Court of Appeals of Texas, Eighth District, El Paso
from the 383rd District Court of El Paso County, Texas (TC#
Rodriguez, J., Palafox, J., and Simmons, Former Justice
Simmons, Former Justice (Sitting by Assignment)
REBECCA SIMMONS, FORMER JUSTICE.
appeal arises from a divorce action between Appellant, James
Tidwell and Appellee, Bianca Nicole Tidwell. On appeal,
Appellant contends the trial court erred by failing to
enforce the parties' Rule 11 agreement and by not
awarding him attorney's fees due to Appellee's breach
of the agreement. For reasons set forth below, we affirm the
trial court's judgment.
filed for divorce from Appellant on February 4, 2014.
Appellant filed his Answer and Original Counterpetition for
Divorce on May 9, 2014. Both parties sought temporary relief,
and a hearing was set for May 19, 2014.
19, 2014, the parties and their respective attorneys appeared
before Associate Judge Juarez. The parties testified that
they had reached an agreement regarding their child, and the
division of marital assets and liabilities. No mediated
settlement agreement or other written agreement was
presented. Counsel for Appellee recited various terms of the
agreement into the record, and Appellant's trial counsel
also confirmed Appellant's agreement with its terms. Both
parties asked the court to approve the agreement and grant a
divorce. The associate judge stated the parties were divorced
but never entered judgment. The parties refer to the
agreement placed on the record as the "Rule 11
September 11, 2014, Appellant filed a Motion to Sign Final
Decree of Divorce based on the Rule 11 agreement. On
September 29, 2014, Appellee formally revoked her consent to
the Rule 11 agreement. In response, Appellant filed a motion
on November 12, 2014 seeking to enforce the Rule 11
agreement. On November 17, the associate judge held a hearing
on the Rule 11 agreement and determined that he did not have
the authority to render an order granting a final divorce due
to Appellee's revocation of consent. Appellant does not
challenge the associate judge's ruling.
filed a First Amended Petition for Divorce on June 1, 2015.
On June 4, 2015, Appellant filed his First Amended
Counterpetition for Divorce and Petition to Enforce Rule 11
Agreement requesting that the district court enforce the Rule
11 agreement or alternatively, award him attorney's fees
due to Appellee's breach of the agreement.
was held September 21, 2015 through September 25, 2015 before
District Judge Rivera. Both parties appeared and testified.
The court heard testimony about the weekly child possession
and access schedule and the difficulties in following the
schedule described in the Rule 11 agreement.
trial, the court observed that the Rule 11 agreement as to
possession had become a source of contention and she
preferred a different schedule. However, the trial court
ordered the division of assets and liabilities remain as
agreed to in the Rule 11 agreement. The trial court
pronounced and rendered her decision from the bench at the
close of evidence. In the Final Decree of Divorce signed and
entered on February 1, 2017, the trial court ordered that all
relief requested and not expressly granted be denied. Neither
party requested findings of fact or conclusions of law.
Appellant filed a Motion for New Trial asking the trial court
to reconsider its refusal to enforce the Rule 11 agreement
which was overruled by operation of law.
sole issue, Appellant contends that the trial court erred in
not enforcing the Rule 11 agreement relating to possession
and awarding attorney's fees as a consequence of
Appellee's breach of the Rule 11 agreement. Appellee
contends that (1) Appellant cannot recover attorneys fees
because there was no valid Rule 11 agreement for the trial
court to enforce; (2) Appellee revoked her consent to the
Rule 11 agreement before judgment was rendered and therefore
the Rule 11 agreement was unenforceable; and (3) under the
Texas Family Code the terms of an agreement concerning