                             NUMBER 13-07-00207-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


ROSALINDA OLIVA SANCHEZ,                                                      Appellant,

                                             v.

MARIO ALONZO SANCHEZ,                                                         Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                 Memorandum Opinion by Justice Rodriguez

       This is an appeal from a final order entered in a divorce action. By three issues,

appellant, Rosalinda Oliva Sanchez, contends that the trial court erred in approving and

signing a consent decree that did not conform to the settlement agreement and that the

trial court abused its discretion when it refused to grant her motion to set aside the decree
or to correct, reform or modify the decree. Because the judgment fails to include terms that

were part of the settlement agreement, we affirm in part and reverse and remand in part.

                          I. Factual and Procedural Background

       Appellee, Mario Alonzo Sanchez, filed a petition to adjudicate parentage and an

original petition for divorce. Appellant answered and filed a counter-claim for divorce. On

October 10, 2006, the parties appeared before the trial court and announced that they had

reached an agreement. Appellee's counsel stated the terms of the agreement on the

record, and appellant testified that she agreed with the terms presented. The trial court

then found it had jurisdiction, granted the divorce, and accepted the agreement of the

parties. The final decree of divorce was signed and entered on December 19, 2006.

Appellant filed a motion to set aside the decree or, in the alternative, to correct, reform or

modify it, urging that the divorce decree did not conform with the agreement on certain

essential issues. The motion was overruled by operation of law, see TEX . R. CIV. P.

329(b)(c), and this appeal ensued.

                          II. Terms of the Settlement Agreement

       By her first and third issues, appellant contends that the trial court erred when it

signed a consent decree that did not conform to the settlement agreement. Both issues

center on the trial court's decree allegedly omitting or modifying terms of the settlement

agreement.

                                     A. Applicable Law

       A settlement agreement between parties is enforceable if it is written and filed as

part of the record or if it is recited in open court. TEX . R. CIV. P. 11. These agreements are

binding on the parties. McLendon v. McLendon, 847 S.W.2d 601, 605 (Tex. App.–Dallas

                                              2
1992, writ denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677

(Tex. 1979)). A final judgment rendered upon a settlement agreement must be in strict and

literal compliance with the agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292,

293 (Tex. 1976) (per curiam); Donzis v. McLaughlin, 981 S.W.2d 58, 63 (Tex. App.–San

Antonio 1998, no pet.); see Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (Tex.

1939).

         If the terms of the trial court's judgment conflict with the terms of the settlement

agreement, the judgment is unenforceable. Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex.

App.–Fort Worth 1996, no writ). A court "cannot render a valid agreed judgment absent

consent at the time it is rendered." Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex.

1995); see Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig.

proceeding) (per curiam).       As a general rule, a court's modifications to settlement

agreements are grounds for reversal where the modifications "add terms, significantly alter

the original terms, or undermine the intent of the parties." Beyers v. Roberts, 199 S.W.3d

354, 362, (Tex. App.–Houston [1st Dist.] 2006, pet. denied) (citing Keim v. Anderson, 943

S.W.2d 938, 946 (Tex. App.–El Paso 1997, no pet.); In re Marriage of Ames, 860 S.W.2d

590, 592-93 (Tex. App.–Amarillo 1993, no writ)).

                                          B. Analysis

         Appellant contends that the trial court specifically erred in failing to address the

parties' agreement as to the following: (1) the division of proceeds from the sale of

Doctor's Hospital in Mercedes, Texas, and of income from the sale of "El Caribe Estates";

(2) the division of debts; (3) the provision of a life insurance policy; (4) the allocation of the



                                                3
children's health insurance and health care expenses; (5) child custody; and (6) spousal

maintenance/contract alimony. Appellant does not complain of the trial court's order

decreeing that appellant and appellee are divorced.

                                    1. Property Division

       Appellant asserts, and we agree, that the trial court rendered a judgment containing

some, but not all, of the recited terms of the agreement regarding the division of community

property. The omitted terms included, among others, that appellee was to provide

accountings for the sale of Doctor's Hospital and for the net income received from the sale

of "El Caribe Estates." The record also supports the fact that the parties agreed to split

deposits equally. In addition, appellee was to provide a life insurance policy to cover

appellee's remaining division of property obligation should something happen to him. Even

if appellant agreed to the terms that were included in the final decree, nothing in the record

establishes that appellant consented to the property division absent the inclusion of these

terms, among others. A trial court has authority to divide the community estate to the

extent not set forth in the settlement agreement. See Clanin, 918 S.W.2d at 677-78 (citing

McCaskill v. McCaskill, 761 S.W.2d 470, 473 (Tex. App.–Corpus Christi 1988, writ

denied)). However, in this case, the final decree failed to include terms regarding the

division of property and how that division was to be supported and secured, terms to which

the parties had agreed. We conclude appellant's complaints here have merit.

                              2. Children's Health Insurance

       Appellant also complains of the decree's provisions related to the children's health

insurance and health care expenses. She contends, and the record establishes, that the

parties had agreed that appellee would purchase a health insurance policy with a low

                                              4
deductible for the children. The decree specifically orders appellee "to provide and

maintain health insurance for each child [through] Valley Baptist Health Plans." However,

prior documentation of such plan was not provided to appellant for her review. Appellant

contends that appellee agreed to provide her with a copy of the insurance policy,

presumably to determine whether it was a low deductible policy, but did not do so. Thus,

she asserts the terms of the agreement were not correctly reflected in the decree when it

only named the plan, without allowing for her review. Appellant's counsel stated on the

record that appellee had agreed to provide appellant the insurance policy for review to see

if it comports with what the parties had agreed to in open court; however, appellant did not

provide testimony to this effect. Nonetheless, the decree also orders both appellee and

appellant to provide insurance coverage for the children and does not reflect that appellee

will provide a low deductible policy, as agreed. Therefore, appellant's arguments regarding

health insurance coverage for the children have merit.

                           3. Children's Health-Care Expenses

       Appellant further complains that the final decree included numerous paragraphs

regarding the children's health care; paragraphs that the trial court improperly added in its

judgment because they were not a part of the agreement. However, the trial court is

required to allocate between the parties the reasonable health care expenses of a child

that are not reimbursed by health insurance. See TEX . FAM . CODE ANN . § 154.183(c)

(Vernon Supp. Pamph. 2008). Therefore, although the parties did not address the issue

of health care expenses in their settlement agreement, the trial court was required to

allocate these expenses and properly did so. See id. We conclude appellant's arguments

related to such health care expenses have no merit.

                                             5
            4. Child Custody and Spousal Maintenance/Contract Alimony

       Appellant also appears to challenge the child custody and the spousal

maintenance/contract alimony portions of the decree by incorporating facts that attempt

to establish a discrepancy between what was agreed upon in open court and what was set

out in the decree. However, appellant's motion to set aside or modify the decree did not

assert these arguments. Because appellant did not timely raise below the challenges she

now asserts on appeal regarding child custody and spousal maintenance/contract alimony,

she has not preserved them for our review. See TEX . R. APP. P. 33.1(a)(1).

       In summary, the record ultimately shows that the trial court's order did not include

all that the parties had agreed to. See Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex.

2006) (per curiam). The trial court approved the settlement agreement and was bound to

render judgment that strictly complied with the terms of the agreement. See Vickrey, 532

S.W.2d at 293. As discussed above, the judgment was not "in strict or literal compliance"

with the terms recited into the record, because the judgment improperly removed or

modified material terms. Vickrey, 532 S.W.2d at 292. The complained-of provisions are

essentially modifications that altered the original agreed-upon terms and undermined the

intent of the parties. See Beyers, 199 S.W.3d at 362. Because the judgment does not

comply with the terms read into the record, we sustain points of error one and three with

respect to property division issues and to the children's health insurance coverage issues.

However, issues one and three are overruled to the extent that appellant complains of the

trial court's inclusion of provisions regarding: (1) payment of health-care expenses not

reimbursed by health insurance; (2) child custody; and (3) spousal maintenance/contract

alimony.

                                            6
            III. Motion for Set Aside or to Correct, Reform, or Modify Decree

       By her second issue, appellant contends that the trial court abused its discretion

when it refused to grant her motion to set aside or to modify the decree. However,

because we have determined that this must be remanded for entry of a judgment in

accordance with the parties' settlement agreement, we need not address appellant's

remaining issue as it is not dispositive of this appeal. See TEX . R. APP. P. 47.1.

                                       IV. Estoppel

       In response to appellant's issues, appellee asserts that appellant is estopped from

appealing under the acceptance of benefits doctrine. See Carle v. Carle, 149 Tex. 469,

234 S.W.2d 1002, 1004 (1951) (providing that a party may not voluntarily accept the

benefits of a judgment and attack it on appeal at the same time). Appellee asserts that

since the entry of the consent decree appellant has received one-half of the sales

proceeds of the Doctor's Hospital, monthly contractual alimony payments, and proof of the

life insurance policy protecting her for appellee's remaining alimony obligations. He

explains that appellant has been provided with proof of insurance coverage for the children

of the marriage, that the debts of the parties have been distributed among the parties and

paid by the respective party, and that the dispute as to the reimbursement of payment

made by appellee for the utilities deposit and utilities is now moot because appellant no

longer resides at her prior residence and appellee did not incur those expenses.

       Regarding the division of income from the sale of "El Caribe Estates," appellee

states that this matter is in separate litigation of which appellant is aware, and until this

litigation is resolved, the sale of any lots at this subdivision is not permitted. Based on

these recited facts, appellee contends that all benefits complained of by appellant have

                                             7
been paid, received or resolved and that, by accepting a substantial portion of the benefits

she now seeks to attack, appellant is estopped from appealing this case. However,

appellee does not support his asserted facts with citations to the record, and we find

nowhere in the record where these details are, in fact, supported. Therefore, we do not

accept appellee's estoppel argument. See TEX . R. APP. P. 38.2.

                                       V. Conclusion

       The judgment of the trial court is affirmed as to the granting of the divorce but,

regarding exclusion and modification of terms in the agreement, is reversed and remanded

to the trial court for proceedings consistent with this opinion.


                                                     NELDA V. RODRIGUEZ
                                                     Justice

Memorandum Opinion delivered and
filed this 28th day of August, 2008.




                                              8
