Fraccionadora Y Urbanizadora De Juarez, S.A. De C v. Inmobiliaria Y Constructor Berza, S.A. De C v. Aeroservicios De Viaje, S.A. De C v. Abba-Farma, S.A. De C v. and Juan Carlos Bermudez Espinosa/Claudia Patricia Zaragoza Delgado v. Claudia Patricia Zaragoza Delgado/Fraccionadora Y Urbanizadora De Juarez, S.A. De C v. Inmobiliaria Y Constructor Berza, S.A. De C v. Aeroservicios De Viaje, S.A. De C v. Abba-Farma, S.A. De C v. and Juan Carlos Bermudez Espinosa

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

FRACCIONADORA Y URBANIZADORA DE §
JUAREZ, S.A. DE C.V., INMOBILIARIA Y
CONSTRUCTOR BERZA, S.A. DE C.V., § No. 08-16-00046-CV
AEROSERVICIOS DE VIAJE, S.A. DE C.V.,
ABBA-FARMA, S.A. DE C.V. and § Appeal from the
JUAN CARLOS BERMUDEZ ESPINOSA
§ 388th Judicial District Court
Appellants/Cross-Appellees,
§ of El Paso County, Texas
v.
§ (TC# 2013DCM2366)
CLAUDIA PATRICIA ZARAGOZA DELGADO,
§
Appellee/Cross-Appellant.
§

OPINION

This is an appeal from a final decree of divorce brought by Husband and Intervenors,

accompanied by Wife’s cross-appeal. Wife prevailed in the trial court. Husband and Wife are

Mexican citizens, and both come from wealthy and influential families. They are fluent in Spanish and

this was the first marriage for each. Husband was 29 at the time of marriage and Wife was 25. The

crux of this appeal is whether a Mexican premarital agreement exists. The remainder of the issues

presented stem from our analysis of that issue. We reverse and remand.

HUSBAND’S APPEAL

Husband brings six issues for review complaining that:

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 1. The trial court granted partial summary judgment in Wife’s favor finding that there was no
premarital agreement;

2. The trial court abused its discretion in refusing to admit the marriage certificate;

3. Evidence conclusively established interests in corporations and purchase money for
residence were gifts from his father and were separate property;

4. The trial court erred in submitting the issue as to the ownership of Mexican corporations
by non-parties to the jury;

5. The evidence is legally and factually insufficient as to valuation of the corporations; and

6. The evidence is legally and factually insufficient to support the award of attorneys’ fees
and costs.

INTERVENORS’ APPEAL

Intervenors are Mexican corporate entities claimed by Husband as separate property. They

bring three issues, complaining that the trial court erred in:

1. Denying their petition to intervene;

2. Submitting Question Two to the jury, which included the Mexican corporations as part of
the property to be divided; and

3. Awarding property belonging to Intervenors without due process of law.

WIFE’S CROSS-APPEAL

Wife has also filed a cross-appeal, complaining that the trial court erred in partially granting

Husband’s objections to Wife’s affidavit attached to her motion for summary judgment.

FACTUAL SUMMARY

The parties married in Ciudad Juarez on February 23, 1996. They resided in Mexico until 2008

when they moved to El Paso for safety and security reasons. Wife filed for divorce in El Paso County,

Texas on April 2, 2013. Husband answered and counter-petitioned, raising the existence of a Mexican

premarital agreement and seeking the confirmation of his separate property.

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 Pre-Trial Evidence

During the hearing on temporary orders, Wife explained that Husband did not share his financial

information with her but she knew that Husband owned properties, including a commercial center from

which he received rent, as well as a purported half of an Aero Mexico franchise and a pharmacy-like

business. The reporter’s record of that proceeding indicates that Wife admitted to the selection of the

separate property marital regime on the marriage certificate.

[Cross-examination] Since you’ve been married since 1996 to now, you said he has never
-- you don’t know what he has or makes. Correct?

[A] I mean, I know what properties . . . he has, but I don’t know exactly the amount of
cash, but he has the commercial centers. He receives cash.

[Q] But [you’ve] never seen his bank statements or his tax returns or anything like that.
Have you?

[A] Recently not.

[Q] Okay. And when you were married, you were married in Juarez. Were you not?

[A] Yes.

[Q] When you were married in Juarez, there is an act of matrimony, like a marriage
certificate.

[A] Yes.

[Q] And on your marriage certificate, it indicates that there is a separate property -- I
guess not agreement, but there’s -- I guess in Mexico there’s two separate ways to
be married -- where everything is together, all the property is together. Correct?

[A] Yes.

[Q] One is where everything is separate. Correct?

[A] Yes.

[Q] In your particular marriage, everything is supposed to be separate, correct,
according to your marriage certificate?

[A] Yes. (Emphasis added.)

Husband, a real estate developer, declared that he owned land in Mexico. He also owned interests in

3
several businesses, including a real estate company, Fraccionadora y Urbanizadora de Juarez, S.A. de

C.V. (FUJSA), Aeroservicios de Viaje, S.A. de C.V. (Aeroservicios), and Abba-Farma, S.A. de C.V.

(Abba-Farma). We find the following statements made by the trial court to be instructive as to the

progression of the proceedings:

[Trial Court] And the thing is, [trial counsel] is I think I know what you are referring
to. If you are referring to what I’m able to speak of, I’m going to have an additional
request anyway. My recollection from my family law courses in law school is just
because you get that, if you get married in a separate property state in the United
States, then you move to a community property state, too bad, too sad for you. You
got divorced in a community property state.

[Counsel] I recall. Although, there’s case law to the contrary that says under the
Republic of Mexico --

[Trial Court] They are not getting divorced -- I would like for you to brief that.
(Emphasis added.)

Husband thereafter filed his motion for the trial court to take judicial notice of foreign law and each

party submitted briefs. Wife did not address Mexican law but argued that once the parties moved to

El Paso, the selection of the separate property regime became ineffective. The trial court denied

Husband’s request to judicially notice Mexican Law. Husband first filed a motion to reconsider and

then an amended motion to take judicial notice accompanied by a copy of the marriage certificate, the

applicable legal provisions of the Spanish Civil Code for the State of Chihuahua with regard to the

separate property regime, and an English translation by a certified translator. Wife attached the

amended notice to take judicial notice of foreign law to her motion for summary judgment, as we detail

below.

Motion for Summary Judgment

The Marriage Certificate

Attached to Wife’s motion for summary judgment is the marriage certificate certified by the

Director of the Civil Registry in the State of Chihuahua. It reads:

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UNITED STATES OF MEXICO STATE OF CHIHUAHUA CIVIL REGISTRY MARRIAGE
CERTIFICATE ON BEHALF OF THE FREE AND SOVEREIGN STATE OF CHIHUAHUA,
AS DIRECTOR OF THE CIVIL REGISTRY I HEREBY CERTIFY AND ATTEST THAT
FILED IN THE ARCHIVES OF THIS OFFICE IS THE FOLLOWING MARRIAGE
CERTIFICATE CONTAINING THE FOLLOWING DATA:

Thereafter, it recites the typed names of Husband and Wife, the names of their parents, their ages,

nationality, date of marriage and the statement, “MARRIAGE SUBJECT TO: SEPARATION OF

PROPERTY.” It concludes:

THE PRESENT CERTIFICATION IS AN EXTRACT OF THE DEED WHOSE DATA ABOVE
IS VERIFIED AND WHICH IS ISSUED ELECTRONICALLY BASED ON ARTICLE 49 OF
THE CIVIL CODE FOR THE STATE OF CHIHUAHUA AND ARTICLE 2 OF THE
INTERIOR RULES OF THE CIVIL REGISTRY OF THE STATE OF CHIHUAHUA.
IN JUAREZ, JUAREZ, ON THE SIXTENTH [SIC] DAY OF JUNE 2014. I ATTEST.

It is electronically signed by Cesar Fernando Ramirez Franco, Director of the Civil 7 Registry. Wife

asserted that the marriage certificate did not meet the statutory requirements for a valid and enforceable

premarital agreement and that, as a matter of law, no premarital agreement existed between the parties.

Husband’s Amended Motion to Take Judicial Notice of Foreign Law
Pursuant to Rule 203 of the Texas Rules of Evidence

As we have mentioned, Wife attached the full content of Husband’s amended motion to take

judicial notice of Mexican law, including the provisions of the Civil Code of the State of Chihuahua

relating to the requirement of the selection of a marital regime of separate or community property.

These were accompanied by English translations by a duly certified translator. Noteworthy is the fact

that Wife never responded to the amended motion nor refuted the translations by the certified translator

despite the fact that it had been on file for roughly two years. Moreover, it was a live pleading and the

trial court had not ruled upon it, which Husband’s counsel drew to the court’s attention. Finally, and

perhaps most importantly, it constituted summary judgment evidence that was before the trial court.

Exhibit B to the amended motion provides as follows:

5
 SEPARATE ASSETS REGIME IN THE STATE OF CHIHUAHUA

Applicable Legal Provisions.

Civil Code for the State of Chihuahua, articles 93, paragraph IV of article 94,
articles 99, 165, 166, 167, 195, 200, 201 and 202.

Article 93.- The individuals that wish to celebrate matrimony must submit before
the head of the civil registry office correspondent at the address of either party, a
brief stating:

I. The names, last names, age, nationality, occupation and addresses of both of the
requesting parties, as well as their respective parents if they are known. When one
of the parties or both were previously married, they must include the name of the
person to whom they were married previously, the reason of the dissolution or
annulment and the date of said occurrence;

II. That there is no legal impediment for them to be joined in matrimony; and

III. That they wish to be joined in matrimony.

The aforementioned brief must be signed by the requesting parties and in the event
that one of the parties does not know how to write or read, the brief must be signed
by a known individual of legal age and resident of the city in which the brief is
submitted.

Article 94.- The brief to which reference is made in the preceding paragraph, must
be accompanied by the following exhibits:

IV. The agreement which must be executed by the parties with regard to their
existing assets and to the ones acquired during their marriage. The agreement will
state clearly if the marriage is formalized under the joint property or the Separate
Assets regime. If the parties are not of legal age, the agreement must be sanctioned
by the individuals whom prior authorization for the celebration of the matrimony is
required. If for any reason the parties fail to include such an agreement and the
marriage is formalized under the joint property regime, said joint property will be
subject to the rules set forth in this Code.

Article 99.- Following the above, the corresponding marriage certificate will be
drafted, and said document will include:

VI.- The statement of the contracting parties establishing that they formalize the
marriage either under the joint property or Separate Assets regime. If for any
reason whatsoever the parties fail to state the above, the marriage will be considered
formalized under the joint property regime.

Article 165.- The marriage contract must be formalized under the joint property

6
 or Separate Assets regime. In the event of failure to establish under which of the
two options the marriage is formalized, the marriage will [be] considered as having
been celebrated in accordance to the Joint Property regime and will be subject to
the provisions set forth in this Code.

Article 166.- The marriage capitulations or admissions are the agreements which
the husband and wife formalize in order to incorporate the marital partnership or
the Separation of Assets and to regulate the management of said assets in either case.

Article 167.- The marriage capitulations may be granted before the formalization
of the marriage or during its course and may comprise not only the assets which are
individually owned by the spouses upon the enactment of the agreement, but also,
the assets acquired at a later time.

Article 195.- The Separation of Assets may exist as a result of marriage capitulations
prior to the marriage, or during the course of same, as a result of an agreement
between the spouses or as the result of a court resolution. The separation may
comprise not only the assets individually owned by the spouses upon the
formalization of the marriage, but also, the assets acquired at a later time.

Article 196.- The Separation of the Assets may be total or partial. In [the] event
of the latter the assets which are not included within the capitulation clauses will be
subject to the joint property that the spouses must organize.

Article 200.- In the Separation of Assets system, the spouses maintain the ownership
and management of their respective property and as a result all of the profits and
gains of said assets will not [be] subject to community ownership, they will be the
sole property of the owner of the assets.

Article 201.- Likewise, it will be the individual property of each spouse, any and
all wages, income, compensations and profits resulting from the rendering of any
personal and/or professional services, job or trade; as well as any commercial or
industrial activity.

Article 202.- Each of the spouses must contribute to the education and nourishment
of their children, as well as the other duties of matrimony in accordance to the
provisions set forth in article 151.

Wife’s counsel continued with the argument that Texas law applied. Stated otherwise, her

running theme of this litigation was that it did not matter what Mexican law provided because Texas

law, and only Texas law, applied.

Wife’s Deposition

Wife also tendered as evidence the following portion of her deposition:

7
[Q] Or what did you do when you got married? What was the process?

[A] The -- first we went to church.

[Q] Uh-huh.

[A] We got married at church. And then we have the ceremony like the civil
ceremony.

[Q] Uh-huh.

[A] And then you have witness, our parents, our family and the judge.

[Q] Okay.

[A] Uh-huh.

[Q] And at the civil ceremony, did you receive some sort of paperwork or anything?

[A] Just the paper just saying like --

[Q] That you’re married.

[A] Yeah. Like a certificate.

[Q] Okay. Now --

[A] But I mean they don’t give you anything to read or they don’t give you -- they just
said, “Is your name Claudia? Juan Carlos?” “Yes.” “And you are here by your
-- because you want to be here?” “Yes.” And they ask if someone has . . .
[o]bjections or something. “No.” And then you get married.

[Q] And that’s what happened in your case. Correct?

[A] I think it’s the same in every marriage in Juarez.

[Q] Okay. And the certificate that you received when you got married there, did you
have to designate whether it was going to be a community or separate property
marriage?

[A] I think yes.

[Q] Yes. Do you recall what you designated?

[A] Excuse me?

[Q] Do you recall which one you chose?

8
 [A] Do I know?

[Q] Yes.

[A] Or --

[Q] Do you remember?

[A] -- Did we spoke before we got married? Like I don’t understand.

[Q] When -- that day when you got your certificate, did you have to choose that day?
Did you have to say “I’m going to be separate” or “I’m going to be community”
that day or did you do it before?

[A] No, I think -- I mean I don’t remember. (Emphasis added.)

Wife’s Affidavit

Wife also attached an affidavit to her motion for summary judgment, which in part avers:

4. At no time prior to my marriage did I enter into a written premarital agreement with
Juan Carlos. I never signed a premarital agreement prior to my marriage to
Juan Carlos. (Emphasis added.)

5. Prior to our marriage, Juan Carlos did not disclose to me what property he owned
or what his financial obligations consisted of. I was never provided with a fair and
reasonable disclosure of Juan Carlos’s property or financial obligations. I did not
voluntarily or expressly waive, in writing, any right to disclosure of the property or
financial obligations of Juan Carlos. Before marrying Juan Carlos in 1996, I did
not know what property or assets Juan Carlos possessed nor did I know what his
financial obligations or debts consisted of. Moreover, I could not have reasonably
had adequate knowledge of the property or financial obligations of Juan Carlos due
to my inexperience.

Husband’s Objections and Affidavit

Husband filed objections and a number of exhibits as summary judgment evidence. Pertinent

to our discussion, he specifically objected to paragraphs four and five of Wife’s affidavit. With regard

to paragraph 4, he maintained that “[s]uch is conclusory and contradicts her deposition testimony,

wherein she states that she ‘does not remember.’” He further objected to paragraph 5: “Such is

conclusory and not within the affiant’s personal knowledge.” The trial court sustained these objections.

Husband’s own affidavit is equally important:

9
 1. My name is JUAN CARLOS BERMUDEZ. I am over eighteen years of age and
I am competent to make this affidavit. I have personal knowledge of the following
events.

2. Prior to our marriage, we dated for approximately eleven years. She was studying
business administration. Her family is a prominent business family in Mexico and
her father is a savvy business person. Prior to and after our marriage she sought
her father’s advice concerning financial matters and had access to legal counsel.

3. Prior to our marriage I told her about the business interest my father had given to
me.

4. We selected the separate property regime. It is customary for people with
assets to select this regime. It protects a person’s inheritance from going to
their spouse. She benefited from this selection as she could protect her
inheritance from her family from me. (Emphasis added.)

5. It is usual and typical for couples to select the separate property regime. It was the
norm and it would have been very unusual for us to select the community property
regime. I do not believe her family would have allowed her to select the
community property regime.

6. I am not the only one who provided support for our family, my wife received monies
from her family, which were also used for our support.

7. We first applied for a marriage certificate prior to marrying in the church and
selected the separate property regime. The regime was explained by the
official. She agreed and indicated her agreement by signing the application.
(Emphasis added.)

The trial court granted partial summary judgment because she believed Texas law applied and, because

Texas is a community property state, any foreign agreement addressing disposition of marital property

was invalid.

STANDARD OF REVIEW

The standard of review in a summary judgment proceeding is well-established. The movant for

summary judgment has the burden to show that there is no genuine issue of material fact and that she is

entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-

49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Karl v. Oaks Minor

Emergency Clinic, 826 S.W.2d 791, 794 (Tex.App.–Houston [14th Dist.] 1992, writ denied). In

10
deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence

favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor

of the non-movant, and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. We reiterate

that the portions of Wife’s affidavit relating to her denial of signing the certificate were stricken and

Husband’s affidavit must be taken as true.

IS THERE A PREMARITAL AGREEMENT?

Texas Law

Premarital agreements which convert what would otherwise be community property to separate

property are authorized by the Texas Constitution and Chapter 4 of the Texas Family Code.

TEX.CONST. art. XVI, § 15. It is the public policy of the state of Texas to enforce these agreements.

Beck v. Beck, 814 S.W.2d 745, 749 (Tex. 1991). They are presumptively enforceable, and that

presumption will support a summary judgment that the agreement is enforceable without evidence other

than the existence and terms of the agreement. Grossman v. Grossman, 799 S.W.2d 511, 513

(Tex.App.–Corpus Christi 1990, no writ). A party opposing enforcement of the agreement bears the

burden to rebut the presumption of validity and establish the premarital agreement is not enforceable.

Marsh v. Marsh, 949 S.W.2d 734, 739 (Tex.App.–Houston [14th Dist.] 1997, no pet.).

Parties to a premarital agreement may partition or exchange the income from their respective

separate properties into the separate property of the owner spouse. Beck, 814 S.W.2d at 746, 749;

Jurek v. Crouch-Jurek, 296 S.W.3d 864, 867 (Tex.App.–El Paso 2009, no pet).

Similarly, persons about to marry can, through a premarital agreement, validly recharacterize as

separate property what would otherwise be their community property salary or earnings. Winger v.

Pianca, 831 S.W.2d 853, 855, 857-858 (Tex.App.–Austin 1992, writ denied). Indeed, parties may

enter a premarital agreement which precludes the acquisition of any community property during their

marriage. Chiles v. Chiles, 779 S.W.2d 127,128 (Tex.App.–Houston [14th Dist.] 1989, writ denied).

11
 Mexican Law

Because this is a summary judgment proceeding, Wife–as the Movant–must demonstrate there

is no issue of material fact, and that she is entitled to judgment as a matter of law. All evidence

favorable to Husband will be taken as true, every reasonable inference will be indulged in his favor, and

all doubts resolved in his favor. Wife must establish, as a matter of law that no premarital agreement

exists. Thus, we assume that Husband’s amended motion to take judicial notice of foreign law pursuant

to Rule 203 of the Texas Rules of Evidence with its attached Exhibit B (all of which is attached to Wife’s

motion for summary judgment and therefore constitutes summary judgment evidence) accurately states

the law of the State of Chihuahua, Mexico relating to the election by marrying parties as to whether the

community property or separate property regime will govern the characterization of property acquired

during their marriage.

The Civil Code for the State of Chihuahua provides details regarding the nature and election of

a marital regime by parties to be married. Article 165 of the Code requires that the marriage contract

must be executed under the joint property (Sociedad Conyugal) regime or separate assets (Separacion

de Bienes) regime. If there is no record of regime selected, the marriage will be governed by the joint

property regime. Article 166 identifies “marriage capitulations or admissions” as the agreements by

which the parties formalize their choice of either the joint property or separate assets regime, and Article

167 and 195 provide that the “capitulations” may be entered before or after the marriage, and may deal

with assets in existence at the time of execution as well as subsequently acquired assets. Article 196

provides that the choice of the separation of assets regime may be total or partial. If the parties choose

the partial separate property regime, those assets not identified as controlled by the separate property

regime are governed by the joint property regime. Article 200 provides that under the separation of

assets regime, each spouse continues to maintain the ownership and control of his or her respective

property and that the income from the assets governed by the separate property regime will also be the

12
separate property of the owner of the asset. Article 201 makes wages and earnings of a party his or her

separate property.

The commentary in Exhibit B summarizes the effect of the Civil Code for the State of

Chihuahua–a couple entering into a marriage must elect either the joint or separate property regime.

Under the joint regime the assets the parties bring into the marriage as well as the assets acquired during

the marriage are community property, together with the income from those assets. Under the separate

assets regime, each spouse maintains the individual ownership and control of his or her property and the

income or production of that property. Additionally, the income from the personal services of a spouse

is also that spouse’s separate property. The parties may also agree that the separate property regime

will apply to some assets and the joint property regime will apply to others. If the parties do not select

a marital regime, they will be deemed to have the joint property regime.

Article 99, which sets forth the information that must appear in the marriage certificate, requires

a statement by the parties that the marriage is contracted under the joint property or separation of assets

regime. The parties’ marriage certificate attached to Wife’s motion for summary judgment reflects that

the couple selected the separate assets regime.

Article 93 requires persons intending to marry to submit a written application signed by each

providing certain personal information about both. Article 94 mandates that the application contain an

agreement by the parties that their existing assets as well as assets to be acquired following the marriage

will be governed by the joint property or separate assets regime. The Article further provides that in

the event the parties do not identify a regime, the joint property regime will control. Article 99 provides

that following the execution of the marriage application, the marriage certificate is drafted identifying

the regime agreed to in the application. Again, if no regime is chosen, the parties’ ownership and

acquisition of property will be controlled by the joint property regime.

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 Comparison

The laws of Texas and Chihuahua as they relate to premarital agreements are quite similar.

Prospective spouses in Texas and Chihuahua may enter valid premarital agreements dictating that no

community property will be acquired during the marriage. The laws of both states allow individuals

about to marry to agree that income from their separate property, and/or their personal earnings, will

remain separate property. Both Texas and Chihuahua allow persons about to marry a great deal of

flexibility in determining the character of the various types of property they will acquire during their

marriage. In our view, it would not be against the public policy of Texas to enforce a premarital

agreement properly executed in Chihuahua, Mexico. We conclude that Wife did not establish as a

matter of law that no premarital agreement exists.

We repeat again that the trial court granted summary judgment because she believed Texas law

applied and, because Texas is a community property state, any foreign agreement addressing

characterization of property must comport with Texas community property laws. To the contrary,

Texas courts have held that premarital agreements entered into in another state must be evaluated under

the law of the sister state. Rathjen v. Rathjen, No. 05-93-00846-CV, 1995 WL 379322 (Tex.App.–

Dallas May 30, 1995, writ denied) (not designated for publication) (“Because we conclude the PMA is

valid under Hawaii law and enforceable in Texas, we reverse and remand this case to the trial court for

further proceedings consistent with this opinion.”).

Nevertheless, Wife maintains that TEX.FAM.CODE ANN. § 1.103 mandates that Texas law, rather

than the law of Chihuahua, Mexico controls this case. (“The law of this state applies to persons married

elsewhere who are domiciled in this state”). Yet Section 4.003(a)(7) allows parties to enter into a

premarital agreement to contract with respect to the choice of law governing the construction of their

agreement. The parties chose to be married in Chihuahua, Mexico, whose laws required that their

marriage be contracted under either the community property or separate property regime. They chose

14
to be married under the separate property regime as evidenced by the marriage certificate which Wife

attached to her motion for summary judgment as evidence.

Wife’s reliance on TEX.FAM.CODE ANN. § 7.002(a) is also misplaced. That section allows

courts to divide property acquired by either spouse while domiciled elsewhere if the property would have

been community property had the spouse been domiciled in Texas at the time of acquisition. Here,

assuming the validity of a Mexican premarital agreement, all of the acquired property is either the

separate property of Husband or Wife as the result of their premarital agreement and would fall outside

the application of § 7.002(a). Specifically, § 7.002(b) would control. That section provides in part:

(b) In a decree of divorce or annulment, the court shall award to a spouse the
following real and personal property, wherever situated, as the separate property of that
spouse:

(1) property that was acquired by the spouse while domiciled in another state
and that would have been the spouse’s separate property if the spouse had been
domiciled in this state at the time of acquisition[.] (Emphasis added.)

Assuming arguendo that a valid and enforceable Mexican premarital agreement existed, all of the

spouses’ personal earnings, as well as the earnings from their respective separate properties, would be

the separate property of each as a result of their premarital agreement. Stated differently, the property

in this case is not simply property which was acquired while the parties were domiciled elsewhere. It

is property characterized under the terms of a premarital agreement as separate property acquired while

the parties were domiciled elsewhere.

We find an additional case to be particularly persuasive. Carrillo v. Garzon, No. 14-94-00630-

CV, 1995 WL 628156 (Tex.App.–Houston [14th Dist.] Oct. 26, 1995, no writ) (not designated for

publication). The couple married in Mexico and selected the separate property regime on the marriage

certificate. They divorced in Mexico, but Carrillo later filed suit in Texas to divide what she alleged to

be community property not divided in the decree. Her former husband filed a motion for summary

judgment based primarily on res judicata. Her argument on appeal was that summary judgment was

15
granted in error because the Mexican premarital agreement was unenforceable under Texas law. But

the court’s opinion does not hinge solely on the fact that the couple divorced in Mexico. It speaks far

more broadly to enforcement of Mexican agreements. After first addressing res judicata, the court

opined that “marriage agreements which designate the character of property to be acquired during the

marriage are valid in Texas.” Id. at *3. It noted that “under Mexican law, couples about to marry

must select one of two ‘regimes’ or marriage contracts they wish to regulate their assets. The choices

are a community property regime or a separate property regime.” Id. at *1. Carrillo and Garzon

selected the separate property regime. In her Texas lawsuit, Carrillo maintained that the Mexican law

governing the separate property regime should not control the disposition of assets outside of Mexico.

The appellate court disagreed:

This argument is an attempt to relitigate the property ownership which we already have
said Carrillo cannot do because she is barred by res judicata from doing so. But more
importantly, this argument calls for us to ignore the marriage contract the parties
executed. This contract controls not only the marriage relationship but also the
property acquired by either of the parties during the marriage. By choice, the
parties pre-ordained the character of all property to be acquired during the
marriage. Id. at *3. (Emphasis added.)

Significantly, the court concluded that since Texas favors premarital agreements,

[I]t is inconceivable to think that a Texas court would invalidate a premarital
agreement that was valid in Mexico when it was executed and now would be valid
in Texas. See Beck v. Beck, 814 S.W.2d 745 (Tex. 1991). Id. at *4. (Emphasis
added.)

We agree. Because the trial court erroneously granted a partial summary judgment, the ruling

was erroneous as a matter of law. We sustain Husband’s Issue One.

FAILURE TO ADMIT SIGNED MARRIAGE CERTIFICATE AT TRIAL

The case proceeded to jury trial. Although both Husband and Wife had identified the February

23, 1996 marriage certificate as a trial exhibit, Wife testified that she did not recall signing the marriage

documents at the civil marriage ceremony. The marriage certificate attached to Husband’s amended

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motion to take judicial notice of foreign law featured the typed names of the parties but not their

signatures. When Husband’s amended motion was attached to Wife’s motion for summary judgment,

the Acto de Matrimonio did not include the parties’ signatures either. But during the jury trial, an

executed marriage certificate was offered as an exhibit to impeach Wife’s denial. Her counsel objected

and alleged, in part, that Husband was producing a new document that differed from the document

produced during the summary judgment proceedings. That is certainly true. Then the attorneys

argued as to whether the signed marriage certificate had been timely disclosed during discovery.

Husband’s counsel affirmed that it had been provided to Wife, but Wife’s counsel asserted that he had

not received it.

In his second issue on appeal, Husband complains that the trial court abused its discretion in

excluding the exhibit bearing Wife’s signature. Nevertheless, because we cannot ascertain from the

voluminous record--which consists of twenty-eight reporters’ records and sixteen clerk’s records--

whether the executed marriage certificate was timely disclosed, we overrule Issue Two.

CONCLUSION

We have sustained Husband’s first issue and overruled the second. Issues Three through Six

are denied as moot. We deny Wife’s issues as moot. Had her affidavit been admitted over Husband’s

objections, there was at the very least a fact issue as to her signature on the Acto de Matrimonio

precluding partial summary judgment. With regard to the position of the Intervenors, we trust that if

the Mexican entities are not joined by Husband or Wife, they will nonetheless intervene timely. We

reverse and remand for proceedings consistent with this opinion.

ANN CRAWFORD McCLURE, Senior Judge
October 22, 2020

Before Rodriguez, J., Palafox J., and McClure, Senior Judge
McClure, Senior Judge (Sitting by Assignment)

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