Opinion
No. 05-06-01428-CV
Opinion Filed April 23, 2008.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-50088-06.
Before Justices MORRIS, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
This is a divorce case involving property division after a bench trial. In two issues, appellant John Elbert Baggett complains the trial court abused its discretion by signing an order reflecting alleged agreements between the parties that were not in the record and by awarding a disproportionate share of the assets to appellee Karen Sue Baggett. Karen did not file a response brief. We reverse and remand for a new trial on property division.
The Baggetts married on March 27, 1998. John filed his petition for divorce on January 9, 2006 because of insupportability. Karen later filed a counterpetition for divorce. Prior to the court hearing on July 10, 2006, John collapsed in the court hallway and paramedics were called. After the paramedics examined him, he decided it was in his best interest to leave the hearing and go home. His attorney requested a continuance, which the trial court denied. The hearing continued with only testimony and evidence from Karen. At the conclusion of the hearing, the trial court granted the divorce "and to the extent that there are agreements, they are approved . . . Anything else you want to agree to that I haven't said, anything that I have decided, if you want to change the deal, go ahead and change it, just get me a decree that both sides agree to."
The trial court orally awarded Karen all the equity in a home in Allen, a refrigerator, a washer and dryer, and a pool table. It awarded John the television and wedding ring.
On July 14, 2006, John filed a motion to substitute counsel. The trial court signed an order granting the substitution on July 17, 2006, which is the same day it signed the final divorce decree. It is unclear from the record which order the trial court signed first. The final divorce decree is "approved as to form only" by both parties. John filed a motion for new trial, which the trial court denied. This appeal followed.
John complains on appeal that the trial court abused its discretion in signing an order that reflected alleged agreements that were not in the record. He also contends Ronald Uselton, the attorney who signed the divorce decree on his behalf, did not have authority to sign it because he had filed a motion to substitute counsel. A trial court has broad discretion in dividing the marital estate. We review a trial court's division of property under an abuse of discretion standard. Prague v. Prague, 190 S.W.3d 31, 40 (Tex.App.-Dallas 2005, pet. denied).
John relies on Barnard v. Barnard to support his argument. In that case, the only hearing conducted by the trial court to address the division of marital property occurred in chambers, in the presence of a court reporter. Barnard v. Barnard, 133 S.W.3d 782, 787 (Tex.App.-Fort Worth 2004, pet. denied). Each party submitted written settlement proposals on property division. Id. at 785. During the hearing the judge contemplated a later prove up hearing once the decree had been prepared. Id. at 788. He said "[w]ell, I'll wait to hear back from them once the decree is ready." Id. Despite this, the trial court relied solely on the parties proposed settlements in the division of the property, and no other hearing was conducted to prove up the character of the property. Id. at 787. The court of appeals concluded because the parties did not reach an agreement, the trial court erred by relying on proposals, which were never agreed to, as a basis for property division. Id. at 788. There was no evidence to support the trial court's property division in the absence of an agreed settlement or hearing. Id.
Similar to the facts here, the trial court contemplated the parties would continue to discuss the property division and if they decided to change the deal they could, but the court wanted a decree both sides agreed to. Nothing in the record indicates that John and Karen reached any agreement regarding the division of their property prior to the trial court signing the divorce decree. The divorce decree is signed and agreed to by both parties as to form only; therefore, the trial court abused its discretion by entering a decree dividing the property when John did not agree to it.
Further, in the absence of an agreed settlement, the trial court must make a just and right division of the parties' community estate. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). Such a finding must be supported by evidence; otherwise, the trial court abuses its discretion. Wilson v. Wilson, 132 S.W.3d 533, 537 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). Here, the trial court stated "[a]s part of a just and right division of the marital estate, each party is awarded the property and debts as set out in the Final Decree of Divorce signed on July 17, 2006, in Cause Number 380-50088-06 in the 380th Judicial District Court of Collin County, Texas." However, the trial court never actually made any findings "as a part of" a just and right division. In fact, the evidence establishes he could not make complete findings. The only evidence before the trial court was the Inventory and Appraisement of Karen Baggett. Although this may have included all the property at issue in the divorce, many of the items do not have a listed property value. This specifically includes community liabilities for credit cards from Radio Shack, Wal-Mart, Foley's, Discount Tire, and Dell but state the balance as "unknown." Despite not knowing the balance on these cards, the trial court assigned these debts to John in the final divorce decree. However, it is clear the trial court had insufficient evidence to make any alleged "findings" of just and right division of the property. Thus, the trial court should have held another hearing to determine the just and right division of the property. See Tex. Fam. Code Ann. § 7.006. Its failure to do so constituted an abuse of discretion.
We likewise question the validity of an agreement signed by an attorney who had a motion to substitute counsel pending against him. Texas Rule of Civil Procedure 8 provides the attorney designated as lead counsel shall remain the attorney in charge "until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a." Tex. R. Civ. P. 8. The rule does not explicitly require a motion to substitute be granted to apprise the court of a change in a party's counsel of record. Perdue v. Patten Corp., 142 S.W.3d 596, 607 (Tex.App.-Austin 2004, no pet.). An attorney remains a party's counsel of record only until there is "something appearing to the contrary in the record." Id. In Nowak v. Maddison, one of the parties, through its previously designated attorney, filed a nonsuit. Nowak v. Maddison, 875 S.W.2d 783, 784 (Tex.App.-Houston [1st Dist.] 1994, no writ). The nonsuit was filed after the designated attorney in charge had been changed by written notice to the court in accordance with rule 8. Id. Because the attorney who filed the nonsuit was no longer the designated attorney in charge, the trial court improperly nonsuited the case. Id.
Here, John filed a motion to substitute counsel on July 14, 2006, which was three days before the court signed the order granting the substitution and the final divorce decree. Thus, the trial court had something in the record showing Ronald Uselton was no longer his attorney when it entered the divorce decree signed and agreed as to form only by Uselton. Similar to Nowak, the court improperly entered the divorce decree signed by the attorney who no longer represented John in the divorce.
Accordingly, we sustain appellant's first issue. Having sustained his first issue, we need not address his second issue. Tex. R. App. P. 47.1. We reverse the trial court's judgment and remand the case for a new trial on property division.