judgment is inconsistent with the terms of the settlement agreement. See Donzis, 981 S.W.2d at 63, 65 (acknowledging that the trial court's definition of "licensed technology" was a judicial error requiring the trial court's judgment to be reversed and remanded).
A clerical error is defined as "a mistake or omission which prevents the judgment as entered from accurately reflecting the judgment that was actually rendered." In the Interest of S.A.H., No. 14-99-00996-CV, 2001 WL 124493, at *3 n. 4 (Tex.App.-Houston [14th Dist.] Feb. 15, 2001, no pet.) (not designated for publication) (citing Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971)).
Judicial error is defined as "error aris[ing] from a mistake of law or fact that requires correction through judicial reasoning or determination." In the Interest of S.A.H., 2001 WL 124493, at *3 n. 5 (citing W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304, 306 (Tex.App.-Austin 1987, writ ref'd n.r.e.)).
Conservatorship
Jamie argues that the trial court went beyond the terms of the settlement agreement when it awarded Frank and Nancy Johnson, Neil's stepfather and biological mother, possession of the child. Consequently, Jamie contends the decree exceeds the settlement agreement and is unenforceable. We agree.
The settlement agreement was recited in open court; both parties agreed with the settlement and the trial court approved it. The settlement agreement makes absolutely no reference to the Johnsons regarding conservatorship or visitation. Although the record reveals that Neil expected to be deployed to Iraq, the parties did not include any provisions regarding possession of the child by the Johnsons when the settlement agreement was read into the record.
Before the parties left the courtroom to confer about a settlement agreement, the court asked where the child was located. Jamie responded that the child "is with [the Johnsons]. . . . They wanted to keep her last night `cause [Neil] came into town so I told them that that was fine. . . ." Further, the court asked, "If you can't come to an agreement . . . are you saying that your clients may not wish to return the child to [Jamie] today?" Neil's counsel responded affirmatively. Neil also testified that he lived with Mr. and Mrs. Johnson.
Actually, Mr. Johnson is mentioned during the marital property division between Neil and Jamie. Jamie was awarded a truck that was financed by Mr. Johnson, thus she was to continue payments to him.
The settlement agreement stated that Neil and Jamie were to act as joint managing conservators with Neil determining the child's primary domicile. The "possessions will work alternating weeks . . . where the child spends approximately an equal amount of time with each party."
The trial court approved the settlement agreement and was therefore bound to render a judgment that strictly complied with the terms of the agreement. See Vickrey, 532 S.W.2d at 293. However, the trial court's decree stated:
The parties have further agreed that Frank Johnson and Nancy Johnson, [Neil's] step-father and biological mother, are entitled to exercise all possession periods awarded to [Neil] under this Decree. [Neil] and [Jamie] will cooperate with Frank and Nancy Johnson with regard to Mr. and Mrs. Johnson's rights to pick-up and deliver the child during those specified possession periods of Neil Rosales.
Although possession by the Johnsons might be a logical arrangement under the circumstances, there is no evidence that the parties agreed to such an arrangement, nor is there any evidence that such an arrangement is in the best interest of the child. The trial court's decree impermissibly inserted additional material provisions which were never agreed to in the settlement agreement.
The same can be said of the trial court's decree providing Neil the exclusive right to hold the passport of their child, as well as granting Neil the exclusive right to claim the child as a dependent for tax purposes.
Because a trial court is "prohibited from supplying terms, provisions or conditions not previously agreed upon by the parties," we must reverse the judgment. Id. at 65; see also Reppert v. Beasley, 943 S.W.2d 172, 175 (Tex.App.-San Antonio 1997, no writ) (concluding that the trial court's judgment was void because the court added terms that went beyond the parties' agreement); In re Marriage of Ames, 860 S.W.2d at 593 (holding that the decree of divorce could not be modified because the trial court added terms not agreed to in the settlement). While the remaining complaints do not necessarily render the judgment unenforceable, we will briefly discuss them because the issues may arise again on remand. See Rogers v. Rogers, 806 S.W.2d 886, 889 (Tex.App.-Corpus Christi 1991, no writ).
In her third issue, Jamie argues the court altered the terms of the settlement agreement when it prohibited contact between the child and Reynaldo Saenz. We disagree. The settlement agreement stated, "There would be no convicted felons in the presence of the child during the possession conservatorship of either party. More specifically, a Reynaldo Saenz . . . would not ever be in contact with the little girl. . . ." The trial court's decree read, "[N]either [party] will allow contact between the child and any convicted felony [sic]. [Jamie] also agrees not to allow contact between the child and Reynaldo Saenz." Any textual deviations between the trial court's judgment and the settlement agreement are minor and do not affect the substantive agreement that Reynaldo Saenz "would not ever be in contact with the" child. See Mathis v. Mathis, No. 04-95-00386-CV, 1996 WL 668849, at *2-3 (Tex.App.-San Antonio Nov. 20, 1996, no writ) (not designated for publication) (concluding that no discrepancies exist between the decree and the judgment); Smalley v. Smalley, No. 05-98-00383-CV, 2000 WL 566959, at *3-4 (Tex.App.-Dallas Apr. 28, 2000, no pet.) (not designated for publication) (holding that the provisions in the decree did not affect the agreed division of property).
In Jamie's fifth complaint, she contends the trial court erred with the inclusion of travel and visitation provisions and the omission of the spring break vacation. Neil and Jamie agreed that the possession order would be standard for holidays, and a standard possession order includes one parent receiving the child during spring break for even numbered years and the other parent receiving the child for the odd numbered years. Tex. Fam. Code Ann. § 153.312(b)(1) (Vernon Supp. 2006). The trial court's omission of the spring break holiday was error and it should be written into the court's order.
The trial court's inclusion of any provisions regarding travel expenses or visitation comports with the settlement agreement. Neil was ordered to drop off the child at Jamie's residence for the start of Jamie's possession period and he was ordered to pick up the child at Jamie's residence when Jamie's possession period ends. Any travel expenses Jamie was ordered to pay concerning travel and visitation were those expenses incurred during the time Jamie had possession of the child. This is consistent with any parent's duty to support a child. See Tex. Fam. Code Ann. § 159.102(3), (23) (Vernon 2003) (holding that a parent has a duty to support their child and defining what the meaning of support entails).
Child Support
In Jamie's second complaint, she argues that the trial court erred when it awarded Neil the exclusive right to receive child support when the settlement agreement specifically required Neil to pay $200 per month in child support. The settlement agreement clearly stated that Neil was to pay child support; however, in the decree, at one point it states that Neil is to receive child support. This is a typographical error which is evident from the rest of the decree. See Mathis, 1996 WL 668849, at *4. Later in the decree, Neil is ordered to pay child support and the decree expressly explains the process by which the payments are to be paid into a military allotment that will later be disbursed to Jamie. The trial court's typographical error alone would not require a reversal, and it can be easily corrected on remand. See McLendon, 847 S.W.2d at 605.
Additionally, Jamie argues that the trial court improperly added health care provisions in its judgment. Specifically, she complains of the provisions which require her to pay 50% to 100% of uninsured medical expenses. Neil, who was ordered to pay for health care insurance, is also required to pay 50% to 100% of uninsured medical expenses. In fact, the only time either party would be required to pay 100% of the expenses is if, when that party is in possession of the child, they decided to take the child to a health care provider who is not on the list of approved providers. This provision would apply only when non-emergency medical treatment is sought from a non-approved provider and the other parent has not agreed in writing to the use of that provider. The judge is required to allocate between the parties the reasonable health care expenses of a child that are not reimbursed by health insurance. Tex. Fam. Code Ann. § 154.183(c) (Vernon 2002). Despite the failure to address the issue of health care expenses in the settlement agreement, the trial court was required to allocate these expenses and properly did so.
Property Division
Issues seven and eleven concern the trial court's division of the marital estate. A trial court may divide the community estate to the extent not set forth in the settlement agreement. Clanin, 918 S.W.2d at 677-78. The ownership of cash or funds in any existing accounts as well as each parties' debt, complaints 7 and 11, respectively, were not divided within the settlement agreement; thus the assets were subject to the court's "just and right" division. Id. at 678. Because the court had the authority to order such a division, Jamie's complaints here are without merit.
Conclusion
Because we have determined that this cause must be remanded for entry of a judgment in accordance with the parties' settlement agreement, we need not address Jamie's remaining issues. We note that counsel for Neil filed a motion for continuance in the trial court before the hearing on Jamie's motion for new trial. The trial court's denial of the continuance is the subject of Neil's motion for rehearing in this court. Because this case is being remanded to the trial court, Neil can reurge his request for a continuance under the Soldiers' and Sailors' Relief Act if it is applicable. The judgment of the trial court is affirmed as to the granting of the divorce, but in all other regards the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.