                                 MEMORANDUM OPINION
                                        No. 04-10-00217-CV

                                    George Richard HERNDON,
                                             Appellant

                                                   v.

                                     Bonny Elaine HERNDON,
                                             Appellee

                     From the 38th Judicial District Court, Uvalde County, Texas
                                 Trial Court No. 03-08-23,745-CV
                           Honorable Camile G. Dubose, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 27, 2010

AFFIRMED

           Appellant, George Richard Herndon, appeals from a December 16, 2009 Order in Suit to

Modify Parent-Child Relationship. Because we conclude appellant waived any right to complain

on appeal, we affirm.

                                          BACKGROUND

           In 2003, the trial court entered a Final Decree of Divorce granting a divorce between

appellant and appellee, Bonny Elaine Herndon. On March 5, 2009, appellee filed a Petition to
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Modify the Parent-Child Relationship, and on October 14, 2009, the parties reached a settlement

agreement, which was read into the reporter’s record.        Pursuant to the parties’ agreement,

appellee’s attorney was to prepare the proposed order.          Appellee’s attorney reduced the

agreement to writing and, on November 10, 2009, sent the proposed order to appellant’s

attorney, who did not respond. On December 1, 2009, appellee’s attorney sent the proposed

order to the trial judge with a letter asking the judge to sign and enter the order within five days

if appellant’s attorney lodged no objections to it. On the same day, appellee’s attorney also sent

a copy of the letter and the proposed order to appellant’s attorney. Fifteen days later, on

December 16, 2009, the trial judge signed the Order in Suit to Modify the Parent-Child

Relationship.

        After hiring a new attorney, appellant filed a motion for new trial, alleging discrepancies

between the parties’ settlement agreement and the order actually entered. At a continuance

hearing regarding the motion for new trial, the trial judge stated on the record: “[Appellant’s

former attorney] was given an opportunity to review the order and the Court actually called him

to make sure that he had no objections to the order, [and] we were informed that we could sign

the order, and I actually held it for 15 days before I signed it.” When appellant’s attorney stated,

“[M]aybe the telephone call from the Court did not get through to [appellant’s former attorney],”

the trial judge replied, “No, it got through to him . . . . We were told to sign the order, which we

did.”

        At the hearing on appellant’s motion for new trial, appellant’s attorney told the trial

judge, “Your Honor, . . . there [are] fairly minor changes to [the order]. When I say minor, for

instance there’s a problem with pick-up and drop-off of the children and there’s other things in

there that don’t reflect what the agreement was . . . .” The trial judge denied appellant’s motion



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for new trial, explaining: “Just because [appellant doesn’t] like the order that was entered, other

than the fact that it was entered, is not a ground for a new trial. [Appellant] had ample

opportunity to review the order. His counsel was given the order. He was contacted by the

Court.”

                                          DISCUSSION

          In his sole issue on appeal, appellant contends the Order in Suit to Modify the Parent-

Child Relationship impermissibly adds to and modifies the parties’ settlement agreement.

Appellee responds that appellant waived his complaints by failing to object when given notice of

the proposed order. We agree with appellee. “A party’s express renunciation of a known right

can establish waiver. Silence or inaction, for so long a period as to show an intention to yield the

known right, is also enough to prove waiver.” Tenneco, Inc. v. Enterprise Prods. Co., 925

S.W.2d 640, 643 (Tex. 1996) (citations omitted). Waiver is a question of fact, unless the facts

and circumstances are admitted or clearly established, in which case the question becomes one of

law. Id.

          Here, appellant was given at least two opportunities to object to the proposed order.

First, he remained silent for fifteen days after receiving a copy of the proposed order along with a

copy of the letter sent to the court asking the judge to sign it if appellant made no objections

within five days. Then, appellant’s former attorney expressly consented to the trial judge’s

signing of the order in a phone conversation with the court coordinator. Based on this, we

conclude the error, if any, was waived.




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                                       CONCLUSION

       Because appellant waived any alleged error in the entering of the Order in Suit to Modify

the Parent-Child Relationship, we overrule appellant’s sole issue on appeal and affirm the trial

court’s judgment.


                                                Sandee Bryan Marion, Justice




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