Matthews v. Matthews

• Decision Date: 04 December 1986
• Docket Number: No. 01-85-01015-CV,01-85-01015-CV
• Citation: 725 S.W.2d 275
• Parties: Jordan Royce MATTHEWS, Jr., Appellant, v. Carol Kay MATTHEWS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 275

725 S.W.2d 275

Jordan Royce MATTHEWS, Jr., Appellant, v. Carol Kay MATTHEWS, Appellee.

No. 01-85-01015-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 4, 1986.

Rehearing Denied Feb. 19, 1987.

Earle S. Lilly, Piro & Lilly, Houston, for appellant.

Burta Rhoads Raborn, Barbara K. Runge, Houston, for appellee.

Before SAM BASS, COHEN and DUNN, JJ.

OPINION

SAM BASS, Justice.

Our opinion issued September 18, 1986, is withdrawn, and the following is substituted. Appellant's motion for rehearing is overruled.

This was a divorce suit and a suit affecting the parent-child relationship. The primary issue surrounds an Indenture for the Partition of Community Property ("the indenture").

The appellee alleged that the indenture was void based on fraud, undue influence, duress, invalid partition and exchange, public policy, and breach of fiduciary duties. After a non-jury trial, the court set aside the indenture and found that it was procured by duress.

Appellee signed the indenture on June 20, 1980, and appellant signed it on June 21, 1980. The appellee's attorney, Williams, testified that he first consulted with appellee in July 1979, regarding a proposed divorce from appellant. Williams had no further contact with appellee until May 29, 1980, when she retained him to represent her in a divorce action against appellant. On this same day, all the necessary paperwork was prepared to initiate the divorce action. Appellee's contact with, and retention of, Williams was unknown to appellant. On May 28, 1980, one day before appellee retained Williams, she and the two children had left the house and were staying in a motel.

On June 1, 1980, appellee and the children returned home, and she instructed Williams not to file suit. On June 16, 1980, appellee consulted Williams regarding the partition. He testified that he made no recommendation to her. On June 25, 1980, appellee informed Williams that the family had reunited and that his services were no longer required.

Mrs. Gross, a psychotherapist, testified that in June 1980, she had been counselling appellee. Prior to a meeting with appellant and appellee, Gross received a call from appellant stating that his wife was abusing medication, that she had left with the children, that she had stolen money from the company's safe, and that he was having detectives go after her. In June 1980, before the signing, Gross learned that the couple was separated, that appellant had taken the couple's son and moved in with his parents, and that the couple was in the process of making a separation agreement. She testified that appellee seemed confused, and that appellee confessed the alleged theft. Gross had no contact with appellee after June 9, 1980.

Another attorney, Ogier, testified that he met with appellant and appellee in June 1980 regarding the partition agreement. He said that his primary function was in preparing the agreement and not rendering advice on its benefits. He testified that appellee seemed calm and normal, that she never indicated to him that she believed the agreement to be fraudulent, and that, in his opinion, both parties were fully aware of what they were doing.

Appellee testified that during the time period before the signing, appellant threatened that if she did not sign the indenture she would never see her son again. She testified that she had possession of their daughter and that appellant had possession of their son.

Appellee testified to the following:

Q. Did you fear anything, if you didn't sign the document as he said and have it on his desk by Friday?

A. I feared the worst.

Q. Being what?

A. Loss of my child.

Q. Was there ever any discussion between you and Mr. Matthews relative to custody litigation?

A. Yes.

Q. Were you in fear of that?

A. Yes.

Q. Why?

A. I was just afraid that he would do it.

On cross-examination, appellee testified that her attorney, Williams, had advised her to not sign the agreement and that she signed the agreement four days later. Appellee testified that, during the four day period, she was not, physically or otherwise, abused by appellant. She testified that their son had gone voluntarily with appellant and that she was able to talk to her son on the telephone. She knew that he was all right; however, she testified that the only reason she signed the agreement was to prevent appellant from getting custody of her son. During May and June of 1980, the couple was using cocaine and alcohol, and there were disputes over company business and assets.

A third attorney, Lindsay, testified that appellee consulted him in October 1982, concerning a divorce. Although appellee told him about the 1980 partition agreement, the extent of her reference to it was that she wished she had not signed it.

The trial court made findings of fact and conclusions of law, the relevant portions of which are as follows:

(8) The parties signed a document entitled Indenture for the Partition of Community Property ("Indenture") on or about June 20-21, 1980, after approximately 2 months of extreme marital stress, during which period parties attending (sic) mental health counselling.

(9) During said period Petitioner and the children separated from Respondent. Sometimes (sic) after the initial separation Respondent took possession of the son, just turned 12 years of age, against the will of Petitioner and refused to let her see him, talk with him, or know of his whereabouts and threatened to continue to do so.

(10) During said period Respondent made continual threats against Respondent (sic) relating to her drug use, stealing of company money and assets, criminal prosecution, pursuing her with the use of detectives, issuance of a warrant for her arrest, and matters relating to the son.

(11) Petitioner believed and feared the threats and conduct of Respondent. Respondent made said threats and engaged in said conduct for the purpose of coercing Petitioner into signing said Indenture for his personal gain.

(12) Petitioner's free will was destroyed by the acts and threats of Respondent and she signed said Indenture because of them. Said Indenture was procured by duress.

(13) Respondent's testimony relating the facts and circumstances surrounding the period of April through June, 1980 inclusive was not credible.

Conclusions of Law

(6) The indenture for the partition of community party should be and is set aside, vacated, and held for naught for all purposes.

Appellant's second through sixth points of error contend that the trial court's fact findings eight through twelve are supported by no evidence and are against the great weight and preponderance of the evidence.

We hold that there is sufficient evidence to support fact findings eight through twelve, as they relate to appellant's threat to institute custody litigation. Therefore, it is not necessary to decide whether other acts and threats by appellant are also supported by the record. Points of error two through six are overruled.

Appellant's first point of error contends that the trial court erred as a matter of law in concluding that the indenture should be set aside, and that such finding is against the great weight and preponderance of the evidence. Appellant's seventh point of error contends that the trial court erred in finding that the partition was procured by duress, because any evidence on which the trial court relied does not conform to the legally accepted definition of duress. We evaluate appellant's claim in light of the threat to initiate custody litigation.

What constitutes duress is a question of law for the court. However, whether duress exists in a particular situation is a question of fact dependent on all the circumstances, including the mental effect on the party claiming duress. Lewkowicz v. El Paso Apparel Corp., 614 S.W.2d 198, 200 (Tex.Civ.App.--El Paso), rev'd on other grounds, 625 S.W.2d 301 (Tex.1981); Sanders v. Republic National Bank, 389 S.W.2d 551, 554 (Tex.Civ.App.--Tyler 1965, no writ). Texas courts have uniformly held that:

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 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. (citation omitted)

Where a demand made is wrongful or unlawful, and it is necessary for the party making such demand to resort to the courts to enforce same, there is no duress, for the one upon whom demand is made has adequate means of protection, and there is no imminent restraint. (citation omitted) But where the party making such demands has, or is supposed to have the power to injure the business or property interest of the one upon whom such demand is made, without resort to the courts to enforce the demand, and threatens to do an act which would cause such injury and which he has no right to do, and thereby induces a compliance with his demand against the will of such party through fear of injury to his business, property interest, such threats amount to duress, if it appears that the party making such demand and threat ought not in good conscience to retain the benefit received by reason thereof. (citation omitted).

Dale v. Simon, 267 S.W. 467, 470 (Tex.Comm'n.App.1924, judgmt. adopted); State National Bank of v. Farah Manufacturing Co., 678 S.W.2d 661 (Tex.App.--El Paso 1984, writ dism'd by agr.).

It is never duress to threaten to do that which one has a legal right to do. Ulmar v. Ulmar, 139 Tex. 326, 162 S.W.2d 944 (1942); Fischer v. Richard Gill Co., 253 S.W.2d 915 (Tex.Civ.App.--San Antonio 1952, writ ref'd). However, a vice arises when one employs extortive measures or, lacking good faith, makes improper demands. Sanders, ...