COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00205-CV

JACQUELINE RUTLEDGE 

HENDERSON

APPELLANT

V.

DANIEL HENDERSON APPELLEE

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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY

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MEMORANDUM OPINION1

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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 

 

1See Tex. R. App. P. 47.4.
2

its discretion by ordering that Jacqueline 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, onehalf of the couple’s “ownership” in nine apparently 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 the 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 hereby awarded 

a right of first refusal to purchase the stock or units awarded herein 

to [her]. Jacqueline . . . hereby agrees that she will execute all 
3

documents necessary to confirm the right of first refusal as provided 

herein.

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 such shares of stock or units 

can only be sold to other current shareholders of the companies 

issuing the stock or units (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, devisees, 

heirs, executors, administrators, assigns, and successors 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 counsel;

(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 effect;

(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 specifically 

set forth in this agreement.

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

appeal 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 of 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 

hereof 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, hypothecate, 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 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 Shareholders. Pursuant 

to the Property Agreement, JRH agrees that the shares of the 

Corporation received by JRH under the Property Agreement can 

only be sold 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 right, 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 in 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. JRH 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. 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 the 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 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 

cannot 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 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) fortyfive (45) 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 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 
7

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 upon 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 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.

. . . . 

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 provision hereof shall in no way affect the validity or 

enforceability 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 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.

. . . . 

5. Restrictions on Transfer; Right of First Refusal.

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 JRH 
9

under the Property Agreement can only be sold to other current 

unitholders of the Company.

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 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.

“Transfer Units” means Units subject to a Proposed 

Transfer.

5.4 Grant. JRH 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.

5.5 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 the 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 a 
10

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) fortyfive (45) 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 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 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 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 provision hereof shall in no way affect the validity or 

enforceability 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) issuing 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 voting 
12

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 after 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 “without 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 other shareholders or members.”

The trial court held hearings on February 6 and February 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 position, 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 . . . to 
13

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 the 

shares of stock into a voting trust as determined by 

Daniel . . . 

is not ambiguous and requires Jacqueline . . . to sign and execute all 

documents necessary and in a form as determined by and at the 

sole 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 “through 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 and 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 first 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 that the 

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

contempt, 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 Refusal” 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. JRH 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 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 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 shares of Transfer Stock by JRH after the end of such 
15

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. [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. JRH 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 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. 
16

Any transfer of the remaining Transfer Units 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. [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 were 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’s 
17

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

settlement of the property issues appears in the record.

In 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 later, 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 conditional 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 below 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, with our chief 

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

 

2Henderson v. Henderson, No. 02-06-00195-CV, 2006 WL 2692568, at *1 

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

3See 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

Section 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 

implementation 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 decree 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) 

 

4See 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 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.

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 

 

7Construing 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 stock and unit restrictions in the AID is to 

exclude her from any involvement in the businesses. 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 terminate 

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 does 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 ownership 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 not 
21

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 respective 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 limited 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 limited power of attorney, or (2) . . . a voting trust, 

plus whatever other documents 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 

terminate 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 

broadening language of the AID provision: “including, 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 rights regarding her shares or units, expressly contemplates that their 

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

 

8See 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 compelling 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.] And 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 between 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,9an 

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 argument 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 refusal 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 

 

9See, e.g., Hogget v. Brown, 971 S.W.2d 472, 487–88 (Tex. App.—

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

10Tenneco 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 units 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 Jacqueline 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 Notice” 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 conditions 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 “JRH 

 

11FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d 

787, 794 (Tex. App.—Fort Worth 2009, pet. denied) (op. on reh’g).

12Tenneco, 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 Transferee.”

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 

any 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 regarding 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 therefore 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 of Petitioner’s 

Petition for Enforcement filed with this Court on December 13, 2005, 

 

13See, 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 attached 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 that 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, 2005 as referenced in the March 9, 200[6]

Clarification Order Pursuant to Tex. Fam. 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 

 

14We 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, 2005, 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 otherwise 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