Pletcher v. Goetz

• Decision Date: 16 December 1999
• Citation: 9 S.W.3d 442
• Parties: (Tex.App.-Fort Worth 1999) BARBARA ALICE PLETCHER, APPELLANT V. JOHN JOSEPH GOETZ, APPELLEE NO. 2-98-179-CV NO. 2-98-201-CV
• Court: Texas Court of Appeals

Page 442

9 S.W.3d 442 (Tex.App.-Fort Worth 1999)

BARBARA ALICE PLETCHER, APPELLANT

V.

JOHN JOSEPH GOETZ, APPELLEE

NO. 2-98-179-CV

NO. 2-98-201-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH

December 16, 1999

From The 233rd District Court Of Tarrant County

[Copyrighted Material Omitted]

Panel A: Cayce, C.J.; Day and Richards, JJ.

OPINION ON REHEARING

John Cayce, Chief Justice

We grant the motion for rehearing filed by the appellant, withdraw our opinion and judgment issued on September 9, 1999, and substitute the following in their place.

These appeals involve the question of whether certain post-nuptial partition and exchange agreements are unconscionable as a matter of law, whether the trial court abused its discretion in dividing the marital estate, and whether the trial court erred in twice awarding attorney's fees to one of the parties. We will affirm in part, and reverse and render in part.

Barbara Alice Pletcher is an accomplished businesswoman with a doctorate in business administration. She is the founder of a national organization for saleswomen and the author of several books, including a college textbook on business. On March 17, 1985, Pletcher married John Joseph Goetz in California, and the couple lived there until January 1993 when they first separated and Goetz moved to Florida. In March 1994, Goetz returned to California, and the parties attempted to reconcile. One year later, in March 1995, Goetz's employment brought him to Texas, and Pletcher followed in August of 1995. The couple purchased a home in Fort Worth where they lived until June 7, 1996, when they separated a second time and began divorce proceedings.

During their marriage, the parties executed four partition and exchange agreements that identified separate property and divided community assets and liabilities. During the divorce trial, the validity of three of these agreements was submitted to a jury.¹ The jury found the first agreement, which was executed on January 5, 1993 ("Agreement 1"), was unenforceable; but found that two agreements-one executed in March 1993 ("Agreement 2") and the other in January 1994 ("Agreement 3")-were enforceable and binding upon the parties. Based on the jury's findings, the trial court then entered a decree on March 9, 1998 that dissolved the marriage and divided the marital estate. The court later entered findings of fact and conclusions of law, and Pletcher filed a pro se motion to modify the judgment arguing that the court erred in dividing the marital estate consistent with Agreement 1, which the jury found to be unenforceable. After a hearing, the court denied the motion to modify and assessed $1,775 in attorney's fees against Pletcher.

Less than a month after the March 9 decree was entered, Goetz filed a petition for a post-divorce division of property, claiming that the decree failed to address the parties' interest in a money market account. After a hearing, the court divided the account equally between Pletcher and Goetz, but ordered Pletcher to pay Goetz $600 in attorney's fees.

Pletcher brings two appeals. In one appeal, Pletcher complains of the trial court's original decree dividing the marital estate pursuant to Agreements 2 and 3. In the other appeal, Pletcher challenges the trial court's award to Goetz of $600 in attorney's fees in the proceeding addressing Goetz's post-divorce petition to divide the money market account, and the award to Goetz of $1,775 in attorney's fees for defending the post-decree motion to modify. We consolidated these appeals at Pletcher's request.²

In her first point, Pletcher argues Agreements 2 and 3 are unconscionable as a matter of law. Under the family code, spouses may agree to "partition or exchange between themselves any part of their community property, then existing or to be acquired."³ Once a property interest is transferred to a spouse pursuant to a partition and exchange agreement, it becomes that spouse's separate property.⁴ The party challenging the enforceability of a partition and exchange agreement bears the burden of proving the agreement was involuntary or unconscionable.⁵ However, neither the legislature nor the supreme court has defined the term "unconscionable" in the context of marital property agreements.⁶ As a result, appellate courts have turned to the commercial context for guidance in evaluating "unconscionability."⁷

The issue of whether a partition and exchange agreement is unconscionable is a question of law for the court.⁸ In assessing the conscionability of an agreement, the court should consider all of the circumstances in which the agreement was made.⁹ Thus, the court's legal conclusion is dependent upon the facts that illustrate unconscionability.¹⁰ We will not disturb the trial court's conclusion so long as it has evidentiary support.¹¹ Our role is to determine the correctness of the trial court's finding of conscionability based on the facts.¹²

In this case, both Pletcher and Goetz testified to the circumstances surrounding the execution of the partition and exchange agreements. However, each party presented sharply conflicting stories. Goetz stated that Pletcher was predominantly responsible for the family finances and was familiar with the bank and investment accounts affected by the agreements. He further testified that he and Pletcher had discussed the contents of Agreements 2 and 3 and that Pletcher had made suggestions and revisions to both agreements. Moreover, Goetz insisted that he never pressured Pletcher to sign the agreements or otherwise threatened to take some adverse action if she failed to execute the agreements.

Pletcher, on the other hand, stated that she did not know about the accounts affected by Agreements 2 and 3 and that Goetz failed to disclose material financial information concerning those bank or investment accounts. She also testified that Goetz demanded that she sign Agreements 2 and 3 immediately, without time to review or reflect on the documents. She further claimed she was coerced into signing the agreements. According to Pletcher, if she did not execute Agreement 2, Goetz threatened to sell the property where her elderly parents lived and, if she did not execute Agreement 3, Goetz would not attempt a reconciliation.

Having reviewed the record, we hold that Goetz's testimony supports the trial court's finding of conscionability. We overrule point one.

In her second point, Pletcher argues that, if the partition and exchange agreements are conscionable and therefore enforceable, the trial court nonetheless abused its discretion in dividing the martial estate. Specifically, she contends that the trial court erroneously awarded Goetz four accounts (three 20th Century investment accounts and one GTE Federal Credit Union account) in which she had a community interest. She further argues that the trial court inequitably divided the estate by awarding Goetz property, including two pieces of real property and four financial accounts, that was not covered under any partition and exchange agreement.

The family code vests a trial court with broad discretion to divide the parties' property "in a manner that the court deems just and right," considering the rights of the parties and any children of the marriage.¹³ The trial court may consider a variety of factors when dividing an estate, such as: (1) relative earning capacities and business experience of the parties; (2) educational background of the parties; (3) size of separate estates; (4) the age, health, and physical condition of the parties; (5) fault in the dissolution of the marriage; (6) the benefits the innocent spouse would have received had the marriage continued; and (7) probable need for future support.¹⁴ The party attacking the property division bears the heavy burden of showing that the trial court's property division was not just and right.¹⁵ We must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion.¹⁶

One who complains of the trial court's division of property must be able to demonstrate from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion.¹⁷ A trial court's division will not be disturbed on appeal unless it appears from the record that the division was clearly the result of an abuse of discretion.¹⁸ The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably.¹⁹

Reviewing the record, we note that the three 20th Century investment accounts and the GTE Federal Credit Union account in which Pletcher asserts a community interest are specifically characterized as Goetz's separate property in Agreement 2 and confirmed as such in Agreement 3. Because these accounts belong to Goetz as his separate property under Agreements 2 and 3, which the court determined were conscionable and the jury found to be enforceable, we conclude that the trial court's ruling awarding these items to Goetz was neither arbitrary nor unreasonable.²⁰ Moreover, the record does not support Pletcher's contention that the trial court awarded Goetz property that was not covered by any partition and exchange agreement. To the contrary, Agreement 3 expressly provides that "[a]ny property . . . acquired by Husband or Wife during the separation will remain the separate property and responsibility of the procurer." The record reflects that four of the items challenged by Pletcher, the Florida condominium, the GTE Federal Credit Union account, the Dreyfus Money Market Fund,²¹ and the Janus Funds account were purchased by Goetz during a period of separation. Because the trial court's property division conforms to the parties' own agreement regarding the characterization of property that was acquired while separated, the trial court did not abuse its discretion in the distribution of these assets.

As for the remaining two items of property that Pletcher addresses-the marital home on...