Moore v. Moore

• Decision Date: 29 November 2012
• Docket Number: No. 05–10–00498–CV.,05–10–00498–CV.
• Citation: 383 S.W.3d 190
• Parties: Gary MOORE, Appellant, v. Caroline F. MOORE, Appellee.
• Court: Texas Court of Appeals

383 S.W.3d 190

Gary MOORE, Appellant,

v.Caroline F. MOORE, Appellee.

No. 05–10–00498–CV.

Court of Appeals of Texas, Dallas.

July 3, 2012.

Rehearing Overruled Nov. 29, 2012.

Charles T. Frazier Jr., Alexander Dubose Jones & Townsend LLP, J.H. Amberson III, Amberson & Dunn, P.C., Dallas, TX, Susan S. Vance, Alexander Dubose & Townsend LLP, Austin, TX, for Appellant.

Katherine A. Kinser, Jonathan J. Bates, Kinser & Bates L.L.P., Michelle May O'Neil, O'Neil & Attorneys, Dallas, TX, for Appellee.

Before Justices O'NEILL, RICHTER, and FRANCIS.

OPINION

Opinion by Justice O'NEILL.

Appellant Gary Moore appeals a final decree of divorce. In four issues, Gary complains the trial court erred in (1) failing to enforce a premarital agreement, (2) valuing the business entities of the community estate, (3) failing to make particularized findings as to the value of community assets, and (4) not conditioning the award of appellate attorneys' fees on success of the appeal. For the following reasons, we affirm the trial court's judgment.

Gary and Caroline F. Moore married on June 25, 2004. Gary filed for divorce about three years later. In his petition for divorce, he sought to enforce a premarital agreement. Caroline answered, filed a counter-petition for divorce, and alleged numerous grounds for invalidating the premarital agreement, including involuntary execution. The trial court bifurcated the proceedings to first determine enforceability of the premarital agreement. Following a two-day trial, the trial court found the agreement was not voluntarily signed and concluded it was unenforceable. A trial on the division of property followed, after which the trial court valued seven business entities owned by the community at $2,798,246.06. The trial court awarded Caroline $1,399,123.03 as her community interest in those entities. Husband appeals.

Because Gary challenges the sufficiency of the evidence to support the trial court's determination that Caroline did not sign the premarital agreement voluntarily, we will first review the evidence presented concerning the events that led to and surrounded the execution of the agreement. Caroline and Gary became engaged in April of 2008 and married about two months later on June 25, 2008 while on a trip to Martha's Vineyard. When they first met, Gary told Caroline he was having financial problems and he had been “digging himself out of a hole” for several years. After they were engaged, Gary asked Caroline how she felt about a “prenup.” Gary told Caroline he wanted a premarital agreement to protect Caroline from “loans, liens, and lawsuits.”

Caroline testified she did not oppose having a premarital agreement, and they began discussing terms of an agreement in May. Gary told Caroline that he was going to have his long-time business lawyer, Marty Barenblat, prepare the agreement and that it would be a “collaborative process” between Gary, Caroline, and Barenblat. Caroline spoke to Barenblat about the agreement, but he never told her he had a conflict of interest.

After Gary realized the premarital agreement could be subject to attack if Caroline did not have her own lawyer, he suggested she hire an attorney at his expense. Initially, Caroline suggested two family law attorneys, but Gary told her both were too expensive. Barenblat and Gary then suggested Caroline hire Mickey Hunt, an attorney that offices in the same building as Barenblat.

On June 16, nine days before the wedding, Caroline met with Hunt for the first time. Hunt reviewed the premarital agreement that Barenblat had drafted. The agreement he reviewed contained blanks where the value of Gary's property would be provided. The agreement also referenced schedules to be attached, but no such schedules were yet attached. Hunt told Caroline she needed to get the values and the schedules, otherwise, she would have no way of knowing what rights she was giving up. After a one-hour meeting, Caroline left Hunt's office with the understanding that Hunt and Barenblat would make changes to the agreement that satisfied his concerns.

The next day, Hunt met with Barenblat to inform him of the changes he wanted. Barenblat told him he would have to get back to him, but he never did. Instead of making the requested changes, Barenblat removed all reference to any values in the agreements and added schedules that did not include values.

On June 18, Caroline was preparing for the trip to Martha's Vineyard. She had planned to pick up the agreement from Barenblat that day so she could take it with her to Gary's home in Big Spring, Texas the following day. They were going to spend one night in Big Spring and then go to Martha's Vineyard. She called Barenblat that morning to see if the agreement was ready. He told her he was still making revisions that her attorney had requested. Caroline called again at about 6 p.m. Barenblat told her the document was complete and that her attorney had approved it and said it was okay for her to sign it. Barenblat told her she could not pick up the agreement because he had already sent it to Big Spring.

The following day, June 19th, Caroline drove to Big Spring. When she got there, she asked Gary if he had received the agreement. Gary told her he had not received it, but that it was going to be sent to Martha's Vineyard. The following day, Gary and Caroline flew to Martha's Vineyard. Caroline testified that in the four days leading up to their wedding, Gary went to the reception desk periodically to see whether any documents had arrived, but nothing had. Caroline assumed he was looking for the premarital agreement.

Four to five hours before the wedding, Gary produced the final draft of the premarital agreement that Barenblat prepared. Caroline had assumed the agreement had just arrived in Martha's Vineyard, but she later discovered Gary had received the agreement in Big Spring and it was in his suit case the entire time. The agreement was a completely new clean copy with nothing to show what changes had been made. Caroline thought the reason the agreement looked different was because of changes that her attorney had requested. Caroline did notice that the schedules of Gary's assets were now attached and did not contain values. She had assumed her attorney had determined this was acceptable. Gary also presented to her a waiver of disclosure. Caroline panicked because she did not understand the documents and tried to call Hunt, but she was unable to reach him. Gary then called Barenblat. Gary told Caroline that Hunt had approved the document and said it was okay for her to sign. Gary and Caroline executed the agreement and initialed each page. Caroline said she would not have executed the document if she had not been told her lawyer had approved it. Caroline and Gary married a few hours later.

Caroline later discovered that Hunt never reviewed the changes that were made, never reviewed the final draft, and never told Barenblat that it was okay for her to sign. Indeed, Hunt testified at the hearing that he would not have even given Barenblat permission to speak to his client about the agreement.

At trial, Gary denied hiding the agreement and denied that Caroline tried to call Hunt on their wedding day. Barenblat testified and claimed that Hunt both approved the agreement and told him he could tell Caroline she could sign the agreement.

After hearing the evidence, the trial court found Caroline did not sign the agreement voluntarily and refused to enforce it. In his first issue, Gary contends the evidence is legally and factually insufficient to support the trial court's involuntariness finding. Gary and Caroline agree voluntariness is a fact finding, but disagree as to the proper standard of review. Gary contends it is an ordinary sufficiency of the evidence standard of review while Caroline argues the proper standard is abuse of discretion.

The Texas Family Code grants trial judges vast power and broad discretion over many important matters. See Tucker v. Thomas, ––– S.W.3d ––––, ––––, 2011 WL 6644710 (Tex.App.-Houston [14th Dist.] 2011, no pet.). When the Legislature seeks to limit or restrict a family court's discretion, it generally says so. Id. Thus, we generally construe the family law as vesting the trial court with discretion, unless the legislature has said otherwise. See id.

Texas has adopted the Uniform Premarital Agreement Act. Under that Act, premarital agreements are presumptively binding and enforceable under Texas law. SeeTex. Fam.Code Ann. § 4.002 (West 2006). However, the Act also provides that a premarital agreement is not enforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily. SeeTex. Fam.Code Ann. § 4.006(a)(1) (West 2006). Given the express language of the Act, we conclude a trial court does not have discretion to invalidate a premarital agreement in the absence of legally and factually sufficient evidence of involuntariness.¹ Therefore, we will consider Gary's challenge to the involuntariness finding under the legal and factual sufficiency standards of review.

In an appeal from a bench trial, a trial court's findings have the same force and dignity as a jury's verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). A trial court's findings may be reviewed for legal and factual sufficiency under the same standards that are applied in reviewing evidence to support a jury's answers. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). The test for legal sufficiency is whether the evidence would allow reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); State v. State Street Bank & Trust Co., 359 S.W.3d 375, 377–78 (Tex.App.-Dallas 2012, no pet.). We may sustain a no-evidence point only if the record reveals the complete absence of a vital fact, the evidence conclusively proves the opposite of a vital fact, or if the...