                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-241-CV


IN THE INTEREST OF

M.G.F, A CHILD


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           FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                          MEMORANDUM OPINION 1

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     Appellant Marvin Fulkerson appeals from the trial court’s order denying

his motion to sign an order reducing his child support obligation and from a

judgment confirming a support arrearage of $48,868.08. We affirm.

                                    Background

     Marvin Fulkerson and Linda Jordan divorced in 1993. The final divorce

decree ordered Fulkerson to pay $544 per month as child support for the


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         … See T EX. R. A PP. P. 47.4.
benefit of his and Jordan’s minor son, M.G.F. On September 8, 1995, the trial

court held a hearing at which the parties orally presented an agreement to

reduce Fulkerson’s child support obligation from $544 to $338 per month from

April 26, 1995, through the date of the hearing and to $362 thereafter.

Fulkerson also agreed to furnish Jordan a copy of his 1995 tax return as

evidence of his income, and Jordan agreed to provide Fulkerson proof of her

actual cost of providing health insurance for M.G.F. within thirty days of the

hearing.   Both parties were sworn and testified that they accepted the

agreement.    At the conclusion of the hearing, the trial court stated on the

record,

             The Court will approve the agreement as stated here on the
      record in open court and approved by both parties in front of the
      Court, and I find that to be at this time in the best interest of the
      child, and I will sign a written order to that effect.

             Who wishes to prepare it?

The trial court made the following entry on its docket sheet: “9-08-95 Agreed

order modifying child support. J. Pavlik.”

      In response to the trial court’s question, “Who wishes to prepare [a

written order],” Fulkerson’s attorney stated that he had already prepared an

order but that he needed to revise it and send it to opposing counsel for review.

But after the hearing, Fulkerson’s counsel sent a letter to Jordan’s counsel


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stating that the $362 recited in the oral agreement was a mistake and

proposing that the support obligation be reduced to $326.50. He later sent

another letter stating that the child support due for April to September 1995

should be further reduced. The parties did not submit a written order to the

trial court, and Fulkerson did not furnish Jordan with a copy of his 1995 tax

return.

      In January 2005, the Attorney General filed a motion to confirm

Fulkerson’s child support arrearage, alleging an arrearage of $50,846.70 based

on a child support obligation of $544 per month through November 30, 2003,

the date on which M.F.G. turned eighteen. In response, Fulkerson filed an

answer and a “Motion to Sign Agreed Order Modifying Child Support.”

      On March 19, 2007, the trial court heard the Attorney General’s motion

to confirm the support arrearage and Fulkerson’s motion to sign an agreed

order. The Attorney General offered evidence of Fulkerson’s payment record

and arrearage based on a support obligation of $544 per month through

November 2003. Most of the hearing, however, concerned the parties’ 1995

agreement and whether the trial court had orally rendered a judgment approving

the agreement. Fulkerson argued that the trial court had orally rendered a final

judgment approving the agreement at the conclusion of the 1995 hearing.

Jordan and the Attorney General argued that the agreement was merely

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tentative    because   it   was   contingent   upon   the   parties’   exchanging

documentation after the 1995 hearing.

      On March 22, 2007, the trial court signed an order denying Fulkerson’s

motion to sign an agreed order, and on April 10, 2007, it signed an order

confirming a child support arrearage of $48,868.08 as of February 28,

2007—the amount calculated by the Attorney General for that date based on

a monthly support obligation of $544. Fulkerson filed a request for findings of

fact and conclusions of law, a motion for new trial, and, later, a notice of

appeal.

      After Fulkerson filed his brief on appeal, the Attorney General filed an

agreed motion to abate the appeal for findings of fact and conclusions of law.

We granted the motion, and the trial court filed findings of fact and conclusions

of law.2    The trial court found that it did not orally render judgment at the

September 8, 1995 hearing; that its docket entry of the same date was not a

rendition of judgment; and that the parties’ 1995 agreement was contingent

upon Fulkerson’s providing Jordan with proof of diminished income, which he




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       … This renders moot Fulkerson’s fifth issue on appeal, in which he
argues that we should abate the appeal for findings of fact and conclusions of
law, and we overrule his fifth issue.

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failed to do.   We gave Fulkerson the opportunity to file a supplemental or

amended brief, but he has not done so.

                                  Discussion

      In his first issue, Fulkerson argues that the trial court rendered judgment

on the agreed child support reduction on September 8, 1995, orally and by its

docket entry.

      The rendition of judgment is a present act, either by spoken word or

signed memorandum, which decides the issues upon which the ruling is made.

S & A Rest. Corp. v. Leal, 892 S.W .2d 855, 858 (Tex. 1995).            In a suit

affecting the parent-child relationship, a trial court may render judgment orally

in the presence of the court reporter or in writing, including on the court’s

docket sheet or by a separate written instrument.         T EX. F AM. C ODE A NN.

§ 101.026 (Vernon 2002).

      A trial court’s intention to render judgment in the future cannot be a

present rendition of judgment. S & A Rest. Corp., 892 S.W.2d at 858. The

words used by the trial court must clearly indicate the intent to render judgment

at the time the words are expressed. Id. Thus, the words, “[Y]our divorce is

granted,” constitute a rendition of judgment, In re Marriage of Joyner, 196

S.W.3d 883, 887 (Tex. App.—Texarkana 2006, pet. denied) (emphasis added),

but the words, “I am going to grant the divorce in this case,” do not, James v.

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Hubbard, 21 S.W.3d 558, 561 (Tex. App.—San Antonio 2000, no pet.)

(emphasis added).

      Whether a particular action constitutes a rendition of judgment is a

question of fact. Joyner, 196 S.W.3d at 887 (citing Bockemehl v. Bockemehl,

604 S.W.2d 466, 469 (Tex. Civ. App.—Dallas 1980, no writ)). When a trial

court makes findings of fact, its findings are reviewable for legal and factual

sufficiency of the evidence to support them by the same standards that are

applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994). When, as here, findings of fact are filed and are unchallenged, they

occupy the same position and are entitled to the same weight as the verdict of

a jury; they are binding on an appellate court unless the contrary is established

as a matter of law or there is no evidence to support the finding. McGalliard

v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Raman Chandler Props., L.C.

v. Caldwell’s Creek Homeowners Ass’n, Inc., 178 S.W.3d 384, 390 (Tex.

App.—Fort W orth 2005, pet. denied). Here, the trial court made findings of

fact that it did not orally render judgment on the agreed child support reduction

at the September 8, 1995 hearing and that its docket entry was not a rendition

of judgment, and Fulkerson has not challenged these findings.




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      There is some evidence to support the trial court’s finding that its oral

pronouncement on the record on September 8, 1995, did not constitute a

rendition of judgment.    The trial court said, “The Court will approve the

agreement . . ., and I will sign a written order to that effect.” [Emphasis added]

The trial court’s use of the words “will approve” and “will sign” indicate an

intent to render judgment in the future. Cf. James, 21 S.W.3d at 561. The

trial court’s oral pronouncement of its intention to render judgment in the future

could not be a present rendition of judgment. See S & A Rest. Corp., 892

S.W.2d at 858.

      The trial court also found that its docket entry was not a rendition of

judgment. The record supports this finding, too.       The docket entry merely

states,”Agreed order modifying child support,” without any indication of what

the trial court’s ruling—if any—might have been.        Thus, the docket entry

reflects no present intent to render a judgment of any kind. See id.

      We hold that the record supports the trial court’s findings that it did not

render judgment orally or by its docket sheet notation on September 8, 1995,

and we overrule Fulkerson’s first issue.

      In his second issue, Fulkerson argues that the trial court erred by denying

his 2007 motion to sign a written order reflecting the parties’ agreement

pronounced on the record on September 8, 1995, because the oral agreement

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is an enforceable rule 11 agreement. See T EX. R. C IV. P. 11 (providing that

agreements between parties are enforceable if made in open court and entered

of record). But a judgment cannot be rendered on an agreement, even if it

complies with Rule 11, after any party has withdrawn consent to the

agreement.    Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984).               It is

apparent from the record of the March 19, 2007 hearing that Jordan had

withdrawn her consent to the September 8, 1995 agreement because Fulkerson

had failed to provide her with a copy of his 1995 tax return showing his

decreased income.     Therefore, we hold that the trial court did not err by

denying Fulkerson’s 2007 motion to sign a written order reflecting the 1995

agreement, and we overrule his second issue. Having overruled Fulkerson’s

first and second issues, we also overrule his third, in which he argues that the

trial court erred by not reducing his child support arrearage in accordance with

the 1995 agreement.

      In his fourth issue, Fulkerson argues that the trial court erred by excluding

evidence of its September 8, 1995 docket entry. The record is somewhat

unclear, but it appears that the trial court sustained an objection when

Fulkerson’s present attorney asked the attorney who represented him in 1995

to refresh his memory by looking at the 1995 docket entry. But the trial court

later took judicial notice of its own file. Moreover, we have already held that

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the docket entry did not constitute a rendition of judgment; thus, even if the

trial court erred by sustaining the objection, Fulkerson has failed to show harm.

See T EX. R. A PP. P. 44.1 (providing that no judgment may be reversed on the

ground that the trial court made an error of law unless the error probably

caused the rendition of an improper judgment or probably prevented the

appellant from properly presenting the case on appeal). We therefore overrule

his fourth issue.

                                  Conclusion

      Having overruled all of Fulkerson’s issues, we affirm the trial court’s

judgment.

                                           PER CURIAM

PANEL:      GARDNER, HOLMAN, and WALKER, JJ.

DELIVERED: August 28, 2008




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