McBride v. McBride

• Decision Date: 20 September 1990
• Docket Number: No. A14-89-00028-CV,A14-89-00028-CV
• Citation: 797 S.W.2d 689
• Parties: Linda Harness McBRIDE, Appellant, v. Mayo McBRIDE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 689

797 S.W.2d 689

Linda Harness McBRIDE, Appellant, v. Mayo McBRIDE, Appellee.

No. A14-89-00028-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Sept. 20, 1990.

Rehearing Denied Oct. 18, 1990.

Clinard J. Hanby, Houston, for appellant.

John F. Nichols, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

MURPHY, Justice.

Linda Harness McBride appeals from a partial summary judgment granted in favor of appellee, Mayo McBride, in which the trial court found that a prior judgment incorporating a property settlement agreement between the parties validly disposed of all fact issues as to the parties' property rights. In two points of error, appellant contends the trial court should have denied appellee's motion for partial summary judgment and, instead, should have granted her motion for partial summary judgment asserting that the agreement and 1982 judgment were void. We reverse.

Appellant and appellee married on December 21, 1978 and at this time appellant was seventeen years old and appellee was eighty-four years of age. In 1982, appellant and appellee each filed for divorce in separate counties. Rather than divorcing, the parties entered a "Property Settlement and Other Agreements" ("the agreement") containing the following provision:

If the said Linda Harness McBride ever files suit for a divorce against the said Mayo McBride, she thereby automatically and instantly forfeits all her right, title, interest and claim in and to the community estate of the parties, and all title thereto shall automatically and instantly be divested out of her, and invested into the said Mayo McBride as his separate property, and all future earnings thereof shall be his separate property, and all mutations thereof and of future earnings thereof and therewith shall be his separate property. This applies to all community property now owned, or that the parties hereto may own in the future, accrued or owned prior to or after the filing of such a divorce suit against the said Mayo McBride in the future by the said Linda Harness McBride.

The agreement further provided that appellee would give appellant the sum of $500.00 every month, out of his separate property, but that appellant would have to come to appellee's home to see him in order to receive the money. Appellee agreed to purchase a new automobile for appellant, with the vehicle to be registered in appellant's name. The money and car were both classified in the agreement as gifts. The agreement also contained a promise to convey appellee's homestead to appellant, with appellee retaining a life estate, and provided that appellee would change his will to name appellant as the beneficiary of all community property. Furthermore, appellee agreed he would "not change his [w]ill thereafter with reference to the community property in any manner so as to deprive the said Linda Harness McBride of any portion of the community property of the parties on hand at the time of the death of the said Mayo McBride." On the date of execution of the agreement, the district court in Tyler county held a hearing regarding this agreement and entered a final judgment denying the parties a divorce, and approving the agreement.

Five years later, appellant again filed for divorce and sought a declaratory judgment that the agreement was void and unenforceable. Both parties moved for partial summary judgment on the issue of enforceability of this agreement and the trial court granted appellee's motion, finding that the 1982 judgment and agreement disposed of the marital property. The trial court granted the divorce and, because it held the agreement valid, it awarded the entire marital estate to appellee, as provided in the agreement.

In points of error one and two, appellant claims the trial court erred in granting appellee's motion for partial summary judgment and in denying her motion. Where a party challenges a summary judgment, the standard of appellate review is whether the movant met the burden of establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In this determination, we must accept as true all proof favorable to the non-movant, indulging all inferences and resolving all doubts in the non-movant's favor. Id. at 548-49.

Appellant moved for partial summary judgment claiming that the forfeiture paragraph in the agreement was void because (1) it violates public policy, (2) it purports to create separate property in a manner not provided in the Texas Constitution, (3) it is a division of property that, under TEX.FAM.CODE ANN. § 3.631, is not just and right, and (4) the Tyler court lacked jurisdiction to approve such an agreement. Appellee moved for partial summary judgment contending that (1) appellant was collaterally estopped from challenging the issue of property division because it was adjudicated in a prior action, (2) the agreement constituted a partition of the parties' community estate, (3) the agreement did not violate public policy because it promoted the continuance of the marriage, (4) appellant was represented by independent counsel and conceded she voluntarily signed the agreement, and (5) appellant was equitably estopped from challenging the agreement because she had accepted the benefits under the agreement. Appellee also claimed that appellant's challenge to the agreement was barred by laches. The summary judgment proof in the instant case consisted of the agreement, the 1982 judgment denying both parties a divorce and holding the agreement effective, excerpts from appellant's deposition in which she admitted the signature on the agreement was hers and that appellee complied with the agreement, and a copy of the warranty deed conveying appellee's homestead to appellant subject to appellee's reservation of a life estate. In granting appellee's motion, the court found that no disputed fact issue existed as to the property rights of the parties because the 1982 judgment, approving of the agreement, disposed of all property issues.

We must first address whether any fact issues exist as to the enforceability of the agreement as a judgment. Appellant claims that, if the agreement may be viewed as a judgment, it is void for want of jurisdiction under Choate v. Choate, 576 S.W.2d 656 (Tex.App.--Beaumont 1979, no writ). In Choate, the trial court had entered a decree dividing the community estate and providing for child custody and support; however, the court did not decree a divorce and specifically provided that all requested relief not expressly granted in the decree was denied. Id. at 657. The appellate court reversed the portion of the judgment regarding the division of property holding that, where a trial court denies a divorce or otherwise fails to decree a divorce, it is without power or jurisdiction to determine the parties' property rights. Id.

Appellee counters that the 1982 judgment incorporating the agreement is not void because the Tyler court had subject matter and ancillary jurisdiction. Additionally, appellee claims the trial court's approval and confirmation of the effectiveness of the agreement reflects compliance with TEX.R.CIV.P. 11 which at the time of the judgment stated:

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Appellee maintains that the trial court itself did not order a division of property or adjust the parties' property rights; rather, the court expressed its approval of the parties' agreement altering "what would otherwise be their present and future property rights with reference to their separate or community property, as now allowed by the Constitution and other laws of Texas...." The trial court in the present case, however, found that the 1982 judgment and agreement "disposed of property issues arising from the marriage between the parties." Under Choate, the Tyler trial court had no jurisdiction to render judgment disposing of the parties' marital property. Thus, the trial court in the instant case erred in basing its entry of summary judgment on the 1982 judgment. Furthermore, if the Tyler court had no jurisdiction to render judgment incorporating an agreement altering the parties' property rights, appellee's jurisdiction argument fails and Rule 11 is inapplicable. Because we find that the court had no power to render judgment determining the parties' property rights, the agreement was not enforceable as a judgment and appellant is not precluded from collaterally attacking the agreement as a contract.

We must next consider whether any fact issues exist as to the enforceability of the agreement as a contract. Appellant claims that the agreement purports to create separate property in a manner not provided by the constitution or statute. Appellee responds that the agreement is a valid partition or exchange agreement. At the time the parties entered this agreement, sections 5.42 and 5.44 of the Family Code provided that parties could change the character of community property to separate property during marriage by a written partition agreement, signed by both parties. See Act of Sept. 1, 1981, ch. 782, §§ 5.42, 5.44, 1981 Tex.Gen.Laws 2964, 2965 (amendment effective 1987 and recodified as TEX.FAM.CODE ANN. §§ 5.52, 5.54). We do not find the forfeiture provision in the agreement to constitute a partition agreement as contemplated by the Family Code. This provision makes "no specific reference to a partition," Maples v. Nimitz, 615 S.W.2d 690, 695 (Tex.1981), and reflects "no language of agreement to partition," Collins v. Collins, 752 S.W.2d 636, 637 (Tex.App.--Fort Worth 1988, writ ref'd); rather, the provision penalizes appellant upon the happening of a future event, in this...