Jurek v. Couch-Jurek
| Decision Date | 23 September 2009 |
| Docket Number | No. 08-08-00110-CV.,08-08-00110-CV. |
| Citation | 296 S.W.3d 864 |
| Parties | William JUREK Jr., Appellant, v. Tawana COUCH-JUREK, Appellee. |
| Court | Texas Court of Appeals |
Robert T. O'Donnell, Garland, TX, for Appellant.
Rick Thompson, Hankinson Levinger LLP, Dallas, TX, for Appellee.
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
Appellee Tawana Couch-Jurek filed for divorce from Appellant William Jurek Jr. After a bench trial, a final decree of divorce was entered by the 254th District Court of Dallas County, Texas. William Jurek Jr. presents four issues on appeal. We find that the trial court properly admitted parol evidence relating to a premarital agreement between the parties and that the premarital agreement effected a constitutional exchange or bilateral partition of community interests in income from separate property. We find that the trial court committed harmless error by mischaracterizing rental properties purchased on credit during the marriage by Tawana, in that the loan agreements did not require the lenders to look solely to Tawana's separate property for satisfaction of the debt. We find that William waived any claim he may have had under ERISA by failing to plead that affirmative defense. We affirm the trial court's judgment.
William and Tawana were married on October 20, 1990 and Tawana filed for divorce February 24, 2006. The characterization and division of the marital estate was tried to the court. The trial court entered the final decree of divorce on December 25, 2007. On January 22, 2008, the trial court signed findings of fact and conclusions of law. On March 3, 2008, William filed his timely notice of appeal.
At trial no premarital agreement between the parties could be produced, and William denied ever having signed one. However, Tawana claimed, and the trial court found, that prior to their marriage in 1990, the parties did in fact enter into a premarital agreement. Further, the Court found that the premarital agreement between William and Tawana was identical to a 1991 premarital agreement between Tawana's sister, Juanita Couch, and her second husband. The 1991 premarital agreement was produced at trial.
The alleged 1990 premarital agreement, if identical to the 1991 premarital agreement, would establish that the parties agreed, among other things, that each party would retain "all rights, including profit and income" to his or her separate property, including any property acquired during the marriage, "as if no marriage had been consummated between them."
Charles G. Clay was the attorney who prepared the 1991 premarital agreement, and he testified that he remembered preparing an agreement for Tawana in 1990 as well. He testified that the two premarital agreements were identical except for "the parties, the date, and the exhibits attached thereto." Mr. Clay also testified to having prepared a third premarital agreement for Juanita in 1987. Mr. Clay's testimony was admitted without objection and a copy of Juanita's 1991 premarital agreement was admitted into evidence over William's objection as to relevance. Juanita asserted that she had seen Tawana's 1990 premarital agreement.
Mr. Clay retired from the practice of law some years prior to the present case and had since destroyed his records. As a result, he was unable to produce a copy of Tawana's premarital agreement. Also, Jerlene Sawier, the notary public who witnessed and notarized the signing of the premarital agreement, passed away in 1992, and her record book could not be located.
Throughout the marriage, the behavior of both parties was consistent with there being the existence of a premarital agreement. Stephen Grissom, the CPA who prepared Tawana's tax returns, testified that he met with Tawana and William soon after their marriage, and that William confirmed that he and Tawana had signed a premarital agreement. Grissom testified that William told him, "[w]e have an agreement—we have a marital property agreement that what's hers is hers and mine is mine." Grissom testified that throughout the marriage both parties filed income tax returns as "married filing separately" and reported their income from jobs and properties separately. Without a premarital agreement between Tawana and William, Grissom testified he would have had to file amended returns for a number of years. No objection was raised to Grissom's testimony.
The couple maintained separate bank accounts. When purchasing new properties, they would submit only their own financial information to lenders. They each received title to new properties in his or her name only. William did not claim any "partial ownership" in any of the rental properties for which title was in Tawana's name.
Tawana asserted that around the time it was signed her copy of the premarital agreement was placed in a file box marked "1991" in the attic, and that she never saw the premarital agreement again. When she searched for the agreement after filing for divorce, the box marked "1991" was missing from the attic. Tawana stated that she did not destroy the premarital agreement.
Based on this evidence, the trial court concluded that "there was a valid pre-nuptial agreement and [that the] parties did act in a course of conduct that supported its execution and existence throughout the 16 years of the marriage." The court found that the premarital agreement between Tawana and William was in the same format, content, and wording as the premarital agreement prepared for Juanita in 1991.
During the marriage, Tawana acquired more than thirty rent houses, with title in her name only. Tawana acquired the properties on credit from various lenders to whom she submitted only her financial data; however, there is no evidence that she received an agreement from the lenders to look solely to her separate property for satisfaction of the debt. During her marriage, Tawana received income from her separate property.
Prior to her marriage Tawana started a Southwest Airlines 401(K) Plan and a Southwest Airlines Co. Profit Sharing Plan, which grew in value during her marriage.
In Issue One, William argues that the trial court abused its discretion by admitting Juanita's premarital agreement as parol evidence of a 1990 premarital agreement between Tawana and William. William further argues that the evidence was insufficient for the trial court to find that the terms of the two premarital agreements were identical. Tawana responds by challenging the substance of Issue One and by asserting that William failed to preserve the issue for appellate review in that William waived any error by failing to object to testimony explaining the contents of the 1991 premarital agreement.
In order to preserve error, the complaint must be made to the trial court by a timely request, objection, or motion that states the grounds for the ruling that the complaining party seeks from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. See Tex.R.App.P. 33.1(a)(1)(A). As a general rule, a party is required to present a complaint to the trial judge before being allowed to raise the issue on appeal. In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003). Moreover, the complaint on appeal must match the complaint raised in the trial court. Tex.R.App.P. 33.1(a); J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 290 (Tex.App.-San Antonio 2000, pet. denied). The general guideline is that the trial presentation must have been sufficient to put the trial judge on notice that the party was relying upon the argument that he later offers to the appellate tribunal. Stewart v. State, 995 S.W.2d 251, 258 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
William argued at trial that Texas Rule of Evidence 1004(e) prohibits the admission of the 1991 premarital agreement as parol evidence used to prove the contents of a document when that document is closely related to a "controlling issue" and that the 1991 premarital agreement was irrelevant. However, William never specifically objected to the admission of the 1991 premarital agreement under any other provision of Rule 1004.1
For the first time on appeal William argues that it was an abuse of discretion for the trial court to admit the 1991 premarital agreement because there was insufficient evidence to show that William "knowingly, intentionally and wantonly" took or destroyed the original 1990 premarital agreement. This argument is not related to the objection raised at trial. This argument more closely relates to Tex. R.Evid. 1004(a), the lost document exception, under which the evidence in question was admitted.
At trial William specifically referred the court to Tex.R.Evid.1004(e) not Tex. R.Evid. 1004(a). William's trial objections based on relevance, "controlling matters," and on Tex.R.Evid. 1004(e) are different from the argument raised on appeal. Therefore, the issue is waived. See Collazo v. State, No. 08-00-00289-CR, 2002 WL 26296, at *1 (Tex.App.-El Paso Jan. 10, 2002, no pet.) (not designated for publication) (objection to testimony as irrelevant did not preserve error asserted on appeal that the same testimony did not meet the requirements for opinion testimony).
Furthermore, when other competent evidence of the fact in question appears in the record, the improper admission of the evidence will not constitute error. Wolfe v. Wolfe, 918 S.W.2d 533, 538 (Tex.App.-El Paso 1996, writ denied). It is the general rule that error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.2004) (citing Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984)). "Objections should be repeated when a witness...
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