In the Matter of Marriage of Brogan, No. 07-03-0081-CV (TX 5/11/2004)
| Decision Date | 11 May 2004 |
| Docket Number | No. 07-03-0081-CV,07-03-0081-CV |
| Parties | IN THE MATTER OF THE MARRIAGE OF WALTER CHARLES BROGAN, III AND TINA MARIE BROGAN AND IN THE INTEREST OF WILLIAM CHRISTOPHER BROGAN AND SHAUN PATRICK BROGAN, Minor Children. |
| Court | Texas Supreme Court |
Appeal from the County Court at Law Number Two of Lubbock County, No. 2001-514,816, Honorable Drue Farmer, Judge.
Panel C: Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Presenting four issues, appellant Tina Marie Brogan contends the trial court erred in failing to enforce a settlement agreement between her and her husband, Walter Charles Brogan and abused its discretion in making its division of the property and setting the amount of child support. By her issues, she contends the trial court (1) erred in finding the settlement agreement was neither a settlement agreement nor a partition and exchange agreement, (2) abused its discretion in failing to properly value a majority of both community and separate estate property, (3) abused its discretion in awarding only $1,500 in child support, and (4) erred in striking her supplement to counterclaim and answer to Charles's current pleading insofar as it pled causes of action by Brogan, Ltd. against Brogan, P.A. We affirm.
Tina and Charles were married on May 25, 1991, and two children were born of the marriage. Charles filed his petition for divorce on August 7, 2001. The case was set for a non-jury trial on May 7, 2002, and following a recess, additional evidence was received until the parties rested and closed on July 2, 2002. The trial court signed the decree of divorce on December 6, 2002, which was followed by Tina's request for findings of fact and conclusions of law, which were filed by the trial court on August 6, 2003. Before we commence our analysis, we first set out the standard of review in a non-jury trial.
Findings of fact in a bench trial have the same force as a jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.). However, the findings are not conclusive when a complete statement of facts appears in the record if the contrary is established as a matter of law or if there is no evidence to support the findings. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.—Houston [14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex. 1985) (per curiam). Findings of fact are reviewable for factual and legal sufficiency under the same standards that are applied in reviewing evidence supporting a jury's answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.—Houston [14th Dist.] 1990, no writ); see also W. Wendell Hall,Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045, 1145 (1993).
Our review of trial court conclusions of law is de novo. In re Humphreys, 880 S.W.2d 402, 403 (Tex. 1994), cert. denied, 513 U.S. 964, 115 S. Ct. 427, 130 L. Ed. 2d 340 (1994). However, as noted above, although findings of fact are reviewable for legal and factual sufficiency, an attack on the sufficiency of the evidence must be directed at specific findings of fact rather than at the judgment as a whole. In re M.W., 959 S.W.2d 661, 664 (Tex.App. —Tyler 1997, writ denied). Further, the rule has often been otherwise stated that if the trial court's findings of fact are not challenged by a point of error on appeal, they are binding upon the appellate court. Northwest Park Homeowners Ass'n, Inc. v. Brundrett, 970 S.W.2d 700, 704 (Tex.App.—Amarillo 1998, pet. denied); Carter v. Carter, 736 S.W.2d 775, 777 (Tex.App.—Houston [14th Dist.] 1987, no writ).
By her first issue, Tina actually presents two contentions. First, she contends the finding of fact that the Brogan Settlement was neither a settlement agreement nor a partition and exchange agreement is against the great weight and preponderance of the evidence. By her second contention, she asserts there was insufficient evidence to support the court's finding that the Brogan Settlement was unenforceable. We disagree.
Tina argues the evidence was insufficient to support the court's finding that the Brogan Settlement was unenforceable. However, in America's Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex.App.—San Antonio 1996, writ denied), the court held that whether an agreement is legally enforceable or binding is a question of law. See also Ronin v. Lerner, 7 S.W.3d 883, 886 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Tina's second contention is overruled.
Without advice or any assistance from counsel or others, on November 11, 2001, Tina and Charles prepared and signed a two and one-half page written document entitled "Brogan Settlement." The writing can best be described as a "homemade" document organized in two sections.1 By the first section, Charles agreed to
• pay $9,000 child support until youngest son graduates from high school or is 18;
• pay private school tuition for the children;
• pay health insurance until the sons enter college or longer;
• put aside money for their college education as possible;
• pay their psycologist's (sic) bills until deemed no longer necessary by their provider;
• upon the "understanding" that Tina will voluntarily reduce the "amount" by whatever her take-home pay is when she becomes employed; and
• upon remarriage, co-habitation, or sale of 9111 Salem Drive, support will decrease to 1/2 or $5,000 per month, whichever is larger.
By the second section, the parties provided for a split of their community property as follows:
• all business entities become the property of Charles; HRT, Prevention Works, and W. Chuck Brogan, III, M.D. Ph.D., including house at 4612 13th St. and business property at 4110 22nd Place;
• contents of 3310 31st St. become the sole property of Charles;
• 9111 Salem become the property of Tina Brogan;
• contents of 9111 Salem will be split as mutually agreed upon;
• personal bank accounts remain personal;
• amount in the joint checking account and savings account will be the property of Tina Brogan;
• Charles Brogan and Tina Brogan retain their life insurance policies as their sole and separate property;
• regarding Brogan, Ltd.:
Charles to buy 4110 22nd Place from the Ltd. for $85,000 above the construction loan amount currently owed to American State Bank and will pay the taxes currently owed.
Tina will retain ownership of 9109 Salem Drive and 3110 31st Street.
The agreement concluded:
[t]he stock account as currently held by Paine Webber (Rolf Siebert, broker) will be split 50/50, share for share. The parties agree to will their portions to their children, William C. Brogan and Shaun P. Brogan.
Thereafter, the Brogan Settlement was delivered to a neutral attorney who drafted and prepared documents, deeds, agreements, partnership dissolution agreement, and other documents to implement the plan. The documents prepared by the neutral attorney were dated December 31, 2001, and signed by Charles; however, Tina did not sign them until January 22, 2002, and testified that she was willing to sign the decree at the hearing on June 17. Upon Tina's refusal to sign the decree of divorce and documents, Charles deemed the agreement not binding and proceeded with the divorce. By her brief, Tina contends the agreement purported to be a final resolution of the issues addressed and nothing was left to further negotiation, except the execution of documents.
To encourage the settlement of marital property divisions the Legislature authorized written agreements "concerning the division of the property and the liabilities of the spouses and maintenance of either spouse." Tex. Fam. Code Ann. § 7.006 (Vernon 1998). However, the statute provides that either spouse may repudiate the agreement before the divorce. Also, section 7.006 provides that the written agreement is not binding upon the court unless it finds that the terms of the written agreement are just and right. Moreover, the trial court is not bound by the parties' written agreement which does not purport to settle the entire property division. Finn v. Finn, 658 S.W.2d 735, 747 ().
Written property settlement agreements as authorized by section 7.006 are governed by general contract law. Deen v. Deen, 631 S.W.2d 215, 217 (Tex.Civ.App.—Amarillo 1982, no writ). As we noted in Sourignavong v. Methodist Healthcare Sys., 977 S.W.2d 382, 385 (Tex.App.—Amarillo 1998, no pet.), a meeting of the minds of the parties is essential to the creation of a valid contract. Accordingly, the court may not make a contract for the parties, and an agreement which is subject to future negotiations is not binding upon the parties. See Fort Worth Indep. School Dist. v. Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000); see also Central Texas Micrographics v. Leal, 908 S.W.2d 292, 296 (Tex.App.—San Antonio 1995, no writ).
The intention of the parties to an agreement is normally a question of fact. See Scott v. Ingle Bros. Pacific, Inc., 489 S.W.2d 554, 555 (Tex. 1972). Also see, Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 348 (Tex.App.—Fort Worth 1996, no writ). However, whether an agreement is legally enforceable is a question of law. Ronin, 7 S.W.3d at 886. Because Tina attacks the factual sufficiency of an adverse finding on which she had the burden of proof, she must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. After considering all the evidence, a court of appeals may only set aside the finding if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
By her brief, Tina carefully...
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