05-07-01571-CV
Martin v. Martin (Tex.App.- Dallas, Apr. 13, 2009, pet. denied)
(enforceability of marital property agreement. fraud, duress)
File: 071571F - From documents transmitted: 04/14/2009
REVERSE and REMAND; Opinion Filed April 13, 2009.
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01571-CV
............................
DENISE L. MARTIN, Appellant
V.
BRUCE Q. MARTIN, Appellee
.............................................................
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 03-1880
.............................................................
OPINION
Before Justices Morris, Lang-Miers, and Whittington See Footnote 1
Opinion By Justice Lang-Miers
Denise Martin appeals the trial court's judgment granting summary judgment in favor of Bruce Martin regarding
the enforceability and interpretation of the parties' marital property agreement.
For the following reasons, we reverse and remand for further proceedings.
Background
Bruce and Denise Martin married in December 1970. In 1990, they signed a marital property agreement
purporting to partition and exchange the community estate. See Footnote 2 Bruce filed for divorce in 2003
and sought to enforce the marital agreement. Denise answered and asserted the statutory affirmative
defenses to enforcement of the agreement, involuntary execution and unconscionability, the common-law
affirmative defenses of fraud, fraudulent inducement, breach of fiduciary duty, undue influence, and coercion,
and breach of contract. She also counterclaimed for a declaratory judgment that the agreement was void
because it was unconscionable and she did not sign it voluntarily. Bruce raised defenses to Denise's
affirmative defenses, specifically, limitations, estoppel, waiver, ratification, acceptance of benefits, and laches.
Bruce filed a combined traditional and no-evidence motion for summary judgment asking the court to
determine that the marital agreement was valid and enforceable. He asserted that there was no evidence to
support Denise's contention that she signed the agreement involuntarily or that the agreement was
unconscionable, and he asserted that he conclusively established his defenses. Denise also filed a motion for
summary judgment asserting that the marital agreement was void as a matter of law based on her statutory
and common-law defenses. The trial court granted Bruce's motion without stating the basis for its ruling and
held that the marital agreement is “valid and enforceable.” Bruce then filed a second motion for summary
judgment arguing that the marital agreement partitioned the entire community estate and that there was no
community property remaining to be divided. The court granted the second motion as well. Denise's breach of
contract claim was tried to a jury, which found against her. The jury's verdict and the court's rulings on Bruce's
two motions were incorporated into the final judgment.
Standard of Review
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a
directed verdict. See Tex. R. Civ. P. 166a(i); Schindler v. Baumann, 272 S.W.3d 793, 795 (Tex. App.-Dallas
2008, no pet. h.). We must determine whether the nonmovant produced more than a scintilla of probative
evidence to raise a fact issue on the material questions presented. Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659 (Tex. App.-Dallas 2005, pet.
denied); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.).
Summary judgment also may be granted on an affirmative defense. See Tex. R. Civ. P. 166a(c).
To prevail on a traditional motion for summary judgment on an affirmative defense, the party asserting the
defense must prove all elements of the defense as a matter of law. See id; Randall's Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Toles v. Toles, 113 S.W.3d 899, 907-08 (Tex. App.-Dallas 2003,
no pet.). Under both the no-evidence and traditional reviews, we consider the evidence and any reasonable
inferences in the light most favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49
(Tex. 1985). When the trial court does not state its basis for granting summary judgment, we will affirm if any of
the theories asserted are meritorious. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Law Relating to Marital Property Agreements
Spouses may agree to partition and exchange between themselves all or part of their community property,
then existing or to be acquired, at any time during the marriage. Tex. Const. art. XVI, § 15; Tex. Fam. Code
Ann. § 4.102 (Vernon 2006). A marital property agreement may be set aside if the party against whom
enforcement is sought proves that
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before she executed the agreement, that
party
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the
other party;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate knowledge of the property or financial
obligations of the other party.
Tex. Fam. Code Ann. § 4.105 (Vernon 2006). Whether the agreement is unconscionable “shall be decided by
the court as a matter of law.” Id. § 4.105(b). Additionally, if the marital property agreement was executed prior
to September 1, 1993, as here, common-law defenses are also available to defeat enforcement of the
agreement. See Act of Apr. 30, 1993, 73rd Leg., R.S., ch. 136, § 3, 1993 Tex. Gen. Laws 283, 283
(subsequent amendments omitted). See Footnote 3
Validity of Marital Property Agreement
A.
No-Evidence Motion for Summary Judgment
In her first and second issues, Denise argues that the trial court erred by granting Bruce's no evidence motion
for summary judgment because she raised a genuine issue of material fact regarding whether the agreement
is enforceable.
A marital property agreement is not enforceable if the party against whom enforcement is sought proves she
did not sign the agreement voluntarily. Tex. Fam. Code Ann. § 4.105. The statute does not define “voluntarily,”
and Texas courts have generally construed it to mean an action that is taken intentionally or by the free
exercise of one's will. See Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 696 (Tex. App.-Austin 2005, pet.
denied); see also Cooper v. Cochran, No. 05-07-00760-CV, 2009 WL 944394, at *6 (Tex. App.-Dallas Apr. 9,
2009, no pet. h.) (describing duress and undue influence as causing a party to do something she would not
otherwise have done); Matelski v. Matelski, 840 S.W.2d 124, 128-29 (Tex. App.-Fort Worth 1992, no writ)
(equating duress with involuntary). Generally, whether a party executed an agreement voluntarily or as the
result of a state of duress or coercion is a question of fact dependent upon all the circumstances and the
mental effect on the party claiming involuntary execution. Matthews v. Matthews, 725 S.W.2d 275, 278-79
(Tex. App.-Houston [1st Dist.]1986, writ ref'd n.r.e.); Sanders v. Republic Nat'l Bank of Dallas, 389 S.W.2d 551,
554 (Tex. Civ. App.-Tyler 1965, no writ).
Denise contends that Bruce decided the terms of the agreement and that her lawyer did not play a substantial
role in the negotiation of its terms. She also argues that the pressure and coercion Bruce placed on her to
sign the agreement caused her to sign it when she otherwise would not have done so.
The Summary Judgment Evidence
Viewing the evidence in the light most favorable to the nonmovant, Denise, the record shows:
In 1984, after fourteen years of marriage, Bruce established an independent air charter business, Martinaire,
Inc., based at Love Field in Dallas. Over the years, he established other related businesses in Texas and
Oklahoma. Bruce managed these businesses without Denise's involvement and Denise had no knowledge of
the businesses' assets or values without Bruce's representations. In 1988, the businesses began to
experience financial trouble and a major shareholder and board member threatened litigation against
Martinaire, Inc. Bruce told Denise that they needed to execute a marital property agreement to protect the
family's assets from possible financial ruin in the event of litigation against the business. See Footnote 4 The
couple signed a partition and exchange agreement in 1988, but they learned later that the “lawyer” advising
Denise was not licensed. Bruce was advised that he and Denise should execute a new agreement. Around
May 1990, Bruce gave Denise a draft of a proposed new marital property agreement and told her that she
needed to retain her own lawyer to review it. Denise explained that Bruce decided the terms of the marital
agreement and she just needed a lawyer to sign off on it.
Denise asked her neighbor, Katherine Woodruff, a lawyer, to look at the agreement. Woodruff reviewed the
agreement and expressed several concerns: she told Denise that, based on her experience, marital
agreements typically are only sought when one spouse is contemplating divorce or is seeing someone else.
Denise assured Woodruff that Bruce did not want a divorce, but her concerns upset Denise. Bruce assured
Denise that he wanted the agreement solely to protect the family.
Woodruff testified that “the deal was done before I got involved.” Even so, she attempted to negotiate
provisions she believed were in Denise's best interest. She asked Bruce for a financial audit of the businesses,
but he refused. He also refused to produce business and personal income tax returns, and he did not want to
“make any written representation regarding value [or] swear to an inventory.” When Bruce refused to provide
any financial disclosures, Woodruff wrote to his attorney stating that she would have to withdraw from
representing Denise because she could not advise Denise whether the agreement was in her best interest
without financial disclosures. She also told Bruce's attorney that “obvious pressure [was] being placed” on
Denise to sign the agreement. In response to this letter, Bruce produced a sworn inventory containing his
opinion of the estimated value of the community property estate, including the values of his shareholder
positions in the businesses. The inventory purported to list all of the assets of the community estate and
valued those assets at $643,785 (gross value of $2,282,000 less $1,638,215 debt). Bruce estimated the value
of his shares in Martinaire, Inc. as a negative $162,000 and his shares in an Oklahoma corporation, Martinaire
of Oklahoma, Inc., as $250,000.
Woodruff told Denise that she was not satisfied with these financial disclosures and advised Denise not to sign
the agreement. Denise insisted that she had to sign the agreement for the sake of her family, but would not
elaborate on what she meant. Denise testified in her deposition that Bruce controlled and directed all of the
family's financial planning, including all property, legal, tax, and business decisions; that he never shared
information with her about the family's net worth, his present or future income, or his business plan with her;
and that she relied on his advice and instruction about the contents of the marital agreement. He presented
the agreement as “insurance for our family” and told Denise that it did not matter what the agreement stated
because he would never assert it against her. He constantly threatened that the family would be financially
ruined and would have nothing if she did not sign the agreement. When she tried to discuss her attorney's
concerns with Bruce, he became outraged and called Woodruff “incapable,” “unqualified,” and insisted that
Denise ignore Woodruff's advice. Denise said that she had no choice but to sign the agreement because her
sole concern was the welfare of the family.
Denise and Bruce signed the agreement on July 10, 1990. A day or two later, Bruce called Denise and told her
that his attorney recommended that she sign a document stating that she was satisfied with the financial
disclosures and backdate it to July 9, 1990. The document stated, “The disclosure you have made to me is
adequate and I voluntarily waive any right to any additonal [sic] disclosure regarding our property or financial
obligations beyond the contemplated marital agreement.” Woodruff testified that she did not recall seeing this
document and probably would not have advised Denise to sign it.
Denise testified that the pressure from the threat of litigation resolved itself “very quickly” after the agreement
was signed. Bruce testified that within a few months of signing the agreement, he successfully diverted the
litigation threat against Martinaire, Inc. by buying back the shares owned by the disgruntled shareholder and
the businesses began to thrive. Denise periodically asked Bruce to destroy the agreement because the
financial threat to the family's assets had been resolved, but he always refused.
Based on our review of the evidence in the light most favorable to the nonmovant, we conclude that Denise
produced more than a scintilla of evidence to raise a fact issue precluding judgment as a matter of law on her
statutory defense of involuntary execution. See Cooper, 2009 WL 944394, at *6; Matelski, 840 S.W.2d at 128-
29; Matthews, 725 S.W.2d at 278-79; Sanders, 389 S.W.2d at 554.
We conclude, therefore, that the trial court erred by granting Bruce's no-evidence motion for summary
judgment on the ground that there was no evidence that Denise signed the agreement involuntarily. Because
of our disposition of this issue, we do not need to consider Denise's common- law defenses or her argument
that the agreement was unconscionable. See Footnote 5
B.
Traditional Motion for Summary Judgment
In her third issue, Denise argues that the trial court erred by granting Bruce's traditional motion for summary
judgment because he did not prove his defenses of limitations, estoppel, waiver, ratification, acceptance of
benefits, and laches as a matter of law.
1. Statute of Limitations
The evidence shows that Bruce provided Denise a sworn inventory of community assets in July 1990 prior to
the date they signed the marital agreement. In the inventory, Bruce represented that his shareholder interest
in Martinaire, Inc. was worthless and his shareholder interest in the Oklahoma corporation was valued at
$200,000. But Denise testified that in 1991 or 1992 she found financial documents in Bruce's home office that
purported to show that Bruce's stock in Martinaire, Inc. was valued at $1.5 million, the stock in the Oklahoma
corporation was valued at $2 million, and his net worth was in excess of $5 million. Denise testified that she
realized the numbers were “unbelievably different” from the values that Bruce disclosed in the sworn inventory,
but that she did not know enough about the values in the inventory to know whether the values in the
documents she found were right or wrong. Bruce contends that the summary judgment must be affirmed
because Denise discovered the alleged fraud in 1991 or 1992 when she found the documents, but that she
waited until 2005 to assert her claim.
Texas law recognizes a spouse's claim against the other spouse for fraud against the community. Schlueter v.
Schlueter, 975 S.W.2d 584, 589-90 (Tex. 1998). However, such a claim may not be asserted as an
independent tort cause of action. Instead, it must be litigated as part of a just and right division of the
community property upon divorce. Chu v. Hong, 249 S.W.3d 441, 444 (Tex. 2008) (citing Schlueter, 975 S.W.
2d at 589). Consequently, until the agreement was asserted against her in a divorce proceeding, Denise's
claim for fraud on the community was not ripe. See Chu, 249 S.W.3d at 444; Schlueter, 975 S.W.2d at 589-90.
Additionally, Denise asserted fraud as an affirmative defense to enforcement of the agreement. We have held
that the statute of limitations does not apply to a fraud claim pleaded defensively to defeat liability on an
obligation induced by fraud. See Bodovsky v. Texoma Nat'l Bank of Sherman, 584 S.W.2d 868, 874 (Tex. Civ.
App.-Dallas 1979, writ ref'd n.r.e.) (citations omitted); see also Reynolds-Sw. Corp. v. Dresser Indus., Inc., 438
S.W.2d 135, 140 (Tex. Civ. App.-Houston [14th Dist.] 1969, writ ref'd n.r.e.) (citing Mason v. Peterson, 250 S.
W. 142 (Tex. Comm'n App. 1923, holding approved)). Because Denise asserts fraud claims defensively to
defeat enforcement of an agreement she contends was induced by fraud, Bruce may not assert limitations to
defeat those claims. See Bodovsky, 584 S.W.2d at 874.
We conclude that Bruce did not establish his defense of limitations as a matter of law.
2. Estoppel, Waiver, Ratification, and Acceptance of the Benefits
Bruce also contends that Denise's affirmative defenses to his enforcement of the agreement are barred by the
doctrines of estoppel, waiver, ratification and acceptance of the benefits. These defenses required Bruce to
prove, as a matter of law, that Denise accepted the benefits of the marital agreement with full knowledge of all
aspects of Bruce's alleged fraud. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 536 (Tex. 2002) (ratification
requires full knowledge of alleged fraud); Lee-Emmert v. Macatee, Inc., 410 S.W.2d 489, 491 (Tex. Civ. App.-
Dallas 1966, no writ) (waiver ordinarily involves question of party's intent); Old Republic Ins. Co., Inc. v. Fuller,
919 S.W.2d 726, 730 (Tex. App.-Texarkana 1996, writ denied) (acceptance of benefits of fraudulent
transaction operates as ratification only if defrauded person had full knowledge of all aspects of fraudulent
transaction and intended to give validity to fraudulent act).
Bruce points specifically to evidence that Denise accepted the proceeds from the sale of the marital home and
the $4400 per month payment to her that he contends was required by the agreement. See Footnote 6 But
whether Denise accepted these payments with the intent to waive her fraud claims or ratify the marital
agreement is a question of fact to be determined after a review of all of the circumstances, including whether
she had full knowledge of the alleged fraud when she accepted the payments. Questions of intent have
historically been treated “as uniquely within the realm of the fact finder because the determination of an
individual's intent in taking a particular action is so dependent on evaluation of witnesses and credibility.” In re
Estate of Romancik, No. 08-07-00038- CV, 2008 WL 5194568, at *3 (Tex. App.-El Paso Dec. 11, 2008, no
pet.) (citations omitted). See Yeldell v. Goren, 80 S.W.3d 634, 637 (Tex. App.-Dallas 2002, no pet.) (citing
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)).
We conclude that Bruce did not establish, as a matter of law, his defenses of estoppel, waiver, ratification, and
acceptance of benefits and that fact issues remain to be resolved by the trier of fact. See Wolff, 94 S.W.3d at
536 (ratification); Macatee, Inc., 410 S.W.2d at 491 (waiver); Simpson v. Simpson, 380 S.W.2d 855, 861 (Tex.
Civ. App.-Dallas 1964, writ ref'd n.r.e.) (estoppel); Fuller, 919 S.W.2d at 730 (acceptance of benefits).
3. Laches
Bruce next contends that laches bars Denise's contention that the agreement is unenforceable. To establish
this defense, Bruce was required to show that Denise unreasonably delayed asserting her rights to his
detriment. See City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964). He contends that he
established this defense as a matter of law because Denise waited over thirteen years to assert her fraud
claims after learning of the alleged fraud and because the records have been destroyed and he can no longer
defend himself against the claims.
Unreasonable delay may not be asserted against a party until her claim actually ripens. See McCampbell v.
McFaddin, 71 Tex. 28, 32-34, 9 S.W. 138, 140-41 (1888); see also Yeo v. Yeo, 581 S.W.2d 734, 740 (Tex.
Civ. App.-San Antonio 1979, writ ref'd n.r.e.). In this case, fraud against the community did not ripen until one
of the parties filed a petition for divorce seeking a just and right division of the community estate. See Chu,
249 S.W.3d at 444; Schlueter, 975 S.W.2d at 589-90. Additionally, we conclude that fact issues remain as to
whether Denise was aware of the full extent of the alleged fraud at the time she discovered the financial
documents in 1991. See Brownson v. New, 259 S.W.2d 277, 281-82 (Tex. Civ. App.-San Antonio 1953, writ
dism'd).
We conclude that Bruce did not establish his defense of laches as a matter of law.
We sustain appellant's first, second, and third issues.
Interpretation of Marital Agreement
In its order granting Bruce's second motion for summary judgment, the trial court found “that pursuant to said
marital agreement there is no community property of the parties.” In her fourth issue, Denise argues that the
trial court erred by concluding that there was no community property remaining to be divided upon divorce and
that the court should not have granted Bruce's second motion for partial summary judgment. We agree.
Because the second summary judgment motion was premised on the determination that the agreement was
valid and enforceable as a matter of law, the trial court's ruling on the second motion must be reversed.
We sustain appellant's fourth issue.
Conclusion
We reverse that portion of the trial court's judgment incorporating the rulings on Bruce's motions for summary
judgment and remand for further proceedings.
ELIZABETH LANG-MIERS
JUSTICE
071571F.P05
--------------------------------------------------------------------------------
Footnote 1 The Honorable Mark Whittington, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by
assignment. This appeal was submitted to the panel before Justice Whittington's retirement on December 31, 2008.
--------------------------------------------------------------------------------
Footnote 2 The agreement partitioned to Denise as her separate property the parties' home and its contents, her automobile,
and over $100,000 in cash. It partitioned to Bruce as his separate property an automobile, certain aircraft, a boat, and all interest
in the businesses. It also partitioned to the parties as their separate property their respective future earnings and income, future-
acquired property in their respective names, and all increases of their respective separate properties. The agreement obligated
Bruce to provide Denise and the children “sufficient funds to enable them to enjoy the same standard of living as they had prior
to the execution” of the agreement. Additionally, it obligated Bruce to pay all debts against the residence, insurance premiums
for the home and vehicles, all of the family's medical insurance premiums and expenses, and the children's private school
expenses and tuition for college.
--------------------------------------------------------------------------------
Footnote 3 The only difference between the current law and the law in effect when the parties signed the marital agreement is
the availability of common- law defenses. See Act of June 1, 1987, 70th Leg, R.S., ch. 678, § 1, 1987 Tex. Gen. Laws 2530, 2531
(subsequent amendments omitted) (current version at Tex. Fam. Code Ann. § 4.105). For that reason, we cite to the current
statute.
--------------------------------------------------------------------------------
Footnote 4 Denise stated that, by this time, they lived in a $250,000 home in Irving, owned multiple automobiles, boats, and
airplanes, and sent their children to a private school. Bruce was the sole provider for the family.
--------------------------------------------------------------------------------
Footnote 5 Even if we addressed Denise's argument that the agreement is unconscionable and concluded that it is, we could
not render judgment for Denise unless we also concluded that Denise proved, as a matter of law, that she was not provided
adequate disclosure of the property, that she did not waive her right to disclosure, and that she did not have and reasonably
could not have had adequate knowledge of the property of the other party. See Tex. Fam. Code Ann. § 4.105(a)(2). These
additional proof requirements involve questions of fact for which we would remand for consideration by the fact-finder. See
Fanning v. Fanning, 828 S.W.2d 135, 144-46 (Tex. App.-Waco 1992) (addressing whether evidence is legally and factually
sufficient to support trial court's findings of fact relating to disclosure of property and financial obligations), aff'd in part and rev'd
in part on other grounds, 847 S.W.2d 225 (Tex. 1993). Consequently, we could not grant any more relief by consideration of
Denise's argument that the agreement is unconscionable than we have already provided, and, therefore, resolution of that issue
is not necessary to final disposition of this appeal. See Tex. R. App. P. 47.1; Lee-Emmert v. Macatee, Inc., 410 S.W.2d 489, 491
(Tex. Civ. App.-Dallas 1966, no writ).
--------------------------------------------------------------------------------
Footnote 6 We note that the agreement did not require Bruce to make a $4400 per month payment. Instead, it required him to
provide Denise with “sufficient funds to enable [her and the children] to enjoy the same standard of living as they had prior to the
execution” of the agreement. And Denise testified that Bruce's monetary contributions to the family were the same both before
and after they signed the agreement.
--------------------------------------------------------------------------------
File Date[04/14/2009]
File Name[071571F]
File Locator[04/14/2009-071571F]