Paul Zavala v. Evelyn Zavala

Affirmed and Memorandum Opinion filed May 31, 2007 Affirmed and Memorandum Opinion filed May 31, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00081-CV ____________ PAUL ZAVALA, Appellant V. EVELYN ZAVALA, Appellee On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 2004-66150 M E M O R A N D U M   O P I N I O N This is an appeal from a final decree of divorce awarding the equity in the couple=s marital home to appellee, Evelyn Zavala. The trial court based its award on the parties= stipulation, and appellant Paul Zavala contends the award is erroneous because his trial attorney lacked authority to consent to the division of the equity. We affirm. I. Factual and Procedural Background Paul Zavala filed a suit for divorce from his wife Evelyn Zavala. Evelyn answered and filed a counter-petition. When the case was called for trial, the trial court heard preliminary stipulations from the parties= attorneys regarding the division of the assets of the marital estate. The transcript reflects the following exchange that is pertinent to this appeal: Court: And if we have any preliminary stipulation[s], gentlemen. Evelyn=s attorney: We do, Your Honor. Paul=s attorney: We do, Judge. Evelyn=s attorney: May I? Court: Mr. Baughman. Evelyn=s attorney: We have agreed on the division of the property. House will be awarded to the wife, 100 percent, subject to the debt. She is to take her retirement up to $9,500. Anything over $9,500 will be split 50/50 between the parties. He is to be awarded, he being Mr. Zavala, first $34,000 in his retirement plan and anything over $34,000 will be split 50/50. He represents that he has approximately $60,000 and is not participating in the drop program. Wife will be awarded the Ford F‑150 pickup truck and the Harley Davidson motorcycle subject to the debt. Husband is awarded the 87 pickup truck and the ‑ ‑ can I call my client? Court: Sure. Bring your clients up. Evelyn=s attorney: She gets ‑ ‑ you get the F‑150 ‑ ‑ Evelyn: Yes. Evelyn=s attorney: ‑ ‑ the Crown Vic and the Harley. He gets the 87 pickup truck; is that correct? Evelyn: Yes. Evelyn=s attorney: He gets the big screen TV; and they are to divide their annuities, if any, 50/50. If she defaults 30 days on the payment of that Harley motorcycle payment, Judge, then Mr. Zavala has the right to repossess that and make those payments. Each will take the property in their possession. Husband had some rings. She is [sic] agreed to turn those over when she finds them but makes no representation ‑ ‑ as a matter of fact, you are saying you don=t have them? Evelyn: No, I have not. Evelyn=s attorney: But if you do find them, you will be glad to turn them over? Respondent: Right. Evelyn=s attorney: I think that=s it, isn=t it? Paul=s attorney: Yes. Evelyn=s attorney: Can I ask her ‑ ‑ Court: Yes. Evelyn=s attorney: Ma=am, you heard that stipulation. That is your agreement? Evelyn: Yes, sir. Evelyn=s attorney: Do you have any questions about that? Evelyn: No, sir. Paul=s attorney: That is your agreement, Mr. Zavala? Paul: Yes, sir. The trial court then stated on the record, AThat agreement is approved by the Court, and that leaves our issues to the conservatorship [of the children].@ Following the trial court=s approval of these stipulations, a jury was selected and trial began on the conservatorship issues. Evelyn=s attorney cross‑examined Paul during the trial, on the same day the stipulations were read into the record. The following is an excerpt from the trial transcript: Evelyn=s attorney: So the jury has a better idea, the house is going to go to your wife; isn=t that true? Paul: She wants it, yes. Evelyn=s attorney: Mr. Zavala, you stipulated to that before the jury came in that she would get the house, lock, stock, and barrel; isn=t that correct? Paul: I don=t recall lock, stock, and barrel. I believe ‑ ‑ Evelyn=s attorney: 100 percent? Paul: Other than me getting my equity out of there, yes. Evelyn=s attorney: There wasn=t any mention in the stipulation about any equity in the house, was there? Paul: I was under the impression that there was. Evelyn=s attorney: You approached the Bench with your lawyer about two hours ago, at 1:30, and indicated that you had an agreement for the division of the property; isn=t that correct? Paul: Yes. Evelyn=s attorney: And the agreement that was recited in the record is that the house went to your wife, 100 percent; isn=t that correct? Paul: Well, I knew she wanted to get ‑ ‑ Evelyn=s attorney: Nonresponsive, Judge. Paul: I was misinformed because I thought I was going to get my equity out of the house. Evelyn=s attorney: You understand that the Judge accepted your stipulation? Paul: Yes. Evelyn=s attorney: You understand your lawyer asked you if that was your agreement? Paul: Yes, and -- Evelyn=s attorney: And he asked you if you understood it fully and completely, didn=t he? Paul: Yes, sir, he did. On the second day of trial, the jury returned a verdict on the conservatorship issues, which the trial court accepted. In due course, the court rendered its final decree of divorce. As is pertinent to this appeal, the decree awarded the marital home to Evelyn and imposed on Evelyn the debt associated with the home. The decree makes no direct reference to the equity in the home. But, by awarding to Evelyn, and divesting Paul of, Aall right, title, interest and claim in and to@ the marital real estate and home, the decree effectively awards the equity to Evelyn. Paul moved for a new trial; the motion was overruled by operation of law and this appeal ensued.[1] II. Issue Presented Paul=s sole issue on appeal is Awhether the husband=s trial counsel possessed the requisite authority to compromise the husband=s legal rights by entering into a stipulation with the wife=s counsel concerning the division of the marital home . . . .@ III. Standard of Review The trial court=s Adecision whether a settlement agreement should be enforced as an agreed judgment or must be the subject of a contract action requiring additional pleadings and proof is subject to the abuse of discretion standard of review.@ Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.CDallas 2006, pet. denied) (citing Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex. 1996)). Because a trial court has no discretion in determining what the law is or in applying the law to the facts, a trial court=s failure to analyze or apply the law correctly is an abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001); Appleton v. Appleton, 76 S.W.3d 78, 86 (Tex. App.CHouston [14th Dist.] 2002, no pet.). IV. Analysis Section 7.006 of the Texas Family Code provides: (a) To promote amicable settlement of disputes in a suit for divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law. (b) If the court finds that the terms of the written agreement in a divorce or annulment are just and right, those terms are binding on the court. If the court approves the agreement, the court may set forth the agreement in full or incorporate the agreement by reference in the final decree. Tex. Fam. Code ' 7.006(a) & (b) (Vernon 2006). Although the statute references a written agreement, an oral agreement that is read into the record in open court satisfies the provision. McLendon v. McLendon, 847 S.W.2d 601, 606B07 (Tex. App.CDallas 1992, writ denied). On appeal, Paul contends the trial court erred because its judgment is based on a stipulation that his attorney was not authorized to make. As noted, Paul argues in his sole issue that his trial counsel did not possess the requisite authority to enter into a stipulation with his wife=s counsel concerning the division of the equity in the marital home.[2] Paul faces two problems. First, he did not apprise the trial court of any claim that his counsel had acted beyond the bounds of his authority. Although he became aware during cross-examination that the pretrial stipulation was being construed as addressing the division of equity in the marital home, Paul raised no issue during the three month period between trial and rendition of judgment regarding his attorney=s purported lack of authority to agree to any such division. Further, even in his motion for new trial in which he was represented by new counsel, Paul did not complain that his original attorney lacked authority to enter into the stipulation on which the trial court based its award to Evelyn of equity in the marital home. By failing to alert the trial court to the contention that his attorney was not authorized to make a stipulation concerning the division of equity, Paul has waived that argument for purposes of appeal. See Tex. R. App. P. 33.1(a). Second, Paul personally consented to the stipulation on the record. Paul discounts his action by claiming he did not hear the portion of the stipulation concerning the marital home, but the record shows Paul was present when the attorneys approached the bench to make preliminary stipulations. During the stipulations, Paul and Evelyn were called to the bench to clarify Evelyn=s attorney=s understanding of the disposition of certain motor vehicles. Evelyn=s attorney continued to recite the stipulations for the record, and ultimately each party to the divorce was asked if he or she agreed to the stated stipulations. Paul answered affirmatively, without qualification or question. In Paul=s motion for new trial and in his appellate briefing, we glean an argument that his cross-examination testimony constitutes revocation of consent to the stipulation as it concerns equity in the marital home. An agreed judgment may not be entered where consent to the agreement has been revoked or withdrawn. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951); Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex. Civ. App.BHouston [14th Dist.] 1972, writ ref=d n.r.e.). But if such revocation or withdrawal of consent is not effectively communicated to the court, a judgment entered in accordance with the agreement will stand. See First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 845 (Tex. App.CHouston [14th Dist.] 1996, no writ); see also Trevathan v. Akins, 712 S.W.2d 559, 560 (Tex. App.CHouston [1st Dist.] 1986, no writ) (AWhen a trial court has knowledge that one of the parties does not consent to a judgment, the trial court should refuse to . . . make it the judgment of the court.@) (emphasis added); Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex. App.CCorpus Christi 1995, no writ) (AThe 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.@). Viewed in context, Paul=s cross-examination testimony does not constitute effective revocation of consent. At most, Paul=s testimony suggests that he had not considered division of the equity or did not perceive that an agreement had been reached as to the equity. At the same time, however, Paul confirmed his earlier agreement to the stipulation that awarded the home to Evelyn A100 percent, subject to the debt.@ While Paul=s confirmation of his agreement to the stipulation may have been the product of leading questions posed by Evelyn=s attorney, Paul made no effort in his re-direct or rebuttal testimony to re-urge an objection to division of the equity. Furthermore, between the date of trial and the trial court=s rendition of judgment, Paul filed no pleadings or documents affirmatively revoking consent to the stipulation or to the division of equity pursuant to that stipulation. See, e.g., Sone v. Bartley, 608 S.W.2d 240, 242 (Tex. App.CSan Antonio 1980, no writ) (court erred in rendering agreed judgment when plaintiff had filed letters objecting to the purported settlement agreement, paid jury fee, and requested case be set for trial on jury docket). Under these circumstances, we cannot say the trial court abused its discretion by entering judgment based on the stipulation. See Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex. App.CSan Antonio 1983, no writ). CONCLUSION For the reasons set forth above, we affirm the trial court=s judgment. ____________________________Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed May 31, 2007. Panel consists of Justices Frost, Seymore, and Guzman. [1] In a reply point, Evelyn asserts that this appeal should be dismissed because Paul=s acceptance of benefits under the trial court=s judgment estops him from seeking reversal of that judgment. See Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950) (AA litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.@). While we acknowledge the rule pronounced in Carle and its progeny, we have not been presented with relevant facts demonstrating Paul=s voluntary acceptance of benefits of the judgment. See Rogers v. Rogers, 806 S.W.2d 886, 889B90 (Tex. App.BCorpus Christi 1991, no writ) (no basis for dismissal of appeal where appellee failed to file motion with supporting affidavits showing appellant=s acceptance of specific benefits under judgment); Miller v. Miller, 569 S.W.2d 592, 593 (Tex. Civ. App.BSan Antonio 1978, no writ) (denying motion to dismiss appeal where record contained no evidence of acceptance of any benefits under the judgment). Therefore, we deny Evelyn=s request for dismissal of this appeal. [2] Paul does not allege that his consent to the stipulation was procured by fraud. Cf. Salinas v. Beaudrie, 960 S.W.2d 314, 320 (Tex. App.CCorpus Christi 1997, no pet.) (where party=s false representations induce another party to contract, second party=s failure to read contract will not bar equitable relief of enforcement against fraudulent party).