Opinion filed January 31, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-18-00017-CV

__________

CAROLYN CASH BARTEE, Appellant

V.

BILLY JACK BARTEE, Appellee

On Appeal from the 259th District Court

Shackelford County, Texas

Trial Court Cause No. 2016-038

M E M O R A N D U M O P I N I O N

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 erred 

1Billy Jack Bartee died on June 16, 2018, while this case was on appeal. Pursuant to Rule 7.1(a)(1) 

of the Texas Rules of Appellate Procedure, we will proceed to adjudicate the appeal as if Billy were still 

alive and will identify Billy as the appellee. See TEX. R. APP. P. 7.1(a)(1).
2

when 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 the 
3

marriage 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 property 
4

was 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 then 
5

recited 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 property 
6

in 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 of the tracts of real property awarded to Billy. The 

trial court also found that property that belonged to Billy and Carolyn had not been 

divided. The trial court “ORDERED AND DECREED” that the final divorce decree 

was amended to reflect that Carolyn was awarded “the reserved life estates of the 

parties to the property the parties granted to The Bartee Trust of 5/2/2001 by special 

warranty deed dated May 2, 2001.”

2Although dated October 17, 2017, the order was filemarked on October 13, 2017. Carolyn’s first motion 

for new trial would have been overruled by operation of law on October 16, 2017. See TEX.R. CIV. P. 329b(c) (motion 

for new trial is considered overruled by operation of law if not determined by written order within seventy-five days 

after the judgment was signed); TEX. R. CIV. P. 4 (when last day of time period falls on a Saturday, Sunday, or legal 

holiday, the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday). However, the 

trial court still retained plenary power to modify the final divorce decree on October 17, 2017. See TEX. R.

CIV. P. 329b(e) (trial court’s plenary power expires thirty days after motion for new trial is overruled).
7

On November 6, 2017, Carolyn requested that the trial court issue written 

findings of fact and conclusions of law with respect to the final decree signed on 

July 31, 2017, as amended. On November 16, 2017, Carolyn filed a second 

combined motion for new trial and motion to reopen evidence, in which she again 

complained that she was incompetent to reach an agreement and that she had not 

agreed to the final divorce decree. The trial court declined to hold a hearing on 

Carolyn’s motion, and the second motion for new trial was overruled by operation 

of law. On November 28, 2017, Carolyn filed a notice of past due findings of fact 

and conclusions of law. See TEX. R. CIV. P. 297. The trial court did not enter any 

findings of fact or conclusions of law.

Billy argues that we lack jurisdiction over this appeal because the notice of 

appeal was untimely. Billy specifically asserts that there can be only one final 

judgment; that the trial court orally rendered judgment on July 13, 2017, and 

ministerially signed the judgment on July 31, 2017; that the October 17 Order did 

not modify the judgment; that Carolyn was required to file her notice of appeal by 

October 29, 2017; and that Carolyn did not file a notice of appeal until January 15, 

2018.

Absent a timely filed notice of appeal, a court of appeals does not have

jurisdiction to consider the merits of an appeal. Wilkins v. Methodist Health Care 

Sys., 160 S.W.3d 559, 564 (Tex. 2005). Generally, a party must file a notice of 

appeal within thirty days after the judgment is signed. TEX. R. APP. P. 25.1(b), 26.1; 

In re R.R.K., No. 18-0273, 2019 WL 6825953, at *2 (Tex. Dec. 13, 2019). That 

deadline is extended to ninety days when certain postjudgment motions are filed 

within thirty days after judgment. TEX. R. APP. P. 26.1(a); In re R.R.K., 2019 WL 

6825953, at *2. A timely motion for new trial or motion to modify the judgment 

will extend the appellate timeline. TEX. R. APP. P. 26.1(a)(1)–(2); Brighton v. Koss, 

415 S.W.3d 864, 866 (Tex. 2013) (per curiam).
8

On August 30, 2017, thirty days after the trial court signed the final divorce 

decree on July 31, 2017, Carolyn timely filed her motion for new trial and motion to 

reopen the evidence. Carolyn also requested that the trial court divide property that 

was not subject to the parties’ settlement agreement. Both of the motions extended 

the time for Carolyn to file a notice of appeal until October 29, 2017.

In the October 17 Order, the trial court denied Carolyn’s motion for new trial 

and motion to reopen the evidence, but found that certain property owned by Billy 

and Carolyn had not been divided and amended the final divorce decree to reflect 

that the undivided property was awarded to Carolyn. The trial court also granted 

Carolyn’s motion for nunc pro tunc and clarified the address of certain real property 

awarded to Billy. These modifications to the final divorce decree restarted the 

appellate timetable. See TEX. R. CIV. P. 329b(h) (providing that the appellate 

timetable restarts when a trial court modifies, corrects, or reforms the judgment in 

any respect); Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 

390–91 (Tex. 2008) (noting that, because appellate “deadlines are restarted by ‘any

change, whether or not material or substantial,’” an order in which the court suggests 

remittitur restarts the deadlines (quoting Check v. Mitchell, 758 S.W.2d 755, 756

(Tex. 1988) (per curiam))).

On November 16, 2017, Carolyn timely filed her second motion for new trial 

and motion to reopen evidence, which extended the deadline to file a notice of appeal 

until January 16, 2018. See TEX. R. APP. P. 4.1(a), 26.1(1). Carolyn timely filed her 

notice of appeal on January 16, 2018, and we therefore have jurisdiction over this 

appeal.

Carolyn argued for the first time during oral argument that, due to Billy’s 

death, we should reverse the decree of divorce and remand the case to the trial court 

for dismissal. Because a “cause of action for a divorce is purely personal,” Janner v. 

Richardson, 414 S.W.3d 857, 858 (Tex. App.—Houston [1st Dist.] 2013, no pet.) 
9

(quoting Garrison v. Tex. Commerce Bank, 560 S.W.2d 451, 453 (Tex. App.—

Houston [1st Dist.] 1977, writ ref’d n.r.e.)), the death of one of the parties prior to 

the rendition of judgment abates the divorce action and its incidental inquiries of 

property rights and child custody, Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 

1983) (orig. proceeding); Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex. App.—

Dallas 2010, no pet.). “The proper procedural disposition of a divorce action when 

one of the parties dies is dismissal.” Whatley, 649 S.W.2d at 299.

However, when the trial court has rendered a divorce decree, the death of one 

of the parties does not automatically require abatement and dismissal of either an 

appeal or further actions by the trial court. Dunn v. Dunn, 439 S.W.2d 830, 833–34 

(Tex. 1969); Palomino v. Palomino, 960 S.W.2d 899, 901 (Tex. App.—El Paso 

1997, pet. denied). Specifically, when a party to a divorce dies during the pendency 

of an appeal, the merits of the appeal can be adjudicated if the divorce decree affects 

property rights of the parties. Dunn, 439 S.W.2d at 833–34. In this case, the divorce 

decree affects the property rights of the parties, and Billy’s death, therefore, does not 

deprive us of jurisdiction over this appeal. We hold that we have jurisdiction to 

address the merits of this appeal.

In her first issue, Carolyn argues that the trial court erred when it failed to 

enter findings of fact and conclusions of law. Within twenty days after a judgment 

is signed, a party may file a request that the court enter written findings of fact and 

conclusions of law. TEX. R. CIV. P. 296. The Texas Family Code also specifies that,

in a suit for the dissolution of a marriage in which the court has rendered a judgment 

in which it divides the estate of the parties, on request by a party, the trial court must 

state in writing its findings of fact and conclusions of law, including “the 

characterization and value of all assets, liabilities, claims, and offsets on which 

disputed evidence has been presented.” TEX. FAM. CODE ANN. § 6.711 (West Supp. 

2019). However, findings of fact are unnecessary when facts are undisputed. Ad 
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Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam) (citing

Barker v. Eckman, 213 S.W.3d 306, 310 (Tex. 2006)).

At the final hearing in this case, the parties’ agreement as to the division of 

the marital property was recited into the record. There was no evidence as to the 

characterization or value of any property. Further, at the hearing, neither party nor 

their counsel voiced any objection to the divorce or to the terms of the property 

division agreement. Because there were no disputed matters in question before it, 

the trial court was not required to enter findings of fact and conclusions of law as to 

the characterization and value of the parties’ property. See id.

In her first motion for new trial, Carolyn raised issues that pertained to her 

capacity to enter into the settlement agreement, to her agreement to the final decree 

of divorce, and to property that had not been divided by the trial court. There is no 

record of an evidentiary hearing held by the trial court on these issues. After the 

hearing, the trial court signed the October 17 Order in which it amended the final 

divorce decree to award undivided property to Carolyn. Carolyn filed a second 

motion for new trial in which she again raised issues about her competence and her 

agreement to the final divorce decree. The trial court did not hold a hearing on the 

second motion for new trial. Without an evidentiary hearing, the trial court was not 

required to make findings of fact and conclusions of law as to the issues raised by 

Carolyn in the two motions for new trial. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 

440, 443 (Tex. 1997) (noting that findings of fact and conclusions of law “can have 

no purpose and should not be requested, made, or considered on appeal” from any 

judgment rendered without an evidentiary hearing).

We hold that Carolyn has not demonstrated that the trial court erred when it 

failed to make findings of fact and conclusions of law. We overrule Carolyn’s first 

issue.
11

In her second issue, Carolyn complains that the trial court abused its discretion 

when it allowed her to enter into an “alleged agreement” after it had impliedly found 

that she “lacked capacity” to do so. Carolyn also argues that the evidence is legally 

and factually insufficient “to support the trial court’s actions.”

In family law cases, the traditional sufficiency standard of review overlaps the 

abuse of discretion standard of review. Moore v. Moore, 568 S.W.3d 725, 729 (Tex. 

App.—Eastland 2019, no pet.). Consequently, assertions of legal and factual 

insufficiency are not independent grounds of error but, rather, are factors used in our 

determination of whether the trial court abused its discretion. Id. To determine 

whether there has been an abuse of discretion, we consider whether the trial court

had sufficient evidence upon which to exercise its discretion and, if so, whether it 

erred in its application of that discretion. In re A.J.E., 372 S.W.3d 696, 698–99 (Tex. 

App.—Eastland 2012, no pet.). The sufficiency review is part of the first inquiry. 

Id. at 699. After we assess the evidence, we consider whether, based on that 

evidence, the trial court made a reasonable decision. Id. The trial court does not 

abuse its discretion so long as the record contains some evidence of substantive and 

probative character to support its decision. Id.

The test for legal sufficiency is whether the evidence at trial would enable 

reasonable and fair-minded people to reach the verdict under review. City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When we conduct a legal 

sufficiency review, we consider the evidence in the light most favorable to the 

verdict and indulge every reasonable inference to support it. Id. at 822. We must 

credit favorable evidence if a reasonable juror could and disregard contrary evidence 

unless a reasonable juror could not. Id. at 827. When we evaluate a factual 

sufficiency challenge, we consider and weigh all the evidence in a neutral light and 

will set aside the finding only if the evidence is so weak or the finding is so against 
12

the great weight and preponderance of the evidence that it is clearly wrong and 

unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The factfinder is the sole judge of the weight and credibility of the witnesses’ 

testimony. City of Keller, 168 S.W.3d at 819; Golden Eagle Archery, Inc. v. 

Jackson, 116 S.W.3d 757, 761 (Tex. 2003). When there is conflicting evidence, the 

factfinder may believe one witness and disbelieve others. City of Keller, 168 S.W.3d 

at 819; McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The factfinder

may also draw inferences from the facts and choose between conflicting inferences. 

Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex. 1973). We will not overturn a 

factfinder’s determination unless only one inference can be drawn from the 

evidence. City of Keller, 168 S.W.3d at 822.

“The law presumes a party to be mentally competent and places the burden of 

proving incompetence on the party alleging it.” Estate of Riefler, 540 S.W.3d 626, 

635 (Tex. App.—Amarillo 2017, no pet.) (citing Hall v. Hall, 352 S.W.2d 765, 767 

(Tex. App.—Houston 1962, no writ)). A person has the mental capacity to contract

if, at the time of contracting, the person “appreciated the effect of what [she] was 

doing and understood the nature and consequences of [her] acts and the business 

[she] was transacting.” Id. at 636 (quoting Mandell & Wright v. Thomas, 441 

S.W.2d 841, 845 (Tex. 1969)). Circumstantial evidence—such as the conduct of the 

party in question, circumstances tending to produce a particular mental condition, 

and prior or subsequent existence of a mental condition from which a party’s 

capacity or incapacity at the time in question may be inferred—may be relevant to 

prove capacity or lack of capacity. Id. (citing In re Estate of Robinson, 140 S.W.3d 

782, 793 (Tex. App.—Corpus Christi–Edinburg 2004, pet. denied)). The question 

of whether a person, at the time of contracting, knows or understands the nature and 

consequences of his actions is generally a question of fact for the factfinder. Id.
13

(citing Fox v. Lewis, 344 S.W.2d 731, 739 (Tex. App.—Austin 1961, writ ref’d 

n.r.e.)).

Carolyn argues that the trial court made an implied finding that she was 

incompetent when it appointed Parker as her attorney ad litem. However, the record 

establishes only that, three days after Wimberley filed the motion for appointment 

of an attorney ad litem, the trial court signed the order that was attached to 

Wimberley’s motion and appointed Parker as attorney ad litem for Carolyn. The 

record does not reflect that the trial court either held a hearing on Wimberley’s 

motion or examined Carolyn before it signed the order.

We, therefore, turn to the question of whether the trial court abused its 

discretion when it failed to find that Carolyn lacked capacity to agree to the 

settlement. We agree with Carolyn that Wimberley’s statement in the motion for the 

appointment of an attorney ad litem that he believed that Carolyn was mentally 

incompetent or incapacitated is circumstantial evidence that may be relevant to 

prove Carolyn’s capacity or lack of capacity. However, based on Wimberley’s 

statements at the hearing on the motion to withdraw, it is clear that his concerns were 

that Carolyn had failed to retain new counsel, that he had been unable to 

communicate effectively with Carolyn, and that Carolyn’s belief that the marital 

property was worth much more than the appraised amount would impact her decision 

on the proposed settlement.

Parker represented to the trial court that he had spoken with Carolyn and that 

her communication with Wimberley was an issue. Parker did not indicate that he 

had any concerns with Carolyn’s mental capacity. The trial court removed Parker 

as Carolyn’s ad litem due to a conflict and then commented that it was not clear that 

an ad litem was necessary. The trial court then discussed with Carolyn the fact that 

Wimberley was no longer her attorney, that she needed to hire an attorney, and that 

the trial court in this case was not the proper forum in which to complain about 
14

Wimberley’s representation. Carolyn responded clearly and appropriately to the 

trial court’s questions.

At the final hearing, Thedford, who was Carolyn’s new counsel, did not 

express any concerns about Carolyn’s competency or capacity. After the settlement 

agreement was recited into the record, the trial court questioned Carolyn about the 

settlement and about whether she agreed with its terms. Again, the trial court was 

able to observe Carolyn and determine if there was any question of her competency 

to agree to the terms.

In response to Carolyn’s first motion for new trial, Billy filed an October 2, 

2017 affidavit from Wimberley. Wimberley averred that he sought to withdraw 

from the case because of Carolyn’s failure to communicate and refusal to obtain new 

counsel. Wimberley was aware of Carolyn’s medical problems when he filed “a 

motion” but was not sure about her mental status. After he spoke with Carolyn, he

determined that there was no basis to seek a referral to the probate court for a 

competency determination. Rather, the issues that he had with Carolyn were due to 

their inability to communicate. Wimberley noted that Carolyn “obviously 

understood what I was telling her and she understood the May 1, 2017 proceedings.”3

Carolyn attached the November 16, 2017 affidavit of her daughter, Ruth Ellen 

Cash, to her second motion for new trial. In her affidavit, Cash stated that Carolyn 

executed a durable power of attorney on September 28, 2016, that allowed Cash to 

handle Carolyn’s affairs. According to Cash, Carolyn suffered from dementia and 

was unable to recall important things. Cash did not state that Carolyn lacked 

capacity to understand and enter into the settlement agreement on July 13, 2017.

3Carolyn asserts that we may not consider Wimberley’s affidavit because it is inconsistent with the 

motion for appointment of an attorney ad litem. However, viewed in light of Wimberley’s statements at 

the hearing on the motion to withdraw, the affidavit is not clearly inconsistent with the motion. Further, 

the trial court, as the factfinder, was permitted to resolve inconsistencies in the testimony of any witness. 

City of Keller, 168 S.W.3d at 819; McGalliard, 722 S.W.2d at 697.
15

There is no evidence that Carolyn was ever declared by a doctor, or 

adjudicated by a court, to be either mentally incompetent or lacking capacity to 

contract. Further, the record does not reflect that the trial court, or any court for that 

matter, made a finding that Carolyn lacked capacity to enter into the settlement 

agreement. Rather, the record reflects that, at the time that the settlement agreement 

was recited into the record, Carolyn appreciated the effect of what she was doing 

and understood the nature and consequences of her acts as well as the business that 

she was transacting. See Riefler, 540 S.W.3d at 635; Winslar v. Bartlett, 573 S.W.2d 

608, 611 (Tex. App.—Waco 1978, no writ) (holding that a party who was free from 

the control of a mental institution and made voluntary appearances before the trial 

court was presumed to be mentally competent and that the trial court did not err in 

failing to conduct an inquiry into the party’s mental competency where the record 

was silent regarding any mental incompetency proceedings and the party had 

answered questions and made statements to the court in a coherent manner during 

trial). Carolyn, therefore, has failed to satisfy her burden to overcome the 

presumption that she was mentally competent to agree to the settlement agreement.

We hold that the trial court had sufficient evidence upon which to exercise its 

discretion to approve the settlement agreement and did not err in its application of 

that discretion. See In re A.J.E., 372 S.W.3d at 698–99. Consequently, the 

settlement agreement and decree of divorce are not void on the basis of Carolyn’s 

alleged incapacity or incompetency. We overrule Carolyn’s second issue.

In her third issue, Carolyn argues that the final decree of divorce “has error on 

its face” because, although the decree states that it was signed by both parties, she 

did not sign the decree. Carolyn asserts that, without her signature, “the terms of the 

final decree of divorce are not satisfied” and the decree cannot be “an agreed decree 

of divorce.” Carolyn finally contends that, because she did not sign the final decree 

of divorce, she effectively revoked her consent to the settlement agreement.
16

Carolyn first argues that there is “error on the face of the record” and that the 

final divorce decree cannot be an “agreed decree” because the decree states that 

Carolyn signed the decree when she had not done so. Pursuant to Rule 11 of the 

Texas Rules of Civil Procedure, unless otherwise provided in the Rules of Civil 

Procedure, “no agreement between attorneys or parties touching any suit pending 

will be enforced unless it be in writing, signed and filed with the papers as part of 

the record, or unless it be made in open court and entered of record.” TEX. R.

CIV. P. 11. Under Rule 11, an agreed property division constitutes an enforceable 

consent judgment—even if neither party signed the agreement—if the agreement is 

“made in open court and entered of record.” Hahne v. Hahne, 663 S.W.2d 77, 79 

(Tex. App.—Houston [14th Dist.] 1983, no writ). Therefore, when the parties’ 

agreement is evidenced by a party’s attorney reciting the terms of the agreement to 

the court and the party confirming those terms, the agreement need not be in writing 

or signed. Id.

It is undisputed that Carolyn acquiesced to the settlement agreement at the 

July 13, 2017 hearing, and we have rejected her argument that she lacked capacity 

to do so. Therefore, it was not necessary for Carolyn to sign the final divorce decree

in order for it to be an agreed decree. See id.; see also Lowery v. Lowery, No. 01-

16-00147-CV, 2017 WL 6520428, at *3 (Tex. App.—Houston [1st Dist.] Dec. 21, 

2017, no pet.) (mem. op.) (concluding that parties entered into an agreed divorce 

decree even though both parties did not sign the decree).

4

Carolyn next argues that the trial court erred when it signed the final divorce 

decree because she had revoked her consent to the agreement. Although a party may 

4We also note that Thedford, Carolyn’s attorney, signed the final divorce decree. See Gavenda v. 

Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986) (recognizing that the attorney–client relationship is 

an agency relationship and that the attorney’s acts and omissions within the scope of his or her employment 

are regarded as the client’s acts); In re R.B., 225 S.W.3d 798, 803 (Tex. App.—Fort Worth 2007, no pet.) 

(declaring that an attorney may execute an enforceable Rule 11 agreement on his client’s behalf).
17

have consented to an agreement, a consent judgment cannot be rendered when the

party does not consent at the time judgment actually is rendered. Chisholm v. 

Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam). A party may revoke consent 

at any time before judgment is rendered. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 

857 (Tex. 1995). A party’s revocation of consent must be made known to the trial 

court. Miller v. Miller, 721 S.W.2d 842, 844 (Tex. 1986). A judgment that is 

rendered after one of the parties revokes her consent is void. Leal, 892 S.W.2d at 

857.

Billy argues that the trial court orally rendered judgment at the July 13, 2017

hearing and that, therefore, Carolyn could not revoke her consent to the agreement. 

Carolyn, however, asserts that the trial court did not render judgment until it signed

the final divorce decree on July 31, 2017. We need not resolve this dispute because 

the record does not reflect that Carolyn withdrew her consent to the settlement 

agreement before the trial court signed the final divorce decree.

Carolyn asserts that her failure to sign the final divorce decree is evidence that 

she had withdrawn her consent to the agreement. However, Carolyn’s failure to sign 

the divorce decree was not sufficient to inform the trial court that Carolyn had 

withdrawn her consent to the settlement agreement. See Westmoreland v. AIA 

Holdings Inc., No. 10-18-00208-CV, 2020 WL 103807, at *1–2 (Tex. App.—Waco 

Jan. 8, 2020, no pet. h.) (mem. op.) (rejecting argument that party’s failure to sign 

judgment constituted notice of revocation of consent to settlement agreement when 

party’s attorney had signed the agreement and the trial court did not have notice that 

the party had withdrawn her consent). Carolyn did not object to the entry of the final 

divorce decree before it was signed or otherwise notify the trial court that she had 

withdrawn her consent to the agreement. See Miller, 721 S.W.2d at 844; Clanin v. 

Clanin, 918 S.W.2d 673, 677 (Tex. App.—Fort Worth 1996, no writ) (concluding

that, where record does not show that a party objected to or made known to the trial 
18

court that he was withdrawing his consent to the agreement that was announced in 

court and read into the record, the party’s post-rendition objection to judgment in a 

motion for new trial is too late to revoke the party’s consent). Therefore, Carolyn 

has failed to establish that she revoked her consent to the settlement agreement 

before the trial court signed the final divorce decree.

We hold that Carolyn has failed to establish that the trial court erred when it 

signed the final decree of divorce. We overrule Carolyn’s third issue.

In her fourth issue, Carolyn complains that the trial court erred when it signed

a divorce decree that did not “match” the parties’ alleged agreement. Carolyn argues 

that the agreement recited into the record at the hearing was vague and ambiguous 

in comparison to the detailed terms set forth in the trial court’s final decree of 

divorce. Without specification, Carolyn asserts that she may have agreed to different 

terms than those reflected in the final decree and reasserts that she could not have 

agreed to those terms because she was incompetent at the time the agreement was 

made. As we have determined that Carolyn failed to overcome the presumption that 

she was competent during the proceedings in the trial court, her purported lack of 

competence or capacity is not a factor in our analysis of this issue.

In a divorce case, the trial court must order a division of the community estate 

of the parties in a manner that the court deems just and right. FAM. § 7.001 (West 

2006); Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018). The trial court 

may set forth the parties’ agreement as to the division of property in the decree. 

FAM. § 7.006(b). When the parties’ agreement is included in the divorce decree, the 

divorce decree becomes a consent judgment, subject to the same degree of finality 

and binding force as a judgment rendered in an adversary proceeding. McCray v. 

McCray, 584 S.W.2d 279, 281 (Tex. 1979) (per curiam); Abrams v. Salinas, 467 

S.W.3d 606, 610 (Tex. App.—San Antonio 2015, no pet.).
19

When a trial court renders judgment on the parties’ settlement agreement, the 

judgment must be in strict compliance with the terms of the agreement. Vickrey v. 

Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976) (per curiam); In re A.E., 

580 S.W.3d 211, 215 (Tex. App.—Tyler 2019, pet. denied). The trial court is 

without power to supply terms, provisions, or conditions not previously agreed to by 

the parties. In re A.E., 580 S.W.3d at 215. A consent judgment that does not strictly 

espouse the terms of the parties’ agreement must be set aside. Chisholm, 209 S.W.3d 

at 98.

At the final hearing, Carolyn’s attorney, Thedford, informed the trial court:

“We are going to announce the agreement,” and Billy’s attorney, McCool, recited 

that the parties agreed that Billy would pay Carolyn $110,000 and that Billy would 

be awarded all the property, which consisted of a 165-acre farm, another tract of 

land, a note, and 30 head of cattle. Carolyn did not object that any term of the recited 

agreement was vague or ambiguous.

Carolyn did not object in either of her motions for new trial that the property 

division in the decree did not comport with the parties’ agreement. Indeed, the 

closest Carolyn came to such a complaint was one sentence in her second motion for 

new trial in which she stated, without elaboration, that the trial court erred when it 

found that the divorce was agreed because “[t]he announced agreement at the final 

hearing is not specific enough to delineate each of the assets awarded to each party 

as found in the Final Decree of Divorce.” Carolyn provided no explanation on how 

the assets awarded in the final divorce decree did not match those set out in the 

parties’ agreement.

Finally, on appeal, Carolyn does not identify any term of the divorce decree 

that fails to comport with the terms of the settlement agreement that were recited 

during the final hearing or vice versa. In sum, Carolyn has failed to show—and has

not attempted to show—that any term of the settlement agreement embodied in the 
20

trial court’s final decree of divorce does not “match” a term of the agreement as 

recited at the final hearing. Consequently, Carolyn failed to establish that the trial 

court erred when it signed a final divorce decree that did not “match” the parties’ 

agreement. We overrule Carolyn’s fourth issue.

In her fifth issue, Carolyn complains that the trial court erred when it denied 

her second motion for new trial. We review a trial court’s denial of a motion for 

new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 

922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion when it acts 

without reference to any guiding rules or principles. Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Carolyn complains that the trial court misapplied the law when it denied the 

second motion for new trial because (1) it allowed Carolyn to enter into the 

settlement agreement when she lacked capacity, (2) Carolyn did not agree to the final 

decree of divorce, (3) error appeared on the face of the record, and (4) the terms of 

the decree differed from the recited settlement agreement. However, Carolyn has 

raised these same complaints—independently of their relation to the trial court’s 

denial of her motion for new trial—in each of the preceding issues, and we have 

overruled each complaint. Therefore, we hold that the trial court did not misapply 

the law when it failed to grant Carolyn’s second motion for new trial. We overrule

Carolyn’s fifth issue.

We affirm the trial court’s judgment.

January 31, 2020 JIM R. WRIGHT

Panel consists of: Bailey, C.J., SENIOR CHIEF JUSTICE

Stretcher, J., and Wright, S.C.J.5

(Willson, J., not participating.)

5

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.