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Tidwell v. Tidwell

Court of Appeals of Texas, Eighth District, El Paso

September 30, 2019

JAMES TIDWELL, Appellant,
v.
BIANCA NICOLE TIDWELL, Appellee.

          Appeal from the 383rd District Court of El Paso County, Texas (TC# 2014DCM0671)

          Before Rodriguez, J., Palafox, J., and Simmons, Former Justice Simmons, Former Justice (Sitting by Assignment)

          MEMORANDUM OPINION

          REBECCA SIMMONS, FORMER JUSTICE.

         This 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.

         BACKGROUND

         Appellee 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.

         On May 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 agreement."

         On 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.

         Appellee 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.

         Trial 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.

         During 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.

         ISSUE

         In his 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 ...


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