MEMORANDUM OPINION

No. 04-10-00217-CV

George Richard HERNDON,

Appellant

v.

Bonny Elaine HERNDON,

Appellee

From the 38th Judicial District Court, Uvalde County, Texas

Trial Court No. 03-08-23,745-CV

Honorable Camile G. Dubose, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: October 27, 2010

AFFIRMED

Appellant, George Richard Herndon, appeals from a December 16, 2009 Order in Suit to 

Modify Parent-Child Relationship. Because we conclude appellant waived any right to complain 

on appeal, we affirm.

BACKGROUND

In 2003, the trial court entered a Final Decree of Divorce granting a divorce between 

appellant and appellee, Bonny Elaine Herndon. On March 5, 2009, appellee filed a Petition to 
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Modify the Parent-Child Relationship, and on October 14, 2009, the parties reached a settlement 

agreement, which was read into the reporter’s record. Pursuant to the parties’ agreement, 

appellee’s attorney was to prepare the proposed order. Appellee’s attorney reduced the 

agreement to writing and, on November 10, 2009, sent the proposed order to appellant’s 

attorney, who did not respond. On December 1, 2009, appellee’s attorney sent the proposed 

order to the trial judge with a letter asking the judge to sign and enter the order within five days 

if appellant’s attorney lodged no objections to it. On the same day, appellee’s attorney also sent 

a copy of the letter and the proposed order to appellant’s attorney. Fifteen days later, on 

December 16, 2009, the trial judge signed the Order in Suit to Modify the Parent-Child 

Relationship.

After hiring a new attorney, appellant filed a motion for new trial, alleging discrepancies 

between the parties’ settlement agreement and the order actually entered. At a continuance 

hearing regarding the motion for new trial, the trial judge stated on the record: “[Appellant’s 

former attorney] was given an opportunity to review the order and the Court actually called him 

to make sure that he had no objections to the order, [and] we were informed that we could sign 

the order, and I actually held it for 15 days before I signed it.” When appellant’s attorney stated, 

“[M]aybe the telephone call from the Court did not get through to [appellant’s former attorney],” 

the trial judge replied, “No, it got through to him . . . . We were told to sign the order, which we 

did.” 

At the hearing on appellant’s motion for new trial, appellant’s attorney told the trial 

judge, “Your Honor, . . . there [are] fairly minor changes to [the order]. When I say minor, for 

instance there’s a problem with pick-up and drop-off of the children and there’s other things in 

there that don’t reflect what the agreement was . . . .” The trial judge denied appellant’s motion 
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for new trial, explaining: “Just because [appellant doesn’t] like the order that was entered, other 

than the fact that it was entered, is not a ground for a new trial. [Appellant] had ample 

opportunity to review the order. His counsel was given the order. He was contacted by the 

Court.” 

DISCUSSION

In his sole issue on appeal, appellant contends the Order in Suit to Modify the ParentChild Relationship impermissibly adds to and modifies the parties’ settlement agreement. 

Appellee responds that appellant waived his complaints by failing to object when given notice of 

the proposed order. We agree with appellee. “A party’s express renunciation of a known right 

can establish waiver. Silence or inaction, for so long a period as to show an intention to yield the 

known right, is also enough to prove waiver.” Tenneco, Inc. v. Enterprise Prods. Co., 925 

S.W.2d 640, 643 (Tex. 1996) (citations omitted). Waiver is a question of fact, unless the facts 

and circumstances are admitted or clearly established, in which case the question becomes one of 

law. Id. 

Here, appellant was given at least two opportunities to object to the proposed order. 

First, he remained silent for fifteen days after receiving a copy of the proposed order along with a 

copy of the letter sent to the court asking the judge to sign it if appellant made no objections 

within five days. Then, appellant’s former attorney expressly consented to the trial judge’s 

signing of the order in a phone conversation with the court coordinator. Based on this, we 

conclude the error, if any, was waived. 
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CONCLUSION

Because appellant waived any alleged error in the entering of the Order in Suit to Modify 

the Parent-Child Relationship, we overrule appellant’s sole issue on appeal and affirm the trial 

court’s judgment.

Sandee Bryan Marion, Justice