Randell Donell Canady v. Donna Marie Canady
Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00318-CV
Randell Donell Canady, Appellant
v.
Donna Marie Canady, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY NO. 22-1521-FC3, THE HONORABLE DOUG ARNOLD, JUDGE PRESIDING
MEMORANDUM OPINION
Randell Donell Canady, appearing pro se, appeals from the trial court’s Order of
Enforcement of Property Division (Order) finding that he had violated the agreed divorce decree
that ended his marriage to Donna Marie Canady. 1 In the Order, the trial court found that Randell
had failed to comply with a provision in the decree requiring him to either refinance the
mortgage on the parties’ marital home (which had been awarded to him) or sell the home. The
Order mandated that Randell list the property for sale with a licensed realtor by a specified date
and cooperate with the realtor to “achieve a speedy sale.” For the following reasons, we affirm
the Order.
The trial court signed the agreed divorce decree on September 27, 2023. Among
its provisions, the decree awarded the parties’ marital residence to Randell and required him to
1 Because the parties share the same surname, for clarity we refer to them by their first names. “assume the promissory note secured by the property and pay it timely, no later than fifteen (15)
days after the due date.” It further required him to, within 180 days of the decree’s entry,
“refinance the mortgage note” on the property. If he failed to “refinance the mortgage removing
DONNA MARIE CANADY’s name from the note,” the decree required him to sell the residence
“on the first day following” the expiration of said 180 days. 2
In February 2024, Donna filed a Petition for Enforcement of Property Division by
Contempt, alleging that Randell was in contempt of the decree for failing to timely refinance the
mortgage note. At the hearing on Donna’s petition, Donna’s attorney represented that they were
no longer seeking a contempt judgment—they were asking only that Randell be required to sell
the home—and thus the court stated that Randell was “not entitled to counsel” and could go
forward pro se if he was prepared to do so, to which Randell responded affirmatively.
The trial court asked Randell in open court whether he had refinanced or sold the
home within 180 days of the decree, referring to those two choices to which he was ordered in
the decree as “Option A or B,” respectively. Randell responded that he “applied for the
refinance,” was approved for it, but that the “VA agent called” him and told him that he did not
have to refinance the loan but could “assume the loan entirely” instead. The trial court
characterized the VA agent’s suggestion as “Option C” and informed Randell that the decree did
not permit a third party to “alleviate[] that responsibility for [Option] A or B.” The trial court
informed Randell that Donna was now asking for Option B (that Randell sell the home), and
Randell replied, “Sir, I accept B.” The trial court asked whether Randell could have the home
ready to list by June 1, 2024, and whether that proposal would work for him, and he replied,
2 The decree alternatively required Randell to sell the home if, prior to timely refinancing, he “falls behind in the timely payment of the mortgage note secured by the property for a period of fifteen (15) days or more.” 2 “Yes, Your Honor.” The trial court then granted Donna’s enforcement petition, ordered Randell
to sell the home by June 1, 2024, and requested that Donna’s counsel prepare an order
accordingly, which it later signed.
On appeal, Randell complains that the decree’s use of the term “refinance” is
ambiguous and needs clarification, as he and Donna believe it means different things as to the
method used to refinance the loan on the home. He contends that he may “assume” the loan as
the “VA agent” suggested—which he argues would “remove” Donna’s name from the mortgage
note—while Donna maintains (and the trial court determined) that a loan assumption is not the
same thing as a refinance, which term the decree expressly employed. Randall prays that this
Court reverse the Order requiring him to sell the home and either replace the term “refinance”
with “language that include[s] the Assumption refinance through the VA-guaranteed loan
program” or remand the case to the trial court with instructions that it so revise the decree.
Randell’s appellate complaint fails for two reasons.
First, Randell conceded in open court that he had neither refinanced the home nor
sold it as required in the decree. He then agreed to sell the home by June 1, 2024—the same
relief Donna requested in open court—and based thereon the trial court orally rendered judgment
granting Donna’s enforcement petition and ordering Randell to sell the home by June 1, 2024.
The court asked Donna’s counsel to prepare an order accordingly, and later signed the
corresponding Order. When a party consents on the record to a judgment, he may not appeal
therefrom absent an allegation and proof of fraud, collusion, or misrepresentation. See Gillum
v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex. App.—Dallas 1989, no writ) (“The
rationale of such a rule is that a party will not be allowed to complain on appeal of an action or
ruling which he invited or induced.”); see also In re R.H.B., 660 S.W.3d 136, 149–50 (Tex.
3 App.—San Antonio 2022, orig. proceeding) (noting that when both parties consent to
modification agreement, court has ministerial duty to sign order consistent with oral rendition of
judgment on agreement absent either party’s withdrawal of consent prior to rendition).
Second, Randell’s attempt to ask this Court to alter or modify the term
“refinance” in the decree—an unambiguous term—constitutes an impermissible collateral attack
on the decree. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); see also Tex. Fam. Code
§ 9.007(a) (providing that trial court’s order to enforce property division is limited to assisting in
implementation of or clarification of decree and may not amend, modify, alter, or change
property division in decree). The term “refinance” means “to provide for (an outstanding
indebtedness) by making or obtaining another loan or a larger loan on fresh terms.” See
Refinance, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/refinance (last visited June 23, 2025). On the other hand, the assumption
of a loan does not involve the making of a new loan but merely “the taking over of another’s
debts.” See Assumption, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/assumption (last visited June 23, 2025); see also Assumption, Black’s
Law Dictionary (12th ed. 2024) (defining “assumption of mortgage or trust deed” to mean “the
acquisition of real property coupled with the assumption of personal liability for debt secured by
that property”). Caselaw and the Texas Family Code prohibit Randell from obtaining the relief
he seeks by challenging the Order’s enforcement of the unambiguous terms of the decree, and it
is undisputed that Randell did not file a timely notice of appeal from the trial court’s divorce
decree to be entitled to raise any alleged substantive errors in the decree. See Tex. Fam. Code
§ 9.007(a); Hagen, 282 S.W.3d at 902; Tex. R. App. P.
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