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Click here for the full text of this decision FACTS:When the trial court called the Chisholm divorce case to trial, counsel for respondent Gary Bruce Chisholm (Gary) recited into the record what she said was the agreement between Gary and Qi Wu Chisholm (Qi), containing terms on custody of the parties’ minor child and the division of property. Counsel then tendered an exhibit she described as “the division of the personal property that the clients have approved.” The exhibit listed premarital household items and items acquired after marriage to be divided to either Gary or Qi. Without objection by Qi’s attorney, the court received the exhibit in evidence. Almost immediately, Qi, whose ability to speak and understand English is disputed, stated that she didn’t understand what had been read into the record. Testifying with the occasional aid of an interpreter, Qi acknowledged that she and Gary had reached an agreement on custody, but she said they had only discussed, not decided, everything else. After further questioning, she appeared to assent to the sale of the marital residence but when asked if she understood the agreement, still maintained she did not. Although there was further discussion between the attorneys, the parties and the court on other portions of the agreement, Qi was never asked whether she understood or consented to the agreement as a whole. No other evidence was admitted. After Gary moved for a final decree, stating that “the parties [had] read an agreement into the record for full and final settlement of all issues in this case,” the trial court rendered a judgment containing most but not all of the recited terms, as well as additional terms never discussed at trial, such as the division of tax liability. Qi appealed, complaining that the trial court rendered judgment based on an alleged agreement between the parties to which she had not consented. The 4th Court of Appeals affirmed, concluding that “despite Ms. Chisholm’s statements indicating a lack of understanding during the proceeding, she participated with her attorney in reaching the agreement and understood it sufficiently for the trial court to enter a judgment.” HOLDING:Reversed and remanded. The Texas Supreme Court found that even if Qi consented to the custody arrangements and the sale of the marital residence, nothing in the record showed she consented to the property division. A court “cannot render a valid agreed judgment absent consent at the time it is rendered.” Moreover, the court found that the judgment was not “in strict or literal compliance” with the terms recited into the record; the judgment improperly removed and added material terms. When a consent judgment is rendered without consent or is not in strict compliance with the terms of the agreement, the court stated, the judgment must be set aside. The court noted that Gary argued in his brief to the Texas Supreme Court that: “While certainly not a work of art, the court’s proceedings were very typical of family law cases in Bexar County, Texas where there is a hodge podge of agreements recited into the record and various orders entered by the court to resolve disputes between the parties. The record ultimately shows that the order was not based purely on the agreement of the parties, rather the decree consisted of part agreement, part orders from the court which were incorporated into the composition of the parties’ decree of divorce.” The court found that, whether Gary’s characterization of family law trial practice in Bexar County was accurate, there was no basis for the trial court to make the findings necessary to divide the marital estate and render final judgment. OPINION:Per curiam.

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