                             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

                                             2
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:


                                           3
             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


                                             4
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


         1
            The trial court was clearly under the im pression that Teresa asserted no-fault grounds for divorce,
even though she did assert in the “Grounds” section of her petition that W illiam “is guilty of dom estic violence.”
It is not clear to this Court whether Teresa’s petition asserted no-fault or cruelty grounds. See T EX . F AM . C O DE
A N N . § 6.001 (Vernon 2006) (“[T]he court m ay grant a divorce without regard to fault if the m arriage has
becom e insupportable because of discord or conflict of personalities that destroys the legitim ate ends of the
m arital relationship and prevents any reasonable expectation of reconciliation.”); id. § 6.002 (Vernon 2006)
(“The court m ay grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatm ent toward
the com plaining spouse of a nature that renders further living together insupportable.”). Nevertheless, we
need not address this issue because it has no bearing on the agreem ent reached by the parties’ counsel. See
T EX . R. A PP . P. 47.1.
          2
            Teresa explains on appeal that she intially sought the inclusion of “dom estic violence” language in
the final decree— and later agreed to “dom estic abuse” language— because federal law “perm its im m igrants
to continue the process of im m igration if a divorce resulted from spousal abuse.” Her counsel m ade a sim ilar
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’ agreem ent as to the language to be included in the final decree of divorce m ust be
enforced, regardless of its ancillary ram ifications. See id.; T EX . R. C IV . P. 11 (providing that agreem ents
between parties are enforceable if m ade 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 agreem ent, adm ission, or
concession m ade in a judicial proceeding by the parties or their attorneys respecting som e m atter incident
thereto.’ . . . Stipulations are binding upon the parties, the trial court, and the reviewing court.”).

                                                          5
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


                                             6
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.

        3
           W e 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
agreem ent reached by the parties’ counsel, we m odify the decree to state that the divorce is granted on the
ground of cruelty. See infra section III; see also T EX . F AM . C OD E A N N . § 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 m ay still grant a divorce on the ground of cruel treatm ent.”).

                                                        7
        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




        4
          Section 212(a) of the Act defines certain classes of aliens that are ineligible to receive visas or to
be adm itted 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 tim e of application for a visa, or in the opinion of the Attorney
General at the tim e of application for adm ission or adjustm ent of status, is likely at any tim e to becom e a
public charge . . . .” Id. § 1182(a)(4)(A). In determ ining whether an alien is inadm issible under this provision,
the consular officer or Attorney General m ay 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).

                                                        8
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



        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 term ination date provided under paragraph
(3).” 8 U.S.C. § 1183a(a)(2). Paragraph (a)(3) provides for an earlier term ination date if the sponsored alien
com pletes a required period of em ploym ent. 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 becom es a perm anent
        resident based on a Form I-864 that you signed:

                  •        Becom es a U.S. citizen;

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

                  •        No longer has lawful perm anent resident status, and has departed the
                           United States;

                  •        Becom es subject to rem oval, but applies for and obtains in rem oval
                           proceedings a new grant of adjustm ent of status, based on a new affidavit
                           of support, if one is required; or

                  •        Dies.

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

(Em phasis in original.) See 8 C.F.R. § 103.2(a) (2008) (incorporating instructions into regulations).

                                                        9
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” clause7 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.

        7
           So nam ed because, in the nursery rhym e, Old Mother Hubbard has nothing m ore 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 m ore com m only used
to describe a “catch-all” provision in an oil and gas lease that is intended to bring within the term s of the lease
sm all pieces of land owned or claim ed 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).

                                                        10
                                      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.




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