ACCEPTED
13-14-00523-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/11/2015 2:12:36 PM
DORIAN RAMIREZ
CLERK
No. 13-14-00523-CV
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS CORPUS
FOR THE CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
5/11/2015 2:12:36 PM
CORPUS CHRISTI-EDINBURGDORIAN E. RAMIREZ
Clerk
FILED
IN THE 13TH COURT OF APPEALS
David Robertson, CORPUS CHRISTI
Appellant 5/11/15
v.
Oksana Robertson, CLERK
Appellee
Appeal from the 148th District Court of Nueces County, Texas
{Judge Guy Williams Presiding}
BRIEF OF APPELLEE OKSANA ROBERTSON
LAW OFFICE OF LAW OFFICE OF MICHAEL P.
AUDREY MULLERT VICKNAIR O’REILLY
Audrey Mullert Vicknair Michael P. O’Reilly
State Bar No. 14650500 State Bar No. 15301000
802 N. Carancahua, Ste. 1350 500 N. Shoreline, Ste. 604 N.
Corpus Christi, Texas 78401-0022 Corpus Christi, Texas 78401
(361) 888-8413; (361) 887-6207 fax (361) 887-7444; (361) 882-7463 fax
avicknair@vicknairlaw.com mike@oreillyfamilylaw.com
Attorneys for Appellee Oksana
Robertson
i
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT ............................................. ix
ISSUES PRESENTED, RESTATED ..................................................................... .ix
1. The Texas Constitution, Family Code and the law of this State have long
allowed spouses to enter into marital property agreements. Only two defenses
exist, and David Robertson asserted only one in the trial court: lack of
voluntariness. The burden is on the party refuting the validity of the
agreement to prove his defense. David Robertson failed to prove he did not
execute the Partition Agreement voluntarily. He then raises additional
defenses for the first time in this Court; those have been waived. The trial
court properly granted summary judgment (germane to Points of Error 1 and
2).
2. Appellant’s Point of Error 3 is waived. His assertion that the judgment is
overbroad is raised for the first time in this Court. The argument is further
belied by the record.
3. Appellant’s Point of Error 4 is waived. While it is stated as a complaint about
the division of post-divorce income, the argument presented is different:
Appellant argues Oksana is somehow improperly receiving spousal support.
No such arguments were raised in the trial court. Further a valid marital
property agreement exists and the trial court correctly enforced it, as stated in
Issues Restated 1 and 2.
4. Appellant’s Point of Error 5 regarding attorney’s fees is raised for the first
time in this Court and is waived. In addition the arguments fail on the merits:
the pleadings are more than sufficient, and Chapter 38 is trumped by the
parties’ contract, which requires attorney’s fees to be paid to the party
enforcing the Agreement.
ii
STATEMENT OF FACTS ........................................................................................1
I. Undisputed Facts: Oksana Robertson's Summary Judgment Evidence .........1
A. David and Oksana Robertson Executed a Proper Marital Property
Agreement – a Partition Agreement -- During their Marriage ........................1
B. David Robertson’s Deposition .................................................................6
C. Attorney Robert W. Johnson, Jr.’s Affidavit ..........................................10
D. Justice of the Peace Duncan Neblett’s Affidavit ....................................11
II. David Robertson’s Response to the Motion for Summary Judgment
Fails to Present Competent Summary Judgment Evidence or Raise a
Fact Issue .......................................................................................................11
SUMMARY OF THE ARGUMENT ......................................................................14
ARGUMENT ...........................................................................................................17
I. Standard of Review .........................................................................................17
II. David and Oksana Robertson Executed a Binding Marital Property
Agreement; It was David Robertson’s Burden to Prove His Defense to
the Agreement and He Failed to Do So (Germane to Points of Error
1 & 2) ...............................................................................................................18
A. The Texas Constitution .........................................................................18
B. The Texas Family Code .............................................................................20
C. The Community Property Presumption .....................................................20
D. This is Not a Conversion Agreement .........................................................22
E. Enforcement of Partition and Exchange Agreements: the Burden is
on the Party Opposing the Agreement...........................................................27
1. David Robertson Contends Only that He Executed the
Agreement Involuntarily Because of Alleged Economic Duress..................29
2. David Robertson Fails to Raise a Fact Issue to Show Duress .........30
III. Point of Error 3: Appellant’s Argument that the Trial Court Granted
More Relief than Requested has been Waived and it is Belied by the
Record ...........................................................................................................35
IV. Point of Error 4: Appellant’s Argument that the Contract Improperly
Provides Oksana Robertson with Spousal Support is Waived; It is also
Wrong ...........................................................................................................36
V. Point of Error 5: Appellant’s Arguments Regarding Attorneys Fees are
Waived, and they are Wrong .........................................................................37
CONCLUSION .......................................................................................................40
PRAYER .................................................................................................................41
CERTIFICATE OF COMPLIANCE .......................................................................43
CERTIFICATE OF SERVICE ................................................................................43
iv
INDEX OF AUTHORITIES
CASES
Bahr v. Kohr, 980 S.W.2d 723 (Tex.App.—San Antonio 1998, no pet.) ...............24
Beckham Resources, Inc. v. Mantle Resources, L.L.C.,
2010 Tex. App. LEXIS 1323(Tex.App.—Corpus Christi 2010, pet. denied) ....40
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671
(Tex. 1979) ............................................................................................. 18, 29, 35
Cockerham v. Cockerham, 527 S.W.2d 162 (Tex. 1975) ........................................21
Cooper v. Cochran, 288 S.W.3d 522 (Tex.App.—Dallas 2009, no pet.)................34
Crosstex Energy Servs. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) .................38
Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977) .........................................26
801 Nolana, Inc. v. RTC Mortgage Trust, 944 S.W.2d 751
(Tex.App.—Corpus Christi 1997, writ denied) ..................................................18
Friedman v. Rozzlle, 2013 Tex. App. LEXIS 14205
(Tex.App.—Corpus Christi-Edinburg 2013, pet. denied) ..................................17
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000)....................38
In re Estate of Cunningham, 390 S.W.3d 685
(Tex. App.—Dallas 2012, no pet.) .....................................................................22
Intercontinental Group Pship v. KB Home Lone Star L.P.,
295 S.W.3d 650 (Tex. 2009) ..............................................................................40
Long v. Ryan, 2009 Tex. App. LEXIS 7448
(Tex.App.—Corpus Christi-Edinburg 2009, no pet.) .........................................29
Martin v. Martin, 287 S.W.3d 260 (Tex. App.—Dallas 2009, pet. denied)............33
Matelski v. Matelski, 840 S.W.2d 124
(Tex.App.—Fort Worth 1992, no writ) ..............................................................30
Nesmith v. Berger, 64 S.W.3d 110 (Tex.App.—Austin 2001, pet. denied) ............33
v
Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546
(Tex. 1985) ..........................................................................................................17
Osborn v. Osborn, 961 S.W.2d 408
(Tex.App.—Houston [1st Dist.] 1997, pet. denied) ............................................26
Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011) ................................................21
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) ....................................17
Ryland Group v. Hood, 924 S.W.2d 120 (Tex. 1996) ............................................18
Sanders v. Republic Nat’l Bank of Dallas, 389 S.W.2d 551
(Tex.Civ. App.—Tyler 1965, no writ)................................................................34
Sheshunoff v. Sheshunoff, 172 S.W.3d 686
(Tex. App.—Austin 2005, pet. denied) ..................................... 28, 30, 31, 32, 34
Silver Lion, Inc. v. Dolphin Street, Inc., 2010 Tex.App. LEXIS 3873
(Tex.App.—Houston [1st Dist.] 2010, no pet.) ...................................................40
Tenneco Oil Co. v. Gulsby Eng’g, Inc., 846 S.W.2d 599
(Tex. App. –Houston [14th Dist.] 1993, writ denied) .........................................34
Wils v. Robinson, 934 S.W.2d 774(Tex. App.--Houston [14th Dist.] 1996),
writ granted, judgm't vacated w.r.m., 938 S.W.2d 717 (Tex. 1997) ..................31
TEXAS CONSTITUTION, STATUTES AND RULES
TEX. CONST. Art. XVI § 15 ..................................................... 1, 2, 18, 19, 20, 22, 27
TEX. CIV. PRAC. & REM CODE § 38.001, et seq. ............................................... 37, 39
TEX. FAM. CODE § 3.002 ..........................................................................................20
TEX. FAM. CODE § 3.003(a) ......................................................................................21
TEX. FAM. CODE § 3.003(b) .....................................................................................21
TEX. FAM. CODE § 3.005 ............................................................................... 1, 18, 20
TEX. FAM. CODE § 3.102 ..........................................................................................21
TEX. FAM. CODE § 4.001(2) .....................................................................................20
vi
TEX. FAM. CODE § 4.101 ..................................................................................... 1, 20
TEX. FAM. CODE § 4.102 ............................................................................... 1, 18, 20
TEX. FAM. CODE § 4.103 ..................................................................................... 1, 18
TEX. FAM. CODE § 4.104 ..................................................................................... 1, 18
TEX. FAM. CODE § 4.105 ............................................................................... 1, 18, 28
TEX. FAM. CODE § 4.201 ..........................................................................................22
TEX. FAM. CODE § 4.202 ..........................................................................................22
TEX. FAM. CODE § 4.203 ..........................................................................................22
TEX. FAM. CODE § 4.204 ..........................................................................................22
TEX. FAM. CODE § 4.205 ..........................................................................................22
TEX. R. APP. P. 33.1(a) .......................................................................... 29, 35, 36, 39
TEX. R. APP. P. 38.1(f) .............................................................................................36
TEX. R. APP. P. 38.1(i).................................................................................. 27, 36, 38
TEX. R. APP. P. 39.1 ................................................................................................. ix
TEX. R. CIV. P. 45 ............................................................................................. 38, 39
TEX. R. CIV. P. 90 .....................................................................................................38
TEX. R. CIV. P. 166a .................................................................................................36
TEX. R. CIV. P. 166a(c).......................................................................... 17, 18, 30, 35
TEX. R. EVID. 602 .....................................................................................................18
SECONDARY SOURCES
Black’s Law Dictionary, 5th Ed. (1979) ...................................................................36
O’Connor’s Texas Family Law Handbook 2014, Chapter 2, “Marital Property” ...22
The Random House College Dictionary (Revised, 1982) .......................................36
vii
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
COMES NOW Oksana Robertson, Appellee, and files her brief, establishing
for the Court that the trial court’s Judgment should in all things be affirmed. Most
of Appellant’s “Points of Error” have been waived. The others fail to properly state
the law or apply it correctly to the summary judgment record. The trial court
properly granted summary judgment enforcing the marital property agreement
executed by the parties, pursuant to the Texas Constitution, the Texas Family Code,
and the law of this state.
STATEMENT OF THE CASE
Appellee Oksana Robertson filed an original petition for divorce from
Appellant David Robertson on May 24, 2013, in the 148th Judicial District Court,
Nueces County, Texas, Cause No. 2013-FAM-2820-E, the Hon. Guy Williams
presiding (original petition not included in record). She filed a First Amended
Petition for Divorce on November 5, 2013, asserting that the parties entered into a
marital property contract and partition agreement which she sought to enforce (Supp.
CR 4, 5). On March 3, 2014, Oksana Robertson filed a Traditional Motion for Partial
Summary Judgment seeking an order holding that the marriage contract was binding
and enforceable (CR 7-15). On June 27, 2014, the trial court granted the motion
(Supp. CR 9). On July 30, 2014, the court entered a Final Decree of Divorce,
ordering the division of the marital property pursuant to the terms of the partition
viii
agreement (CR 782-792). Appellant brings this appeal.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case. TEX. R. APP. P. 39.1. Most of
Appellant’s arguments have been waived. Any dispositive issue that does exist has
been authoritatively decided. The summary judgment record is before this Court.
The decisional process would not be significantly aided by oral argument. Id.
ISSUES PRESENTED, RESTATED
1. The Texas Constitution, Family Code and the law of this State have long
allowed spouses to enter into marital property agreements. Only two
defenses exist, and David Robertson asserted only one in the trial court:
lack of voluntariness. The burden is on the party refuting the validity of
the agreement to prove his defense. David Robertson failed to prove he
did not execute the Partition Agreement voluntarily. He then raises
additional defenses for the first time in this Court; those have been waived.
The trial court properly granted summary judgment (germane to Points of
Error 1 and 2).
2. Appellant’s Point of Error 3 is waived. His assertion that the judgment is
overbroad is raised for the first time in this Court. The argument is further
belied by the record.
3. Appellant’s Point of Error 4 is waived. While it is stated as a complaint
about the division of post-divorce income, the argument presented is
different: Appellant argues Oksana is somehow improperly receiving
spousal support. No such arguments were raised in the trial court. Further
a valid marital property agreement exists and the trial court correctly
enforced it, as stated in Issues Restated 1 and 2.
4. Appellant’s Point of Error 5 regarding attorney’s fees is raised for the first
time in this Court and is waived. In addition the arguments fail on the
merits: the pleadings are more than sufficient, and Chapter 38 is trumped
by the parties’ contract, which requires attorney’s fees to be paid to the
party enforcing the Agreement.
ix
STATEMENT OF FACTS
I. Undisputed Facts: Oksana Robertson’s Summary Judgment
Evidence
Oksana Robertson filed a motion for summary judgment seeking the
enforcement of a Partition Agreement executed by the parties during their marriage
pursuant to Texas Constitution Article XVI Section 15 and Texas Family Code
Sections 3.005 and 4.101-4.105 (CR 7). Because the only defenses available to a
Marital Property Agreement are lack of voluntariness and unconscionability (TEX.
FAM. CODE § 4.105), Oksana asserted that as a matter of law David Robertson could
not prove lack of voluntariness, which was the only defense he alleged (CR 7-15,
157-170). She attached to her motion the Partition Agreement (CR 18-32), the
deposition of David Robertson (CR 35- 118 [taken October 11, 2013]), the affidavit
of attorney and Justice of the Peace Duncan Neblett who prepared the Agreement
for the couple (CR 134-135), and the affidavit of attorney Robert W. Johnson, Jr.,
who had been advising the Robertsons for some time regarding various legal matters
(CR 120-130). The evidence established David Robertson executed the Partition
Agreement voluntarily.
A. David and Oksana Robertson Executed a Proper Marital
Property Agreement – a Partition Agreement -- During their
Marriage
David Robertson and Oksana Robertson, husband and wife at the time, entered
into a “Partition of Property and Allocation of Income Agreement” on July 12, 2012
1
(CR 18-32). The Agreement is initialed by both David and Oksana at the bottom of
every page (id.). Both signed the agreement before a Notary Public of the State of
Texas (CR 25-27). The Agreement states, “The parties are entering into this
Agreement in accordance with article XVI, section 15, of the Texas Constitution, as
amended, and relevant sections of the Texas Family Code, as amended.” (CR 18)
The Agreement further states:
The parties own certain real and/or personal property and are recipients
of monthly income as described in Schedules A, B and C, which are
attached to this Agreement. The parties intend by this agreement to
partition or exchange those properties between themselves and to
establish the protocol for paying their monthly expenses out of the
income described in Schedule C. The Parties also intend to continue
owning property jointly. A partial list of those items is set out in
Schedule D.
(CR 18). The Partition Agreement expressly includes the following, above the
signatures:
Article 9
Representations and Warranties
WARNING
EACH PARTY TO THIS AGREEMENT UNDERSTANDS THAT
BY SIGNING THIS DOCUMENT HE OR SHE IS PERMANENTLY
SURRENDERING RIGHTS AND CLAIMS HE OR SHE WOULD
OTHERWISE HAVE UNDER TEXAS LAW AND UNDER THE
LAW OF OTHER JURISDICTIONS.
(CR 24). Immediately below this Warning are “Representations and Warranties of
Husband,” and “Representations and Warranties of Wife” (CR 24-26). Under each,
2
it is stated:
1. I have carefully read each and every page of this agreement and the
schedules attached and referred to, in their entirety.
2. I have been advised by attorney Duncan Neblett Jr. about the law
relating to the subject matter of this agreement and about the spousal
rights and liabilities of both Parties. I acknowledge that he has
advised me some of the provisions of this agreement may not be
enforceable.
3. I AM ENTERING INTO THIS AGREEMENT VOLUNTARILY.
4. I have given careful and mature thought to the making of this
agreement.
5. I fully and completely understand each provision of this agreement,
concerning both the subject matter and the legal effect. I further
acknowledge that this agreement was not procured by fraud, duress,
or overreaching.
*********
9. I am executing this agreement with intent to be bound fully by all
its terms.
(CR 24-25, 25-26) (all caps in original, underline added).
The agreement states “Duncan Neblett, Jr. is the attorney who has prepared
this agreement. However he is not representing either party, but has relied only on
the information given to him by the Parties.” (CR 24)
The Partition Agreement states that with respect to the property listed on
Schedules A and B, the spouses are partitioning and exchanging whatever
community property interest they may have in and to the property listed on one
3
another’s Schedules, and the property on each spouse’s Schedule is the separate
property of that spouse (CR 19, 22). The Schedules (CR 28, 29) provide:
Schedule A
Property to Husband
1. Real Property, improvements, furniture and furnishings located in Junction, Texas
2. Lots 21-24 block 15, Ocean Drive, Corpus Christi, Texas
3. Handicap-equipped Van
4. All fire arms in his possession or control
5. USAA Account# 01394-8838-3 and any other bank account solely in his name
6. $3,000 in silver coins and $3000 in gold coins purchased prior to marriage
7. Any property acquired prior to marriage
8. Monthly Social Security checks currently in the monthly amount of $426.00
9. $139/week received as Workman's Compensation benefits
o. R.
Initials of DAVID ROBERTSON Initials of OKSANA ROBERTSON
4
Schedule B
Property to Wife
1. Real property and improvements including furniture, furnishings and fixtures located at
13729 Three Fathoms Bank, Corpus Christi, Texas
2. Cadillac automobile
3. Account #0310085950 at American Bank
Account #807760927 at First Victoria Bank and any other other bank account solely in
her name
4. Gold coins and jewelry
5. All "massage" business income
6. Any property acquired prior to marriage
,..-....
j)J . 0. R..
initials of DAVID ROBERTSON Initials of OKSANA ROBERTSON
Schedule C is an “Identification and Expense Allocation of Monthly Income
received from Arrowpoint Capital,” with an explicit list of the spouses’ monthly
expenses, including David’s LVN and Companion care, and expenses associated
with the separate property that was partitioned in the Agreement; the balance each
month to be divided 50/50 between the parties and “shall become that party’s
separate property.” (CR 30-31). Schedule D is a partial list of additional jointly
owned property, including any proceeds from the Robertson v. Arrowpoint Capital
litigation discussed below (CR 32).
5
B. David Robertson’s Deposition
David Robertson testified in his deposition that he and Oksana married in
2002 (CR 40). Oksana took care of his nursing needs (CR 43). David adopted
Oksana’s son in 2004 (CR 105).
David testified that the night before he and Oksana went to Duncan Neblett’s
office in Port Aransas to execute the Partition Agreement, the document was
provided to him for his review and he read it (CR 57, 58). David actually emailed
Neblett back with suggested changes to the document related to his Junction, Texas
property (CR 59-60). The next day, when they traveled to Port Aransas to Neblett’s
office, David requested another change to the document, and Neblett made that
change (CR 61)
Before Duncan Neblett helped with the Partition Agreement, David Robertson
drew up his own proposal for the partition of the marital property, which he sent by
email to attorney Robert Johnson (CR 70, 71-72, 73, 132 [David’s agreement]).
David had been speaking at length with Mr. Johnson about a partition agreement
(CR 72). The agreement David prepared is below:
6
Division of Arrowpoint Check
• Out of the monthly check of 22,674.00,all bills will be paid, this is known as the
"bills list".
These are now (approximately
14,500).
• The remainder will be divided in half between David and Oksana ( approximately
$4,087 each).
• Any new bills will go onto the bill list. These will be agreed upon before hand.
• The house will be Oksana's property.
• Property pre-marriage is not community property.
• The $40,000 silver is community property.
• Any money received from the $165K settlement offer is to be divided 50/50 after
expenses.
• The money in the USAA bank is David's
• Oksana's named accounts are hers.
• Partners are to settle disputes in an adult fashion. Abusive language, threats, and
name calling all puts one in violation of this agreement.
X. Date _ x Date _
David Robertson Oksana Robertson
(CR 132) As can be seen, the partition and exchange of property in David’s
homemade agreement looks substantially similar to the partition and exchange of
property in the Partition Agreement David and Oksana signed in Judge Neblett’s
office (CR 28-32).
David Robertson has experience drafting his own legal documents, and with
attorneys drafting documents for his execution: he drafted his own Will, then an
attorney later drafted a Will for him in 2010, which he signed (CR 47-48). He said
he was happy to execute both documents, because at the time of both, Oksana was
7
fearful and seemed to lack a sense of security (CR 106-107).
Despite the fact that he drafted his own Partition Agreement that looked very
similar in terms of the division of property to the one he signed in Duncan Neblett’s
office (compare CR 132 with CR 28-32), David claimed in his deposition that
Oksana “made a lot of threats about what was going to happen if I didn’t sign” the
Partition Agreement that was drafted by Duncan Neblett (CR 58). When asked to
specify, he said Oksana told him she and two attorneys, Robert Johnson and a Mr.
Kennedy, would strip him of his nursing benefits and sue his mother (CR 58, 61-62,
75-76). However, when asked to truly explain what he was talking about, David
testified to the following:
Attorney Robert Johnson was the Robertsons’ neighbor; he had been
providing legal advice to David and Oksana regarding a lawsuit they filed against
Arrowpoint Capital insurance company – the company paying David benefits -- for
bad faith (CR 63-65, 68-69) (the aforementioned Mr. Kennedy is the lawyer who
represents Arrowpoint Capital [CR 75]). After a time, attorney Johnson told the
Robertsons he felt conflicted in their marital discourse so he could no longer
represent either one of them; but David wanted Johnson to finish the Arrowpoint
litigation for him (CR 65-68, 68-70, 77).
An offer to settle had been made by Arrowpoint; David felt he needed attorney
Johnson to help him recover the money (CR 65-68, 68-69, 74). David Robertson
8
testified he wanted to remove the conflict between himself and Oksana – and
therefore for attorney Johnson – so he could get Johnson back to complete the
Arrowpoint litigation (CR 70-71, 72-73, 74-75).
David testified repeatedly, every time he was asked what was causing him
stress when he signed the Partition Agreement, that he was concerned that if he did
not follow through with the Arrowpoint litigation, Arrowpoint would “commit bad
faith again and maybe take away my nursing benefits.” (CR 68, 79, 80-81, 85, 87)
He said Oksana and Johnson suggested that was a possibility (CR 79, 87). David
speculated repeatedly that if attorney Johnson did not come back, his suit was over
and eventually Arrowpoint was going to take his nursing check away (CR 74-75,
76-77, 80-81, 85, 87). He said the insurance company had made threats to him in
the past (CR 80-81, 85). David specifically testified that he agreed to the Partition
Agreement because of his fear that eventually Arrowpoint might take away his
nursing benefits if he did not follow through with his current litigation against
Arrowpoint (CR 86).
Ultimately, after David Robertson signed the Partition Agreement, he said he
found a new lawyer; and as of the time of his deposition his settlement with
Arrowpoint was in the works (CR 88-89). He also testified he and Oksana complied
with the Partition Agreement after it was signed for some time, until David began
diverting funds (CR 89, 90).
9
C. Attorney Robert W. Johnson, Jr.’s Affidavit
Also attached to Oksana Robertson’s summary judgment motion is the
affidavit of attorney Robert Johnson (CR 120-122), who is Board Certified by the
Texas Board of Legal Specialization in the area of Legal Professional Responsibility
(CR 125).
Mr. Johnson avers he lived across the street from the Robertsons for 10 years,
and in that time he advised them regarding the Robertson v. Arrowpoint Capital
matter (CR 120). When the marital discord got to a certain level, in mid-June 2012
Mr. Johnson told the Robertsons he could no longer represent both of them in that
lawsuit, and suggested several attorneys to help them with their legal matters,
including Judge Duncan Neblett (CR 121).
Attorney Johnson averred that on July 30, 2012, after the Robertsons signed
the July 12, 2012 Partition Agreement, David Robertson had Duncan Neblett fax the
Agreement to Johnson, and David asked Johnson to help him again with the
Arrowpoint Capital litigation, which Johnson did for about another year (CR 121).
Johnson averred that in all the years he counseled David Robertson, through
2013, he never had any indication that David Robertson did not trust him (CR 121).
Nor did David Robertson ever contend that he was signing or had signed the Partition
Agreement under duress, or that he did not understand it (CR 121, 122).
10
D. Justice of the Peace Duncan Neblett’s Affidavit
Judge Neblett stated in his affidavit that he had been consulting with David
and Oksana Robertson, together, about a Partition Agreement since April 2012 (CR
134). David Robertson asked Neblett to forward a draft to him on May 1, which
Neblett did, and David Robertson made changes and sent the draft back (id.). A
final draft was provided to both parties, and on July 12, 2012 David and Oksana
Robertson appeared at Neblett’s office (id.). Neblett explained the document to the
Robertsons, and they executed the Agreement before a Notary Public (CR 134).
David Robertson wrote a check to Judge Neblett in payment for his services in
preparing the Partition Agreement (CR 135). As of Neblett’s September 25, 2013
affidavit, the only contact he had with the Robertsons since the execution of the
Agreement was a request from each for a copy (CR 135).
II. David Robertson’s Response to the Motion for Summary Judgment
Fails to Present Competent Summary Judgment Evidence or Raise a
Fact Issue
David Robertson’s Response to Oksana’s motion for summary judgment (CR
157-170) alleged: “Petitioner’s motion fails to establish her entitlement to summary
judgment for three reasons. The motion improperly shifts the burden to produce
evidence to Respondent; it asks this court to disregard competent summary judgment
evidence favorable to nonmovant, and disregards the law applicable to spousal
agreements.” (CR 161). David argued that the agreement was not a partition
11
agreement under Family Code Section 4.102, but rather a conversion agreement
under TEX. FAM. CODE §§ 4.201-.205 (CR 162-165), and that the Agreement was
not executed voluntarily (CR 162, 165-166).
In support of these propositions David Robertson attached and relied on his
10-page Affidavit, signed on June 1, 2014, long after his deposition was taken in
October 2013 (MSJ Response, passim, CR 180-189 [affidavit]). Most of the
contents are irrelevant, having nothing to do with the actual execution of the Partition
Agreement (id.). Those parts that do reference the Agreement, when read carefully,
show that David Robertson’s affidavit reiterates what he said in his deposition: he
was afraid if he did not follow through with the Arrowpoint litigation Arrowpoint
would, some time in the future, attempt to take away his nursing benefits (184-185).
David Robertson thought he needed Robert Johnson to make that happen and was
taking actions to get Johnson back on the case after he cited a conflict (CR 185, 186-
87). David Robertson admits Robert Johnson was still representing them as late as
June 13, 2012 (CR 185, 186), long after David Robertson had created his own
homemade partition agreement (CR 132, 185-186). David Robertson admits in his
affidavit “Drafts of possible divisions of properties and monies that I would restrict
myself to using while in Junction, Texas were circulated between Oksana and I, and
some were sent to Robert Johnson who was helping us resolve this issue.” (CR 186,
132) At no time does David Robertson say that he was drafting possible divisions
12
of property and monies because of any threat Oksana made to him about Arrowpoint
Capital (CR 185-186). Rather, the affidavit says at the time of those drafts he was
afraid Arrowpoint might elect to take away his benefits some time in the future if he
dropped the current lawsuit (id.).
David Robertson then states in his affidavit, with no corroboration whatsoever
and completely contrary to anything he said in his deposition, that in the week before
the Partition Agreement was signed Oksana “promise[d] to get my nursing benefits
removed due to her promising to testify I used the money improperly.” (CR 187)
He also says, contrary to what he said in his deposition, that she threatened to kill
various family members (CR 187).
Taking them in reverse order, David Robertson said in his deposition that the
alleged threat against his family (which Oksana wholly disputes) came after the
parties signed the Partition Agreement (CR 108) (“That came afterwards.”). More
importantly, he has abandoned that argument in this Court. The allegation of
some physical threat can be dismissed out of hand.
As for the alleged threat to take his nursing benefits away, Robertson testified
to no such thing in his deposition and tendered no evidence to corroborate it in his
affidavit. He further confirmed his pure speculation: “Although I didn’t think Mr.
Kennedy [counsel for Arrowpoint] had ever been approached about this [alleged
testimony from Oksana], I had no doubt she would definitely, with [Robert]
13
Johnson’s help give him something worth reporting to his client that might very well
cause my benefits to be lost or reduced.” (CR 187) The other witnesses in the case
– both of whom are lawyers and officers of the court – testified under oath and
confirmed that David Robertson executed the Partition Agreement wholly
voluntarily (see above).
While David Robertson also attached the deposition of Judge Neblett to his
Response (CR 223) in an apparent attempt to discredit Judge Neblett’s ability to
draft the Partition Agreement (CR 165-170), no argument has been raised in this
Court regarding Judge Neblett, so that is moot.1 No other evidence is attached to
David Robertsons’ summary judgment response.
SUMMARY OF THE ARGUMENT
The Texas Constitution and the Texas Family Code permit spouses to enter
into marital property agreements and to gift property to one another. That is
precisely what David and Oksana Robertson did here. They “owned certain real
and/or personal property and were recipients of monthly income;” they “partitioned
or exchanged those properties between themselves” and “established the protocol
for paying their monthly expenses out of the income.” All property partitioned to
1
David Robertson also objected to Robert W. Johnson’s affidavit in his summary judgment
Response (CR 161), but the objection was implicitly overruled by virtue of the trial court’s
order granting summary judgment (or otherwise it was not ruled on at all). David does not
challenge attorney Johnson’s affidavit in his Brief in this Court. That issue too is moot.
14
each spouse was deemed their separate property, and after payment of all bills
associated with the partitioned property, the remainder of the income was divided
equally and deemed each spouse’s separate property.
This is not a conversion agreement, which expressly converts separate
property into community property, usually for the purpose of tax and estate planning.
The Robertsons were not tax and estate planning. Nothing in the Agreement says
any item of property is separate and being converted to community. And there is no
evidence that any property was actually separate property, converted to community.
All the property David Robertson asserts in his brief was his separate property and
somehow converted to community and given to Oksana was not given to Oksana –
it went on David’s Schedule A. As to Oksana’s Schedule B, David does not even
mention the property listed, save for the marital residence on Three Fathoms. But
the house was purchased after the couple married; Oksana has an income; they paid
the mortgage together for 10 years prior to executing this Agreement. The marital
residence is presumed community. No property was separate property converted to
community by this agreement. As for the Arrowpoint check, the same principles
apply: David Robertson is permitted to gift his property, and the parties can partition
and exchange all or part of their property interests. The entire marital estate was
partitioned, with the expenses associated with each spouse’s now-separate property
being paid for as the parties agreed in Schedule C, and the remainder divided 50/50
15
each month, which “shall become that party’s separate property.” David Robertson
admitted the parties had come to an agreement on expenses long before this
Agreement was executed.
Under the Family Code and the law of this state, the burden to refute a
partition and exchange agreement is on the contesting party; David Robertson
misstates the law in that regard. He failed to adduce any competent evidence that he
signed the Agreement under duress. His self-serving affidavit, which is largely
irrelevant, is otherwise steeped in speculation. As to other points he confirms what
he said in his deposition: his true concern was with getting Robert Johnson back on
his case against the insurance company. There is no evidence of any actual imminent
threat brought to bear on David by Oksana. Imminent threat is indeed the proper
standard in family law duress cases; David misstates the law on this point as well.
Points of Error 3, 4, and 5 are all waived. None of these arguments was ever
lodged in the trial court, in the summary judgment pleadings or in the motion for
new trial. If the same be necessary, the judgment is not overbroad: David admits he
and Oksana are one another’s irrevocable beneficiaries to their life insurance policies
and he agreed to that. The statement of Issue 4 and the argument lodged are entirely
different; the Agreement says nothing about spousal support. This is a valid partition
and income allocation agreement. Finally, Oksana expressly pleaded that she was
enforcing the parties’ agreement and sought attorneys fees. David filed no special
16
exceptions. And the prevailing party provision in the Agreement trumps Chapter
38.
The trial court’s judgment must in all things be affirmed.
ARGUMENT
I. Standard of Review
To prevail on a motion for summary judgment, the movant has the burden to
show there are no genuine issues of material fact and she is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d
217, 222 (Tex. 1999); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d
546, 548-49 (Tex. 1985). To meet this burden, the movant must conclusively prove
all elements of her cause of action as a matter of law. Rhone-Poulenc, Inc., 997
S.W.2d at 223. The burden then shifts to the non-movant to show that genuine issues
of material fact do exist. TEX. R. CIV. P. 166a(c). When the movant is able to show
there is no genuine issue of material fact and she is entitled to judgment as a matter
of law, summary judgment is proper. TEX. R. CIV. P. 166a(c).
Summary judgment rulings are reviewed de novo. Friedman v. Rozzlle, 2013
Tex. App. LEXIS 14205, *9 (Tex.App.—Corpus Christi-Edinburg 2013, pet.
denied).
Summary judgment evidence must be competent. The affidavit of an
interested party, such as the named Respondent in a divorce, must be “clear, positive
17
and direct, otherwise credible and free from contradictions and inconsistencies.”
TEX. R. CIV. P. 166a(c). Unsubstantiated legal and factual conclusions are no
evidence. E.g., Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (factual
conclusions not permitted); 801 Nolana, Inc. v. RTC Mortgage Trust, 944 S.W.2d
751, 754 (Tex.App.—Corpus Christi 1997, writ denied) (legal conclusions are no
evidence). And, purely speculative statements are no evidence. TEX. R. EVID. 602.
David Robertson’s argument in his brief that his affidavit was proper even
without the magic words that his statements were “true and correct” (Ant Br at 12-
14) misses the point entirely. The real problem with his affidavit is that it is replete
with legal and factual conclusions and speculation, none of which is evidence.
Defects of substance in an affidavit can be raised for the first time on appeal.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979).
David Robertson makes no such objections in this Court, but Oksana here proffers
them all.
II. David and Oksana Robertson Executed a Binding Marital Property
Agreement; It was David Robertson’s Burden to Prove His Defense to
the Agreement and He Failed to Do So (Germane to Points of Error 1
& 2)
The Texas Constitution and the Texas Family Code expressly permit spouses to
enter into marital property agreements and to gift property to one another. TEX.
CONST. Art. XVI, § 15; TEX. FAM. CODE §§ 3.005, 4.102-.105.
18
A. The Texas Constitution
The Texas Constitution provides:
§ 15. Separate and Community Property
All property, both real and personal, of a spouse owned or claimed
before marriage, and that acquired afterward by gift, devise or descent,
shall be the separate property of that spouse; and laws shall be passed
more clearly defining the rights of the spouses, in relation to separate
and community property; provided that persons about to marry and
spouses, without the intention to defraud pre-existing creditors, may by
written instrument from time to time partition between themselves all
or part of their property, then existing or to be acquired, or exchange
between themselves the community interest of one spouse or future
spouse in any property for the community interest of the other spouse
or future spouse in other community property then existing or to be
acquired, whereupon the portion or interest set aside to each spouse
shall be and constitute a part of the separate property and estate of such
spouse or future spouse; spouses also may from time to time, by written
instrument, agree between themselves that the income or property from
all or part of the separate property then owned or which thereafter might
be acquired by only one of them, shall be the separate property of that
spouse; if one spouse makes a gift of property to the other that gift is
presumed to include all the income or property which might arise from
that gift of property; spouses may agree in writing that all or part of
their community property becomes the property of the surviving spouse
on the death of a spouse; and spouses may agree in writing that all or
part of the separate property owned by either or both of them shall be
the spouses' community property.
TEX. CONST. Art. XVI, § 15 (emphasis added). Therefore, pursuant to the Texas
Constitution, spouses are permitted to partition or exchange between themselves all
or part of their community and separate property, or exchange between themselves
their community property interests in various properties. Id. They may gift their
19
property to one another. Id. That is precisely what David and Oksana Robertson
did here (CR 18-32).
B. The Texas Family Code
In compliance with the constitutional mandate, the Texas Legislature has
promulgated several provisions in the Texas Family Code, such as:
Spouses are permitted to make a gift of property to one another. TEX. FAM.
CODE § 3.005 (“If one spouse makes a gift of property to the other spouse, the gift
is presumed to include all the income and property that may arise from that
property”). In addition,
§ 4.102. Partition or Exchange of Community Property
At any time, the spouses may partition or exchange between themselves
all or part of their community property, then existing or to be acquired,
as the spouses may desire. Property or a property interest transferred to
a spouse by a partition or exchange agreement becomes that spouse's
separate property. The partition or exchange of property may also
provide that future earnings and income arising from the transferred
property shall be the separate property of the owning spouse.
“Property” “means an interest, present or future, legal or equitable, vested or
contingent, in real or personal property, including income and earnings.” TEX. FAM.
CODE §§ 4.101, 4.001(2).
C. The Community Property Presumption
In addition, “Community property consists of the property, other than separate
property, acquired by either spouse during marriage.” TEX. FAM. CODE § 3.002.
20
“Property possessed by either spouse during or on dissolution of marriage is
presumed to be community property.” TEX. FAM. CODE § 3.003(a) (emphasis
added). “The degree of proof necessary to establish that property is separate
property is clear and convincing evidence.” TEX. FAM. CODE § 3.003(b). Personal
earnings are community property. TEX. FAM. CODE § 3.102.
As the Texas Supreme Court has held for decades, “Parties claiming certain
property as their separate property have the burden of rebutting the presumption of
community property. To do so, they must trace and clearly identify the property in
question as separate by clear and convincing evidence.” Pearson v. Fillingim, 332
S.W.3d 361, 363 (Tex. 2011); accord Cockerham v. Cockerham, 527 S.W.2d 162,
167 (Tex. 1975). “In order to overcome [the community property] presumption, the
party asserting separate ownership must clearly trace the original separate property
into the particular assets on hand during the marriage.” Cockerham, 527 S.W.2d at
167.
It is important to understand that, as the Texas Supreme Court holds, the
characterization and division of property as community that one party claims – but
fails to prove – is separate “is not a divestiture of separate property, but a necessary
classification of property as set by the community presumption.” Pearson, 332
S.W.3d at 364.
21
D. This is Not a Conversion Agreement
David Robertson claims theirs is not a partition agreement, but a conversion
agreement under Texas Family Code Sections 4.201-4.205 (Ant Br at 14, 22-24).
The Texas Constitution and the Texas Family Code allow: “At any time, spouses
may agree that all or part of the separate property owned by either or both spouses
is converted to community property.” TEX. CONST. Art. XVI § 15; TEX. FAM. CODE
§ 4.202. A conversion agreement expressly converts separate property into
community property. TEX. FAM. CODE § 4.202, 4.203. The usual purpose of such
an agreement is for estate planning purposes: for instance, community property has
better tax-planning benefits than does separate property. See, O’Connor’s Texas
Family Law Handbook 2014, Chapter 2, “Marital Property,” at p. 171. Or, one
spouse may want to ensure that his/her separate property will pass to the other spouse
upon their death. See, In re Estate of Cunningham, 390 S.W.3d 685, 687 (Tex.
App.—Dallas 2012, no pet.) (husband attempted to convert his separate real property
to community property for the benefit of wife with the intent that the property would
pass on his death to her; in an estate proceeding, husband’s son challenged the
agreement after he died).
A conversion agreement is not what the Robertsons executed here. They were
not estate planning. Rather, the Robertsons’ “Partition of Property and Allocation
of Income Agreement” expressly states, at page 1, “Stipulations”:
22
“The parties own certain real and/or personal property and are
recipients of monthly income as described in Schedules A [“Property
to Husband”], B [“Property to Wife”], and C [“Identification and
Expense Allocation of Monthly Income Received from Arrowpoint
Capital (currently $22,674.00/Mo)”], which are attached to this
agreement. The parties intend by this agreement to partition or
exchange those properties between themselves and to establish the
protocol for paying their monthly expense out of the income described
in Schedule C.
(CR 18). The Agreement then does exactly that: in “Article 2 Partition of Property,”
the spouses partition and exchange to one another “her/his community-property
interest in and to all the property listed in Schedule A/B,” and the property listed on
each Schedule becomes that spouse’s separate property (CR 19). With respect to the
allocation of income, Schedule C, the Agreement clearly states that after all expenses
are paid, the remainder each month will be divided between the spouses equally and
“shall become that party’s separate property.” (CR 31) Nothing in the Agreement
says that any item of property is being characterized as community property. Rather,
the end result of this Agreement is that the parties’ property has now been partitioned
and exchanged such that each has his/her own list of separate property (CR 19-32).
In addition David Robertson has not shown that any of the property in
Schedule B, “Property to Wife” (which became her separate property), was his
separate property that he converted to community property (and then partitioned to
Oksana as her separate property). David fails to overcome the community property
presumption. To the precise contrary, in his deposition and his affidavit David
23
testified that Oksana has an income as a licensed massage therapist (CR 82, 181).
The residence at Three Fathoms that was partitioned as Wife’s Property was
purchased in 2002 after David and Oksana married (CR 40, 181, 199-201), with a
loan the two paid monthly for the duration of their marriage (10+ years). David
testified in his deposition that he and Oksana took out a second mortgage on the
family residence at Three Fathoms to purchase lots on Ocean Drive (CR 50-52, 103-
104). He testified he and Oksana were originally going to build on the property and
move from the Three Fathoms house (CR 103-104). Under the Partition Agreement,
Oksana got the (double-mortgaged) house and David got the (debt free) Ocean Drive
lots (the Court can take judicial notice of the prestige of Ocean Drive, these are not
just “empty lots” as David contends in his brief) (CR 28, 29).
David Robertson did not prove by clear and convincing evidence that the
Three Fathoms property partitioned to Oksana was his separate property and
converted to community property. See, e.g., Bahr v. Kohr, 980 S.W.2d 723, 730
(Tex.App.—San Antonio 1998, no pet.) (proof of character of proceeds in bank
account requires documentation about when account opened, beginning balance,
debits and credits, and that there are no community funds in the account). The Three
Fathoms house is presumed community property.
David presented no evidence that the remainder of the properties listed on
Oksana’s Schedule B were his separate property, converted to community property,
24
nor could he (CR 29). David makes no reference to her automobile, her two bank
accounts, her gold coins and jewelry, and her massage business income in his
affidavit (CR 180-88). They were further in her possession and presumed
community property; otherwise they are gifts, or they are a proper exchange of the
parties’ property under the Texas Constitution and the Family Code (CR 29).
Oksana’s property acquired prior to marriage is her separate property and remains
so under the Agreement (CR 29). Nothing has been converted from separate to
community.
Likewise, Schedule A, “Property to Husband,” partitions property to David
identically. David’s separate Junction property (CR 181), which he wrongly says in
his brief was “divided” in the Agreement (Ant Br at 23) was not divided – it is still
his separate property under the Agreement, as is any property he acquired prior to
marriage, and his social security and workers’ compensation benefits (CR 28). His
guns (CR 181) and silver coins, his van, and bank accounts in his name, whether his
separate property or community, have been partitioned as his separate property (CR
28). As discussed he was partitioned the couple’s Ocean Drive lots, which are
community property (CR 28). There is no evidence any piece of property partitioned
in this Agreement was David Robertson’s separate property, converted to
community property.
With respect to the Arrowpoint check, Schedule C, the same principles apply.
25
Under the Texas Constitution and the Family Code, David Robertson is permitted to
gift his property, and the parties can partition and exchange all or part of their
property interests. The entire marital estate was partitioned in the agreement, with
the expenses associated with each spouse’s now-separate property being paid for as
the parties agreed in Schedule C, and the remainder divided 50/50 each month, which
“shall become that party’s separate property.” (CR 31) David Robertson admitted
in his affidavit that the parties had come to an agreement on some expenses long
before this Agreement was executed (compare CR 184 [“I agreed to limit the amount
of money I spent in Junction. The figure we came up with was $5600 per month”]
with CR 31 [Schedule C - $5600/month care for David if not living with wife]). He
also admitted he was drafting agreements with Oksana regarding the division of
money before the Partition Agreement was executed (CR 186, 182 [homemade
agreement]). Nothing in the Partition Agreement states that the check is in any way
being converted to community property.
David Robertson cites only two cases in his brief, Osborn v. Osborn, 961
S.W.2d 408 (Tex.App.—Houston [1st Dist.] 1997, pet. denied) and Eggemeyer v.
Eggemeyer, 554 S.W.2d 137 (Tex. 1977) (Ant Br at 23, 24) for the proposition that
the agreement somehow divests him of separate property and thereby improperly
converts same to community. Neither case involves a marital property agreement.
Neither applies. Robertson presents no authority to support his proposition that this
26
Partition Agreement is somehow a conversion agreement. TEX. R. APP. P. 38.1(i).
Finally, David Robertson briefly mentions, in only a partial sentence, the
division of the recovery from the Arrowpoint Capital litigation as some divestiture
of separate property, without any discussion, analysis, or authority (Ant Br at 24).
The argument is waived for failure to brief. TEX. R. APP. P. 38.1(i). But in addition,
attorney Robert Johnson averred by affidavit that he was representing both
Robertsons in that litigation (CR 121); indeed his decision to get off the case because
of a potential conflict between David and Oksana, both of whom were his clients in
that litigation, was discussed ad nauseum in the evidence, as set forth above. David
Robertson cites no authority for the proposition that the proceeds from that litigation
could not be partitioned in this marital property agreement.
There is no evidence any tax planning was occurring when this agreement was
executed. The agreement was executed for an entirely different purpose: to partition
and exchange to one another all or part of the spouses’ property as separate property,
and to allocate income to pay the expenses associated with that separate property
(the balance each month to be divided equally as separate property). TEX. CONST.
Art. XVI § 15. This is not a conversion agreement.
E. Enforcement of Partition and Exchange Agreements: the
Burden is on the Party Opposing the Agreement
With respect to enforcement of marital property partition agreements, the
burden is on the party claiming the agreement is unenforceable to prove the same,
27
contrary to David Robertson’s contention otherwise. TEX. FAM. CODE § 4.105;
Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 694 (Tex. App.—Austin 2005, pet.
denied). “[T]he Texas Legislature [has] 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.” Sheshunoff, 172 S.W.3d at 694, 701.
Section 4.105 provides:
§ 4.105. Enforcement
(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
(2) the agreement was unconscionable when it was signed . . . .
******
(c) The remedies and defenses in this section are the exclusive
remedies or defenses, including common law remedies or defenses.
TEX. FAM. CODE § 4.105. Thus, only two defenses exist, lack of voluntariness and
unconscionability. Id.; Sheshunoff, 172 S.W.3d at 695. Duress, lack of capacity,
fraud, undue influence, and lack of relative bargaining power and knowledge “could
bear on the ultimate determination of voluntariness.” Sheshunoff, 172 S.W.3d at
695-96. But while they may inform the issue, “they do not control.” Id. at 698.
28
1. David Robertson Contends Only that He Executed the
Agreement Involuntarily Because of Alleged Economic Duress
David Robertson has only ever alleged voluntariness; he has never alleged
unconscionability, in the trial court or on appeal. And, he has never alleged lack of
capacity, fraud, undue influence, or lack of relative bargaining power; he does not
assert lack of knowledge in this Court. Duress is his argument. That said, we must
carefully review the arguments Robertson is asserting in his brief, first to ensure they
were raised in the trial court (at least one was not) and second to assess whether any
evidence supports them.
First, David argues that Oksana was going to commit tortious interference
with his Arrowpoint contract (Ant Br at 17-19). This argument is nowhere lodged
in the trial court (CR 157-170 [Resp to MSJ], 777-780 [MNT]). There is but one
paragraph in the summary judgment response about nursing benefits and it says
nothing about tortious interference, or the elements thereof (CR 165). For that
matter, much of the argument lodged in Appellant’s Brief was not raised in the trial
court (compare CR 165 [two-paragraph argument regarding lack of voluntariness in
summary judgment response] with Ant Br at 17-22).
The tortious interference argument, at a minimum, has been waived. TEX. R.
APP. P. 33.1; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677-78
(Tex. 1979); Long v. Ryan, 2009 Tex. App. LEXIS 7448, **14-15, n. 29
(Tex.App.—Corpus Christi-Edinburg 2009, no pet.) (quoting TEX. R. CIV. P.
29
166a(c): “issues not expressly presented to the trial court by written motion, answer
or other response shall not be considered on appeal as grounds for reversal.”).
2. David Robertson Fails to Raise a Fact Issue to Show Duress
Texas Courts hold, with respect to duress:
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.
Sheshunoff, 172 S.W.3d at 687 (quoting Matelski v. Matelski, 840 S.W.2d 124, 129
(Tex.App.—Fort Worth 1992, no writ)). David Robertson wrongly asserts in his
brief that the threat need not be imminent, that “imminent” is a “criminal
prosecution” standard (Ant Br at 19-20). The foregoing definition of duress in the
marital property agreement context expressly requires that the restraint caused by
such threat must be imminent; the person to whom it is directed must have no present
means of protection.
"In deciding whether there has been undue influence, the court should
consider three factors: (1) the existence and exertion of an influence; (2) whether the
influence operated to subvert or overpower the person's mind when executing the
document; and (3) whether the person would have executed the document but for
30
the influence." Wils v. Robinson, 934 S.W.2d 774, 780 (Tex. App.--Houston [14th
Dist.] 1996), writ granted, judgm't vacated w.r.m., 938 S.W.2d 717 (Tex. 1997).
There is no evidence of any imminent threat. The farthest David Robertson
would go is to assert in his affidavit (not in his deposition) – with no corroboration
whatever -- that Oksana “promised” to testify in some unidentified lawsuit (CR 187).
He confirms the pure speculation of this allegation: “Although I didn’t think Mr.
Kennedy [counsel for Arrowpoint] had ever been approached about this [alleged
testimony from Oksana], I had no doubt she would definitely, with [Robert]
Johnson’s help give him something worth reporting to his client that might very well
cause my benefits to be lost or reduced.” (CR 187) Speculation on speculation on
speculation is no evidence. There was no imminent threat to do anything, let alone
something illegal.
Sheshunoff is strikingly similar (David Robertson fails to properly analyze the
case [Ant Br at 18]). The Husband tendered his own affidavit on the issue of
voluntariness and contended that his wife threatened she would withdraw a loan
guarantee if he did not sign the marital property agreement. Id., 172 S.W.3d at 699.
He contended the bank would then have the ability to cut off his line of credit. Id.
The court of appeals held this was not evidence of an imminent threat:
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
31
likelihood that Bank of America in fact would have exercised this
contractual right, at Ms. Sheshunoff’s behest or otherwise.
Id. at 699-700 (italics in original). The court held it was pure speculation whether
this was “the sort of imminent threat that Texas law has considered capable of
overwhelming free will and rendering Mr. Sheshunoff’s execution of the Marital
Property Agreement involuntary.” Id. at 700. Likewise, David’s assertion that
Oksana threatened to testify in an unknown lawsuit is pure speculation regarding
what would happen next, at Oksana’s behest or otherwise.
In addition, there is extensive evidence – from David Robertson himself and
attorney witnesses -- that David was drafting partition and income allocation
agreements long before the Partition Agreement was executed and threats were
allegedly made. David had previously written his own will. Similarly, in
Sheshunoff, Mr. Sheshunoff, who was attacking the agreement, failed to raise a fact
issue on the issue of voluntariness because the parties had extensively negotiated the
marital property agreement at issue for several months. Id., 172 S.W.3d at 699. Both
parties were sophisticated, and they had executed prior agreements, and understood
the purpose of those agreements. Id. The evidence makes clear David Robertson
would have executed this Agreement, or one nearly identical to it, without the
alleged threats. There is no evidence – even from David himself – that his mind was
overpowered when he executed the document.
32
David Robertson’s cited case of Martin v. Martin, 287 S.W.3d 260, 261, 263
(Tex. App.—Dallas 2009, pet. denied) (Ant Br at 19, 21) is wholly inapposite to the
record here. The husband drafted a martial property agreement that he required the
wife to sign to “protect the family” from alleged financial trouble and litigation with
his business. He had total control over the family’s financial affairs. He refused to
produce credible financial information when asked. He made constant entreaties to
the wife that the family would be destroyed. And he convinced her to backdate a
later-signed disclosure document associated with the property agreement. Id. at 263-
265. This evidence came not from the affidavit of the wife, but from the deposition
of the wife’s attorney, who stated that “obvious pressure was being placed” on the
wife to sign the document. Id. The attorney testified she told the wife many times
not to sign the agreement but the wife was overcome by the fear that the family
would be destroyed if she didn’t. The record in this case has absolutely no
resemblance to Martin.
David Robertson’s case of Nesmith v. Berger, 64 S.W.3d 110, 114
(Tex.App.—Austin 2001, pet. denied) (Ant Br at 19) is one in which the parties
negotiated their partition agreement for some time before they signed it; the fact that
the husband put an internal deadline of the honeymoon to sign it did not render the
agreement involuntary. Here, David Robertson drafted several partition agreements
before the parties signed the one at issue. Like Nesmith, there is no evidence here
33
of any imminent threat that overcame his will. David’s cited cases of Cooper v.
Cochran, 288 S.W.3d 522 (Tex.App.—Dallas 2009, no pet.), Tenneco Oil Co. v.
Gulsby Eng’g, Inc., 846 S.W.2d 599, 604 (Tex. App. –Houston [14th Dist.] 1993,
writ denied), and Sanders v. Republic Nat’l Bank of Dallas, 389 S.W.2d 551
(Tex.Civ. App.—Tyler 1965, no writ) (Ant Br at 19, 20) do not involve marital
property agreements and do not inform the issue here.
When the evidence fails to raise a fact issue on voluntariness as here, there is
no need for the Court to even consider whether there was a legal right to take the
threatened action complained of. Sheshunoff, 172 S.W.3d at 700, n. 19. David’s
evidence is identical to the evidence in Sheshunoff and likewise fails to raise a fact
issue on voluntariness; therefore this Court need not even address his additional
argument (which is based on pure speculation) that Oksana had no right to –
allegedly – testify in an unknown lawsuit in the future (Ant Br at 17-19, 20-21).
Finally, David Robertson comments in his brief that Oksana allegedly
threatened his life (CR 165, Ant Br at 7, 9, 16, 19). But David does not argue here
that any alleged threat of physical harm caused him to sign this Partition Agreement;
he argues that was the result of “economic duress” (Ant Br at 16-22; see p. 20 at ftnt
10). It also bears noting that David Robertson testified, in his deposition, that any
alleged physical threat (which Oksana denies) “came afterwards,” that is, after the
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Partition Agreement was signed (CR 108) (emphasis added). David Robertson
properly abandoned the physical threat argument in this Court.
Appellant’s “Points of Error” 1 and 2 must be overruled.
III. Point of Error 3: Appellant’s Argument that the Trial Court Granted
More Relief than Requested has been Waived and It is Belied by the
Record
Appellant asserts that the trial court’s judgment “was not supported by either
the pleadings or evidence and was error” and was “an abuse of discretion,” because
it maintains Oksana Robertson as the beneficiary of Appellant’s life insurance policy
(Ant Br at 25, CR 787). That issue was never raised in the trial court (CR 157-170
[Resp to MSJ], CR 777-780 [motion for new trial]). It is waived. TEX. R. APP. P.
33.1; City of Houston, 589 S.W.2d at 677-78; TEX. R. CIV. P. 166a(c) (“issues not
expressly presented to the trial court by written motion, answer or other response
shall not be considered on appeal as grounds for reversal.”).
In addition, it is true and there is no dispute that Oksana Robertson is the
“irrevocable beneficiary” of David Robertson’s life insurance policy; likewise,
David Robertson is the “irrevocable beneficiary” of Oksana Robertson’s life
insurance policy (for both, see CR 694, 706, 719, 769, 800). And the Agreed
Temporary Orders Pending Appeal, signed by David Robertson himself (CR 798-
802), specifically state and affirm that Oksana Robertson and David Robertson are
the irrevocable beneficiaries of one another’s life insurance policies.
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“Irrevocable” is defined as “that which cannot be revoked or recalled.”
Black’s Law Dictionary, 5th Ed. (1979); The Random House College Dictionary
(Revised, 1982) (also, “unable to be repealed or annulled”).
David Robertson fails to show any error or abuse of discretion in the trial
court’s maintenance of Oksana’s agreed status – and David’s agreed status – as the
irrevocable beneficiaries of one another’s life insurance policies.
IV. Point of Error 4: Appellant’s Argument that the Contract Improperly
Provides Oksana Robertson with Spousal Support is Waived; It is also
Wrong
Appellant states his Issue 4 as follows: “The trial court erred in making a
division of post-divorce income.” (Ant Br at 25) His argument is something very
different: he contends Oksana Robertson is improperly receiving spousal
maintenance (Ant Br at 25-27). But neither the Issue stated, which is not supported
by any actual argument in violation of the Appellate Rules (TEX. R. APP. P.
38.1(f),(i)), nor the argument presented have ever been argued to the trial court. TEX.
R. APP. P. 33.1; TEX. R. CIV. P. 166a. Nowhere in Appellant’s Response to Motion
for Summary Judgment (CR 157) or in his Motion for New Trial (CR 777) does
Appellant make any argument regarding some impropriety regarding income or
spousal maintenance. These assertions, raised for the first time ever in the case in
this appeal, are waived. TEX. R. APP. P. 33.1; TEX. R. CIV. P. 166a.
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In addition, for all the reasons set forth above, these spouses entered into a
valid, proper and enforceable marital property agreement that allocated income.
That agreement did not provide spousal support to Oksana and there is no reference
anywhere in the agreement to any such spousal support.
V. Point of Error 5: Appellant’s Arguments Regarding Attorneys Fees are
Waived, and they are Wrong
Appellant contends that attorneys fees were not properly awarded in this case
for two reasons: (1) “there were no pleadings to support that award” and (2) there is
“no evidence of compliance with Chapter 38 of the Civil Practice and Remedies
Code.” (Ant Br at 28-29). Appellant waived these arguments, and he is wrong on
both counts.
As to the pleadings, Appellant cites to Volume 8 of the Reporter’s Record at
page 10 for the proposition that he objected that there was some alleged absence of
pleadings seeking recovery of attorneys fees under the contract (Ant Br at 28). That
is not what happened. Instead, when the court asked if both sides were putting on
evidence of attorneys fees, both counsel stated that fees were available to the
prevailing party under the parties’ contract, which the court had enforced (RR 8: 9-
10). Appellant’s counsel told the court he thought the issue could wait, but “it was
our agreement that if he desired to put on testimony as to attorneys fees and the court
allowed him to do so, then we’re prepared to address that issue.” (id. at 9-10)
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Additionally, Oksana Robertson very clearly alleged, in her First Amended
Original Petition for Divorce:
Marriage Contract
During the marriage, the parties entered into a marriage contract
and partition agreement which purports to divide most or all of the
assets owned by the parties. Petitioner requests that this Honorable
Court enforce that Marriage Contract according to its terms.
****
Attorneys Fees, Expenses, Costs, and Interest
It was necessary for Petitioner to secure the services of Michael
P. O’Reilly, a licensed attorney, to prepare and prosecute this suit. To
effect an equitable division of the estate of the parties and as a part of
the division, judgment for attorneys fees, expenses and costs through
trial and appeal should be granted . . . .
(Supp. CR 5). Clearly Oksana Robertson stated in her pleadings that she sought
enforcement of the parties’ contract and attorneys fees. TEX. R. CIV. P. 45.
First, Appellant cites no authority in his brief for the proposition that Oksana’s
pleadings required more specificity. The issue is waived for failure to brief. TEX.
R. APP. P. 38.1(i).
Second, the issue on appeal is waived because Appellant did not file special
exceptions, or otherwise properly preserve his argument about some deficiency in
the pleadings in the trial court. TEX. R. CIV. P. 90; Crosstex Energy Servs. v. Pro
Plus, Inc., 430 S.W.3d 384, 395 (Tex. 2014). Pleadings that are not challenged are
construed liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 897 (Tex. 2000). Appellant was fully apprised that Oksana
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Robertson was seeking attorneys fees, as was made clear at the hearing (RR 8:9-10).
There was no claim of surprise.
Third, there is no argument in the Motion for New Trial that attacks the award
of attorneys fees in the judgment in any way (CR 777-780). TEX. R. APP. P. 33.1(a).
The issue has been waived for one or all of these reasons.
In addition, Oksana Robertson did specifically allege that she had a valid
contract that she was seeking to “enforce,” and she was seeking attorneys fees (Supp.
CR 5). The contract states that “if either party brings an action or other proceeding
to enforce this agreement . . . the defaulting party must pay all reasonable attorney’s
fees, expert’s fees, and other costs of the other party.” (CR 23) Oksana’s pleadings
are more than sufficient. In the alternative, pleadings are to be construed liberally
in favor of the pleader as set forth above (see also TEX. R. CIV. P. 45 [“Pleadings
shall be construed so as to do substantial justice”]). Either way, Appellant cannot
prevail on the merits of his assertion that “there were no pleadings to support the
award of attorneys fees.”
Appellant’s second argument regarding attorneys fees is that Oksana
Robertson did not comply with TEX. CIV. PRAC. & REM CODE § 38.001, et seq.,
which governs attorneys fees for breach of contract (Ant Br at 29). The argument is
misplaced. Chapter 38 is expressly trumped by prevailing party law and authority.
When parties contract for the payment of attorneys fees, as here, the terms of the
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contract rule, not Section 38.001. Intercontinental Group Pship v. KB Home Lone
Star L.P., 295 S.W.3d 650, 653 (Tex. 2009) (Chapter 38 is “not controlling” because
the terms of the parties’ agreement controls). “Parties are free to contract for a fee-
recovery standard either looser or stricter than Chapter 38's . . . . In such cases, it is
the language of the contract, not the statute, that governs.” Silver Lion, Inc. v.
Dolphin Street, Inc., 2010 Tex.App. LEXIS 3873, *52 (Tex.App.—Houston [1st
Dist.] 2010, no pet.). This Court must give effect to and enforce the agreement as
written. Beckham Resources, Inc. v. Mantle Resources, L.L.C., 2010 Tex. App.
LEXIS 1323, *55 (Tex.App.—Corpus Christi 2010, pet. denied).
Oksana Robertson’s counsel testified at length to prove up his attorneys fees
required to enforce the parties’ contract (RR 8: 11-14). Indeed at Appellant’s
counsel’s suggestion, Oksana’s counsel tendered his detailed fee bill as Exhibit 3;
the two discussed it at length (RR 8: 14-18, 22-24). There was no assertion that any
demand for payment or lack of payment was required, let alone omitted (Id.). There
is no contention in this Court that attorneys fees were unnecessary or unreasonable.
Appellant’s Issue 5 must in all things be overruled.
CONCLUSION
David and Oksana Robertson executed a valid marital property agreement
pursuant to the Texas Constitution and the Texas Family Code. This was not a
conversion agreement, this was a partition and exchange agreement. There is no
evidence any separate property was converted to community by this agreement.
40
David Robertson, being the party seeking to attack the Agreement, had the
burden to prove his defense: economic duress. He failed to adduce any competent
summary judgment evidence to show that Oksana imposed some imminent threat
that overcame his will. The Agreement is replete with indices of voluntary
execution, from initials at the bottom of every page, to Warnings, to Warranties, to
signing in front of a notary. Multiple witnesses who were officers of the Court
testified that David Robertson voluntarily executed the agreement.
Issues 3, 4 and 5 are all waived for failure to raise them in the trial court. On
the merits they all fail as well. The judgment is not overbroad, the Agreement does
not award Oksana spousal support, and Oksana expressly pleaded to enforce the
Agreement and sought attorneys fees for that purpose. The prevailing party
provision in the agreement trumps Chapter 38 such that the statutory provisions do
not apply.
PRAYER
WHEREFORE, Appellee Oksana Robertson prays the Court to overrule
Appellant’s Issues Presented, and affirm the judgment of the trial court. Oksana
Robertson prays for all other relief to which she is entitled.
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Respectfully submitted,
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
State Bar No. 14650500
LAW OFFICE OF AUDREY MULLERT VICKNAIR
802 N. Carancahua Ste. 1350
Corpus Christi, TX 78401-0022
(361) 888-8413; (361) 887-6207 fax
avicknair@vicknairlaw.com
Michael P. O’Reilly
State Bar No. 153101000
LAW OFFICE OF MICHAEL P. O’REILLY
500 N. Shoreline, Ste. 604 N.
Corpus Christi, Texas 78401
(361) 887-7444; (361) 882-7463 fax
mike@oreillyfamilylaw.com
Attorneys for Appellee Oksana Robertson
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CERTIFICATE OF COMPLIANCE
The undersigned certifies, pursuant to TEX. R. APP. P. 9.4(i)(2)(B), that this
computer-generated brief is 9,781 words long according to the word count of the
computer program used to prepare this document (Microsoft Office Word
2003/2007), from the Statement of Facts through the end of the Prayer. Typeface
font is 14-point in the body and 13-point in the footnotes, if any.
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served in accordance with the Texas Rules of Appellate and Civil Procedure, on
counsel named below, on this the _11th_ day of May, 2015.
Mr. Clint F. Sare
P.O. Box 1694
Bryan, Texas 77806
Attorney for Appellant David Robertson
By tex.gov e-service
/s/ Audrey Mullert Vicknair_
Audrey Mullert Vicknair
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