







NUMBER 13-08-00448-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

TERESA M. VARNES,							Appellant,

v.


WILLIAM J. VARNES,							  Appellee.
 

On appeal from the 267th District Court of Calhoun County, Texas.

 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Garza


	This is an appeal from a final decree of divorce.  Appellant, Teresa M. Varnes,
alleges by two issues that the trial court abused its discretion by declaring in the final
decree that insupportability was the ground for her divorce from appellee, William J.
Varnes.  See Tex. Fam. Code Ann. § 6.001 (Vernon 2006).  By two additional issues,
Teresa challenges the trial court's denial of her request for "contractual spousal support"
under an "Affidavit of Support" signed by William pursuant to the federal Immigration and
Nationality Act.  See 8 U.S.C. § 1183a (2008).  We modify the trial court's judgment and
affirm as modified.
I.  Background
	William met Teresa, a citizen of the Phillippines, in 2004, and the couple married
in 2006.  In October of 2007, the parties separated, and Teresa filed for divorce on
November 7, 2007.  Teresa's original petition for divorce noted that there were no children
born of the marriage and stated, in relevant part, as follows:
IV.  Grounds

	Petitioner [Teresa] and respondent [William] were married and the
marriage has become insupportable due to discord and conflict of
personalities that destroys the legitimate ends of a marital relationship.  The
respondent is guilty of domestic violence against petitioner.  There is no
hope of reconciliation.

	. . . .

VI.  Property

	. . . [D]uring the existence of the marriage, no property was
accumulated and each party has in their possession personal property of the
marriage.

	The respondent should support petitioner pursuant to USCIS Form I-864 (United States Citizenship and Immigration Services form 'Affidavit of
Support'), which is a contract between respondent and petitioner and the
United States Government.

(Emphasis in original.)  William subsequently filed an answer and counterpetition in which
he asserted that "[t]he marriage has become insupportable because of discord or conflict
of personalities between [the parties] that destroys the legitimate ends of the marriage
relationship and prevents any reasonable expectation of reconciliation."
	On January 11, 2008, William filed a motion for partial summary judgment,
contending that "[t]here is no evidence of 'domestic violence' as defined by the Texas
Family Code."  See Tex. Fam. Code Ann. § 71.004 (defining "family violence").  A
temporary support hearing was then held on January 22, 2008, during which counsel for
both parties expressed to the trial court that they had reached an agreement that William
would pay $500 per month to Teresa as temporary support during the pendency of the
divorce proceeding.  Counsel had also reached an agreement on disposition of William's
summary judgment motion, as evidenced by the following exchange:
[Teresa's counsel]:	There's also a motion by Counsel for partial summary
judgment and that's to be removed from the docket.  It's
set for February 19th.

[William's counsel]:	Yes, we agree to withdraw our motion.  We've come to
an agreement on some wording and[--]

[Teresa's counsel]:	The wording is on domestic violence, as we have pled
in the original petition, Your Honor, we changed that to
domestic abuse and that will be[--]Is that your
understanding?

[William's counsel]:	That's correct.  Would you prefer that we read the
wording into the record, Your Honor?

THE COURT:	That would probably be best.

[William's counsel]:	The change of the wording, Your Honor, is it is ordered
and decreed that Theresa [sic] M. Varnes, V-a-r-n-e-s,
petitioner, and William J. Varnes, respondent, are
divorced and that the marriage between them is
dissolved based on domestic abuse, consisting of
mental and psychological abuse by respondent, but
without any physical violence upon petitioner.

[Teresa's counsel]:	That was for the final divorce decree, Your Honor.

THE COURT:	Okay.

Based on the representations of counsel at the January 22, 2008 hearing, the trial court
signed an order on February 13, 2008 providing in relevant part:
	The Court finds that the parties have agreed to the following
temporary orders during the pendency of the suit, which orders were read
into the Court's record:

 1.	Cause of Divorce:  The final decree of divorce shall include the
following:

	"IT IS ORDERED AND DECREED that TERESA M. VARNES,
petitioner, and WILLIAM J. VARNES, Respondent, are divorced and that the
marriage between them is dissolved based on domestic abuse consisting of
mental and psychological abuse by Respondent, but without any physical
violence upon Petitioner."

	. . . .

 3.	Trial Settings:

	The respondent's motion for partial summary judgment set for
February 19, 2008, has been resolved and the hearing is removed from the 
docket.

	Jury trial is set for March 3, 2008, at 9:00 o'clock a.m. for the primary
purpose of determining if separate maintenance should be awarded based
upon a contractual relationship, and if found that a contract exists, what
amount, if any, should be awarded.

	A final divorce hearing was held on June 2, 2008.  At that hearing, William testified
that he was a resident and domiciliary of Calhoun County, Texas for at least six months as
of the time of trial, see Tex. Fam. Code Ann. § 6.301 (Vernon 2006); that the marriage had
become "insupportable due to discord or conflict of personalities in the marriage
relationship"; and that there was no hope of reconciliation.  The final decree of divorce,
signed by the trial court on June 13, 2008, provided in relevant part as follows:
	IT IS ORDERED AND DECREED that Teresa M. Varnes, Petitioner,
and William J. Varnes, Respondent, are divorced and that the marriage
between them is dissolved on the ground of insupportability.

	. . . .

	The Court finds that no community property other than personal
effects has been accumulated by the parties.

	IT IS ORDERED AND DECREED that the personal effects of the
parties are awarded to the party having possession.

	. . . .

	IT IS ORDERED AND DECREED that Petitioner and Respondent are
discharged from all further liabilities and obligations imposed by any
temporary order of this Court.

	. . . .

	IT IS ORDERED AND DECREED that all relief requested in this case
and not expressly granted is denied.

	Teresa's appeal followed.
II.  Discussion
A.	Ground for Divorce
	By her first two issues, Teresa claims that the trial court erred by declaring in the
final divorce decree that insupportability was the ground for divorce and by not including
the language recited in the temporary support order of February 13, 2008.  Teresa
specifically claims that such declaration was an abuse of discretion, contrary to the
agreement of the parties, and not supported by sufficient evidence.  We agree.
	The trial court repeatedly stated at the June 2, 2008 final hearing that the issue of
whether or not domestic abuse had occurred was immaterial because both parties pleaded
no-fault grounds for divorce. (1)  This, however, ignores the fact that counsel for both parties
stipulated at the January 22, 2008 temporary support hearing that the final decree would
include language stating that there had been domestic abuse. (2)  The record is clear that
Teresa's counsel agreed to withdraw the allegation of "domestic violence" in exchange for
(1) William's withdrawal of his motion for summary judgment, and (2) William's stipulation
that the final decree would include the "domestic abuse" language.  The trial court erred
by failing to enforce that agreement.  See Tex. R. Civ. P. 11; Padilla v. La France, 907
S.W.2d 454, 461 (Tex. 1995) ("Although a court cannot render a valid agreed judgment
absent consent at the time it is rendered, this does not preclude the court, after proper
notice and hearing, from enforcing a settlement agreement complying with Rule 11 even
though one side no longer consents to the settlement."); see also Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) ("If a party represents to the court that he
waives a ground or objection that he has previously asserted in a written motion or
response and agrees that a certain issue is the only issue before the court, Rule 11 is
satisfied if the oral waiver or agreement made in open court is described in the judgment
or an order of the court.  Rule 11 expressly approves this procedure.").
	William argues on appeal that "there was no agreement with regards . . . to [sic] the
final order; it was an agreement as to the wording on the pleadings and petition as signified
in a temporary order."  However, the record, including the transcript of the January 22,
2009 hearing, belies this claim.  William's counsel recited the agreed-upon language as
requested by the trial court, and when Teresa's counsel stated "That was for the final
divorce decree, Your Honor," William's counsel did not object.  Moreover, William's counsel
did not raise any objection with the trial court as to the February 13, 2008 order which
specifically stated that the agreed-upon language would be included in the final decree of
divorce.
	William further argues that the trial court did not err because his testimony, which
was the only evidence adduced at the final divorce hearing, supported only the ground of
insupportability.  It is true that no evidence was presented at the final hearing that would
establish domestic abuse.  However, it is not necessary for a party to a divorce to prove
facts which are distinctly alleged by the adverse party.  McCaskill v. McCaskill, 761 S.W.2d
470, 472 (Tex. App.-Corpus Christi 1988, pet. denied) (citing Taylor v. Catalon, 140 Tex.
38, 166 S.W.2d 102 (Tex. 1942)).  As noted above, William's counsel had stipulated at the
January 22, 2008 hearing that the final decree of divorce would state that William had
committed "domestic abuse consisting of mental and psychological abuse . . . but without
any physical violence."  Because a valid agreement existed as to this language, Teresa
was not required to present any evidence at trial to prove the facts alleged therein.  See
id. ("A divorce petition that contains allegations of grounds for divorce serves as a judicial
admission and a substitute for evidence of the grounds alleged.").
	We conclude that the final decree of divorce must be modified to include the
agreed-upon language contained in the trial court's February 13, 2008 order. (3)  Teresa's
first two issues are sustained.
B.	"Contractual Spousal Support"
 1.	Community Property Division
	By her third issue, Teresa contends that the trial court abused its discretion by
denying her "community property division regarding spousal support."  See Tex. Fam. Code
Ann. § 7.001 (Vernon 2006) (stating that, in a divorce decree, "the court shall order a
division of the estate of the parties 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").  However,
Teresa's petition stated clearly, and William did not deny, that "no property was
accumulated" during the marriage and that "each party has in their possession personal
property of the marriage."  Because the parties agreed that there was no community
property to be divided in this case, the trial court did not err by declining to include such a
division in the final decree.  We overrule Teresa's third issue.
	2.	Affidavit of Support and "Mother Hubbard" Clause
	By her fourth issue, Teresa contends that the trial court erred by:  (1) failing to
enforce William's support obligations under an "Affidavit of Support" signed by William
pursuant to the Immigration and Nationality Act (the "Act"), see 8 U.S.C. § 1183a; and (2)
precluding Teresa from seeking to enforce the affidavit in a separate suit by including a
"Mother Hubbard" clause in the final divorce decree.
	A trial court may award spousal maintenance only if:  (1) the spouse from whom
maintenance is requested was convicted of, or received deferred adjudication for, a
criminal offense constituting family violence within two years of the filing of the divorce
petition or while the suit was pending; or (2) the duration of the marriage was ten years or
longer and the spouse seeking maintenance meets certain other conditions.  Tex. Fam.
Code Ann. § 8.051 (Vernon 2006).  It is undisputed that neither of these scenarios apply
to the instant case.  Nevertheless, Teresa pleaded in her divorce petition and argues on
appeal that the trial court should have ordered William to make periodic support payments
to her because William executed an "Affidavit of Support" in connection with bringing
Teresa to the United States to marry her.
	The record reflects that on February 26, 2007, William executed a form promulgated
by United States Citizenship and Immigration Services entitled "Form I-864, Affidavit of
Support Under Section 213A of the Act."  The affidavit is intended to ensure that those
attempting to be admitted to the United States are not likely at any time to become a public
charge.  See 8 U.S.C. § 1182(a)(4) (2009). (4)   To that end, the affidavit provides that the
income and assets of the affiant (the "sponsor") are considered as being available to the
individual attempting to gain admission (the "sponsored alien").  If the sponsored alien
receives any means-tested public benefit, the entity providing such benefit may sue the
sponsor for reimbursement.  Id. § 1183a(b).  Crucially, the affidavit also provides that the
"sponsor agrees to provide support to maintain the sponsored alien at an annual income
that is not less than 125 percent of the Federal poverty line during the period in which the
affidavit is enforceable . . . ." (5) Id. § 1183a(a)(1)(A).
	The instructions accompanying Form I-864 clearly spell out the obligations required
of the sponsor and provide specifically that divorce does not terminate those obligations. (6) 
Moreover, the Act specifically states that the sponsored alien may bring suit against the
sponsor in "any appropriate court" to enforce the sponsor's financial support obligations. 
Id. § 1183a(e)(1).
	As reflected in the temporary order of February 13, 2008, the parties intended to try
this issue at the final divorce hearing.  At that hearing, William's counsel alleged that:  (1)
the affidavit only guarantees support to individuals who "ha[ve] been here for a reasonable
amount of time and ha[ve] legal permanent resident status"; and (2) the affidavit, though
signed by William, was "never filed" and "never approved" and therefore was "illusory." 
Nevertheless, the trial court declined to hear the issue, stating to Teresa's counsel:  "[Y]ou
obviously can file a suit that sounds in contract if you want to do that and this paper can
become the subject of that contract.  But it requires altogether different pleadings than
what you have on file at this time."
	We agree with the trial court.  Teresa's petition merely alleged, under a section
entitled "Property," that William "should support" her pursuant to the Affidavit of Support. 
It did not set forth any allegation that William breached any contract, nor did it request
declaratory relief relating to William's obligations under the affidavit.  We find that the trial
court did not err by refusing to hear the contract issue. 
	Teresa contends that, even if the trial court was correct in declining to hear the
contract issue, the court improperly precluded her from filing a subsequent action to
enforce the Affidavit of Support by including a "Mother Hubbard" clause (7) in the final decree,
stating "that all relief requested in this case and not expressly granted is denied."  We are
not convinced that the "Mother Hubbard" clause contained in the final divorce decree
prevents Teresa from bringing suit against William to enforce the affidavit, because
Teresa's petition asked merely for an order declaring the parties' marriage to be dissolved. 
Further, it was undisputed that Teresa was ineligible for spousal maintenance under the
family code, see Tex. Fam. Code. Ann. § 8.051, and the trial court's comments at the final
divorce hearing made clear that it contemplated Teresa being able to file a subsequent suit
pleading separate breach of contract grounds against William based on the affidavit. 
Accordingly, it is not apparent that Teresa's claim against William under the Affidavit of
Support was disposed of as part of "all relief requested in this case."  Still, to eliminate any
potential for confusion, we modify the judgment to clarify that Teresa is not precluded from
filing suit to pursue such a claim.  See infra section III.  Teresa's fourth issue is sustained
in part.
III.  Conclusion
	We modify the trial court's final decree of divorce:  (1) by vacating the paragraph
stating the ground for divorce ("IT IS ORDERED AND DECREED that Teresa M. Varnes,
Petitioner, and William J. Varnes, Respondent, are divorced and that the marriage between
them is dissolved on the ground of insupportability.") and substituting in lieu thereof the
following agreed-upon language:  "IT IS ORDERED AND DECREED that Teresa M.
Varnes, Petitioner, and William J. Varnes, Respondent, are divorced and that the marriage
between them is dissolved on the ground of cruelty based on domestic abuse consisting
of mental and psychological abuse by Respondent, but without any physical violence upon
Petitioner"; and (2) by inserting the following statement in the final decree:  "Nothing in this
decree shall be construed as prohibiting Teresa from filing suit against William in an
appropriate court in order to enforce the Affidavit of Support as provided under section
213a of the Immigration and Nationality Act."  See 8 U.S.C. § 1183a(a)(1), (e)(1).  The trial
court's judgment is affirmed as modified herein.


								DORI CONTRERAS GARZA,
								Justice

Memorandum Opinion delivered and 
filed this the 23rd day of April, 2009.
1.  The trial court was clearly under the impression that Teresa asserted no-fault grounds for divorce,
even though she did assert in the "Grounds" section of her petition that William "is guilty of domestic violence." 
It is not clear to this Court whether Teresa's petition asserted no-fault or cruelty grounds.  See Tex. Fam. Code
Ann. § 6.001 (Vernon 2006) ("[T]he court may grant a divorce without regard to fault if the marriage has
become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the
marital relationship and prevents any reasonable expectation of reconciliation."); id. § 6.002 (Vernon 2006)
("The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward
the complaining spouse of a nature that renders further living together insupportable.").  Nevertheless, we
need not address this issue because it has no bearing on the agreement reached by the parties' counsel.  See
Tex. R. App. P. 47.1.
2.  Teresa explains on appeal that she intially sought the inclusion of "domestic violence" language in
the final decree--and later agreed to "domestic abuse" language--because federal law "permits immigrants
to continue the process of immigration if a divorce resulted from spousal abuse."  Her counsel made a similar
representation to the trial court at the final divorce hearing.  However, Teresa does not point to any federal
statute or case law supporting this contention.  In any event, we need not confirm or deny the contention
because the parties' agreement as to the language to be included in the final decree of divorce must be
enforced, regardless of its ancillary ramifications.  See id.; Tex. R. Civ. P. 11 (providing that agreements
between parties are enforceable if made in open court and entered of record); Bufkin v. Bufkin, 259 S.W.3d
343, 354-55 (Tex. App.-Dallas 2008, pet. denied) ("A stipulation . . . is 'an agreement, admission, or
concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident
thereto.' . . . Stipulations are binding upon the parties, the trial court, and the reviewing court.").
3.  We note that the agreed-upon language to be included in the final divorce decree does not
specifically state the grounds upon which the divorce is being granted.  Therefore, in accordance with the
agreement reached by the parties' counsel, we modify the decree to state that the divorce is granted on the
ground of cruelty.  See infra section III; see also Tex. Fam. Code Ann. § 6.002; In re Marriage of Rice, 96
S.W.3d 642, 648 (Tex. App.-Texarkana 2003, no pet.) ("Although infrequently used since the introduction of
no-fault divorce, a Texas court may still grant a divorce on the ground of cruel treatment.").
4.  Section 212(a) of the Act defines certain classes of aliens that are ineligible to receive visas or to
be admitted to the United States.  8 U.S.C. § 1182(a) (2009).  One such class is defined as "Any alien who,
in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission or adjustment of status, is likely at any time to become a
public charge . . . ."  Id. § 1182(a)(4)(A).  In determining whether an alien is inadmissible under this provision,
the consular officer or Attorney General may consider whether or not an affidavit of support has been
executed on behalf of the alien under section 213a of the Act.  Id. § 1182(a)(4)(B)(ii); see id. § 1183a (2008).
5.  Paragraph (a)(2) of section 213a of the Act, entitled "Period of enforceability," provides that "An
affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien
is naturalized as a citizen of the United States, or, if earlier, the termination date provided under paragraph
(3)."  8 U.S.C. § 1183a(a)(2).  Paragraph (a)(3) provides for an earlier termination date if the sponsored alien
completes a required period of employment.  Id. § 1183a(a)(3).
6.  The instructions to Form I-864 provide in relevant part:

Your obligations under a Form I-864 will end if the person who becomes a permanent
resident based on a Form I-864 that you signed:

		Becomes a U.S. citizen;

		Has worked, or can be credited with, 40 quarters of coverage under the
Social Security Act;

		No longer has lawful permanent resident status, and has departed the
United States;

		Becomes subject to removal, but applies for and obtains in removal
proceedings a new grant of adjustment of status, based on a new affidavit
of support, if one is required; or

		Dies.

Note that divorce does not terminate your obligations under this Form I-864.

(Emphasis in original.)  See 8 C.F.R. § 103.2(a) (2008) (incorporating instructions into regulations).
7.  So named because, in the nursery rhyme, Old Mother Hubbard has nothing more to give her dog. 
See Int'l Bhd. of Teamsters Local 19 v. Sw. Airlines Co., 875 F.2d 1129, 1137 (5th Cir. 1989) (Goldberg, J.,
dissenting); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203 (Tex. 2001).  The term is more commonly used
to describe a "catch-all" provision in an oil and gas lease that is intended to bring within the terms of the lease
small pieces of land owned or claimed by the lessor that are adjacent to the described land.  See, e.g., Jones
v. Colle, 727 S.W.2d 262, 262-63 (Tex. 1987).
