                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00109-CV


SAM F.                                                                  APPELLANT

                                           V.

MONA HAMAMIYAH                                                           APPELLEE


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          FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 324-546069-13

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                         MEMORANDUM OPINION1

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      Sam F. appeals from a judgment entitled “Agreed Final Decree Of

Divorce.”   He raises two issues on appeal.          His first issue asserts that the

evidence is legally and factually insufficient to support the decree, and his

second issue alleges that the trial court abused its discretion by denying his

motion for new trial. We will affirm.

      1
       See Tex. R. App. P. 47.4.
                                II. BACKGROUND

       Appellee Mona Hamamiyah filed for divorce from Sam, and Sam answered

and filed a counterclaim for divorce.       In due course, the parties and their

attorneys appeared for a final hearing before the associate judge and entered

into a “Conservatorship Rule 11 for Final Decree” and a “Property Rule 11 for

Final Decree.” These agreements are in writing, are set forth in the “Associate

Judge’s Report for Final Orders,” and are signed by the parties and their

attorneys.    Each page of the report contains the parties’ initials and their

attorneys’ initials.

       Pursuant to the terms of the “Associate Judge’s Report for Final Orders,”

Mona’s counsel drafted an “Agreed Final Decree of Divorce,” which incorporated

the parties’ agreements. Mona signed the “Agreed Final Decree of Divorce,” but

Sam did not. Mona filed a motion with the trial court requesting that it sign the

agreed decree that incorporated the parties’ rule 11 conservatorship and property

agreements. The trial court held a hearing on Mona’s motion to sign, but no

reporter’s record was made.

       Because no reporter’s record of the hearing exists, we do not know what

transpired at the hearing. According to Mona, Sam did not attempt at the hearing

to revoke his consent to the agreed final decree of divorce. Mona claims that at

the hearing, Sam urged the trial court to adopt Sam’s interpretation of a term

contained in the conservatorship rule 11 agreement and to alter the proposed

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agreed decree accordingly. The trial court did make some interlineations and

handwritten notations on the decree, and those were initialed by the parties’

attorneys. The trial court then signed the agreed decree.

      Sam filed a motion for new trial asserting that the agreed decree was

“predicated upon a written settlement agreement which was ambiguous” and

again urging the trial court to adopt Sam’s interpretation of a particular provision

of the parties’ rule 11 conservatorship agreement instead of Mona’s

interpretation. Sam’s motion for new trial did not allege that he had revoked his

consent to the agreed decree. The trial court held a hearing on Sam’s motion for

new trial; the parties waived the making of a reporter’s record. The trial court

denied Sam’s motion for new trial. Sam perfected this appeal.

                              III. SAM’S FIRST ISSUE

      In his first issue, Sam argues that the agreed divorce decree is not

supported by legally or factually sufficient evidence.      It is Sam’s burden, as

appellant, to bring forward a record showing error that requires reversal. See,

e.g., Shelton v. Standard Fire Ins. Co., 816 S.W.2d 552, 553 (Tex. App.––Fort

Worth 1991, no writ). Because no reporter’s record exists of the hearing held on

Mona’s motion requesting the trial court to sign the agreed decree, we must

presume that any evidence presented to the trial court was sufficient to support

the judgment. See, e.g., Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991);

Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Willms v.

Ams. Tire Co., 190 S.W.3d 796, 803 (Tex. App.––Dallas 2006, pet. denied). In

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the absence of a reporter’s record, we can consider and decide only those issues

or points that do not require a reporter’s record for a decision. See Tex. R. App.

P. 37.3(c). Without a reporter’s record of the hearing, we cannot conclude that

the evidence is legally or factually insufficient to support the agreed judgment.

See, e.g., In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.—Amarillo

1999, no pet.) (“Without a reporter’s record we do not know what, if any,

evidence was presented to the trial court.”).

      Nonetheless, liberally construing Sam’s first issue, as we must, he also

claims that the evidence is insufficient because he did not sign the agreed

decree; he claims that the absence of his signature on the decree shows that he

did not consent to it.    It is well settled that a consent judgment cannot be

rendered when one party does not consent at the time judgment actually is

rendered although that party previously may have consented to the agreement.

See, e.g., Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006); Burnaman v.

Heaton, 240 S.W.2d 288, 291 (Tex. 1951). A party may revoke his consent to

settle a case any time before the judgment is rendered. Quintero v. Jim Walter

Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). A party’s revocation of consent

must, in some way, be made known to the trial court.2        Miller v. Miller, 721

S.W.2d 842, 844 (Tex. 1986).


      2
       The cases addressing revocation of consent typically involve on-the-
record revocation of consent or specific knowledge by the trial court of a party’s
lack of consent. See, e.g., Chisholm, 209 S.W.3d at 97–98 (involving rule 11
agreement that was dictated into the record and immediate on-the-record
                                         4
      The problem here is, in the absence of a reporter’s record of the hearing,3

we cannot tell whether Sam revoked his consent to the agreed decree or not.

Mona claims he did not revoke his consent at the hearing.          And no written

revocation of consent by Sam is contained in the record before us.           Sam’s

position—both in his motion for new trial and in his brief on appeal—is not that he

revoked his consent to the rule 11 conservatorship agreement or to the rule 11

property division agreement but instead that the trial court should enforce the rule

11 conservatorship agreement and should adopt Sam’s interpretation of one of

the provisions of the parties’ rule 11 conservatorship agreement instead of

adopting Mona’s interpretation of that provision.4 In the absence of a reporter’s




statement by wife, who had limited ability to understand English, that she did not
understand what had been read into the record); Quintero, 654 S.W.2d at 443–
44 (involving knowledge by the trial court that plaintiffs did not consent to the
settlement because the plaintiffs wrote the judge a letter saying so); Burnaman,
240 S.W.2d at 291–92 (involving testimony by trial court judge that he knew
plaintiff did not agree to consent judgment); Cook v. Cook, 243 S.W.3d 800, 802
(Tex. App.—Fort Worth 2007, no pet.) (involving written objection filed by
husband to proposed agreed decree contending that “agreement[s] as to many of
the [] issues [in the agreed judgment] were not negotiated with [him, and many]
of the ‘stipulations’ on record took place without [his] participation”); Sohocki v.
Sohocki, 897 S.W.2d 422, 424 (Tex. App.—Corpus Christi 1995, no writ)
(involving written revocation of agreement filed by wife before agreed decree was
signed).
      3
       Sam does not complain on appeal of any failure by the court reporter to
take down a record of this hearing.
      4
       Nor does Sam assert that the terms of the agreed decree vary from the
terms of the rule 11 conservatorship agreement. Sam maintains that one of the
terms of the rule 11 conservatorship agreement was ambiguous—not that he did
not agree to it—and urged the trial court to enforce that term of the rule 11
                                         5
record, Sam’s failure to sign the agreed decree prior to the trial court’s signature

of the decree does not, standing alone, establish that he revoked his consent; for

all we know, the cautious trial court judge specifically asked Sam’s counsel

whether his client had revoked his consent to the rule 11 conservatorship

agreement and received a negative answer. Or, for all we know, the parties

decided to proceed with an agreed decree on their rule 11 agreements and to

submit to the trial court the resolution of their misunderstanding concerning a

single term of the rule 11 conservatorship agreement, and this issue was fully

litigated in the trial court. See, e.g., Clanin v. Clanin, 918 S.W.2d 673, 677 (Tex.

App.––Fort Worth 1996, no writ) (explaining that trial court could enforce property

division agreement to the extent of the property covered by the agreement and

make a just and right division of the rest of the community estate). Sam failed to

meet his burden of showing error in the record that entitles him to reversal. Cf.,

e.g., Chisholm, 209 S.W.3d at 97–98 (record demonstrated wife’s lack of consent

to agreed decree); Quintero, 654 S.W.2d at 443–44 (record contained letter from

party revoking consent); Burnaman, 240 S.W.2d at 291–92 (record contained

testimony by trial court judge that he knew plaintiff did not agree to consent

agreement in accordance with Sam’s understanding of it. For example, Sam’s
brief asserts that

             [t]he ambiguity or misunderstanding sworn to by Appellant in
      his Motion for New Trial is sufficient to set aside (or not enforce) the
      Rule 11 agreement, and it is an abuse of the Court’s discretion to fail
      to do so. Conversely, it is an abuse of discretion to not give the Rule
      11 agreement the meaning understood by [Sam].

                                         6
judgment); Cook, 243 S.W.3d at 802 (record contained husband’s written

objection that provisions of agreed decree were not negotiated with him);

Sohocki, 897 S.W.2d at 424 (record contained wife’s written revocation of

agreement). Based on the record before us, Sam has failed to meet his burden

of establishing that the evidence is legally and factually insufficient to support the

judgment. We overrule Sam’s first issue.

                             IV. SAM’S SECOND ISSUE

      In his second issue, Sam asserts that the trial court abused its discretion

by denying his motion for new trial. As set forth above, Sam’s motion for new

trial does not claim that he had revoked his consent prior to the trial court’s

signing of the agreed decree; Sam’s motion for new trial asserted that the agreed

decree was “predicated upon a written settlement agreement which was

ambiguous” and urged the trial court to adopt Sam’s interpretation of a particular

provision of the parties’ rule 11 conservatorship agreement instead of Mona’s

interpretation. In the absence of a reporter’s record of the hearing on Mona’s

motion seeking the trial court’s signature on the agreed decree and of the motion

for new trial hearing, we cannot find that the trial court abused its discretion by

denying Sam’s motion for new trial. See, e.g., Sandoval v. Comm’n for Lawyer

Discipline, 25 S.W.3d 720, 722 (Tex. App.––Houston [14th Dist.] 2000, pet.

denied); In re Marriage of Spiegel, 6 S.W.3d at 646. Based on the record before

us, we hold that Sam has failed to meet his burden of establishing that the trial



                                          7
court abused its discretion by denying his motion for new trial. We overrule

Sam’s second issue.

                               V. CONCLUSION

      Having addressed and overruled both of Sam’s issues, we affirm the

judgment of the trial court.

                                               /s/ Sue Walker
                                               SUE WALKER
                                               JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: November 20, 2014




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