Bartee v. Bartee

Decision Date31 January 2020
Docket NumberNo. 11-18-00017-CV,11-18-00017-CV
PartiesCAROLYN CASH BARTEE, Appellant v. BILLY JACK BARTEE, Appellee
CourtTexas Court of Appeals

On Appeal from the 259th District Court Shackelford County, Texas

Trial Court Cause No. 2016-038

MEMORANDUM OPINION

This appeal arises from a divorce proceeding instituted by Billy Jack Bartee1 against Carolyn Cash Bartee. At trial, Billy and Carolyn represented to the trial court that they had reached a settlement agreement, and Billy's attorney recited the agreement into the record. The trial court divided the parties' property and signed a final decree of divorce. In five issues, Carolyn complains that the trial court erredwhen it failed to enter findings of fact and conclusions of law, "allow[ed]" her to enter into a settlement agreement after it had impliedly found that she lacked the capacity to do so, signed a final decree of divorce that was erroneous on its face and that did not reflect the parties' agreement, and denied her second motion for new trial. We affirm the trial court's judgment.

On May 26, 2016, Billy filed for divorce from Carolyn. Carolyn answered and filed a counterpetition on June 15, 2016. The record does not reflect that any other pleadings were filed in the case until March 20, 2017, when Carolyn's trial counsel, David Wimberley, filed a motion to withdraw and a motion for appointment of an attorney ad litem to assist Carolyn.

In the motion to withdraw, Wimberley stated that Carolyn no longer wished to retain his services and wished to represent herself. Wimberley expressed concern that Carolyn was not competent to make any decisions "in this matter at this time" and noted that he had filed a formal request for the appointment of an "Attorney Ad Litem" for Carolyn. Wimberley told the trial court that he believed that Carolyn lacked the capacity to either object or consent to the motion to withdraw. He also noted that he was concerned that Carolyn's failure to cooperate in the case was "due to her lack of physical and mental capacity."

In his motion to appoint an attorney ad litem to represent Carolyn, Wimberley stated that it was in Carolyn's best interest to appoint "an attorney ad litem to provide legal services" because Carolyn was not mentally or physically capable of representing herself, lacked capacity to do so, was possibly incompetent, and had demanded that he resign. Wimberley noted that Carolyn and her daughter had refused to hire other counsel "due to irrational beliefs that must be addressed by the Court." Wimberley asserted that it was necessary to immediately appoint an attorney ad litem to assist Carolyn because a final hearing on the dissolution of themarriage had been scheduled for May 11, 2017, and substantial assets were at risk of being lost.

On March 23, 2017, the trial court appointed Michael L. Parker as attorney ad litem for Carolyn. There is nothing in the record to reflect that the trial court held a hearing before it appointed Parker.

The trial court heard Wimberley's motion to withdraw on May 1, 2017. At the hearing, Wimberley explained that Carolyn had requested that he file the motion to withdraw but that he had reservations about withdrawing before Carolyn had retained other counsel. Wimberley noted that Carolyn had serious medical conditions and that he was not sure of her mental status. Wimberley indicated that he had advised Carolyn to retain another attorney but that she had refused to do so. Wimberley stated that he had contacted realtors to determine the value of the property at issue and had received a settlement offer of $200,000, which was "in line" with the appraisals of the property.

Wimberley indicated that he had attempted to communicate with Carolyn and her daughter about the settlement offer but that they did not claim the certified letters that he had sent to them. They had also terminated the telephone calls that he had made to them. Carolyn and her daughter did not like what Wimberley "had to tell them" because they believed that the property at issue was worth between $600,000 and $1,000,000. Wimberley indicated that, before he sought to withdraw, he had a duty to make sure that Carolyn was competent and that she had someone qualified to assist her in making decisions in a matter that involved "in excess of $200,000."

Parker explained to the trial court that he had a potential conflict of interest that prevented him from further involvement in the case and that he had disclosed that potential conflict to Carolyn. Parker informed the trial court that, based upon his conversations with Carolyn and her daughter, Carolyn believed that there had been a lack of communication with Wimberley, that the value of the real propertywas the main issue in the case, and that Carolyn wanted to obtain new counsel. Parker expressed no opinion about Carolyn's competence or capacity.

The trial court permitted Wimberley to withdraw as counsel. The trial court also found that "there is a conflict of [interest] moving forward from this point for the ad litem and I'm really unclear as to whether that is necessary." The trial court then removed Parker as Carolyn's attorney ad litem and did not appoint substitute ad litem counsel.

The trial court addressed Carolyn directly and advised her to employ new counsel within two weeks. Carolyn asked whether her daughter could represent her under a power of attorney. The trial court informed Carolyn that the power of attorney did not give Carolyn's daughter "standing as a lawyer in court." Carolyn told the trial court that she understood. Carolyn also indicated that she understood that Wimberley was no longer her attorney.

Carolyn complained that she had "a little bit different story" than Wimberley on the communication issue. Carolyn informed the trial court that she had last spoken with Wimberley in October, that Wimberley was never available when she called, and that he never returned her phone calls. She also denied that she had received any appraisals or any information that explained how the money that she had paid to Wimberley had been spent. The trial court provided Carolyn with information on how she could file a grievance with the State Bar of Texas and explained that her concerns about Wimberley's representation would need to be addressed in another forum. When the trial court asked Carolyn if she had anything else she wished to address, she answered: "That's it."

At the final divorce hearing on July 13, 2017, David Thedford appeared as Carolyn's attorney. Billy's attorney, Robert McCool, represented to the trial court that the parties had reached an agreement. Both Billy and Carolyn testified that they were aware of the agreement and knew "what's going to be in it." McCool thenrecited into the record that Billy would pay Carolyn $110,000 and that Billy would receive all property that belonged to either him or Carolyn. McCool specifically stated that Billy would receive a farm of approximately 165 acres, another tract of land, a promissory note, cattle, and all of the personal items in his possession. Thedford confirmed that those were the terms of the parties' agreement. Billy and Carolyn each indicated that that was their understanding as well.

The trial court advised Billy and Carolyn that it would accept the agreement as stated on the record, clarified that the agreement had become enforceable, and explained:

There is no, "Hey, I don't want to do that. I'm not going to sign this. I refuse to do this. This is not what I wanted to do. I was forced to do that." None of that is on the table.

The trial court inquired as to whether Billy wanted the trial court to accept and enter the agreement, and Billy stated: "I approve." The trial court then asked Carolyn whether she accepted the agreement, and she answered: "Yes." The trial court declared: "[T]hat will be the Court's order. . . . [I]f you will forward it along we will take care of it." The trial court noted on its docket sheet:

Divorce granted - [Billy] pay [Carolyn] - $110,000 @ [signing] of final decree; [Billy] awarded all property (168 acres, note from Nettles, cattle 30 head).

On July 31, 2017, the trial court signed the final decree of divorce. In the final decree, the trial court specified that "[t]his divorce [was] judicially PRONOUNCED AND RENDERED in court . . . on July 13, 2017 and further noted on the court's docket sheet on the same date, but signed on 31 July 2017." Further, in the final decree, the trial court awarded Billy two tracts of land, all cattle and personal property in his possession, and the Nettles note. The trial court awarded Carolyn $110,000, payable when the decree of divorce was entered, and all personal propertyin her possession. Billy and Thedford signed the final divorce decree, and McCool provided an electronic signature. Carolyn did not sign the final decree.

On August 30, 2017, Carolyn filed a combined motion for new trial, motion to reopen the evidence, and motion for nunc pro tunc. In the motion for new trial, Carolyn asserted that she was incompetent and without the mental capacity to "enter into an agreement" without an appointed guardian or ad litem. Carolyn also claimed that there was error apparent on the face of the divorce decree because the decree contained a statement that she had signed the decree when she had not done so. Carolyn also requested that the trial court grant a new trial in order to divide property that had not been divided in the parties' agreement.

The trial court considered Carolyn's combined motion on October 3, 2017. On October 17, 2017, the trial court issued a written "Order on Motion for New Trial" (the October 17 Order).2 The trial court denied Carolyn's motions for new trial and to reopen the evidence. The trial court granted Carolyn's motion for nunc pro tunc relief and "ORDERED AND DECREED" that paragraph P-1 of the final divorce decree, which was attached as Exhibit A to the order, would be amended to reflect the correct address of one...

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