Danner v. Danner

• Decision Date: 29 October 2020
• Docket Number: NO. 09-18-00385-CV,09-18-00385-CV
• Parties: GEORGE EARL DANNER, Appellant v. KATHRYN M. DANNER, Appellee
• Court: Texas Court of Appeals

GEORGE EARL DANNER, Appellant
v.
KATHRYN M. DANNER, Appellee

NO. 09-18-00385-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on November 19, 2019
October 29, 2020

On Appeal from the 418th District Court Montgomery County, Texas
Trial Cause No. 17-03-04143-CV

MEMORANDUM OPINION

Dissatisfied with the manner the trial court divided the parties' property in his divorce, George Earl Danner appeals and complains the trial court erred (1) by holding the Partition or Exchange Agreement (the Agreement) unenforceable after finding that Kathryn M. Danner did not sign it voluntarily; (2) by holding the Agreement unenforceable after finding it unconscionable; (3) by treating certain assets—several brokerage accounts that George inherited from his parents—as

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community property when the evidence allowed the trial court to trace the accounts and categorize them as separate property; (4) by considering fault in dividing the parties' marital estate when the court granted the divorce on one of the no-fault grounds for divorce; and (5) by granting Kathryn's request for an award of attorney's fees when the evidence she presented is insufficient to show the amounts awarded were reasonable and necessary and when the court failed to make the awards conditional on George's losing should he appeal. We hold the trial court erred by failing to make the awards for attorney's fees, if George elects to appeal to the Texas Supreme Court, conditional on his failure to prevail in those appeals. Because his remaining issues lack merit, we reform the award to correct the trial court's error and affirm the judgment as reformed.

Background

George and Kathryn married in the early 1990s. In March 2017, Kathryn sued George seeking a divorce. In her petition, Kathryn claimed the marriage had become insupportable due to discord of a conflict in personalities that destroyed the legitimate ends of their marriage. Kathryn also alleged she should receive a disproportionate share of the couple's community estate for two reasons, the differences in what they earn in their occupations and George's fault in breaking up the marriage. Kathryn also disputed the validity of the Agreement, alleging that

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George committed actual or constructive fraud by forging her name on the Agreement's signature page.

George filed a general denial in response to Kathryn's suit. Later on, he filed a counterclaim. In his counterclaim, George alleged Kathryn was guilty of adultery and that, in January 2016, she signed the Agreement partitioning the property the couple acquired during their marriage. The Agreement contains schedules describing the community and separate property that the couple acquired during their marriage. In these pleadings, George claimed he was entitled to a disproportionate share of the couple's community property.

Kathryn filed a verified answer to George's counterclaim.¹ In her answer, Kathryn denied she executed the Agreement. She also denied that anyone had executed the Agreement on her behalf. But Kathryn did not personally sign the verification that was included in her answer. Instead, Kathryn's attorney signed it, asserting that the facts that Kathryn alleged in her answer "are within [Kathryn's]

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personal knowledge and are true and correct." At no time, either before or during the trial, did George ever except or object to the form of the verification that accompanied Kathryn's answer to his counterclaim.

The issues contested in the appeal hinge largely on arguments about the enforceability of the Agreement and whether the final judgment represents a fair division of the parties' marital estate. The trial court resolved the parties' arguments on these matters in two hearings, both to the bench. The court held the first hearing in December 2017, and the second occurred in June 2018. During the December 2017 hearing, the court addressed the parties' arguments over the validity and enforceability of the Agreement that George asserted Kathryn signed. At the start of that hearing, the parties stipulated to several facts pertinent to the issues in the appeal, which we have paraphrased:

1. The attorney George hired to draft the Agreement never met or spoke with Kathryn at any time material to the issues in dispute;

2. The attorney George hired to draft the Agreement never met or spoke to Kathryn's attorney at any time material to the issues in dispute;

3. The attorney George hired to draft the Agreement knows nothing about any negotiations between George and Kathryn relevant to the issues in dispute;

4. There are no signature lines on page 48 of the Agreement for George and Kathryn to sign. Instead, page 48 of the Agreement is the page the notary was to sign in four separate places;

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5. After discussing the initial draft of the Agreement with George, the attorney George hired to draft the Agreement sent George a second draft. Neither George, nor the attorney, said anything in these conversations signifying that either thought the second draft of the Agreement was intended to function as the final draft of the Agreement.

Five witnesses testified in the December 2017 hearing: (1) George, (2) Kathryn, (3) Becky Ward (the notary who notarized the verification page to the Agreement), (4) Curtis Baggett (Kathryn's forensic documents examiner), and (5) Dale Stobaugh, (George's forensic documents examiner). We discuss the testimony of these five witnesses only if it is relevant to the arguments the parties raised in the briefs they filed in the appeal.

During the first hearing, George testified he observed Kathryn sign the Agreement. According to George, after Kathryn signed the Agreement's signature page, she took the Agreement to a notary. Kathryn then "brought it back to [him] the next day." Kathryn, however, disputed George's testimony claiming she signed the Agreement, whether while George was present or ever. Instead, Kathryn testified she never signed the Agreement and never saw it before she sued George for a divorce.

That said, Kathryn acknowledged she signed the notary page that appears at page forty-eight of the Agreement George introduced into evidence in the trial. Kathryn suggested the signature of her name that appears on the Agreement's

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signature page, page forty-seven of the document admitted into evidence in the trial, was forged. And Kathryn explained during the trial why her signature is on page forty-seven, the notary page to the Agreement admitted in the trial. According to Kathryn, one morning, while she was on her way to work, George said: "Hey, can you get this notarized where the little sticky notes are?" Kathryn testified she took the page to Becky Ward, a co-worker, because Kathryn knew Becky was a notary. Kathryn explained she signed the notary page and had no other pages of any documents with her when she signed the notary page before Ward.

The number "48" appears in the upper right-hand corner of the notary page. The language on the notary page also shows that Kathryn signed on a line that should have been signed by a notary. Just below where Kathryn signed her name to page forty-eight, the notary page has language, which states "the notary public whose signature appears above" certifies that the notary "[is] not an attorney representing either party to this agreement."

During his testimony, George addressed why he decided to ask Kathryn to sign an agreement partitioning the assets they acquired during their marriage, which the Agreement sets out in four schedules, Schedules A-D. According to George, after learning that Kathryn was having an affair, he and Kathryn began discussing the state of their marriage in August 2015. Based on these discussions, George decided

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he should unilaterally retain an attorney to draft an agreement to "protect[] certain assets" in case of a divorce. In late December 2015, George retained an attorney for that purpose. Based on the language in the Agreement, George wanted Kathryn to agree to treat all the assets in the accounts into which he deposited the assets he inherited from his parents in 2009 as his separate property. George agreed that he confronted Kathryn with the Agreement one day after he had a draft of the agreement in hand so that he could get her to "sign it immediately" without negotiating any of its terms. According to George, Kathryn signed the Agreement and they continued living together until Kathryn sued him for a divorce.

To support her claim she signed only the notary page and nothing else, Kathryn called Ward, who signed page forty-eight as a notary, to explain what happened the day Ward signed that page. Ward testified Kathryn gave her the notary page to notarize but had no other pages of any agreement with her that day. Ward then notarized page forty-eight at Kathryn's request on January 8, 2016. Kathryn signed the page in her presence. Ward acknowledged that she also should have signed the line that Kathryn signed on the page she notarized. According to Ward, she and Kathryn did not know that notary page was part of the larger, fifty-eight-page Agreement. Ward also acknowledged that she never saw George sign the

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notary page even though she signed as a notary, representing she had notarized his signature that day.

Both parties also presented testimony from forensic document examiners. The forensic document examiners provided conflicting opinions about whether Kathryn's signature on page forty-seven of the Agreement is authentic. Both of the document examiners compared known examples of Kathryn's signature to the signature that appears on page forty-seven, the Agreement's signature page. Based on the comparisons he made of the signature that appears at page forty-seven, known examples of Kathryn's signature used for comparison, and his training, Curtis Baggett, Kathryn's expert, testified that Kathryn did not sign the Agreement anywhere except at page forty-eight, the notary page to the document George offered in the trial.

George's...