                                   NO. 07-03-0363-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JULY 12, 2005
                          ______________________________

                           EDNA SUE ANDERSON WOODS,

                                                              Appellant

                                            v.

                               DANNY CRAIG WOODS,

                                                      Appellee
                        _________________________________

             FROM THE 356TH DISTRICT COURT OF HARDIN COUNTY;

                    NO. 42,804; HON. BRITT PLUNK, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

      Edna Sue Anderson Woods (Edna) appeals from a final divorce decree. Through

two issues, she contends that the trial court erred in 1) “denying [her] Motion to Withdraw

Consent and . . . entering the Final Decree of Divorce” and 2) concluding that it rendered

judgment on the day it approved an agreement pertaining to the division of the marital

estate. We reverse and remand in part and affirm in part.
                                      Background

      After petitioning for divorce but before expiration of the mandatory 60-day waiting

period, see TEX . FAM . CODE ANN . §6.702(a) (Vernon 1998) (requiring the court to wait 60

days from the date suit is filed before granting a divorce), Edna and her husband, Danny

Craig Woods, agreed to a particular division of their marital estate. The agreement was

transcribed into the record at a hearing conducted by the trial court on November 21, 2002,

a date some five weeks before expiration of the waiting period. And, though all recognized

that a final judgment could not be entered upon the agreement at the time of the hearing,

each acceded to the execution of temporary orders incorporating it. Then, the trial court

not only approved the accord but also informed the litigants that their bargain would be

incorporated into a final judgment when the prescribed waiting period lapsed.

       After the temporary orders were executed but before the trial court signed a written

judgment, Edna moved to withdraw her consent to the agreement. A hearing was held on

the motion, after which it was denied. Subsequently, the trial court signed a final decree

of divorce. Therein, it stated that the parties previously had “entered into an Agreement

Incident to Divorce . . .,” that the trial court had approved the agreement, and that the

property division reflected in the document was “in accordance with the agreement.”

                                        Authority

       According to the Texas Supreme Court, one may revoke consent to a settlement

agreement at any time before judgment is rendered on the agreement. S & A Restaurant

Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). This is so because a trial court cannot

render a valid agreed judgment absent the consent of the parties at the time it is rendered.



                                             2
Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). That the litigants may have

satisfied the elements of Texas Rule of Civil Procedure 11 in arriving at the accord matters

not; consent at the time judgment is rendered must still exist.1 Id. Moreover, a judgment

rendered after one party revokes his consent is void.2 S & A Restaurant Corp. v. Leal, 892

S.W.2d at 857.

        Next, a trial court renders judgment when it officially announces its decision in open

court or by written memorandum filed with the clerk. Id. An intent to render judgment in

the future does not satisfy this test, however. Id. at 857-58; quoting, Reese v. Piperi, 534

S.W.2d 329 (Tex. 1976). Rather, the words spoken or written by the trial court must evince

a present, as opposed to future, act that effectively decides the issues before the court.

Id. In other words, it must “clearly indicate the intent to render judgment at the time the

words are expressed.” Id.

                                       Application of Authority

        Here, the record clearly illustrates that Edna withdrew her consent to the November

21, 2002 agreement before the trial court signed the final decree. Yet, Danny argues that

this is unimportant since the trial court actually rendered judgment during the November

21st hearing. We disagree.



        1
         Per Rule 11, “. . . no agreement between attorneys or parties touching any suit pending will be
enforced unless it be in writing, signed and filed with the papers as part of the reco rd, or unless it be made
in open court and entere d of record.” T E X . R. C IV . P. 11.

        2
          Though the jud gm ent m ay be void, that does not necessarily render the underlying agreement
unenforceable. See Padilla v. LaFrance, 907 S .W.2d 454 , 461 (Te x. 1995 ) (stating that althoug h a court
cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude it, after
proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one
side no longer consents to it). However, an attempt to enforce it must be based upon proper pleadings and
proo f. Id. at 462.

                                                       3
At the end of the November hearing, the following discourse occurred:

       COURT: Okay. Are we going to do one of two things, No. 1, we can
just go ahead and approve the agreement as to a temporary basis and
enter the temporary orders or we can approve the agreement as to a
temporary basis, enter the temporary orders, and I can make a finding that
the evidence substantiates the granting of the divorce and grant the divorce
contingent on the expiration of the 60 days and the submission of the decree
and the people will not have to come back.

       Counsel: That was our intent, Your Honor, the latter, the temporary
as well as - -

        COURT: Is that what you folks want me to do? In other words, make
a finding that based on what I have heard so far, you have satisfied the
Texas Family Code and your evidence substantiates the granting of the
divorce but you’re not divorced. You will not be divorced until after January
the 1st of 2003, at which time Mr. Butler [Edna’s attorney] and Mr. Ratliff
[Danny’s attorney] would submit a decree to the Court and at that time I
would sign the decree and your divorce would be granted upon signature
and entry of the decree. So, in effect, you would be held under and bound
under these temporary orders pending the signing of the decree at which
time your divorce will be final. Is that what you folks want to do?

       [Edna]: That’s fine.

       [Danny]: Yes, sir.
                                    *   *    *

        COURT: Okay. The Court then this date based on the evidence
submitted      to the Court, the Court makes a finding that the evidence
substantiates the granting to Edna Sue Anderson Woods a divorce from
Danny Craig Woods. As to a temporary basis and to a permanent dissolution
of the community property, the Court approves the parties [sic] agreement all
as per the record made this date.

        Whenever the temporary orders are signed and approved by the
attorneys as to form, they will forward it to me and I will sign it and you will be
bound by these temporary orders during the pendency of the divorce.
Whenever the 60 days expire, which will be January the 1st, 2003, they will
submit a final decree to me that has the property division all as per the record
made this date in the decree. I will sign it, and your divorce will be final at
that time upon signature and entry of the decree.



                                        4
(Emphasis added). As can be seen, the italicized passages contain words short of evincing

a clear intent to finally adjudicate (at the time the words were uttered) the rights involved.

Indeed, the trial court recognized that it could not so resolve the issues at that time. Thus,

it decided to issue “temporary orders” memorializing the agreement “during the pendency

of the divorce.” And, once the requisite 60-day period lapsed, the parties were to then

“submit a final decree . . . that has the property division . . .”, which decree the trial court

would sign to finalize the divorce. Explicit in these words was the need for further action,

though the trial court obviously revealed the nature of the decision that would be

encompassed by that action. And, the action consisted of the execution of a written decree

containing the parties’ agreement. Because of that, we cannot say that the trial court

rendered judgment at the November 21st hearing.3

        In sum, the trial court erred by incorporating into its judgment an agreement which

Edna had previously revoked. Accordingly, we reverse that portion of the judgment that

divides the marital estate of Edna and Danny Woods, affirm the remainder of the decree,

and remand the cause for further proceedings.



                                                           Brian Quinn
                                                           Chief Justice




        3
           Though the trial court stated in its conclusion of law number six that it rendered judgment on
November 21, 2002, the determ ination does not bind us. Th is is so because what it believed the legal effect
of its action to be is not dispositive. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (stating
that “[t]he fact tha t the trial co urt believed that he had rend ered judgme nt . . . is not dispositive”).

                                                       5
