Markarian, Shahn v. Markarian, Arusyak

• Court: Court of Appeals of Texas
• Decided: January 15, 2013
• Docket: 05-11-01076-CV
• Status: Published

Opinion

Affirmed; Opinion Filed January 15, 2013.

In The

SHAHN MARKARIAN, Appellant

V. ARUSY AK MARKARIAN, Appellee

On Appeal from the 380th District Court · Collin County, Texas Trial Court Cause No. 380-50570-2010

MEMORANDUM OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Moseley

In Shahn and Arusyak Markarian's divorce proceeding, the trial court entered the parties'

Agreed Final Decree ofDivorce (Final Decree). In two issues, Shahn Markarian contends the trial

court erred by entering the Final Decree because (1) the Final Decree was not "filed" within the

meaning of rule 11 before the trial judge signed the decree, and (2) Shahn's filing of a counter

petition and answer should have prompted the judge to investigate whether Shahn still agreed to the

terms of the decree. The background and facts of the case are well-known to the parties; thus, we

do not recite them here in detail. Because all dispositive issues are settled in law, we issue this

memorandum opinion. See TEX. R. Civ. P. 47.2(a), 47.4. We affirm the trial court's judgment.

In February 20 l 0, Arusyak filed a petition for divorce. Shortly thereafter, the parties negotiated and executed the Final Decree. Despite signing the Final Decree, Shahn and Arusyak

continued to negotiate the terms of their divorce for more than a year. During the negotiation period,

neither party filed the Final Decree with the frial court or formally revoked his consent to the Final

Decree. On May 19, 2011, approximately fifteen months after the divorce proceeding was initiated,

Shahn filed his original answer and counter petition for divorce.

On May 20, 2011, after further negotiations failed to yield a new agreement to replace the

executed Final Decree, Arusyak appeared before the trial court and presented the Final Decree in a

prove-up hearing; the trial court accepted the Final Decree. Subsequently, Shahn filed a motion to . / set aside the decree on the ground he had revoked consent ':lnd the trial court should have known

about his revocation because he filed his answer and counter petition the day before Arusyak

appeared to prove up the Final Decree. The trial court denied the motion. Shahn appealed.

-- - · · In his first i'ssue, Sllcilir( argiles 'the Final Decree ·did ~~t meet ~e requirements of ruie 11·

because the decree was not "filed" before it was signed -by thJ trial judge and enforced as required

by rule i 1. Rule 11 states: ''Unless ·otherwise provided in these rules, no agreement between

attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and

filed with the papers as part of the record, or unless it be made in open court and entered of record."

TEX. R. Civ. P .. 11. Because the Final Decree was not an agreement made in open court, it must be

(1) in writing, (2) signed, and (3) filed with the papers as part of the record to constitute a rule 11

agreement. See TEX. R. Crv. P. 11. Although rule 11 requires the writing to be filed as part of the

record, the rule does not state when the writing must be filed. Padilla v. LaFrance, 901 S.W.2d 454,

461 (Tex. 1995). The purpose of the filing requirement is to put the agreement before the court so

that '"the court can judge of[its] import, and proceed to act upon [it] with safety."' ld. (quoting

Birdwell v. Cox, 18 Tex. 535, 537 (1857)). This purpose "is satisfied so long as the agreement is

-2- filed before it is sought to be enforced." Id.; In re Guthrie, 45 S. W .3d 719, 728 (Tex. App.-Dallas

200 1, pet. denied) (enforcing rule 11 agreement first presented at trial, but before trial court rendered

judgment and judgment became fmal); see also TEX. R. Civ. P. 11 (trial court can enforce agreement

in "any suit pending").

Arusyak presented the Final Decree to the judge, who noted it "has been executed by both

parties" before approving the parties' agreement. The parties' failure to file the Final Decree before

the prove-up hearing is not dispositive because the Final Decree was filed _as part of the record prior

to any attempted enforcement and while the suit was pending. See Padilla, 901 S.W.2d at461; TEX.

R. CIV. P. 11. We would be loath to hold that the rule includes a formalistic requirement that all

such documents be file-stamped by the clerk prior to being used at a hearing, especially in a case like

· this where. the primary purpose of the filing requirement-allowing the court to judge the

· docuine~t-'s- import :prior·· to 'rendering judgment-is fulfiiled. Because the Final ·Deer~~ :was

presented to the trial court -while the suit: was. pending and was~ included among .the papers

comprising the record, we conclude· that the requirements of rule 11 were met. Accordingly, we

overrule Shahn Markarian's first issue.

In his second issue, Shahn argues the trial court should have been on notice that he revoked

his consent to the Final Decree because he filed a counter petition and answer one day before the

prove-up bearing. A party may revoke its consent to a settlement agreement at any time before

judgment is rendered on the agreement. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.

1995). However, a party withdrawing his consent must effectively communicate the withdrawal to

the trial court. Baylor Coli. ofMed. v. Camberg, 247 S.W.3d 342,346 (Tex. App.-Houston [14th

Dist.] 2008, pet. denied).

Shahn' s only comrnuni~ations to the trial court were his counter petition and answer. Neither

-3- document expressed his dissatisfaction with or contradicted the Final Decree. See Bumaman v.

Heaton, 240 S.W.2d 288, 339 (Tex. 1951) (for court to have notice of withdrawal of consent,

pleading must be such to reasonably prompt the court to make an inquiry into whether party

withdrew consent). Rather, Shahn 's counter petition asks the judge to "divide the estate in a manner

consistent with the agreement." Rather than demonstrating a revocation of consent, the counter

petition could be interpreted to request the judge honor the Final Decree subsequently presented by

Arusyak. The trial judge's failure to divine some sort of disagreement with the Final Decree from

the documents she had before her does not constitute an abuse of discretion. See id. at 345.

Because the documents do not show Shahn did not consent to the t~rms of the Final Decree,

we cannot say the trial judge had actual knowledge that Shahn revoked his consent to the Final

Decree. Where, as here, a party fails to revoke his consent to an agreement or fails to notify the court

of his intention to.revoke an agreement, \ve:c~ot ;ay that a trial coUrt ern by renderingjudginent· · _._, · ·· . on that agreement.- As such, we overrule Shah.n?s·second issue.·

Having overruled both of Shahn Markarian's issues, we affirm the trial court's judgment.

111 079F .P05

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C!rourt of App.eal.s lf.ifth, 1ili.strict of w.exa.s at IDalla.s JUDGMENT

SHAHN MARKARlAN, Appellant Appeal from the 380th District Court of Collin County, Texas. {Tr.Ct.No. Cause No. No. 05-11-01076-CV V. 380-50570-2010). Opinion delivered by Justice Moseley, ARUSY AK MARKARIAN, Appellee Justices Fillmore and Myers participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Arusyak Markarian recover her costs of this appeal from appellant Sh~ Markarian.

Judgment entered January 15, 2013.