Divorce Decree Did Not Vary from MSA and Arbitration Award

Houston Court of Appeals rejects wife's challenges to final decree of divorce; affirms trial court on finding that the decree reflected and gave effect to the underlying agreement and arbitration award. Engineer v. Engineer No. 14-06-01099-CV (Tex.App.- Houston [14th Dist.] Mar. 20, 2008)(substituted opinion by Justice Charles Seymore) (decree not at variance from mediated settlement agreement and arbitration award) (multiple appeals, judgment based on MSA, arbitration award) Katy Engineer v. Mike Engineer Appeal from 387th District Court of Fort Bend County Trial court judge: Hon. Robert J. Kern S U B S T I T U T E M E M O R A N D U M O P I N I O N Appellant's motion for rehearing is overruled. This court's opinion issued January 15, 2008 is withdrawn and the following memorandum opinion is substituted therefor. In this divorce action, Katy Engineer appeals the amended divorce decree on the grounds that the decree does not accurately reflect the mediated settlement agreement and the arbitration award. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Katy and Mike Engineer were divorced on September 16, 2002. Katy appealed the final divorce decree on the grounds that the decree did not incorporate all of the provisions of the mediated settlement agreement and arbitration award. In an opinion issued January 31, 2006, this court found the alimony provision in the decree differed from language in the agreement and the December 4, 2001 arbitration award that was incorporated into the decree did not address the alimony provision. Engineer v. Engineer, 187 S.W.3d 625, 626 (Tex. App.- Houston [14th Dist.] 2006, no pet.). This court sustained Katy's challenge to the alimony provision in the decree and further determined that it did not need to address her other challenges. Id. at 627. The case was remanded to the trial court for further proceedings. Id. On remand, the trial court signed a document entitled, "Final Decree of Divorce After Remand." In that document, the trial court amended the parties' divorce decree to conform to the December 4, 2001 arbitration award as it pertained to contractual taxable alimony. In this appeal, Katy contends the trial court erred in failing to further amend the divorce decree to address other portions of the arbitration award, specifically provisions relating to gold coins, savings bonds, and the place where alimony payments should be sent. II. Scope of Remand Initially, Katy argues the trial court failed to follow this court's mandate because the trial court corrected only the alimony provision in the decree. Mike responds that the trial court did not err in failing to address the provisions, which are the subject of Katy's complaints, because this court remanded the case only to permit the trial court to amend the decree with regard to the contractual alimony. In our first opinion, we reversed and remanded "for proceedings in accordance with the court's opinion." When an appellate court reverses and remands a case for further proceedings, and the mandate is not limited by special instructions, the effect is to remand the case to the lower court on all issues of fact, and the case is reopened in its entirety. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 465 (Tex. App.- Houston [14th Dist.] 2005, pet. denied). Neither our opinion nor mandate, provide special instructions to the trial court upon remand; therefore, the case was reopened in its entirety. See Manon v. Solis, 142 S.W.3d 380, 386 (Tex. App. - Houston [14th Dist.] 2004, pet. denied). The issue before us, therefore, is whether the decree of divorce after remand accurately incorporates the arbitration award. III. Arbitration Award Katy argues that the final arbitration award is the proposed "Final Decree of Divorce" submitted to the trial court by the arbitrator on July 23, 2002. Mike argues that the final arbitration award is a document entitled, "Final Arbitration Award" signed by the arbitrator on December 4, 2001. In its conclusions of law, the trial court found that the arbitrator's "proposed final decree of divorce submitted on July 23, 2002 was not considered an arbitration award, implicating the procedures of Chapter 171 of the Texas Civil Practice and Remedies Code."[1] In remanding the case to the trial court, this court referred to the December 4, 2001 arbitration award as the operative document. Therefore, in order to address Katy's issues, we will determine whether the final divorce decree incorporates the provisions of the December 4, 2001 arbitration award. IV. Provisions of the Decree The trial court must make a just and right division of marital property in a divorce proceeding. Tex. Fam. Code Ann. Section 7.001 (Vernon 1998). To promote the amicable settlement of disputes in a suit for divorce, spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. Tex. Fam. Code Ann. Section 7.006 (a)-(c) (Vernon 1998). If the court finds that the terms of such an agreement are just and right, those terms are binding on the court. Tex. Fam. Code Ann. Section 7.006(b). If the trial court approves the agreement, the court may set forth the agreement in full or incorporate it by reference in the final decree. Id. Conversely, if the court finds that the terms of the agreement are not just and right, it may either request the spouses to submit a revised agreement or set the case for a contested hearing. Tex. Fam. Code Ann. Section 7.006(c). Therefore, a court may either enter a property division agreement in its entirety or decline to enter it all, but has no discretion to change the agreement before entering it. See Engineer, 187 S.W.3d at 626; Reppert v. Beasley, 943 S.W.2d 172, 174 (Tex. App.- San Antonio 1997, no pet.). In this case, the agreement provided that disputes concerning interpretation or performance of the agreement would be submitted to binding arbitration. In unchallenged conclusions of law, the trial court found that the decree incorporates the agreement as modified and clarified in arbitration and as thereafter corrected and/or modified by the court upon proper pleadings and proof. Katy complains that the trial court erred in failing to accurately incorporate the agreement into the divorce decree. Specifically, Katy argues the provisions addressing allocation of the gold coins and savings bonds were inaccurately incorporated. Further, Katy complains that provisions in the decree regarding the place for alimony payments do not reflect the arbitration award. A. Gold Coins Attached to the arbitration award are three exhibits listing the community property awarded to each spouse and the property awarded to Katy as custodian for the parties' son. The gold coins are listed in the property awarded to Mike and are described as the "[g]old coins purchased and stored in the family safety deposit box." The final divorce decree awards the following property to the husband: "All household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of the husband or subject to his sole control, including but not limited to any gold coins purchased and stored in the family safety deposit box . . . said coins to be delivered to Mike Engineer by (6/5/03) to M. Carden's office." Katy first argues that the trial court erred in the divorce decree by not including a provision that she was to relinquish the gold coins "should they be in existence." Katy bases her argument on the arbitrator's proposed final decree submitted to the court on July 23, 2002. As stated earlier, that document was not recognized by the trial court as an arbitration award. The arbitration award used by the trial court in preparing the final divorce decree did not establish a procedure or qualify the distribution of the gold coins. Second, Katy complains of the trial court's inclusion of specific terms requiring her to deliver the gold coins to Mike, contending that this language improperly imposes an affirmative obligation that the arbitrator did not impose. The Family Code does not require parties to agree to all of the provisions to be contained in the divorce decree. The law only requires the parties to reach an agreement as to all material terms and prohibits the trial court from supplying additional terms. Haynes v. Haynes, 180 S.W.3d 927, 930 (Tex. App.- Dallas 2006, no pet.). Terms necessary to effectuate and implement the parties' agreement do not affect the agreed substantive division of property and may be left to future articulation by the parties or consideration by the trial court. Id. In this case, the terms requiring Katy to deliver the gold coins on a date certain to a specific location are properly denominated as essential to effectuate and implement the agreement that Mike will receive the gold coins. Therefore, with regard to the gold coins, the arbitration award was accurately incorporated in the decree. B. Savings Bonds Katy alleges that the decree varies from the arbitration award in the distribution of savings bonds. In the December 4, 2001 document, the arbitrator awarded "U. S. Series EE Savings Bonds Approximate value $18,608.00" to Katy. The arbitrator further awarded "EE Series Savings Bonds Approximate value $25,000.00" to Katy as custodian for the parties' child. In the corrected final divorce decree, the "US Series EE Savings Bonds" were awarded to the parties' child "with Katy Engineer trustee." The decree then listed the bonds by number. The decree did not award any savings bonds to Katy individually. On October 23, 2002, the trial court signed a final decree of divorce, which awarded "US Series EE Savings Bonds B approximate value of $18,608.00" and "EE Series Savings Bonds No. M39388208EE to M39388216EE & M39531538EE" to Katy. The October 23, 2002, decree failed to award any savings bonds to Katy as custodian for the child. Katy thereafter filed a motion to modify the decree, which included a request that the trial court correct the decree as to the bonds awarded to her, and the bonds awarded to her as custodian for the child. On January 22, 2003, the trial court signed an order modifying the divorce decree. The order recites that a hearing was held on December 18, 2002, but no record of the hearing appears in our appellate record. A letter from the trial court signed on December 27, 2002, reflects that as a result of the hearing, the parties agreed to certain changes in the decree. One of the referenced changes is, "[S]eries EE bonds should be awarded to [the child], with Wife as Trustee." The trial court's January 22, 2003 order reflects that agreement. On appeal, Katy contends that the decree incorrectly awarded all the bonds to the parties' child with her as trustee. Katy does not assert that the trial court's recitation of an agreement is incorrect, but argues that even if she agreed to the change, the trial court was without authority to change the arbitrator's award. Section 7.006(a) of the Family Code specifically provides that the parties' agreement "may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law." While the trial court has no authority to supply terms, provisions, or conditions not previously agreed to by the parties, conversely, the parties are bound by their agreements. See McLendon, 847 S.W.2d at 610. Katy cannot agree to a change in the agreement, then complain on appeal about that change. See Keith v. Keith, 221 S.W.3d 156, 163 (Tex. App.- Houston [1st Dist.] 2006, no pet.) (appellant may not complain on appeal of an action or ruling to which she agreed). Therefore, with regard to the savings bonds, the divorce decree accurately reflects the parties' agreement. C. Alimony Payments Katy argues that the final decree varies from the arbitration award in that the decree permits Mike to pay alimony at her residence instead of depositing the amount in her checking account. Katy further argues that the decree does not provide security for the alimony as required by the arbitration award. Again, Katy relies on the July 23, 2002 document, which is not an arbitration award. The December 4, 2001 arbitration award is silent with regard to alimony. However, the parties' mediated settlement agreement provides that Achild support [and] alimony to be obligation of H[usband]'s estate. The "Final Divorce Decree After Remand" provides that Mike is to pay contractual alimony of $4000 per month to Katy at her residence. The decree further provides that alimony is to be secured by Mike's 401(k) plan. Although the mediated settlement agreement required Mike to pay Katy alimony, the parties did not agree to the manner and place of payment. The trial court was authorized to include terms in the decree to implement the parties' agreement, specifying the manner and place of payment of alimony. See McLendon v. McLendon, 847 S.W.2d 601, 606 (Tex. App.- Dallas 1992, writ denied). Further, contrary to Katy's assertion, the decree provided that alimony payments would be secured by Mike's 401(k) plan. Therefore, the trial court did not err by including delivery instructions pertaining to alimony in the decree. In conclusion, the final divorce decree does not vary from the terms of the mediated settlement agreement or the arbitration award. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Substitute Memorandum Opinion filed March 20, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. [1] Chapter 171 of the Texas Civil Practice and Remedies Code generally prescribes the necessary requirements for a valid arbitration agreement.