TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00395-CV
Alexander Austin Sheshunoff, Appellant
v.
Gabrielle Martha Sheshunoff, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. FM302436, HONORABLE PAUL DAVIS, JUDGE PRESIDING
OPINION
The principal issue in this case concerns the enforceability of a marital property
agreement. See Tex. Fam. Code Ann. § 4.105 (West 1998). Applying section 4.105 to the defensive
theories that were timely raised in this case, we affirm the district court’s judgment enforcing the
agreement.
BACKGROUND
The Marital Property Agreement
Appellant Alexander Sheshunoff and Appellee Gabrielle Sheshunoff were married
in 1971. Before their marriage, the couple entered into an agreement governing various rights and
obligations relating to their marital property, and they devised a new one in 1990. Beginning in
2002, the couple, each with assistance of several attorneys, accountants, and other professional
advisors, began negotiating an elaborate thirty-seven page Marital Property Agreement that
addressed the couple’s respective rights to their substantial marital assets. They eventually executed
the Agreement in February 2003. In April 2003, Ms. Sheshunoff filed for divorce and sought the
benefit of the agreed-upon property division.
The circumstances surrounding the formation of the Agreement are at the root of the
present controversy. According to Mr. Sheshunoff, the Agreement shifted large amounts of the
couple’s marital assets to Ms. Sheshunoff and large amounts of marital liabilities to him so as to
leave her with a net worth of $48 million and him with a net worth of negative $12 million. Mr.
Sheshunoff asserts that, throughout the negotiations, he had understood and intended that this
arrangement was solely to achieve tax and estate planning benefits and that neither party had any
intention to actually divorce. In an affidavit he filed in the district court, he explains that the parties
intended for Ms. Sheshunoff, a Canadian citizen, to expatriate their assets to Canada following the
adoption of the Agreement and ultimately patriate the assets in a jurisdiction that would not impose
estate or inheritance taxes. Mr. Sheshunoff claims that Ms. Sheshunoff and her lawyers misled him
to believe that she shared this intent when, in fact, she was plotting to file for divorce (and avail
herself of the highly favorable property division) once she persuaded him to sign the agreement. Ms.
Sheshunoff denies these allegations.
Proceedings in the district court
On July 1, 2003, Ms. Sheshunoff filed a no-evidence motion for partial summary
judgment to “declare the February 8, 2003, ‘Marital Property Agreement’ executed by and between
2
the parties fully enforceable.” On July 15, Mr. Sheshunoff filed an answer1 containing a general
denial and the affirmative defenses that (1) “ALEXANDER AUSTIN SHESHUNOFF did not sign
the agreement voluntarily but under duress and fraud,” and (2) “[t]he agreement was unconscionable
when it was signed” because Ms. Sheshunoff’s financial obligations were not disclosed and because
he was not aware that Ms. Sheshunoff intended to file for divorce when he signed the Agreement.2
As we discuss in detail below, involuntary execution and unconscionability (coupled with inadequate
disclosure of marital property information) are the only two defenses to marital property agreements
that are specified in the family code. See Tex. Fam. Code Ann. § 4.105(a)(1), (2). On July 23, Mr.
Sheshunoff filed a response to Ms. Sheshunoff’s partial summary-judgment motion. Among other
grounds for denial, he asserted (1) involuntary execution of the Marital Property Agreement; and (2)
unconscionability and lack of disclosure. See id. With regard to his involuntary execution defense,
he claimed to offer “evidence that created a genuine issue of material fact that his consent to the
Agreement was not voluntary, because it was obtained by conduct that amounted to fraud and
duress.”
1
The July 15 filing was Mr. Sheshunoff’s first amended answer. His original answer is not
in the record. His summary judgment response represents that he filed a pro se answer on May 9.
2
Mr. Sheshunoff also asserted, as an affirmative defense, “The document is not an
agreement contemplated by either Article XVI, Section 15 of the Texas Constitution or TX Family
Code, Subchapter B (§ 4.101 et al) but is an estate and tax planning device.” To the extent this
defense is distinct from his contentions regarding involuntary execution and fraud, he does not assert
it on appeal.
3
On September 29, the district court granted Ms. Sheshunoff’s motion for partial
summary judgment without specifying the grounds.3 Several months later, in late spring of 2004,4
Mr. Sheshunoff amended his answer to raise several new affirmative defenses against the
enforcement of the Marital Property Agreement and, for the first time, asserted counterclaims. He
then filed a jury demand. As further amended, his pleadings ultimately stated the following
affirmative defenses, in addition to his original defenses:
! want of consideration;
! breach of fiduciary duty, by inducing Mr. Sheshunoff into the Marital Property
Agreement “under false pretenses”;
! fraudulent inducement into the Marital Property Agreement through
misrepresentations regarding a claimed collateral agreement to convey the
“Maine Property” (as defined in the Agreement) into trust for the benefit of their
children;
! fraudulent inducement into the Marital Property Agreement through
misrepresentations regarding a claimed collateral agreement that the Magnolia
Property and Arcade Land Management Company would be Mr. Sheshunoff’s
separate property and would be available as a source of payments on the Draw
Note (all also as defined in the Agreement);
3
However, the district court initially announced its intent to grant the motion in a letter
explaining that “the cases do not support a contention that fraud is sufficient to support a finding of
involuntariness” under section 4.105 of the family code. The court added that “even if fraud is
sufficient, failure of a party to disclose that s/he is contemplating divorce does not constitute fraud
in the inducement of a marital agreement, at least under the facts and circumstances of this case.”
“Finally,” the court stated, “I do not believe that a trier of fact, after hearing evidence in this case,
could correctly conclude that Mr. Sheshunoff signed the marital agreement involuntarily.”
4
The parties assert that Mr. Sheshunoff filed his second amended answer and original
counter-claim on April 30. The record does not contain this document, but only his fourth amended
answer and counter-claim, filed May 25.
4
! fraudulent inducement into the Marital Property Agreement through
misrepresentations that the Agreement was intended solely to be an estate-
planning and tax-planning device;
! section 4.105 of the family code, by barring all defenses to the enforcement of
the Marital Property Agreement not enumerated in that provision, violates Texas
and federal constitutional protections including due process and due course of
law, separate and community property, and impairment of obligations of
contracts.
Mr. Sheshunoff asserted the following counterclaims:
! divorce;
! reformation, specific performance, breach of contract damages, or
rescission with regard to the Maine Property;
! reformation, specific performance, breach of contract damages, or
rescission with regard to the Magnolia Property and the Arcade Land
Management Company;
! damages for fraudulent inducement related to an alleged
representation that the Marital Property Agreement was intended
solely to be an estate and tax-planning device;
! damages for breach of fiduciary duty related to an alleged
representation that the Marital Property Agreement was intended
solely to be an estate and tax-planning device;
! damages for fraudulent inducement regarding the Maine Property;
! damages for fraudulent inducement regarding the Magnolia Property
and Arcade Land Management Company.
On May 4, 2004, Ms. Sheshunoff filed a traditional motion for summary judgment
claiming that the Agreement left no community estate to be divided and that the court should render
judgment in accordance with that property division. She also filed a motion to strike Alexander
5
Sheshunoff’s new defenses and counterclaims, as well as a motion to compel arbitration and to sever
with regard to his counterclaims for reformation or modification concerning the Maine Property and
the Magnolia Property and Arcade Land Management Company. The latter motion was based on
sections 15.9 and 15.10 of the Marital Property Agreement, which required that “any dispute relating
to this Agreement” be mediated or, “if the parties cannot agree on a mediator, to binding arbitration.”
The district court struck all of Alexander Sheshunoff’s new defenses and all of his
counterclaims except those seeking reformation of the Agreement in relation to the Maine Property
and the Magnolia Property and Arcade Land Management Company, which it ordered to arbitration.5
In its order, the court also made explicit findings that (1) the prior partial summary judgment
included the determination that the Marital Property Agreement was fully enforceable and barred all
defenses to enforcement; (2) all of Alexander Sheshunoff’s counterclaims (other than those relating
to the Maine Property and the Magnolia Property and Arcade Land Management Company seeking
reformation or modification of the Marital Property Agreement) were precluded by the prior partial
summary judgment and were not timely pled; (3) the remaining counterclaims related to disputes and
disagreements regarding the Marital Property Agreement, and should thus be severed and referred
to arbitration as provided in the Agreement; and that (4) the requirement to mediate disputes relating
to the Marital Property Agreement “has elapsed, is futile and would create unnecessary delay and
cause the parties to incur unnecessary expense.” The district court subsequently granted final
summary judgment and a final decree of divorce incorporating its prior rulings that the Marital
5
The district court also denied a motion for sanctions filed by Ms. Sheshunoff.
6
Property Agreement was fully enforceable and dividing the property in accordance with the
Agreement. This appeal followed.
DISCUSSION
Mr. Sheshunoff brings five issues on appeal. First, he contends that the district court
erred in granting its partial summary judgment foreclosing his involuntariness defense; he does not
complain of the court’s ruling regarding unconscionability and lack of disclosure. In his second
issue, Mr. Sheshunoff argues that the district court abused its discretion in striking his amended
pleadings. In his third issue, Mr. Sheshunoff asserts that the district court erred in severing and
referring his reformation claims to arbitration because Ms. Sheshunoff had waived her right to seek
arbitration and had failed to exhaust her remedy of mediation as a precedent to arbitration. In his
fourth issue, Mr. Sheshunoff complains that the district court erred in striking his jury demand, while
in his fifth issue he contends that the district court erred in granting final summary judgment because
he had raised genuine issues of material fact regarding his stricken pleadings and severed claims.6
Partial summary judgment
In his first issue, Mr. Sheshunoff challenges the district court’s granting of partial
summary judgment foreclosing his involuntary-execution defense to the Marital Property Agreement.
Specifically, he argues that (1) he has raised a fact issue with regard to the common-law defenses
6
After this case was submitted, Ms. Sheshunoff filed a motion to dismiss predicated on
events during an arbitration proceeding that the parties conducted after oral argument. In light of our
disposition of the merits, we dismiss the motion as moot.
7
of fraudulent inducement and duress; and (2) this evidence also raises a fact issue regarding
involuntary execution under section 4.05 of the family code.
Standard of review
The district court granted partial summary judgment on a “no evidence” motion filed
by Ms. Sheshunoff. See Tex. R. Civ. Pro. 166a(i). A no-evidence summary judgment is essentially
a pretrial directed verdict; thus, we apply the same legal sufficiency standard in reviewing the
no-evidence summary judgment as we apply in reviewing a directed verdict. Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70 (Tex. App.—Austin 1998, no pet.). We view the evidence in a light that
tends to support the finding of the disputed fact and disregard all evidence and inferences to the
contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). If more than
a scintilla of evidence exists, it is legally sufficient. Goodman, 80 S.W.3d at 577; Cantu v. Texas
Workforce Comm’n, 145 S.W.3d 236, 239 (Tex. App.—Austin 2004, no pet.). A no-evidence point
will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital
fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997). More than a scintilla of evidence exists if it would allow reasonable and
fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 172 (Tex. 2003). Because the trial court’s order does not specify the grounds for
granting summary judgment, we must affirm the summary judgment if any of the theories presented
8
to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 217 (Tex. 2004).
We must construe section 4.105 of the family code to address Mr. Sheshunoff’s
claims on appeal. Statutory construction is a question of law we review de novo. Johnson v. City
of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). When construing a Texas statute, our paramount
task is to ascertain the legislature’s intent in enacting that provision. Texas Dep’t of Protective &
Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). We first look to the
plain and common meaning of the words the legislature used. Tex. Gov’t Code Ann. § 311.011
(West 2005); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); Texas Workers’ Comp. Comm’n
v. Texas Builders Ins. Co., 994 S.W.2d 902, 908 (Tex. App.—Austin 1999, pet. denied). “Words
and phrases that have acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed accordingly.” Tex. Gov’t Code Ann. § 311.011(b). We are to
presume that every word in a statute has been used for a purpose and that each word, phrase, clause,
and sentence should be given effect. Cities of Austin, Dallas, Fort Worth and Hereford v.
Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002); see State v. Evangelical Lutheran
Good Samaritan Soc’y, 981 S.W.2d 509, 511 (Tex. App.—Austin 1998, no pet.). In ascertaining
legislative intent, we may also consider the evil sought to be remedied, the legislative history, and
the consequences of a particular construction. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493
(Tex. 2001). We must also consider, among other things, statutory provisions on the same or similar
subjects. Tex. Gov’t Code Ann. § 312.008 (West 2005). “When the same or a similar term is used
in the same connection in different statutes, the term will be given the same meaning in one as in the
9
other, unless there is something to indicate that a different meaning was intended.” Guthery v.
Taylor, 112 S.W.3d 715, 722 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Additionally, we
are authorized to consider the “object sought to be attained” by the legislature when enacting the
provision. Tex. Gov’t Code Ann. § 311.023 (West 2005); see also In re Bell, 91 S.W.3d 784, 787
(Tex. 2002) (“[The Act] makes clear that courts may consider the ‘legislative history’ and the ‘object
sought to be attained’ in construing statutes.”). A related concept is that we are to construe a uniform
act adopted by the Texas Legislature “to effect its general purpose to make uniform the law of those
states that enact it.” Tex. Gov’t Code Ann. § 311.028 (West 2005).
The involuntary execution defense
Our disposition of Mr. Sheshunoff’s first issue requires us to evaluate Mr.
Sheshunoff’s summary-judgment evidence against the standard of “involuntary execution” in section
4.105 of the family code. The parties dispute the meaning of “involuntary execution” and the extent
to which it can be proven by evidence of common-law defenses like fraud or duress. We accordingly
first clarify the nature of this statutory defense before turning to Mr. Sheshunoff’s summary-
judgment evidence.
Overview of section 4.105
Section 4.105 of the family code provides:
(a) A partition or exchange agreement is not enforceable if the party against whom
enforcement is requested proves that:
(1) the party did not sign the agreement voluntarily; or
10
(2) the agreement was unconscionable when it was signed and, before
execution of 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.
(b) An issue of unconscionability of a partition or exchange agreement shall be
decided by the court as a matter of law.
(c) The remedies and defenses in this section are the exclusive remedies or
defenses, including common law remedies or defenses.
See Tex. Fam. Code Ann. § 4.105(a). There is no dispute on appeal that the Marital Property
Agreement is a “partition or exchange agreement” within the meaning of section 4.105.
Language parallel to that in section 4.105 appears in section 4.006 of the family code,
which governs enforceability of premarital, or “antenuptual,” agreements. See Tex. Fam. Code Ann.
§ 4.006 (West 1998). Subsections (a) and (b) of each provision track the language of the Uniform
Premarital Agreement Act. See Unif. Premarital Agreement Act § 6, 9C U.L.A. 48-49 (2001); see
also In re Marriage of Bonds, 5 P.2d 815, 821-826 (Cal. 2000) (reviewing record of proceedings of
National Conference of Commissioners on Uniform State Laws in adopting Uniform Premarital
Agreement Act). These portions of the Uniform Act evolved from a debate between commissioners
who desired certainty in the enforcement of marital property agreements and those who urged that
such agreements should be routinely scrutinized for substantive fairness. See In re Marriage of
11
Bonds, 5 P.2d at 825. The former view dominated the debate: the Act provided that a premarital
agreement that was voluntarily executed would be enforced, even if unconscionable, as long as the
opposing party knew or should have known of the other party’s assets, or waived such disclosure.
Id. The commissioners considered that the voluntariness of a premarital agreement may turn, in part,
upon whether the agreement was entered into knowingly, in the sense that the parties understood the
terms or basic effect of the agreement. Id.
Before the Texas Legislature adopted our version of the Uniform Act, Texas law had
required a party seeking to enforce a marital property agreement to prove, by clear and convincing
evidence, that the other party had given informed consent and that the agreement had not been
procured by fraud, duress, or overreaching. Act of June 18, 1987, 70th Leg., R.S., ch. 678, § 1, sec.
5.46, 1987 Tex. Gen. Laws 2530, 2530-31; see Williams v. Williams, 720 S.W.2d 246, 248 (Tex.
App.—Houston [14th Dist.] 1986, no writ).7 Dissatisfaction with this difficult burden of proof led
to the legislature’s adoption of the Uniform Act in 1987. See W. Fred Cameron, Robert S. Hoffman
& Allen V. Ytterberg, Marital and Premarital Agreements, 39 Baylor L. Rev. 1095, 1102 (1987).
By shifting the burden of proof to the party opposing enforcement and by adopting the Uniform
Act’s concept that voluntarily executed marital property agreements should be enforced even if
7
This statute represented an expansion of the rights of Texans to alter the status of
community or separate property. Throughout the nineteenth and early twentieth centuries, Texas
courts had construed the constitutional and statutory provisions governing community property in
a manner that sharply limited the ability of married persons or persons intending to marry to alter the
status of community or separate property by agreement. See generally W. Fred Cameron, Robert S.
Hoffman & Allen V. Ytterberg, Marital and Premarital Agreements, 39 Baylor L. Rev. 1095, 1100
(1987). In 1980, the voters approved a constitutional amendment allowing greater freedom in this
area. Tex. Const. art. XVI, § 15. To implement this amendment, the legislature enacted sections
5.41 and 5.42 of the family code, described above. Cameron, supra, at 1101-02.
12
unconscionable (unless inadequate disclosure can be proven), the Texas Legislature manifested a
strong policy preference that marital property agreements should be enforced whenever persons who
are married or intend to marry voluntarily enter into them. See Beck v. Beck, 814 S.W.2d 745, 749
(Tex. 1991) (public policy dictates that premarital agreements should be enforced), cert. denied, 503
U.S. 907 (1992); Grossman v. Grossman, 799 S.W.2d 511, 513 (Tex. App.—Corpus Christi 1990,
no writ) (premarital agreements are presumptively valid). Barring constitutional impediments, we
must defer to these legislative policy pronouncements. See Battaglia v. Alexander, No. 02-0701, 48
Tex. Sup. J. 720, 2005 Tex. LEXIS 419, at *62 (May 27, 2005).
As originally enacted, sections 4.006 and 4.105, like the Uniform Act, contained only
subsections (a) and (b). See Act of June 1, 1987, 70th Leg., R.S., ch. 678, § 1, secs. 5.46, .55, 1987
Tex. Gen. Laws 2530, 2530-31. In 1993, however, the legislature departed from the Uniform Act
and added subsection (c) to each. See Act of April 30, 1993, 73d Leg., R.S., ch. 136, §§ 1, 2, 1993
Tex. Gen. Laws 283, 283. This amendment apparently responded to Daniel v. Daniel, in which our
sister court in Houston held that, absent explicit legislative provision to the contrary, the involuntary
execution and unconscionability defenses should be construed to “simply provide[] an additional
statutory remedy for persons challenging property agreements executed pursuant to the Family Code”
and not “to replace all common law defenses.” 779 S.W.2d 110, 114 (Tex. App.—Houston [1st
Dist.] 1989, no writ). Thus, the Daniels court concluded that parties could assert both the statutory
defenses under section 4.105 and common-law contractual defenses against the enforcement of
partition and exchange agreements. Id. at 114. In subsection (c), the legislature supplied the explicit
legislative intent found lacking by the Daniels court, providing that the “remedies and defenses in
13
this section are the exclusive remedies or defenses, including common law remedies or defenses.”
Tex. Fam. Code Ann. § 4.105(c); see House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B.
1274, 73d Leg., R.S. (1993) (purpose of amendment was to clarify “existing law . . . by explicitly
stating that remedies for violations of and defenses to such agreements which are listed by statute
are the exclusive remedies and defenses available”).
Involuntary execution and common-law defenses
While maintaining that proof of fraud and duress is also evidence of involuntary
execution, Mr. Sheshunoff asserts that involuntary execution “is a broader, less specific defense”
than fraud and duress and that he accordingly does not necessarily have to prove each common-law
element of either defense to prove involuntary execution. In contrast, Ms. Sheshunoff seems to
construe subsection (c) of section 4.105 to foreclose the possibility that proof of a common-law
defense like duress or fraud could also be proof of involuntary execution, though elsewhere she has
appeared to concede that proof of duress might be proof of involuntary execution.
To ascertain the relationship between involuntary execution and fraud or duress, we
first examine the meaning of “voluntarily” in section 4.105. Neither the family code nor the Uniform
Act defines “voluntarily,” nor does the legislative history of either provide much guidance regarding
the intended meaning of the term. We can obtain some guidance from dictionary definitions.8 The
8
We may rely on definitions listed in commonly used dictionaries to discern the plain
meaning of terms in the statute. See Powell v. Stover, No. 03-1154, 48 Tex. Sup. Ct. J. 780, 2005
Tex. LEXIS 417, at *9-10 (May 27, 2005); Texas Dep’t of Protective & Regulatory Servs. v. Mega
Child Care, Inc., 145 S.W.3d 170, 196 (Tex. 2004).
14
ordinary meaning of “voluntarily,” as reflected in dictionary definitions, entails (1) intentional action,
as opposed to inadvertent or accidental action, (2) that is the product of the exercise of free will.9
The official comments accompanying the Uniform Act suggest that common-law
concepts including duress, lack of capacity, fraud, and undue influence, along with the parties’
relative bargaining power and knowledge regarding the meaning and effect of the agreement, could
bear upon the ultimate determination of voluntariness. See Marriage of Bonds, 5 P.3d at 824-25
(concluding that “the question is viewed as one involving such ordinary contract defenses as fraud,
undue influence, or duress, along with some examination of the parties’ knowledge of the rights
being waived, or at least knowledge of the intent of the agreement”); Marriage of Shirilla, 89 P.3d
1, 13 (Mont. 2004) (“The party seeking to avoid a premarital agreement may prevail by establishing
that the agreement was involuntary, and that evidence of lack of capacity, duress, fraud, and undue
influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital
9
Webster’s Third New International Dictionary defines “voluntarily” as “in a voluntary
manner: of one’s own free will: spontaneously,” and “voluntary” as “proceeding from the will:
produced in or by an act of choice,” “performed, made or given of one’s own free will,” “done by
design or intention: not accidental,”and “acting of oneself: not constrained, impelled, or influenced
by another.” Webster’s Third New International Dictionary 2564 (1986). Similarly, the American
Heritage Dictionary defines “voluntary” as “[a]rising from one’s own free will: acting on one’s own
initiative,” “normally controlled by or subject to individual volition,” “[c]apable of exercising will,
volitional,” and “[a]cting or performed without external persuasion or compulsion.” American
Heritage Dictionary 1436 (1973).
Some definitions, moreover, indicate that voluntariness implies knowledge of “essential
facts.” Black’s Law Dictionary defines “voluntarily” as “[d]one by design or intention, intentional,
proposed, intended or not accidental, intentionally and without coercion,” and “voluntary” as
“[u]nconstrained by interference; unimpelled by another’s influence; spontaneous; acting of oneself.
Done by design or intention. Proceeding from the free and unrestrained will of the person. Produced
in or by an act of choice. Resulting from free choice. The word, especially in statutes, often implies
knowledge of essential facts.” Black’s Law Dictionary 813 (7th ed. 1999).
15
context, would be relevant in establishing the involuntariness of the agreement.”). Some courts,
moreover, have equated voluntariness under the Uniform Act with “procedural fairness,” which takes
account of such factors as coercion, duress, undue influence, and the parties’ relative bargaining
power and sophistication. See Marriage of Bonds, 5 P.3d at 826-27.
Texas courts have construed “voluntarily” under sections 4.105 and 4.006 in a
generally consistent manner. In Nesmith v. Berger, for example, we assumed without deciding that
the appellant’s definition of “voluntarily,” derived from common-law duress concepts, controlled
our inquiry under section 4.006: “an action is taken by design, intentionally, purposefully, by choice,
of one’s own accord, or by the free exercise of will.” 64 S.W.3d 110, 113-16 (Tex. App.—Austin
2001, pet. denied) (citing Prigmore v. Hardware Mut. Ins. Co. of Minn., 225 S.W.2d 897, 899 (Tex.
Civ. App.—Amarillo 1949, no writ)).10 We applied this definition to an involuntary execution claim
predicated on a husband’s threat not to go on a planned honeymoon unless his wife first signed a
premarital agreement. Id. at 11-15. Citing evidence of the parties’ mutual desire to enter into such
an agreement, the wife’s motives for entering into the agreement, bargaining over terms, and both
parties’ subsequent compliance with the agreement, we overruled a great weight and preponderance
challenge to the trial court ruling enforcing the agreement. Id. We concluded that “[i]n light of the
bargaining that accompanied every step of the relationship between the parties before and during
their marriage, we cannot say that [the husband’s] proposed bargain to finalize the terms of the long-
10
This definition had been suggested by the party opposing enforcement of a premarital
agreement. Because we ultimately held that she had acted voluntarily even under her proposed
definition, we did not need to consider the validity of that definition. Nesmith v. Berger, 64 S.W.3d
110, 113-16 (Tex. App.—Austin 2001, pet. denied).
16
contemplated agreement before leaving on a honeymoon exerted such undue influence as to deprive
[the wife] of her free will in signing the agreement.” Id. at 115 (emphasis added); see also Marsh
v. Marsh, 949 S.W.2d 734, 740-43 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (in reviewing
unconscionability defense, considering whether evidence of threats, fraud, overreaching, duress, or
misrepresentations, as well as parties’ relative sophistication, experience, and bargaining power).11
In Nesmith, we relied in part on the Fort Worth court’s analysis in Matelski v.
Matelski, 840 S.W.2d 124, 128-29 (Tex. App.—Fort Worth 1992, no writ). Matelski, like some
other decisions from our sister courts, simply equates involuntary execution with common-law
duress.12 See Osorno v. Osorno, 76 S.W.3d 509, 510-11 (Tex. App.—Houston [14th Dist.] 2002,
11
At least one court has suggested that, when analyzing unconscionability, the Marsh court
actually examined factors bearing on voluntariness or procedural fairness. Marriage of Bonds, 5
P.3d 815, 815, 826 & n.9 (Cal. 2000).
Mr. Sheshunoff also cites an unreported decision from the Dallas Court of Appeals
addressing a choice of law issue in the enforcement of a Hawaii premarital agreement. See Rathjen
v. Rathjen, No. 05-93-00846-CV, 1995 Tex. App. LEXIS 3759, at *7-12, *23-24 (Tex. App.—Dallas
1995, no pet.) (not designated for publication). The court characterized Hawaii law as substantially
similar to Texas law and suggested that “it is likely that the [agreement] would be equally valid in
Texas as it is under Hawaii law.” Id. at *24. It also stated that “[t]he Hawaii Supreme Court has
defined lack of voluntariness as the ‘absence of true assent to the agreement due to duress, coercion,
undue influence, or any other circumstances indicating that the wife did not freely and voluntarily
enter into the agreement.” Id. at *7.
12
The Matelski court described the elements of duress as follows:
There can be no duress unless there is a threat to do some act which the party
threatening has no legal right to do. Such threat must be of such character as
to destroy the free agency of the party to whom it is directed. It must overcome
his will and cause him to do that which he would not otherwise do, and that
which he was not legally bound to do. The restraint caused by such threat must
be imminent. It must be such that the person to whom it is directed has no
present means of protection.
Matelski v. Matelski, 840 S.W.2d 124, 129 (Tex. App.—Fort Worth 1992, no writ) (quoting Dale
17
no pet.) (as matter of law, no duress in premarital agreement based on threat by party to commit act
they have legal right to do).13
The ordinary meaning of “voluntary,” the legislative history and application of the
Uniform Act, and the manner in which Texas courts have construed the term compel us to agree with
Mr. Sheshunoff—although the presence of such factors as fraud, duress, and undue influence may
bear upon the inquiry, Mr. Sheshunoff does not have to prove each element of these common-law
defenses to establish the ultimate issue of involuntary execution. See Daniel, 779 S.W.2d at 114 &
n.4 (observing that involuntary execution “alleviates the need for proof of all elements required in
common law defenses,” such as knowledge or reliance elements of fraud). We implied as much in
Nesmith, where we looked not to the elements of common-law defenses but directly to the
v. Simon, 267 S.W. 467, 470 (Tex. Comm’n App. 1924, judgm’t adopted)).
13
Both parties rely on Blonstein v. Blonstein, which suggested some other comparisons
between the involuntary execution defense and various common-law defenses. 831 S.W.2d 468, 471
(Tex. App.—Houston [14th Dist.] 1992, writ denied). The court of appeals held that the trial court
did not abuse its discretion in refusing to separately submit jury issues on duress, overreaching, and
undue influence because these issues had been subsumed by a broad-form submission inquiring
whether a spouse “voluntarily execute[d] the marital property agreement.” Id. In the court’s view,
the proposed issues on duress, overreaching, and undue influence each inquired “as to whether David
Blonstein’s free will was overcome by threats or other acts of Esther Blonstein,” and “[a]sking
whether David Blonstein acted voluntarily is the same as asking whether he acted by his free will.”
Id. Blonstein also went on to hold that requested issues on fraud, estoppel and breach of fiduciary
duty were subsumed in a broad-form submission inquiring as to the adequate knowledge and
reasonable disclosure elements of section 4.105’s unconscionability defense. Id.; see Tex. Fam.
Code Ann. § 4.105(a)(2) (West 1998).
We observe that the Texas Supreme Court subsequently denied writ of error in a per
curiam opinion cautioning that it was expressing no opinion regarding the analysis of the jury
submissions by the court of appeals. 848 S.W.2d 82 (Tex. 1992) (per curiam). Given the supreme
court’s reservations, we will not rely on the Blonstein court’s comparison of duress, fraud, and the
statutory defenses.
18
controlling issue of whether the party resisting enforcement executed the agreement voluntarily. See
Nesmith, 64 S.W.3d at 114-15. This approach is consistent with the text of section 4.105, which
refers not to common-law concepts but solely to whether the party signed the agreement voluntarily.
Tex. Fam. Code Ann. § 4.105(a)(1); see Office of the Attorney Gen. of Tex. v. Lee, 92 S.W.3d 526,
528 (Tex. 2002).14
Ms. Sheshunoff contends that the legislature’s addition of subsection (c) renders
irrelevant the history and application of the involuntary execution defenses under the Uniform Act.
We disagree. Subsection (c) was intended to clarify merely that, contrary to Daniels, parties cannot
assert common-law defenses in addition to the defenses enumerated in section 4.105. It does not
prohibit us from considering as potential evidence of involuntary execution proof of conduct that Mr.
Sheshunoff asserts constitutes fraud or duress.
In sum, we conclude that section 4.105 sets out the exclusive remedies available to
prevent enforcement of a postmarital agreement, and that, although common-law defenses may
inform our analysis of “voluntariness,” they will not necessarily control.
Analysis of the summary-judgment evidence
Mr. Sheshunoff contends that he has raised genuine issues of material fact regarding
his involuntary-execution defense with summary-judgment evidence of two series of acts by Ms.
14
We have adopted a similar approach in at least one other context—when reviewing the
voluntariness of a mother’s signing of an affidavit relinquishing her parental rights. See Vela v.
Marywood, 17 S.W.3d 750, 762 (Tex. App.—Austin 2000), pet. denied, 53 S.W.3d 684 (Tex. 2001)
(per curiam) (“Although the face of the affidavit reflects it was signed knowingly and voluntarily,
we must consider the surrounding circumstances to determine if Corina’s signature on the document
was procured by misrepresentation, fraud, or the like.”).
19
Sheshunoff. First, Mr. Sheshunoff presented affidavit testimony that, during the week before he
signed the Agreement, Ms. Sheshunoff “began threatening me . . . that unless I signed the
Agreement, she would withdraw her loan guarantee and have the Bank of America immediately call
the line of credit for the Sheshunoff companies.” He testified that this event would have been
“catastrophic to the financial stability of the companies” and would have rendered the companies
unable to pay salaries, jeopardized over seventy jobs, and risked the loss of key, irreplaceable
employees.
Second, Mr. Sheshunoff presented summary-judgment evidence that, while
negotiating the Agreement, Ms. Sheshunoff and her agents misled him to believe that she, like Mr.
Sheshunoff, intended to execute the Agreement solely for estate and tax-planning purposes and had
no intention to actually proceed with a divorce, when in fact she was surreptitiously plotting a
divorce. He points to evidence that, among other things, Ms. Sheshunoff had assured him that
executing the Agreement would strengthen their marriage, when she had secretly hired a divorce
lawyer (in contrast to the estate and tax lawyers each party had retained) while the negotiations were
still ongoing, and that, a few days before execution, she had the locks at their house changed while
he was traveling.15 He urges that he never would have agreed to the “draconian” property division
under the Agreement had he anticipated he and Ms. Sheshunoff would actually divorce.
As previously suggested, the precise parameters of involuntary execution may not be
clear in every case, and will tend to depend on the circumstances. In this case, however, we can
determine that, as a matter of law, Mr. Sheshunoff has failed to raise a fact issue regarding
15
Ms. Sheshunoff denies these allegations.
20
involuntary execution. We begin by observing that the following facts bearing on involuntary
execution are undisputed:
! The parties were each sophisticated. Mr. Sheshunoff, in fact, has run their
successful consulting business in the financial services industry for many years;
! The parties had executed both a premarital agreement and an earlier post-marital
property agreement, and understood the general purpose and effect of such
agreements;
! The parties had extensively negotiated the Marital Property Agreement at issue
over a period of several months;
! During the negotiation and execution of the Agreement, each party had the
assistance of a team of capable counsel, as well as accountants and other
professional advisors; and
! When executing the Agreement, Mr. Sheshunoff and his counsel knew of the
Agreement’s material terms, including provisions explicitly contemplating that
the agreed-upon property division would be effective upon the death or divorce
of the parties.16
In this context, Mr. Sheshunoff advances two theories of involuntary execution: (1) he was forced
into signing the Agreement; and (2) he was misled into signing it in the belief that Ms. Sheshunoff
would not actually seek a divorce and avail herself of her rights to the agreed-upon property division.
16
In fact, in August 2002, Duncan Osborne, an attorney who had been working with the
Sheshunoffs in drafting the Agreement, cautioned them that he was concerned about the disparity
in the proposed property division:
because what the two of you agree upon for tax purposes at this time would be
evidence of proper division in the event of a future dispute involving your
relative property ownership, we think that it is important for Alex to engage
separate counsel hired solely to look after Alex’s interests, to go through the
analysis that has been prepared and explain its potential implications to Alex,
before final decisions regarding the marital property division are reached.
21
To support his first involuntary execution theory, Mr. Sheshunoff presented an
affidavit in which he claims that Ms. Sheshunoff threatened him that, unless he signed the Marital
Property Agreement, “she would withdraw her loan guarantee” she had advanced his company, Alex
Sheshunoff Management, L.P., “and have the Bank of America immediately call the line of credit,”
leading to dire consequences for the company. He attaches copies of the loan documents, which
demonstrate that (1) Ms. Sheshunoff, along with Mr. Sheshunoff, was a guarantor on a $1 million
loan agreement between Bank of America and Alex Sheshunoff Management Services, L.P.;17 and
(2) the promissory note provided that Bank of America “will have no obligation to advance funds”
on the company’s revolving line of credit if “any guarantor seeks, claims, or otherwise attempts to
limit, modify, or revoke such guarantor’s guarantees of this Note or any other loan with Lender.”
However, this evidence shows, at most, that Ms. Sheshunoff threatened to withdraw her loan
guarantee and that her doing so would have entitled Bank of America to cut off the line of credit.
Mr. Sheshunoff offers no proof, and only the conclusory statement in his affidavit, regarding the
likelihood that Bank of America in fact would have exercised this contractual right, at Ms.
Sheshunoff’s behest or otherwise.18 Absent such proof, the jury could not reasonably infer—and
could only speculate—that Ms. Sheshunoff’s alleged threat to withdraw the loan guarantee presented
the sort of imminent threat that Texas law has considered capable of overwhelming free will and
17
Ms. Sheshunoff asserts that Mr. Sheshunoff failed to offer any evidence that she actually
ever signed such a guarantee. However, the “Notice of Final Agreement” listing the component loan
documents designates Ms. Sheshunoff as “Guarantor 2,” and is signed by Ms. Sheshunoff as
“Guarantor.” This evidence, along with Mr. Sheshunoff’s affidavit, raises a fact issue regarding
whether Ms. Sheshunoff was a guarantor of the loan.
18
We further note that Ms. Sheshunoff does not appear to have been the sole or primary
guarantor on the loan agreement, but was designated “Guarantor 2.”
22
rendering Mr. Sheshunoff’s execution of the Marital Property Agreement involuntary. See Wright
v. Sydow, No. 14-03-00222-CV, 2004 Tex. App. LEXIS 10541, at *15 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied); King v. Bishop, 879 S.W.2d 222, 223 (Tex. App.—Houston [14th Dist.]
1994, no writ); Charping v. Light, 578 S.W.2d 462, 464 (Tex. Civ. App.—Austin 1979, no writ)
(quoting Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm’n App. 1924, judgm’t adopted)). It is thus
no evidence.19
As for Mr. Sheshunoff’s second theory of involuntary execution, he does not dispute
that he and his team of lawyers and advisors knew that the Agreement explicitly provided for the
property division he now characterizes as “draconian” and that it would be effective if the parties
divorced. Nor, significantly, does Mr. Sheshunoff claim that he was misled concerning the presence
of these terms in the Agreement or that they were concealed from him.20 Rather, Mr. Sheshunoff
contends only that he was misled concerning Ms. Sheshunoff’s subjective intent to avail herself of
her rights under the Agreement. Although not singularly determinative, it is significant that our
sister courts have held that this type of conduct, even if proven, would not constitute fraud under
Texas law. See In re GTE Mobilnet of S. Tex. Ltd. P’ship, 123 S.W.3d 795, 799-800 (Tex.
App.—Beaumont 2003, orig. proceeding) (alleged misrepresentations that company would not
19
Having concluded that, for the above reasons, Ms. Sheshunoff’s evidence concerning the
loan guarantee does not raise a fact issue concerning involuntary execution, we need not address Ms.
Sheshunoff’s arguments predicated on her view that she had the legal right to revoke the guarantee.
See Osorno, 76 S.W.3d at 510-11 (as matter of law, no duress based on threat by party to commit
act they have legal right to do). Nor do we address whether this element of the duress defense
properly bears upon our analysis of involuntary execution.
20
As Ms. Sheshunoff’s counsel suggested during oral argument, the situation might have
been different had she, for example, surreptitiously switched pages in the Agreement.
23
enforce contractual arbitration clause known to parties could not constitute fraudulent inducement
as matter of law). Similarly, we would impermissibly deviate from the statutory language—and the
legislature’s manifest intent to facilitate enforcement of marital property agreements—by holding
that a party who executes a marital property agreement with knowledge and understanding of its
terms nonetheless did so “involuntarily” because he or she believed the other party would not enforce
the agreement.
We accordingly conclude that Mr. Sheshunoff has failed to raise a fact issue regarding
his involuntary execution defense. Our conclusion is not altered by Mr. Sheshunoff’s assertions that
Ms. Sheshunoff, as his spouse, owed him a fiduciary duty to be truthful during their negotiations.
See Buckner v. Buckner, 815 S.W.2d 877, 880 (Tex. App.—Tyler 1991, no writ). Assuming without
deciding that such a duty would apply under the circumstances of this case,21 the Texas Legislature
enacted section 4.105 with the understanding that married spouses owing fiduciary duties to one
another would negotiate and execute marital property agreements. See Tex. Gov’t Code Ann.
§ 311.023 (West 2005) (court to consider laws on same or similar subjects when construing statutes);
21
We disapprove, however, Ms. Sheshunoff’s view that Miller v. Ludeman, 150 S.W.3d 592,
597 (Tex. App.—Austin 2004, pet. denied), stands for a categorical rule that spouses who hire
separate counsel to negotiate a property division can never owe fiduciary duties to one another.
Husbands and wives generally owe a fiduciary duty to one another. See Schlueter v. Schlueter, 975
S.W.2d 584, 589 (Tex. 1998); Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex. App.—Houston
[1st Dist.] 1986, writ ref’d n.r.e.). The fiduciary duty arising from the marriage relationship does not
continue when a husband and wife each hire independent professional counsel to represent them in
a contested divorce proceeding. Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex. App.—Fort Worth 2002,
no pet.); Parker v. Parker, 897 S.W.2d 918, 924 (Tex. App.—Fort Worth 1995, writ denied).
Although we cited Boyd in noting that the appellant in Miller conceded that adverse parties who have
retained professional counsel (including husbands and wives in a suit for divorce) do not owe
fiduciary duties to one another, we did not adopt the position asserted by Ms. Sheshunoff in this
appeal. See Miller, 150 S.W.3d at 597.
24
Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530-31 (Tex. 2002) (quoting Acker v. Texas Water
Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed to have been enacted by the
legislature with complete knowledge of the existing law and with reference to it.”)).
Notwithstanding these duties, the legislature manifested the strong policy preference that voluntarily
made marital property agreements be enforced. We have concluded that Mr. Sheshunoff has not
raised a fact issue regarding the sort of involuntary execution the legislature could have intended to
bar enforcement of marital property agreements. That conclusion would control even in the face of
the fiduciary duties Mr. Sheshunoff claims.
We accordingly hold that the district court did not err in granting Ms. Sheshunoff’s
motion for partial summary judgment. We overrule Mr. Sheshunoff’s first issue.
Striking of new defenses and counterclaims
In his second issue, Mr. Sheshunoff contends that the district court abused its
discretion in striking the defenses and counterclaims he raised in his amended pleadings several
months after the district court had granted partial summary judgment. When a trial court strikes a
party’s pleadings, we employ an abuse-of-discretion standard. See Porter v. Nemir, 900 S.W.2d 376,
384 (Tex. App.—Austin 1995, no writ). We reverse a trial court for abusing its discretion only if
we find that the court acted in an unreasonable or arbitrary manner, Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex. 1991), or “without regard for any guiding rules or principles.” Owens
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (quoting City of Brownsville
v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)); Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). A corollary principle is that we may not reverse for abuse of discretion
25
merely because we disagree with a decision of the trial court, if that decision was within the trial
court’s discretionary authority. Downer, 701 S.W.2d at 242.
Mr. Sheshunoff did not assert his new defenses and counterclaims until after the
district court had granted Ms. Sheshunoff’s partial summary-judgment motion, nor did he assert
them as grounds for denying the first summary-judgment motion. Our disposition of Mr.
Sheshunoff’s second issue thus turns principally on the scope of Ms. Sheshunoff’s partial summary-
judgment motion and whether the district court, by granting it, foreclosed the defenses and
counterclaims he later attempted to raise. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984) (affirmative defense must be raised with some evidence to avoid summary judgment); Voice
of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, 670-71 (Tex.
App.—Austin 2005, no pet.); Martin v. First Republic Bank, Fort Worth, N.S., 799 S.W.2d 482, 488
(Tex. App.—Fort Worth 1990, writ denied) (counterclaim for reformation or recision of contract
obligations not properly filed after court has enforced obligations on summary judgment). Mr.
Sheshunoff asserts that Ms. Sheshunoff’s motion for partial summary judgment challenged only the
validity of his involuntary execution and unconscionability defenses, and therefore did not preclude
him from subsequently raising other defenses and his counterclaims. We disagree.
Ms. Sheshunoff explicitly sought summary judgment to “declare the February 8,
2003, ‘Marital Property Agreement’ executed by and between the parties fully enforceable.”
Although her motion emphasizes the two statutory defenses and did not specifically address any
others, she also argued that there are no other defenses to the enforcement of the Agreement. Her
motion adequately supports the district court’s partial summary judgment that the Marital Property
Agreement is fully enforceable. Because Mr. Sheshunoff failed to raise any additional defenses
26
before this ruling, they are untimely and cannot bar summary judgment. See Voice of the
Cornerstone Church Corp., 160 S.W.3d at 670-71.
Alternatively, we also hold that subsection (c) of section 4.105 independently bars
Mr. Sheshunoff’s attempt to assert common-law defenses and counterclaims distinct from the
statutory involuntary execution and unconscionability defenses. See Tex. Fam. Code Ann.
§ 4.105(c). In a post-submission letter, Mr. Sheshunoff conceded that his common-law defenses
were barred by subsection (c). We conclude that his common-law counterclaims for rescission or
damages are similarly barred, as such relief would simply undo the bargain reflected in the Marital
Property Agreement, which the legislature has mandated must be enforced unless the exclusive
statutory defenses are proven.
We overrule Mr. Sheshunoff’s second issue.
Reformation claims
In his third issue, Mr. Sheshunoff argues that the district court abused its discretion
in severing his post-summary judgment reformation counterclaims and referring them to arbitration.
Mr. Sheshunoff contends that Ms. Sheshunoff had waived her right to arbitrate the claims because
litigation had progressed for over a year by the time she first sought to compel arbitration in May
2004. As Ms. Sheshunoff observes, however, Mr. Sheshunoff did not raise his reformation
counterclaims until April 30, 2004,22 only a month before she sought arbitration. Under these facts,
we cannot conclude that the district court abused its discretion in failing to find that Ms. Sheshunoff
had waived her right to arbitrate Mr. Sheshunoff’s reformation counterclaims. See In re Automated
22
See supra, n.4.
27
Collection Techs., 156 S.W.3d 557, 559 (Tex. 2004) (quoting In re Bruce Terminix Co., 988 S.W.2d
702, 704 (Tex. 1998) (“even substantially invoking the judicial process does not waive a party’s
arbitration rights unless the opposing party proves that it suffered prejudice as a result”)). We
overrule Mr. Sheshunoff’s third issue.
Remaining issues
Mr. Sheshunoff’s fourth issue, challenging the district court’s striking of his jury
demand, and his fifth issue, challenging the final summary judgment, are each predicated on his
prevailing in his first three issues. Because we have overruled those issues, we likewise overrule Mr.
Sheshunoff’s fourth and fifth issues.
CONCLUSION
We overrule all of Mr. Sheshunoff’s issues and affirm the district court’s rulings (1)
granting partial summary judgment, (2) striking Mr. Sheshunoff’s subsequently-asserted defenses
and counterclaims for damages and rescission, (3) severing and compelling arbitration on his
reformation counterclaims, (4) striking his jury demand, and (5) granting final summary judgment
in favor of Ms. Sheshunoff.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Affirmed
Filed: July 29, 2005
28