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Family Law No. 14-00-01505-CV, 4/17/2003. Click here for the full text of this decision FACTS: In six issues, Avi Bart Markowitz appeals the final decree of divorce that dissolved his marriage to Bridget Mary Markowitz and divided their property. Avi and Bridget Markowitz married in 1983. Avi filed for divorce in 1997, and on Dec. 15, 1997, he presented an agreed decree of divorce to Bridget for her signature. Bridget was scheduled for breast cancer surgery the next day. Despite the impending hospital stay, she signed the decree but initialed it “AMW.” Later, she testified that the acronym meant “against my will.” On Dec. 18, 1997, while Bridget was hospitalized, the court rendered judgment on the parties’ agreement and signed the final decree of divorce. Late that afternoon, Bridget called the trial court from her hospital room, claiming (with her husband’s attorney also on the line) that she had been coerced into signing the decree. She subsequently retained an attorney and filed a motion for new trial. Following the grant of a new trial, the trial court entered temporary orders, providing in part for spousal support and a continued salary for Bridget, who had worked as a nurse in Avi’s medical practice. The trial court signed a final judgment on Sept. 20, 2000, and this appeal ensued. HOLDING: Affirmed. Avi contends the trial court’s decision to grant a new trial did not alter the parties’ contractual division of assets and liabilities. Avi relies on the Texas Supreme Court’s acknowledgment that “[a]n agreed judgment should be construed in the same manner as a contract.” Gulf Ins. Co. v. Burns Motors Inc., 22 S.W.3d 417 (Tex. 2000). He also argues that an agreed judgment may stand as a contract even if it falls as an adjudication. However, under �7.006 of the Family Code, the trial court in a divorce proceeding has discretion to approve or reject such agreements to ensure a just and right division of the marital estate. The Texas Legislature has mandated the trial court’s exercise of special responsibilities regarding the division of assets and liabilities upon dissolution of the matrimonial bond. Texas law requires a finding by the trial court that the terms of a written agreement for the division of assets and liabilities are just and right. By vacating the original judgment, the trial court clearly withdrew its approval of the terms in the agreement. Additionally, in its Findings of Fact and Conclusions of Law, the trial court concluded that the terms of the agreement were not just and right. Thus, without approval from the trial court, there was no longer a written agreement capable of being enforced. In considering whether the agreement in this case is “binding under another rule of law,” the court is mindful of the line of cases establishing the enforceability of a Rule 11 agreement before or after rendition of a final decree. SeeTex. R. Civ. P. 11 (in writing, signed by the parties, and filed with the papers as part of the record). However, it believes any cases on this issue that are outside of the family law context do not control. A Rule 11 agreement is a contract, governed by contract law. The court acknowledges that agreements incident to divorce become enforceable contracts when they are incorporated into a final decree. It further acknowledges that agreements under Alternative Dispute Resolution Procedures are enforceable in the same manner as any other written contract. However, it does not believe its application of �7.006 of the Family Code in the instant case conflicts with these settled principles. Its decision properly ensures that the trial court will retain statutory authority to determine a just and right division of the marital estate as required by �7.006. After a new trial is granted, the court should have an opportunity to either accept or reject the agreement. Accordingly, the court holds that any contractual obligation arising from the decree was extinguished when the trial court concluded that it was not “just and right.” OPINION: Seymore, J; Yates, Fowler and Seymore, JJ.

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