                             NUMBER 13-10-00378-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ERIC RAY CRUZ,                                                              Appellant,

                                            v.

KAYLA JANEL FRANKE CRUZ,                                                      Appellee.


                    On appeal from the 36th District Court
                         of Live Oak County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
      This is an appeal from a divorce decree terminating the marriage of appellant,

Eric Ray Cruz, and appellee, Kayla Janel Franke Cruz. By two issues, Eric argues that

the trial court erred by: (1) entering a judgment that was inconsistent with the terms of a
settlement agreement the parties had previously agreed to; and (2) refusing to grant a

motion to set aside, correct, reform or modify the judgment. We reverse and remand.

                                     I. BACKGROUND

      Eric and Kayla were married on January 3, 2009. Kayla filed for divorce on

February 16, 2010. During the marriage, the parties had a daughter, H.P.F., who was

born on July 19, 2009. Prior to trial, the parties reached an agreement concerning

conservatorship of H.P.F., retroactive child support, and retroactive medical expenses

arising from H.P.F.’s birth. At trial on February 23, 2010, the parties proved up their

agreement by sworn testimony pursuant to rule 11 of the Texas Rules of Civil

Procedure. See TEX. R. CIV. P. 11. Specifically, the parties agreed on the following

seven material terms: (1) they would be joint managing conservators of H.P.F.; (2) Eric

would pay $250 per month in child support; (3) because Eric had made no payments of

child support prior to trial, he would pay $1,400 in retroactive child support; (4) Eric

would pay retroactive medical expenses in the amount equal to half of the medical

expenses arising from the birth of H.P.F.; (5) half of the medical expenses were

calculated to be $2,400 if Kayla was covered by her father’s health insurance, and

$7,600 if she was not; (6) Kayla would verify payment of the medical expenses before

Eric was obligated to pay any retroactive medical expenses; and (7) Eric would obtain

health insurance for H.P.F. with a policy containing a deductible of $500 or less.

      The final decree signed and entered by the trial court on April 21, 2010 modified

or omitted certain material terms agreed to by the parties at the February 23, 2010 trial.

Specifically, in contrast to the settlement agreement, the final decree provided that: (1)

Eric would pay a set amount of $4,000 in retroactive medical expenses; and (2) Kayla

was not required to verify payment of the medical expenses as a condition of Eric’s
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obligation to pay retroactive medical expenses. Neither Eric nor his counsel signed or

approved of the final decree.

         Eric timely moved to modify, correct or reform the judgment, or in the alternative,

for a new trial, and the motion was overruled by operation of law. See TEX. R. CIV. P.

329b(c). Eric then filed a motion to reconsider, which was also overruled by operation

of law. This appeal ensued.1

                                                  II. DISCUSSION

         In two issues, which we treat as one, Eric argues that the trial court erred when it

rendered a final decree that modified and omitted terms of a rule 11 settlement

agreement that the parties dictated in open court. We agree.

         Pursuant to rule 11, a settlement agreement between the parties is enforceable if

dictated in open court and recited on the record. TEX. R. CIV. P. 11. When parties have

reached a settlement agreement, a final judgment based on that agreement must be in

―strict or literal compliance with that agreement.‖ Vickrey v. Am. Youth Camps, Inc., 532

S.W.2d 292, 292 (Tex. 1976). The trial court cannot supply, modify, or omit material

terms to the settlement agreement. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex.

2006).       In essence, the trial court must act in a ministerial capacity in signing and

entering the settlement agreement. Nuno v. Pulido, 946 S.W.2d 448, 451 (Tex. App.–

Corpus Christi 1997, no writ). Furthermore, a court cannot enter a final judgment based

on a settlement agreement when consent of one of the parties is wanting; the parties

must consent at the moment the court signs and enters the final judgment based on a

settlement agreement. Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951). Thus,

when a final judgment based on a settlement agreement is without consent, or is not in

         1
             Kayla has not filed an appellee’s brief to assist us in the resolution of this matter.
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strict compliance with the terms of the settlement agreement recited on the record, the

judgment must be set aside. Chisholm, 209 S.W.3d at 98.

       In the case at bar, the trial court erred when it rendered a judgment that did not

strictly or literally comply with the rule 11 settlement agreement that the parties had

reached on February 23, 2010. The final judgment erroneously modified or omitted two

material terms of the agreement without Eric’s consent. See Burnaman, 240 S.W.2d at

291. First, the decree modified the total amount due in retroactive medical expenses—

according to the agreement, Eric was responsible for $2,400 or $7,600 in expenses,

depending on whether Kayla was covered by her father’s health insurance policy; but

the final decree provided that Eric was responsible for a set amount of $4,000 in

retroactive medical expenses. Second, the decree did not provide, as the agreement

did, that Eric’s responsibility for paying retroactive medical expenses was conditioned

on Kayla’s providing verification that those amounts had been paid. The final judgment

was not in strict or literal compliance with the settlement agreement, and must therefore

be set aside. See Chisholm, 209 S.W.3d at 98.

                                      III. CONCLUSION

       For the reasons stated above, we reverse the judgment and remand the cause to

the trial court for further proceedings consistent with this opinion.



                                                         DORI CONTRERAS GARZA
                                                         Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of June, 2011.



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