Affirmed in Part, Reversed and Remanded in Part, and Opinion filed April
17, 2014.




                                    In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00762-CV

                          TONY WOODY, Appellant
                                      V.

                        MADELYN WOODY, Appellee

                   On Appeal from the 328th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 07-DCV-157762

                               OPINION


      Appellant Tony Woody and appellee Madelyn Woody each filed post-
divorce pleadings seeking enforcement and modification of their final decree of
divorce.   After a series of trial proceedings on the issues presented in these
motions, the trial court entered judgment ordering Tony to pay $771.73 per month
in child support and to reimburse Madelyn $3,383.00 in medical expenses, and
denying Tony’s motion for enforcement.       The court further awarded certain
property items to the person in possession of them as of a certain date.

      In his first three issues on appeal, Tony contends that the trial court abused
its discretion in (1) approving in the judgment the parties’ agreement on child
support after Tony had revoked his consent, (2) accepting Madelyn’s evidence
regarding unreimbursed medical expenses when it was “riddled with errors,” and
(3) denying Tony’s motion to enforce the division of property despite “strong
evidence supporting his property claim.” In his fourth issue, Tony contends the
trial court lacked jurisdiction to modify the division of property. Among other
arguments in response, Madelyn asserts that Tony’s appeal is frivolous. We affirm
the trial court’s judgment in part and reverse and remand in part. We further hold
that Tony’s appeal was not frivolous.

                                    Background

      The trial court entered a final decree of divorce dissolving Tony and
Madelyn’s marriage on October 10, 2008. In the decree, among other things, the
court ordered Tony to pay child support for their two children, initially at $964.66
per month, and after one child obtained certain milestones, such as graduating from
high school and turning eighteen years of age, at $771.73 per month. The decree
also contains fairly complex provisions regarding payment for insurance and
medical expenses.     The parties agree, however, that Tony was required to
reimburse Madelyn for half of the medical expenses she incurred on behalf of the
children that were not covered by insurance. Additionally, the court divided the
parties’ marital estate. As particularly relevant to our analysis, the court awarded
Tony the guns and auto mechanic equipment then in Madelyn’s possession.

      Beginning in November 2010, the parties filed a series of post-decree
motions and petitions. As will be discussed in more detail below, among the issues
raised in these pleadings were the amount of child support Tony should pay,
                                          2
additional reimbursement from Tony for the children’s uninsured medical
expenses, and whether Tony had received all of the property to which he was
entitled, including, in particular, the guns and auto mechanic equipment.

       During the pendency of these matters, one of the children attained the age of
majority and was no longer covered by the child support provisions of the decree,
so that Tony’s child support obligation under the decree was lowered to $771.73
per month. In the post-decree filings, Madelyn sought an increase in this amount
and Tony sought a decrease. The parties proceeded to mediation on this issue, but
no written, signed settlement agreement resulted. At a hearing, however, the
mediator appeared and reported to the court that a settlement had indeed been
reached to leave the child support obligation where it was under the original
decree: $771.73. Tony, appearing pro se, subsequently appeared at the hearing
and stated that whatever was in the prior decree was “fine.” The court then stated
that they could set the issue aside and continue with other matters. At a later
hearing, Tony requested the child support obligation be reduced, primarily because
the Internal Revenue Service had garnished his wages.1 In other hearings, the
parties presented conflicting testimony regarding the amount of medical expenses
Tony owed and whether he had received all of the property he was awarded that
was in Madelyn’s possession at the time of the divorce.

       In its Final Order and Judgment, the trial court determined that one of the
children was no longer covered by the child support provisions and expressly
approved the parties’ reported agreement that Tony pay $771.73 each month in
child support for the remaining child. The judgment stated that “the parties agreed
during mediation . . . and announced on the record in open court, that the current

       1
         Tony further suggested that his income was not sufficient to pay the ordered amount, in
part because his ability to work extra jobs had been limited.

                                               3
child support . . . remain the same.” The court further ordered Tony to pay
Madelyn $3,383.00 plus interest for unreimbursed, out-of-pocket medical
expenses. Additionally, the court expressly denied Tony’s motion for enforcement
and, in response to his Petition for Post-Divorce Division of Property, stated, “It is
ordered that the guns are awarded to the person in possession of the guns as of
April 1, 2012.”

                                    Settlement Agreement

      In his first issue, Tony contends that the trial court erred in its final judgment
by approving the parties’ agreement on child support—and basing his child support
obligation on this agreement—after he had withdrawn his consent to the
agreement. As set forth above, the record indicates that the parties agreed in
mediation to keep the amount of Tony’s child support obligation at the amount
established in the final decree, but the parties never set that agreement down in
writing, and Tony subsequently withdrew his consent and sought a reduction in his
child support obligation.2 Madelyn indeed appears to concede that there was no
signed, mediated settlement agreement that could be enforced pursuant to Texas
Family Code section 153.0071 regardless of any attempted revocation. Tex. Fam.
Code § 153.00713; see also In re Lee, 411 S.W.3d 445, 478-79 (Tex. 2013) (Green,

      2
          Madelyn does not argue that Tony’s revocation was not effective.
      3
          Section 153.0071 reads in pertinent part as follows:
      Alternate Dispute Resolution Procedures
      ....
      (c) On the written agreement of the parties or on the court’s own motion, the
      court may refer a suit affecting the parent-child relationship to mediation.
      (d) A mediated settlement agreement is binding on the parties if the agreement:
                (1) provides, in a prominently displayed statement that is in boldfaced
                type or capital letters or underlined, that the agreement is not subject to
                revocation;

                                                 4
J., dissenting) (collecting cases holding that when a mediated settlement agreement
meets the requirements of section 153.0071, the agreement can be enforced
regardless of party’s repudiation); Milner v. Milner, 361 S.W.3d 615, 618 (Tex.
2012) (“[O]nce signed, an MSA cannot be revoked like other settlement
agreements.”); In re L.M.M., 247 S.W.3d 809, (Tex. App.—Dallas 2008, pet.
denied) (holding mediated settlement agreement met statutory requirements and
thus could be enforced despite party’s revocation of consent).

      Madelyn asserts, however, that when the parties indicated in open court that
they had reached an agreement on child support, this announcement constituted a
Rule 11 agreement that the trial court was within its authority to approve in the
judgment. Tex. R. Civ. P. 11 (“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.”). The problem with this
contention is that if a party revokes its consent to a Rule 11 agreement at any time
before judgment is rendered in the case, the agreement can no longer simply be
“approved” by the court; instead, the enforcement mechanism is through a separate
breach of contract action. See, e.g., In re Marriage of Dixon, No. 12-13-00324-
CV, 2014 WL 806373, at *2-3 (Tex. App.—Tyler Feb. 28, 2014, no pet. h.) (mem.
op.) (holding trial court erred by rendering divorce decree based on Rule 11

             (2) is signed by each party to the agreement; and
             (3) is signed by the party’s attorney, if any, who is present at the time the
             agreement is signed.
      (e) If a mediated settlement agreement meets the requirements of Subsection (d),
      a party is entitled to judgment on the mediated settlement agreement
      notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

Tex. Fam. Code § 153.0071. Family Code section 6.602 contains substantially similar
language applicable to suits for the dissolution of marriage. Id. § 6.602.

                                              5
agreement where one party had withdrawn consent prior to rendition of judgment);
In re M.A.H., 365 S.W.3d 814, 821 (Tex. App.—Dallas 2012, no pet.) (holding
trial court erred by enforcing revoked Rule 11 agreement on child support and
other matters, and, even assuming a breach of contract claim was raised in relation
to revocation of the Rule 11 agreement, the judgment did not contain any ruling
thereon); see also Padilla v. LaFrance, 907 S.W.2d 454, 461–62 (Tex. 1995) (“[A]
court cannot render a valid agreed judgment absent consent at the time it is
rendered . . . .”); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.
1983) (holding that when trial court has knowledge that party does not consent to
judgment, trial court should refuse to sanction agreement by making it the
judgment of the court).

       Here, as set forth above, Tony withdrew his consent to the agreement
regarding child support prior to rendition of the judgment.4                  The trial court
therefore erred by incorporating that agreement into the final judgment.5
Accordingly, we sustain Tony’s first issue, reverse the portion of the judgment
regarding child support, and remand that issue to the trial court for further
proceedings.

                                     Medical Expenses

       In issue two, Tony contends that the trial court abused its discretion in
accepting Madelyn’s evidence regarding unreimbursed medical expenses, evidence
which Tony maintains was “riddled with errors” and thus factually insufficient.


       4
         Upon hearing of the settlement, the court stated that they could set the issue aside and
concentrate on other matters. The court did not render judgment on the agreement prior to
Tony’s revocation of consent. See generally S & A Rest. Corp. v. Leal, 892 S.W .2d 855, 857-58
(Tex. 1995) (per curiam) (discussing requirements for rendition of judgment).
       5
         We note that evidence was introduced on the child support issue. However, the court
expressly based its judgment not on that evidence but on the agreement.

                                               6
We review the trial court’s ruling on a post-divorce motion for enforcement of a
divorce decree under an abuse of discretion standard. See, e.g., In re Marriage of
Kerr, No. 14–08–00529–CV, 2009 WL 3000977, at *2 (Tex. App.—Houston [14th
Dist.] Sept. 22, 2009, no pet.) (mem. op.); see also In re T.J.L., 97 S.W.3d 257,
265 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (applying abuse of discretion
standard in reviewing order enforcing payment of child’s medical expenses).
Under that standard, we must determine “whether the trial court acted without
reference to any guiding rules or principles; in other words, whether the act was
arbitrary or unreasonable.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990);
In re T.J.L., 97 S.W.3d at 266. When, as here, the trial court did not file findings
of fact and conclusions of law, we imply that the trial court made all findings
necessary to support the judgment and will uphold those findings if supported by
sufficient evidence. In re Kerr, 2009 WL 3000977, at *2 (citing Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83–84 (Tex. 1992)). Under the abuse of
discretion standard, sufficiency of the evidence is not an independent ground of
error but rather is a relevant factor in assessing whether the trial court abused its
discretion. In re T.J.L., 97 S.W.3d at 266. When, as here, an appellant challenges
the factual sufficiency of an adverse finding on an issue for which he did not have
the burden of proof, we consider all of the evidence in a neutral light and set aside
the judgment only if the evidence that supports the challenged finding is so weak
as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). The fact-finder is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. See Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

      Rather than discussing the state of the evidence regarding medical expenses
as a whole, Tony confines his challenge to a critique of certain statements made by


                                         7
Madelyn during her testimony. Madelyn testified that Tony failed to reimburse her
for half of the out-of-pocket medical expenses she paid on behalf of the children.
She provided details concerning the requirements in the decree, her payment of
medical expenses, her requests for payment to Tony, and his failure to pay.
Moreover, Madelyn entered into evidence a list itemizing the expenses, along with
supporting receipts, medical statements, and insurance coverage documentation.
Lastly, she presented a chart showing Tony’s total obligation, what he had paid,
and what he still owed. The chart showed Tony owed $3,677.65. After taking
certain reductions to this number, the trial court ordered Tony to reimburse
Madelyn $3,383.00.

      Tony points to the following alleged errors in Madelyn’s testimony: (1) she
had not updated a website the parties used to keep track of expenses to reflect
Tony’s last two payments, although she had input those offsets on her chart; (2)
she received a $41 reimbursement check in Tony’s name but had not yet cashed it;
(3) she mistakenly input two duplicate bills on the chart; and (4) she acknowledged
credits would occasionally appear on subsequent medical bills from providers.
There is no indication in the record, however, that the trial court did not take this
testimony, along with Madelyn’s explanation or admission, into consideration in
deriving the amount awarded for medical reimbursement.        To the contrary, each
alleged error was discussed openly and apparently considered by the court.
Accordingly, we cannot say that the evidence supporting the challenged finding
was so weak as to make the judgment clearly wrong and manifestly unjust, see
Cain, 709 S.W.2d at 175; nor can we say the trial court ruled arbitrarily or
unreasonably, see In re T.J.L., 97 S.W.3d at 266. Finding no error in the court’s
medical reimbursement award, we overrule Tony’s second issue.



                                         8
                              Tony’s Motion to Enforce

      In issue three, Tony contends the trial court abused its discretion in denying
his motion to enforce the division of property despite “strong evidence supporting
his property claim.” In particular, Tony complains that he did not receive all of the
property that was in Madelyn’s possession at the time of divorce that he was
entitled to receive under the decree.6 Once again, we utilize the abuse of discretion
standard in considering this challenge to the trial court’s ruling on a post-divorce
motion for enforcement, considering Tony’s factual-sufficiency contention only as
a factor in assessing whether the trial court abused its discretion. In re T.J.L., 97
S.W.3d at 265-66. As movant, Tony had the burden of proof on this issue. See In
re A.L.S., 338 S.W.3d 59, 66 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Consequently, to establish factual insufficiency on appeal, he must demonstrate
that the court’s implied finding Tony failed to prove entitlement to enforcement
was against the great weight and preponderance of the evidence. See Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

      Tony begins his argument by citing to his own testimony that he made
several trips to retrieve his property from Madelyn’s residence. On each occasion,
he collected some of his property but failed to bring a vehicle large enough to
collect all of the remaining items. Tony further testified that on two occasions, he
discovered some of his property had been placed along the curb in front of
Madelyn’s residence as for trash pickup. He further points to two emails Madelyn
sent to him during this period of time. In the first email, Madelyn states,

      I just wanted to be sure you were finished with everything in the
      garage. I am getting ready to clean it out, and didn’t want to get rid of
      6
          We note that Madelyn characterizes the court’s ruling on Tony’s motion as an
unappealable denial of a contempt motion. Although Tony asked for Madelyn to be fined, in
addition to specific relief, he does not ask for that relief on appeal.

                                           9
       anything you wanted. There is a computer monitor and some other
       things in there. Are those things you wanted to throw out?

In the second email, she takes a slightly more aggressive stance, saying:

       I noticed you had gotten items out of my trash and placed them on the
       end of the driveway in front of the garage door. I will be happy to
       keep those there until Wed. morning when trash is picked up. If those
       items are still on the property at that time, I will place them along with
       my other trash pick up items. In addition, I have someone coming to,
       hopefully, pick up the big red thing (that is still in the garage)
       tomorrow. If you want that item, you may want to give me a call and
       come get it early in the morning. Please call first, though.

       Tony asserts—based on his testimony and the emails—that Madelyn’s
testimony that he retrieved all of the items from the garage he was entitled to
receive under the decree was “an impossibility.” He does not, however, identify a
single specific item or category of items that he did not receive that he was
supposed to receive under the decree.7 Moreover, the mere fact Madelyn may have
put certain items Tony wanted (he does not identify what those items were) on the
curb and may have threatened to give away other items (“the big red thing,” etc.) if
he did not collect them, does not directly refute Madelyn’s testimony that Tony got
everything he was awarded in the decree. See Fowler v. Fowler, No. 2-07-274-
CV, 2008 WL 2330987, at *3 (Tex. App.—Fort Worth June 5, 2008, no pet.)
(mem. op.) (finding trial court did not abuse discretion in denying enforcement
where wife did not offer any evidence that husband had refused access to her
awarded property and evidence indicated she voluntarily left it behind). As sole
judge of the witness’s credibility, the trial court was free to accept Madelyn’s
testimony. See City of Keller, 168 S.W.3d at 819.

       7
        The decree awarded the following items or categories of items in Madelyn’s possession
to Tony: (1) “Guns,” (2) “Gun safe,” (3) “Computer equipment for Extrajob.com,” and (4)
“[A]uto mechanic equipment.”

                                             10
      In short, Tony has not demonstrated that the trial court’s implied finding
regarding his motion for enforcement was against the great weight and
preponderance of the evidence or that its ruling was arbitrary or unreasonable. See
Francis, 46 S.W.3d at 242; In re T.J.L., 97 S.W.3d at 266. Consequently, we
overrule Tony’s third issue.

                               Modification of Decree

      In his fourth issue, Tony contends that the trial court erred in its Final Order
and Judgment because it modified the division of property contained in the divorce
decree. Specifically, Tony complains that the court had no jurisdiction to award
guns to “the person in possession of them as of April 1, 2012.” Tony is correct that
while a court that renders a divorce decree retains jurisdiction to clarify and
enforce the property division therein, see Pearson v. Fillingim, 332 S.W.3d 361,
363 (Tex. 2011), the court does not possess the power to amend, modify, alter, or
change the division of property contained in the decree, see Texas Family Code §
9.007(a) and (b) and Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). Tony
is incorrect, however, in asserting the trial court in the present case was attempting
to amend, modify, alter, or change the division of property contained in the
original decree.

      As relevant to this issue, in the original decree, the court awarded Tony the
guns that were then in Madelyn’s possession. As discussed above, the trial court
denied Tony’s motion seeking recovery of property he asserts she failed to
relinquish. The language that Tony complains about in this issue was the court’s
express ruling on Tony’s Petition for Post-Divorce Division of Property. A post-
divorce division of property is a procedural vehicle for dividing marital property
that was not divided or awarded to a spouse in a final decree of divorce. See Tex.
Fam. Code §§ 9.201(a), 9.203(a); see generally O’Carolan v. Hopper, 414 S.W.3d

                                         11
288, 312-13 (Tex. App.—Austin 2013, no pet.) (discussing purpose of sections
9.201 and 9.203).8 The trial court’s ruling in regards to Tony’s Petition for Post-
Divorce Division of Property therefore concerned only marital property (guns) not
divided in the original decree and consequently did not amend, modify, alter or
change the division of property contained in the original decree. Although the
record was not particularly well developed regarding whether there were any guns
owned during the marriage that were not awarded in the decree, Tony suggested to
the judge that guns had gone unawarded.9 Tony does not raise any arguments,
under his fourth issue or otherwise, specifically contending that the trial court erred
in dividing previously undivided property. We overrule Tony’s fourth issue.

                             Alleged Frivolousness of the Appeal

       As mentioned, Madelyn asserts in her briefing that Tony’s appeal was
frivolous as defined in Texas Rule of Appellate Procedure 45.10 In making that
determination, we review the record from the viewpoint of the advocate filing the
appeal and decide whether the advocate had reasonable grounds to believe the
judgment could be reversed. Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (en banc). Here, we have sustained
       8
         Under section 9.203(a), the court is authorized to divide such undivided property “in a
manner that the court deems just and right, having due regard for the rights of each party and any
children of the marriage.” Tex. Fam. Code § 9.203(a).
       9
          When the subject of guns and other items he claims he did not receive arose, Tony
stated: “Well, it was property that was not turned over that was awarded me, and it was property
that was not divided. It’s two issues.” There is also a suggestion in the testimony that Tony had
already received some of the guns prior to entry of the decree and that certain guns had been
given to children who no longer lived with either party prior to entry of the original decree.
       10
            Rule 45, entitled “Damages for Frivolous Appeals in Civil Cases,” states:
       If the court of appeals determines that an appeal is frivolous, it may—on motion
       of any party or on its own initiative, after notice and a reasonable opportunity for
       response—award each prevailing party just damages. In determining whether to
       award damages, the court must not consider any matter that does not appear in the
       record, briefs, or other papers filed in the court of appeals.

                                                 12
Tony’s first issue, necessitating reversal of a portion of the trial court’s judgment
and remand for further proceedings. Based on that holding, we determine that
Tony’s counsel had reasonable grounds to believe the judgment could be reversed.
See, e.g., Duruji v. Duruji, Nos. 14-05-01185-CV, 14-05-01186-CV, 2007 WL
582282, at *3 n.8 (Tex. App.—Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem.
op.). Accordingly, Madelyn’s request that we determine Tony’s appeal to be
frivolous and award damages under Rule 45 is denied.

                                     Conclusion

      As discussed above, we sustain Tony’s first issue challenging the trial
court’s enforcement of the agreement on child support, reverse the portion of the
judgment awarding child support, and remand to the trial court for further
consideration of this issue.    We overrule Tony’s other issues and affirm the
remainder of the trial court’s final judgment.




                                       /s/       Martha Hill Jamison
                                                 Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jamison.




                                         13
