Appellant=s Motion for Rehearing is Overruled
Appellant=s Motion for Rehearing is Overruled. Memorandum
Opinion of January 15, 2008 is Withdrawn. Affirmed and Substitute Memorandum Opinion filed March 20,
2008.
In The
Fourteenth Court of
Appeals
_______________
NO. 14-06-01099-CV
KATY ENGINEER, Appellant
V.
MIKE ENGINEER, Appellee
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Cause No. 99-CV-109487
S U B S T I T U T E M E M O R A N D U M O P I N I O
N
Appellant=s motion for rehearing is overruled.
This court=s opinion issued January 15, 2008 is withdrawn and the following
memorandum opinion is substituted therefor.
In this
divorce action, Katy Engineer appeals the amended divorce decree on the grounds
that the decree does not accurately reflect the mediated settlement agreement
and the arbitration award. Our disposition is based on clearly settled law.
Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
Katy and
Mike Engineer were divorced on September 16, 2002. Katy appealed the final
divorce decree on the grounds that the decree did not incorporate all of the
provisions of the mediated settlement agreement and arbitration award. In an
opinion issued January 31, 2006, this court found the alimony provision in the
decree differed from language in the agreement and the December 4, 2001
arbitration award that was incorporated into the decree did not address the
alimony provision. Engineer v. Engineer, 187 S.W.3d 625, 626 (Tex. App.CHouston [14th Dist.] 2006, no pet.).
This court sustained Katy=s challenge to the alimony provision in the decree and
further determined that it did not need to address her other challenges. Id.
at 627. The case was remanded to the trial court for further proceedings. Id.
On
remand, the trial court signed a document entitled, AFinal Decree of Divorce After Remand.@ In that document, the trial court
amended the parties= divorce decree to conform to the December 4, 2001
arbitration award as it pertained to contractual taxable alimony. In this
appeal, Katy contends the trial court erred in failing to further amend the
divorce decree to address other portions of the arbitration award, specifically
provisions relating to gold coins, savings bonds, and the place where alimony
payments should be sent.
II. Scope of Remand
Initially,
Katy argues the trial court failed to follow this court=s mandate because the trial court
corrected only the alimony provision in the decree. Mike responds that the
trial court did not err in failing to address the provisions, which are the
subject of Katy=s complaints, because this court remanded the case only to
permit the trial court to amend the decree with regard to the contractual
alimony. In our first opinion, we reversed and remanded Afor proceedings in accordance with
the court=s opinion.@ When an appellate court reverses and remands a case for
further proceedings, and the mandate is not limited by special instructions,
the effect is to remand the case to the lower court on all issues of fact, and
the case is reopened in its entirety. Hudson v. Wakefield, 711 S.W.2d
628, 630 (Tex. 1986); Brewer & Pritchard, P.C. v. Johnson, 167
S.W.3d 460, 465 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). Neither our opinion
nor mandate, provide special instructions to the trial court upon remand;
therefore, the case was reopened in its entirety. See Manon v. Solis,
142 S.W.3d 380, 386 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). The issue before
us, therefore, is whether the decree of divorce after remand accurately
incorporates the arbitration award.
III. Arbitration Award
Katy
argues that the final arbitration award is the proposed AFinal Decree of Divorce@ submitted to the trial court by the
arbitrator on July 23, 2002. Mike argues that the final arbitration award is a
document entitled, AFinal Arbitration Award@ signed by the arbitrator on December
4, 2001. In its conclusions of law, the trial court found that the arbitrator=s Aproposed final decree of divorce
submitted on July 23, 2002 was not considered an arbitration award, implicating
the procedures of Chapter 171 of the Texas Civil Practice and Remedies Code.@ In remanding the case to the trial
court, this court referred to the December 4, 2001 arbitration award as the
operative document. Therefore, in order to address Katy=s issues, we will determine whether
the final divorce decree incorporates the provisions of the December 4, 2001
arbitration award.
IV. Provisions of the Decree
The
trial court must make a just and right division of marital property in a
divorce proceeding. Tex. Fam.
Code Ann. ' 7.001 (Vernon 1998). To promote the
amicable settlement of disputes in a suit for divorce, spouses may enter into a
written agreement concerning the division of the property and the liabilities
of the spouses and maintenance of either spouse. Tex. Fam. Code Ann.
' 7.006 (a)-(c) (Vernon 1998). If the
court finds that the terms of such an agreement are just and right, those terms
are binding on the court. Tex.
Fam. Code Ann. ' 7.006(b). If the trial court
approves the agreement, the court may set forth the agreement in full or
incorporate it by reference in the final decree. Id. Conversely, if
the court finds that the terms of the agreement are not just and right, it may
either request the spouses to submit a revised agreement or set the case for a
contested hearing. Tex. Fam.
Code Ann. ' 7.006(c). Therefore, a court may
either enter a property division agreement in its entirety or decline to enter
it all, but has no discretion to change the agreement before entering it. See
Engineer, 187 S.W.3d at 626; Reppert v. Beasley, 943 S.W.2d 172, 174
(Tex. App.CSan Antonio 1997, no pet.).
In this
case, the agreement provided that disputes concerning interpretation or
performance of the agreement would be submitted to binding arbitration. In
unchallenged conclusions of law, the trial court found that the decree
incorporates the agreement as modified and clarified in arbitration and as
thereafter corrected and/or modified by the court upon proper pleadings and
proof. Katy complains that the trial court erred in failing to accurately
incorporate the agreement into the divorce decree. Specifically, Katy argues
the provisions addressing allocation of the gold coins and savings bonds were
inaccurately incorporated. Further, Katy complains that provisions in the
decree regarding the place for alimony payments do not reflect the arbitration
award.
A. Gold Coins
Attached
to the arbitration award are three exhibits listing the community property
awarded to each spouse and the property awarded to Katy as custodian for the
parties= son. The gold coins are listed in
the property awarded to Mike and are described as the A[g]old coins purchased and stored in
the family safety deposit box.@ The final divorce decree awards the following property to
the husband: AAll household furniture, furnishings, fixtures, goods, art objects,
collectibles, appliances, and equipment in the possession of the husband or
subject to his sole control, including but not limited to any gold coins
purchased and stored in the family safety deposit box . . . said coins to be
delivered to Mike Engineer by (6/5/03) to M. Carden=s office.@
Katy
first argues that the trial court erred in the divorce decree by not including
a provision that she was to relinquish the gold coins Ashould they be in existence.@ Katy bases her argument on the
arbitrator=s proposed final decree submitted to the court on July 23, 2002. As
stated earlier, that document was not recognized by the trial court as an
arbitration award. The arbitration award used by the trial court in preparing
the final divorce decree did not establish a procedure or qualify the
distribution of the gold coins.
Second,
Katy complains of the trial court=s inclusion of specific terms requiring
her to deliver the gold coins to Mike, contending that this language improperly
imposes an affirmative obligation that the arbitrator did not impose. The
Family Code does not require parties to agree to all of the provisions to be
contained in the divorce decree. The law only requires the parties to reach an
agreement as to all material terms and prohibits the trial court from supplying
additional terms. Haynes v. Haynes, 180 S.W.3d 927, 930 (Tex. App.CDallas 2006, no pet.). Terms
necessary to effectuate and implement the parties= agreement do not affect the agreed
substantive division of property and may be left to future articulation by the
parties or consideration by the trial court. Id.
In this
case, the terms requiring Katy to deliver the gold coins on a date certain to a
specific location are properly denominated as essential to effectuate and
implement the agreement that Mike will receive the gold coins. Therefore, with
regard to the gold coins, the arbitration award was accurately incorporated in
the decree.
B. Savings Bonds
Katy
alleges that the decree varies from the arbitration award in the distribution
of savings bonds. In the December 4, 2001 document, the arbitrator awarded AU. S. Series EE Savings Bonds
Approximate value $18,608.00@ to Katy. The arbitrator further awarded AEE Series Savings Bonds Approximate
value $25,000.00@ to Katy as custodian for the parties= child. In the corrected final
divorce decree, the AUS Series EE Savings Bonds@ were awarded to the parties= child Awith Katy Engineer trustee.@ The decree then listed the bonds by
number. The decree did not award any savings bonds to Katy individually.
On
October 23, 2002, the trial court signed a final decree of divorce, which
awarded AUS Series EE Savings Bonds B approximate value of $18,608.00@ and AEE Series Savings Bonds No.
M39388208EE to M39388216EE & M39531538EE@ to Katy. The October 23, 2002,
decree failed to award any savings bonds to Katy as custodian for the child.
Katy thereafter filed a motion to modify the decree, which included a request
that the trial court correct the decree as to the bonds awarded to her, and the
bonds awarded to her as custodian for the child. On January 22, 2003, the
trial court signed an order modifying the divorce decree. The order recites
that a hearing was held on December 18, 2002, but no record of the hearing
appears in our appellate record. A letter from the trial court signed on
December 27, 2002, reflects that as a result of the hearing, the parties agreed
to certain changes in the decree. One of the referenced changes is, A[S]eries EE bonds should be awarded
to [the child], with Wife as Trustee.@ The trial court=s January 22, 2003 order reflects
that agreement.
On
appeal, Katy contends that the decree incorrectly awarded all the bonds to the
parties= child with her as trustee. Katy
does not assert that the trial court=s recitation of an agreement is
incorrect, but argues that even if she agreed to the change, the trial court
was without authority to change the arbitrator=s award. Section 7.006(a) of the
Family Code specifically provides that the parties= agreement Amay be revised or repudiated before
rendition of the divorce or annulment unless the agreement is binding under
another rule of law.@ While the trial court has no authority to supply terms,
provisions, or conditions not previously agreed to by the parties,
conversely, the parties are bound by their agreements. See McLendon,
847 S.W.2d at 610. Katy cannot agree to a change in the agreement, then
complain on appeal about that change. See Keith v. Keith, 221 S.W.3d
156, 163 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (appellant may not
complain on appeal of an action or ruling to which she agreed). Therefore,
with regard to the savings bonds, the divorce decree accurately reflects the
parties= agreement.
C. Alimony Payments
Katy
argues that the final decree varies from the arbitration award in that the
decree permits Mike to pay alimony at her residence instead of depositing the
amount in her checking account. Katy further argues that the decree does not
provide security for the alimony as required by the arbitration award. Again,
Katy relies on the July 23, 2002 document, which is not an arbitration award.
The December 4, 2001 arbitration award is silent with regard to alimony.
However, the parties= mediated settlement agreement provides that Achild support [and] alimony to be
obligation of H[usband]=s estate. The AFinal Divorce Decree After Remand@ provides that Mike is to pay
contractual alimony of $4000 per month to Katy at her residence. The decree
further provides that alimony is to be secured by Mike=s 401(k) plan.
Although
the mediated settlement agreement required Mike to pay Katy alimony, the
parties did not agree to the manner and place of payment. The trial court was
authorized to include terms in the decree to implement the parties= agreement, specifying the manner and
place of payment of alimony. See McLendon v. McLendon, 847 S.W.2d 601,
606 (Tex. App.CDallas 1992, writ denied). Further, contrary to Katy=s assertion, the decree provided that
alimony payments would be secured by Mike=s 401(k) plan. Therefore, the trial
court did not err by including delivery instructions pertaining to alimony in
the decree.
In
conclusion, the final divorce decree does not vary from the terms of the
mediated settlement agreement or the arbitration award. Accordingly, the
judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Substitute
Memorandum Opinion filed March 20, 2008.
Panel consists of Chief Justice
Hedges and Justices Anderson and Seymore.
Chapter 171 of the Texas Civil Practice and Remedies
Code generally prescribes the necessary requirements for a valid arbitration
agreement.