## COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 09

- 00205

- CV

JACQUELINE RUTLEDGE HENDERSON APPELLANT

V.

DANIEL HENDERSON APPELLEE

------------

FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY

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### MEMORANDUM OPINION 1

---------- In this appeal from the trial court’s clarification and enforcement of a

divorce decree, Appellant Jacqueline Rutledge Henderson contends in her sole

issue that the trial court abused its discretion by ordering her to sign voting

agreements which changed the substantive property division of the parties’

agreement incident to divorce (AID)

. Because we hold that the trial court abused

1 See Tex. R. App. P. 47.4.2

its discretion by ordering that Jacqueli ne sign the voting agreements to the extent

that they modified the AID regarding Daniel’s right of first refusal but also hold

that the trial court did not otherwise abuse its discretion, we affirm the trial court’s

orders as modified.

I. Background Facts and Procedural History

Daniel and Jacqueline entered into an AID in which they divided their

marital estate. Under the AID, Jacqueline received, among other assets, one

half of the couple’s “ownership” in nine app arently closely held companies. The

AID provides in relevant part,

To the extent permitted by law, the parties stipulate that this agreement is enforceable as a contract. In consideration of the mutual undertakings and obligations contained in this agreement, the parties agree as follows:

. . . .

1.2 Agreement Relating to Stock Restrictions Related to the Stock Awarded to Jacqueline . . . .

It is agreed between the parties that although Jacqueline . . . is hereby awarded shares of stock or units in the entities . . . , [she] hereby agrees that she will not have the right to vote pursuant to her ownership of such stock or units. Jacqueline . . . hereby agrees that she will execute all documents necessary to permit Daniel . . . to exercise voting rights relating to the shares of stock or units awarded to her herein, including, but not limited to, limited powers of attorney or the placement of t he shares of stock into a voting trust as determined by Daniel . . . .

It is further agreed between the parties that although Jacqueline . . . is hereby awarded shares of stock or units in the entities . . . , [she] hereby agrees that Daniel . . . is he reby awarded a right of first refusal to purchase the stock or units awarded herein to [her]. Jacqueline . . . hereby agrees that she will execute all3

documents necessary to confirm the right of first refusal as provided herein.

It is further agreed bet ween the parties that although Jacqueline . . . is hereby awarded shares of stock or units in the entities . . . , [she] hereby agrees that such shares of stock or units can only be sold to other current shareholders of the companies issuing the stock or u nits (the shares of stock or units sought to be sold in a particular company may only be sold to a shareholder in that particular company).

Jacqueline . . . hereby acknowledges it is the intent of the parties pursuant to the preceding provisions that she will have no involvement or participation in the management of any of the companies in which she is awarded stock or units, including employment, consulting, or otherwise.

. . . .

. . . .

4.8 Successors and Assigns

This agreement, except as it otherwise expressly provides, will bind and inure to the benefit of the respective legatees, devise e s, heirs, executors, administrators, assigns, and success ors in interest of the parties.

. . . .

4.14 Agreement Voluntary and Clearly Understood

Each party to this agreement

-
(a) is completely informed of the facts relating to the subject matter of this agreement and of the rights and liabilities of both parties;

(b) enters into this agreement voluntarily after receiving the advice of independent coun sel;

(c) has given careful and mature thought to the making of this agreement;4 (d) has carefully read each and every provision of this agreement;

(e) completely understands the provisions of this agreement, concerning both the subject matter and legal e ffect;

(f) stipulates this agreement to be a just and right division of marital debts and assets; and

(g) states that this agreement was signed without any coercion, any duress, or any agreement other than those specifical ly set forth in this agreement.

The AID was incorporated into the parties’ March 30, 2005 divorce decree. No

appe al was taken from that decree.

In July 2005, Daniel sent to Jacqueline proposed voting agreements for

her shares of stock and units. The voting agreements for the shares o f stock

provide,

AGREEMENT :

NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the Parties agree as follows:

1. Voting Agreement . JRH [Jacqueline] agrees to vote any shares of common stock of the Corporation beneficially owned by her (the “ Capital Stock ”) in the manner and as directed by DAH [Daniel].

2. Irrevocable Proxy . In connection with the voting agreement in Section 1 above, JRH revokes any previously executed proxies and appoints DAH as her proxy to attend shareholders’ meetings, vote, execute consents, and otherwise act for JRH in the same manner as if she were personally present. This proxy is irrevocable and is coupled with an interest.5 3. Term . This Agreement shall be effective as of the date h ereof and shall continue in effect for a period of fifteen (15) years from the date hereof.

. . . .

5. Restrictions on Transfer; Right of First Refusal

.

5.1 Restrictions on Transfer . JRH shall not assign sell, offer to sell, pledge, mortgage, hypothec ate, encumber, liquidate, dispose of or otherwise transfer (a “Transfer” ) any of the Capital Stock of the Corporation other than in accordance with this Agreement. Any purported Transfer of Capital Stock by JRH or her successors or assigns (or any success or transferee or assignee) shall be ineffective until the transferee has agreed to become bound as an assignee of the rights and obligations of JRH (or such successor transferee or assignee) under this Agreement, including without limitation the voting agr eement, irrevocable proxy and Right of First Refusal set forth herein.

5.2 Transfer only to Current Shareholders

. Pursuant to the Property Agreement, JRH agrees that the shares of the Corporation received by JRH under the Property Agreement can only be s old to other current shareholders of the Corporation.

5.3 Definitions . As used herein, the following terms shall be defined as follows:

“Proposed Transfer” means any proposed Transfer of any Capital Stock (or any interest therein) proposed by JRH.

“Proposed Transfer Notice” means written notice from JRH to DAH setting for the terms and conditions of a Proposed Transfer.

“Prospective Transferee” means any person to whom JRH proposes to make a Proposed Transfer.

“Right of First Refusal” means the ri ght, but not an obligation, of DAH to purchase some or all of the Transfer Stock with respect to a Proposed Transfer, on the terms and conditions specified i n the Proposed Transfer Notice.6 “ROFR Notice” means written notice from DAH notifying JRH that he intends to exercise his Right of First Refusal as to some or all of the Transfer Stock with respect to any Proposed Transfer.

“ Transfer Stock ” means shares of Capital Stock subject to a Proposed Transfer.

5.4 Grant

. J RH hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to purchase all or any portion of the Capital Stock that JRH may propose to Transfer, at the same price and on the same terms and conditions as those offered to the Prospective Transferee.

5.5 Notice

. JR H must deliver DAH a notice regarding any proposed Transfer not later than 30 days prior to the consummation of such proposed Transfer. Such Proposed Transfer Notice shall contain the material terms and conditions (including without limitation the purchas e price therefore) of the Proposed Transfer and the identity of the Prospective Transferee. DAH must exercise his Right of First Refusal under this Section 5 by giving a ROFR Notice to [J]RH within fifteen (15) days after delivery of the Proposed Transfer Notice.

5.6 Consideration; Closing

. If the consideration proposed to be paid for the Transfer Stock is in property, services or other non

- cash consideration, the fair market value of the consideration shall be determined in good faith by DAH. If DAH

ca nnot for any reason pay for the Transfer Stock in the same form of

non

- cash consideration, DAH may pay the cash value equivalent thereof. The closing of the purchase of Transfer Stock by DAH shall take place, and all payments from DAH shall have been deli vered to [J]RH, by the later of (i) the date specified in the Proposed T ransfer Notice as the intended date of the Proposed Transfer and (ii) forty

five (4 5 ) days after delivery of the Proposed Transfer Notice.

5.7 Sale by JRH; Restart of Right of First Refusal

. If any shares of Transfer Stock are not elected to be purchased by DAH pursuant to this Section 5, then JRH shall be free, for a period of ninety (90) calendar days from the date of the Proposed Transfer Notice, to sell the remaining shares of Tr ansfer Stock to the Proposed Transferee, at a price equal to or greater than the purchase price specified in the Proposed Transfer Notice and upon7

terms no more favorable to the Proposed Transferee than those specified in the Proposed Transfer Notice. Any transfer of the remaining shares of Transfer Stock by JRH after the end of such ninety (90) day period or any change in the terms of the sale as set forth in the Proposed Transfer Notice, which are more favorable to the Proposed Transferee, shall require a new Proposed Transfer Notice to be delivered to DAH and shall give rise anew to the rights provided in the preceding paragraphs.

6. Miscellaneous

.

6.1 Transfers, Successors [

, ] and Assigns

. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. JRH shall not assign this Agreement in whole or in part without the prior written consent of DAH, which may be withheld in DAH’s discretion, and any attempted assignment without such consent shall be void ab initio. DAH may assign this Agreement in whole or in part, including without limitation the Right of First Refusal, without the consent of JRH. Nothing in this Agreement, express or implied, is intended to confer upo n any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.2 No Fiduciary Duty . JRH acknow ledges and agrees that this Agreement is not intended to, and shall not create, any fiduciary obligations on the part of DAH to JRH, or any other special relationship between DAH and JRH, with respect to voting the Capital Stock or otherwise.

. . . .

6. 6 Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

. . . .

6.9 Severability . The invalidity o[r] unenforceability of any prov ision hereof shall in no way affect the validity or enforce ability of any other provision.8

The agreements regarding Jacqueline’s units in the limited liability

companies provide,

AGREEMENT :

NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the Parties agree as follows:

1. Voting Agreement . JRH [Jacqueline] agrees to vote any Company Units beneficially owned by her in the manner and as directed by DAH [Daniel].

2. Irrevocable Proxy . In connection with the voting agreement in Section 1 above, JRH revokes any previously executed proxies and appoints DAH as her proxy to attend members ’ meetings, vote, execute consents, and otherwise act for JRH in the same manner as if she were personally present. This proxy is irr evocable and is coupled with an interest.

3. Term . This Agreement shall be effective as of the date hereof and shall continue in effect for a period of fifteen (15) years from the date hereof.

. . . .

5. Restrictions on Transfer; Right of First Refusa l

.

5.1 Restrictions on Transfer . JRH shall not assign sell, offer to sell, pledge, mortgage, hypothecate, encumber, liquidate, dispose of or otherwise transfer (a “Transfer” ) any of Units of the Company other than in accordance with this Agreement. Any purported Transfer of Units by JRH or her successors or assigns (or any successor transferee or assignee) shall be ineffective until the transferee has agreed to become bound as an assignee of the rights and obligations of JRH (or such successor transferee or assignee) under this Agreement, including without limitation the voting agreement, irrevocable proxy and Right of First Refusal set forth herein.

5.2 Transfer only to Current Unitholders

. Pursuant to the Property Agreement, JRH agrees that the Units received by JRH9

under the Property Agreement can only be sold to other current unit holders of the Co mpany

.

5.3 Definitions . As used herein, the following terms shall be defined as follows:

“Proposed Transfer” means any proposed Transfer of any Units (or any interest therein) proposed by JRH.

“Proposed Transfer Notice” means written notice from JRH to DAH setting for the terms and conditions of a Proposed Transfer.

“Prospective Transferee” means any person to whom JRH proposes to make a Proposed Transfer.

“Right of First Refusal” means the right, but not an obligation, of DAH to purchase some or all of the Transfer Units with respect to a Proposed Transfer, on the terms and conditions spec ified i n the Proposed Transfer Notice.

“ROFR Notice” means written notice from DAH notifying JRH that he intends to exercise his Right of First Refusal as to some or all of the Transfer Units with respect to any Proposed Transfer.

“ Transfer Units ” means Units subject to a Proposed Transfer.

5.4 Grant

. J RH hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to purchase all or any portion of the Units that JRH may propose to Transfer, at the same price and on the same terms and c onditions as those offered to the Prospective Transferee.

5.5 Notice

. JRH must deliver DAH a notice regarding any proposed Transfer not later than 30 days prior to the consummation of such proposed Transfer. Such Proposed Transfer Notice shall contain t he material terms and conditions (including without limitation the purchase price therefore) of the Proposed Transfer and the identity of the Prospective Transferee. DAH must exercise his Right of First Refusal under this Section 5 by giving a10

ROFR Notice to [J]RH within fifteen (15) days after delivery of the Proposed Transfer Notice.

5.6 Consideration; Closing

. If the consideration proposed to be paid for the Transfer Units is in property, services or other non

- cash consideration, the fair market value of the consideration shall be determined in good faith by DAH. If DAH cannot for any reason pay for the Transfer Units in the same form of

non

- cash consideration, DAH may pay the cash value equivalent thereof. The closing of the purchase of Transfer Units by DAH shall take place, and all payments from DAH shall have been delivered to [J]RH, by the later of (i) the date specified in the Proposed Transfer Notice as the intended date of the Proposed Transfer and (ii) forty

five (4 5 ) days after delivery of the Proposed Transfer Notice.

5.7 Sale by JRH; Restart of Right of First Refusal

. If any Transfer Units are not elected to be purchased by DAH pursuant to this Section 5, then JRH shall be free, for a period of ninety (90) calendar days from the date of the Proposed Transfer Notice, to sell the remaining Transfer Units to the Proposed Transferee, at a price equal to or greater than the purchase price specified in the Proposed Transfer Notice and upon terms no more favorable to the Proposed Transferee than those specified in the Proposed Transfer Notice. Any transfer of the remaining Transfer Units by JRH af ter the end of such ninety (90) day period or any change in the terms of the sale as set forth in the Proposed Transfer Notice, which are more favorable to the Proposed Transferee, shall require a new Proposed Transfer Notice to be delivered to DAH and sha ll give rise anew to the rights provided in the preceding paragraphs.

6. Miscellaneous

.

6.1 Transfers, Successors [

, ] and Assigns

. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. JRH shall not assign this Agreement in whole or in part without the prior written consent of DAH, which may be withheld in DAH’s discretion, and any attempted assignment without such consent shall be void ab initio. DAH may assign this Agreement in whole or in part, including without limitation the Right of First Refusal, without the consent of JRH. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies,11

obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.2 No Fiduciary Duty . JRH acknowledges and agrees that this Agreement is not intended to, and shall not create, any fiduciary obligations on the part of DAH to JRH, or any other special relationship between DAH and JRH, with respect to voting the Units or otherwise.

. . . .

6.6 Titles and Subtitles . The titles and subtitles used in this Agreem ent are used for convenience only and are not to be considered in construing or interpreting this Agreement.

. . . .

6.9 Severability . The invalidity o[r] unenforceability of any provision hereof shall in no way affect the validity or enforce ability of any other provision.

Jacqueline refused to sign the proposed voting agreements, so Daniel filed

a petition for enforcement in December 2005, requesting that the trial court

(1) compel Jacqueline to sign the agreements or hold her in contempt, (2) clarify

any part of the divorce decree incorporating the AID that was not specific enough

to be enforced by contempt, and (3) award attorney’s fees.

Jacqueline filed an answer and counterpetition, arguing that Daniel failed

to comply with the AID by (1) reserving interests in the shares of stock and units

awarded Jacqueline when such interests were not agreed to in the AID or divorce

decree, (2) issuin g or causing to be issued shares of stock and units bearing

restrictions, namely that the shares and units were subject to voting agreements

that would bind subsequent purchasers, and (3) eliminating in the voting12

agreements the fiduciary mandates imposed on trustees by law. Jacqueline also

contended that the trial court’s granting of Daniel’s requested relief would violate

section 9.007 of the family code by modifying the property division made in the

divorce decree. Finally, Jacqueline contended that af ter receiving the

“unacceptable documents” from Daniel, she had sent limited powers of attorney

for each of the nine companies for his signature, which he refused. Jacqueline

asked that the trial court order Daniel (1) to stop representing himself as the

owner of the voting rights to her stock shares and units, (2) to stop representing

that such rights survive the transfer of the shares and units and bind subsequent

purchasers

, and (3) to assign, convey, and deliver her shares and units to her in

her name “ with out any restrictions thereon or on record with any Company, other

than notice of [Daniel’s] right of first refusal and that said shares and units may

only be sold to o ther shareholders or members.”

The trial court held hearings on February 6 and Febru ary 24, 2006. At the

February 24 hearing, Daniel ’s counsel stated,

I don’t agree with their interpretation on the right of first refusals, but [they] raise an issue about that. We don’t care. I took it out and made it an all

— not that I’m conceding the p osition, but to remove that issue from the case I adopted their language and I attached a

new

—
On March 9, 2006, the trial court signed an order finding,

1) the following language contained in paragraph 1.2 on page 15 of 28 of the Agreement Incident to Divorce:

. . . Jacquel [ine] . . . hereby agrees that she will execute all documents necessary to permit Daniel . . . to13 exercise voting rights relating to the shar es of stock or units awarded to her herein, including, but not limited to, limited powers of attorney or the placement of the shares of stock into a voting trust as determined by Daniel . . .

is not ambiguous and requires Jacqueline . . . to sign and exe cute all documents necessary and in a form as determined by and at the

s ole discretion of Daniel . . . ;

ordering Jacqueline to sign within ten days the nine original voting agreements

attached to Daniel’s petition for enforcement; and awarding attorney’s fees to

Daniel “throu gh the hearing on this matter.”

On March 13, 2006, Jacqueline filed a petition for mandamus in this court

requesting that we compel the trial court to vacate its March 9, 2006 order and

that we stay that order pending the resolution of the original proceeding. On

March 17, 2006, we stayed the trial court’s March 9, 2006 order; on April 24,

2006, we lifted the stay a nd denied mandamus relief.

On May 2, 2006, the trial court signed a supplemental clarification order

requiring Jacqueline to sign and deliver the nine voting agreements by 5:00 p.m.

on May 3, 2006. On May 4, 2006, Daniel filed his fir st amended petition for

enforcement, complaining that Jacqueline had not delivered the nine voting

agreements, seeking that she be held in contempt and jailed until she complied

with the trial court’s orders, requesting attorney’s fees, and to the extent t hat the

orders sought to be enforced were not specific enough to be enforced by

c ontempt, seeking clarification.14

By May 5, 2006, the parties had modified the voting agreements under a

rule 11 agreement, and Jacqueline had signed them. The modified voting

agreements have different language concerning Daniel’s right of first refusal

. The modified voting agreements regarding the stock provide,

5.3. Definitions

. As used herein, the following terms shall be defined as follows:

. . . . “Right of First Refus al ” means the right, but not an obligation, of DAH to purchase all of the Transfer Stock with respect to a Proposed Transfer, on the terms and conditions specified in the Proposed Transfer Notice.

“ROFR Notice” means written notice from DAH notifying JRH that he intends to exercise his Right of First Refusal as to some or all of the Transfer Stock with respect to any Proposed Transfer.

. . . .

5.4 Grant

. J RH hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to purchase all or any portion of the Capital Stock that JRH may propose to Transfer, at the same price and on the same terms and conditions as those offered to the Prospective Transferee.

. . . .

5.7 Sale by JRH; Restart of Right of First Refusal . If any shares of Tr ansfer Stock are not elected to be purchased by DAH pursuant to this Section 5, then JRH shall be free, for a period of ninety (90) calendar days from the date of the Proposed Transfer Notice, to sell the remaining shares of Transfer Stock to the Proposed Transferee, at a price equal to or greater than the purchase price specified in the Proposed Transfer Notice and upon terms no more favorable to the Proposed Transferee than those specified in the Proposed Transfer Notice. Any transfer of the remaining sh ares of Transfer Stock by JRH after the end of such15

ninety (90) day period or any change in the terms of the sale as set forth in the Proposed Transfer Notice, which are more favorable to the Proposed Transferee, shall require a new Proposed Transfer Notic e to be delivered to DAH and shall give rise anew to the rights provided in the preceding paragraphs. [Emphasis added

. ]

The modified voting agreements concerning the units in the limited liability

companies provide,

5.3. Definitions

. As used herein, the following terms shall be defined as follows:

. . . . “Right of First Refusal” means the right, but not an obligation, of DAH to purchase all of the Transfer Units with respect to a Proposed Transfer, on the terms and conditions specified in the Proposed Transfer Notice.

“ROFR Notice” means written notice from DAH notifying JRH that he intends to exercise his Right of First Refusal as to some or all of the Transfer Units with respect to any Proposed Transfer.

. . . .

5.4 Grant

. J RH hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to purchase all or any portion of the Units that JRH may propose to Transfer, at the same price and on the same terms and conditions as those offered to the Prospective Transferee.

. . . .

5.7 Sale by JRH; Restart of Right of First Refusal . If any Transfer Units are not elected to be purchased by DAH pursuant to this Section 5, then JRH shall be free, for a period of ninety (90) calendar days from the date of the Proposed Transfer Notice, to sell the remaining Transfer Units to the Proposed Transferee, at a price equal to or greater than the pur chase price specified in the Proposed Transfer Notice and upon terms no more favorable to the Proposed Transferee than those specified in the Proposed Transfer Notice.16

Any transfer of the remaining Transfer Units by JRH after the end of such ninety (90) d ay period or any change in the terms of the sale as set forth in the Proposed Transfer Notice, which are more favorable to the Proposed Transferee, shall require a new Proposed Transfer Notice to be delivered to DAH and shall give rise anew to the rights p rovided in the preceding paragraphs. [Emphasis added

. ]

Also on May 5, 2006 , Jacqueline filed her supplemental response to

Daniel’s first amended petition for enforcement. She discussed the rule 11

agreement, noting that she had signed the revised voting agreements

involuntarily solely to avoid being held in contempt and that she did not waive her

right to appeal, and she stated that this postdeadline agreement would bar a

contempt finding against her.

On May 16, 2006, the trial court held a hearing. The trial court indicated

that Jacqueline would need to sign the original voting agreements to avoid being

found in contempt and that the parties could not agree around the trial court’s

order. The parties notified the trial court in the hearing that they we re going to

attempt to globally settle the property issues, and the trial court ordered

Jacqueline’s attorney to file a status report two weeks later.

Also on May 16, Jacqueline filed her second supplemental response to

Daniel’s first amended petition for enforcement, attaching her signed voting

agreements in their original form. Jacqueline’s response stated that she was

signing the voting agreements in their original form only to avoid being held in

contempt and placed in jail and that she fully intended to appeal the trial court’s17

order compelling her to sign the original voting rights agreements. No final

settlement of the property issues appears in the record.

I n early June 2006, Jacqueline attempted to appeal the trial court’s orders

of March 9, 2006 and May 2, 2006. We dismissed that appeal for want of

jurisdiction because neither order finally disposed of attorney’s fees. 2 Almost

three years lat er, on May 28, 2009, the trial court entered a final clarification

order awarding Daniel a judgment against Jacqueline for $35,000 “for attorney’s

fees through the trial of the petition for enforcement and responding to the

petition for mandamus” and condi tio nal amounts in appellate fees. Jacqueline

timely appealed.

II. Law and Analysis

Because Daniel and Jacqueline stipulated that their AID is enforceable as

a contract, the AID’s construction is governed by contract law. Neither party

raised ambiguity b elow or on appeal. In fact, both parties agreed below that the

contract is not ambiguous, and that issue is not raised on appeal. 3 The trial court

found that the AID is not ambiguous, and we agree.

Accordingly, we construe the AID as a matter of law, wit h our chief

objective being to determine the parties’ true intent as expressed in the

2 Henderson v. Henderson , No. 02

- 06

- 00195

- CV, 2006 WL 2692568, at *1 (Tex. App.

— Fort Worth Sept. 21, 2006, no pet.) (mem. op.).

3 See Praeger v. Wilson , 721 S.W.2d 597, 600 (Tex. App.

— Fort Worth 1986, writ ref’d n.r.e.).18

document. 4 To accomplish this task, we review the entire AID “to harmonize and

give effect to all [its] provisions . . . so that none will be rendered meaningless.” 5

Sec tion 9.007 of the family code provides,

(a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementa tion of or to clarify the prior order and may not alter or change the substantive division of property.

(b) An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decr ee of divorce or annulment is beyond the power of the divorce court and is unenforceable. 6

We must therefore determine whether the trial court’s order to sign the voting

agreements in their original form impermissibly modifies the AID, which we

construe as a matter of law.

Jacqueline complains that the voting agreements modify the AID by (1)

giving Daniel the irrevocable, fully transferable right to vote her stock shares and

units even after she sells them , binding subsequent purchasers; (2) giving Daniel

a fully transferable right of first refusal that could be exercised piecemeal; and (3)

4 See Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983).

5 Id.

6 Tex. Fam. Code Ann. § 9.007 (a)

, (b) (Vernon 2006 )

.19

abrogating any fiduciary duty that Daniel would have to Jacqueline concerning

his voting of her stock and units

. 7

A. Daniel’s Rights to Vote Shares Awarded to Jacqueline

Jacqueline complains that the following terms in the voting agreements

regarding the stock modify the AID:

2. Irrevocable Proxy . In connection with the voting agreement in Section 1 above, JRH revokes any previously executed proxies and appoints DAH as her proxy to attend shareholders’ meetings, vote, execute consents, and otherwise act for JRH in the same manner as if she were personally present. This proxy is irrevocable and is coupled with an interest.

3. Term . This Agreement shall be effective as of the date hereof and shall continue in effect for a period of fifteen (15) years from the date hereof.

Similarly, she complains about these corresponding provisions in the voting

agreements regarding the units:

2. Irrevocable Proxy . In connection with the voting agreement in Section 1 above, JRH revokes any previously executed proxies and appoints DAH as her proxy to attend members ’ meetings, vote, execute consents, and otherwise act for JRH in the same manner as if she were person ally present. This proxy is irrevocable and is coupled with an interest.

3. Term . This Agreement shall be effective as of the date hereof and shall continue in effect for a period of fifteen (15) years from the date hereof.

Jacqueline contends that the AID gave her “[o]ne half of the parties’ ownership”

in the companies and that nowhere in the AID or divorce decree is Daniel given

7 Construing Jacqueline’s brief liberally, we treat her use of “stock” alone to implicitly include “units.”20

an ownership interest in the right to vote the shares of stock or units. Jacqueline

contends that the clear intent of the s tock and unit restrictions in the AID is to

exclude her from any involvement in the business es . She also contends that

once she sells her stock or units in a company, any concern regarding her

involvement in the company would naturally end; therefore, she argues,

Clearly, then, any right granted by the AID to Daniel to exercise the vote of Jacqueline’s shares would end when Jacqueline’s stock is sold. The express terms of the AID further bear this out in that the documents listed in the relevant paragraph in the AID are limited powers of attorney and voting trusts, both of which would te rminate upon sale of the stock.

Yet, construing the unappealed AID to give effect to the parties’ expressed intent,

we note that the plain language of the AID doe s not expressly limit Daniel’s rights

to vote Jacqueline’s shares and units to her period of ownership of the shares

and units, nor does the AID provide that Daniel’s rights to vote the shares and

units terminate upon Jacqueline’s transfer of them. Rather , the AID expressly

gives Daniel the right “to exercise voting rights relating to the shares of stock or

units” awarded Jacqueline and provides that Jacqueline’s ownership of the

shares or units does not include the right to vote: “Jacqueline . . . hereby agrees

that she will not have the right to vote pursuant to her owne rship of such stock or

units.”

Further, the AID expressly provides that its terms and conditions “shall

inure to the benefit of and be binding upon the respective successors and

assigns of the Parties.” We therefore agree with Daniel that the AID does not21

provide that his rights to vote the shares and units awarded Jacqueline somehow

revest in Jacqueline so that she can transfer unencumbered shares or units to

her res pective successors and assigns.

Finally, Jacqueline argues that the provision in the AID requiring her to

execute all documents necessary to permit Daniel . . . to exercise voting rights relating to the shares of stock or units awarded to her herein, including, but not limi ted to, limited powers of attorney or the placement of the shares of stock into a voting trust as determined by Daniel

. . . .

means that Daniel must

choose either (1) a li mited power of attorney, or (2) . . . a voting trust, plus whatever other document s may be necessary to effectuate the stock restrictions. . . . The AID, thus, intended the execution, at a minimum

, of either a limited power of attorney or a voting trust.

Jacqueline concludes that because a trust and limited power of attorney would

term inate upon the sale of the affected shares or units , this provision of the AID

is further evidence of the parties’ intent that she have the ability to transfer the

voting rights to her shares and units. Yet Jacqueline’s interpretation ignores the

broadeni ng language of the AID provision: “i ncluding, but not limited to.” This

we cannot do. 8

Accordingly, because we hold that the AID expressly gives Daniel the right

to vote Jacqueline’s shares or units, expressly provides that Jacqueline has no

voting righ ts regarding her shares or units, expressly contemplates that their

successors and assigns have the same rights and duties as Daniel and

8 See Coker

, 650 S.W.2d at 393.22

Jacqueline under the AID, expressly gives Daniel the discretion to determine

which documents are necessary to allow him to exercise his voting rights of

Jacqueline’s shares and units, and does not expressly limit Daniel’s rights to vote

such shares and units to Jacqueline’s period of ownership thereof, we hold that

the voting agreements and the trial court’s order compelli ng Jacqueline to sign

them do not impermissibly modify the AID regarding the voting rights

. We

overrule Jacqueline’s argument concerning the voting rights to the shares and

units awarded her.

B. Daniel’s Fiduciary Duties to Jacqueline

Jacqueline also complains that the voting agreements impermissibly

modify the AID by eliminating Daniel’s fiduciary duties to her regarding the voting

of her stock and units

. The plain language of the voting agreements regarding

the stock provides: “JRH acknowledges and agrees that this Agreement is not

intended to, and shall not create , any fiduciary obligations on the part of DAH to

JRH, or any other special relationship between DAH and JRH, with respect to

voting the Capital Stock or otherwise.” [Emphasis added.] An d the plain

language of the voting agreements regarding the units provides, “ JRH

acknowledges and agrees that this Agreement is not intended to, and shall not

create , any fiduciary obligations on the part of DAH to JRH, or any other special

relationship be tween DAH and JRH, with respect to voting the Units or

otherwise. ” [Emphasis added.]23

Relying on the plain language, then, the voting agreements do not address

fiduciary duties that Daniel may or may not otherwise have to Jacqueline, 9 an

issue not before us; rather, the voting agreements expressly do not enlarge any

fiduciary duties Daniel may have. Because the voting agreements do not limit

any fiduciary duties that Daniel otherwise has to Jacqueline, we overrule

Jacqueline’s argumen t that the voting agreements impermissibly modify the AID

by eliminating Daniel’s fiduciary duties to her.

C. Right of First Refusal

Jacqueline’s contention that the voting agreements modify the AID by

allowing Daniel to exercise his right of first refusa l piecemeal, however, has

merit. A person with a right of first refusal, also called a preemptive or

preferential right, has the right to purchase property, shares of corporate stock

and units of a limited liability company in this case, on the same terms as a bona

fide purchaser. 10 Exercise of the right “must be positive, unconditional, and

unequivocal. . . . [G]enerally, a purported acceptance containing a new demand,

proposal, condition, or modification of the terms of the offer is not an acceptance

9 See, e.g

. , Hogget v. Brown , 971 S.W.2d 472, 487

– 88 (Tex. App.

— Houston [14th Dist.] 1997, pet. denied).

10 Tenneco Inc. v. Enter. Prods

. Co. , 925 S.W.2d 640, 644 (Tex. 1996)

.24

but a rejection.” 11 We must narrowly construe rights of first refusal because they

restrict the free transfer of stock. 12

The AID provides,

Jacqueline

. . . hereby agrees that Daniel . . . is hereby awarded a right of first refusal to purchase the stock or un its awarded herein to [her]. Jacqueline . . . hereby agrees that she will execute all documents necessary to confirm the right of first refusal as provided herein.

The original voting agreements regarding the stock that the trial court

required Jacquelin e to sign, however, define the right of first refusal as “the right,

but not an obligation, of DAH [Daniel] to purchase some or all of the Transfer

Stock with respect to a Proposed Transfer, on the terms and conditions specified

in the Proposed Transfer No tice” and provide that “JRH [Jacqueline] hereby

unconditionally and irrevocably grants to DAH a Right of First Refusal to

purchase all or any portion of the Capital Stock that JRH may propose to

Transfer, at the same price and on the same terms and conditi ons as those

offered to the Prospective Transferee.” Similarly, the original voting agreements

regarding the units that the trial court required Jacqueline to sign define the right

of first refusal as “ the right, but not an obligation, of DAH to purchase some or all

of the Transfer Units with respect to a Proposed Transfer, on the terms and

conditions specified in the Proposed Transfer Notice ” and provide that “J RH

11 FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P. , 301 S.W.3d 787, 794 (Tex. App.

— Fort Worth 200 9, pet. denied) (op. on reh’g).

12 Tenneco, 925 S.W.2d at 646.25

hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to

purchase all or any portion of the Units that JRH may propose to Transfer, at the

same price and on the same terms and conditions as those offered to the

Prospective Transfere e. ”

As Jacqueline argues, in drafting the original voting agreements, Daniel

has “unilaterally translated his right of first refusal to allow him to accept or reject

that right piecemeal, . . . [ i ] n essence , . . . giv[ing] himself the ability to destroy

an y deal Jacqueline may have to sell her shares [or units] .” The AID gave him

no such authority. Accordingly, because the original voting agreements extend

the reach of the right of first refusal beyond the terms of the AID, we hold that the

provisions reg arding the right of first refusal in the original voting agreements

(other than those in subsection “B” of the “Recitals” section) are void and that the

trial court abused its discretion by ordering Jacqueline to sign the original voting

agreements.

We the refore modify the trial court’s orders accordingly. 13 Specifically, we

modify the following provisions in the March 9, 2006 clarification order:

3) the 9 documents provided by Petitioner to Respondent on July 13, 2005 and attached as Exhibits 1 through 9 o f Petitioner’s Petition for Enforcement filed with this Court on December 13, 2005,

13 See, e.g., In re S.A.D.S. , No. 02

- 09

- 00302

- CV, 2010 WL 3193520, at *4 (Tex. App.

— Fort Worth Aug. 12, 2010, no pet.) (modifying conservatorship order that varied from mediated settlement agreement and affirming as modified); Garcia

- Udall v. Udall , 141 S.W.3d 323, 332 (Tex. App.

— Dallas 2004, no pet.) (modifying order modifying divorce decree to comport with mediated settlement agreement and affirming as modified).26

comply with the provision contained in paragraph 1.2 on page 15 of 28 of the Agreement Incident to Divorce;

. . . . IT IS THEREFORE ORDERED that . . . Jacqueline . . . shall sign the 9 documents attached as Exhibits 1 through 9 of Petitioner’s Petition for Enforcement . . . .

to now read,

3) the 9 documents provided by Petitioner to Respondent on July 13, 2005 and att ached as Exhibits 1 through 9 of Petitioner’s Petition for Enforcement filed with this Court on December 13, 2005, with all provisions regarding the right of refusal (other than those in subsection “B” of the “Recitals” section) redacted, 14 comply with the provision contained in paragraph 1.2 on page 15 of 28 of the Agreement Incident to Divorce;

. . . . IT IS THEREFORE ORDERED that . . . Jacqueline . . . shall sign the 9 documents attached as Exhibits 1 through 9 of Petitioner’s Petition for Enforcement

, with all provisions regarding the right of refusal (other than those in subsection “B” of the “Recitals” section) redacted

. [Emphasis added.]

Similarly, we modify the following provision in the May 2, 2006 clarification order:

IT IS THEREFORE ORDERED th at Jacqueline . . . is ordered to sign the 9 Voting Agreements attached as Exhibits 1 through 9 to Petitioner’s Petition for Enforcement filed with this Court on December 13, 200 5 as referenced in the March 9, 200 [6] Clarification Order Pursuant to Tex. Fa m. Code § 9.008

. . . .
to now read,

IT IS THEREFORE ORDERED that Jacqueline . . . is ordered to sign the 9 Voting Agreements attached as Exhibits 1 through 9 to

14 We note that the provisions in the AID regarding Daniel’s right of first refusal remain intact.27

Petitioner’s Petition for Enforcement filed with this Court on December 13, 200 5

, with all provisions regarding the right of refusal (other than those in subsection “B” of the “Recitals” section) redacted, as referenced in the March 9, 200 [6] Clarification Order Pursuant to Tex. Fam. Code § 9.008

. . . . [Emphasis added.]

III. Conclusion

Having held that the trial court abused its discretion by ordering Jacqueline

to sign the original voting agreements because the language regarding Daniel’s

right of first refusal did not comply with the AID but having held that the trial court

did not oth erwise abuse its discretion, we affirm the trial court’s orders as

modified.

LEE ANN DAUPHINOT JUSTICE

PANEL: LIVINGTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: December 2 , 2010