Winger v. Pianka

• Decision Date: 06 May 1992
• Docket Number: No. 3-90-077-CV,3-90-077-CV
• Citation: 831 S.W.2d 853
• Parties: Elizabeth Ann WINGER, Appellant, v. Eric Rodger PIANKA, Appellee.
• Court: Texas Court of Appeals

Page 853

831 S.W.2d 853

Elizabeth Ann WINGER, Appellant, v. Eric Rodger PIANKA, Appellee.

No. 3-90-077-CV.

Court of Appeals of Texas Austin.

May 6, 1992.

Rehearing Overruled June 3, 1992.

Philip C. Friday, Jr., Austin, for appellant.

J. Terry Weeks, Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

ABOUSSIE, Justice.

In this case we must determine if the Texas Constitution authorizes persons about to marry to partition or exchange between themselves the salary and income they will earn during their future marriage, causing the portion set aside to each to become the respective spouse's separate property. Before their marriage in 1983, the parties signed a written property agreement. The trial court ruled that the agreement was valid and enforceable. Elizabeth Ann Winger appeals from a divorce decree dividing the parties' property in accordance with the agreement. We will affirm the judgment of the trial court.

On July 18, 1983, Elizabeth Winger and Eric Pianka signed a premarital agreement that provided in relevant part:

Planning to engage in holy matrimony, we, the undersigned parties, do hereby undertake this agreement to waive any and all rights to "community property," should this marriage terminate in divorce. Specifically, neither of us seek to acquire any money or property owned by the other prior to, or accrued by the other during the tenure of this marriage. Thus, each of us reserves full ownership of the property listed below, along with any additional equity, appreciation in value, or income or other proceeds that may be gained during the course of said marriage:

PROPERTY OWNED SOLELY BY ERIC R. PIANKA:

....

3. Any and all income, including salaries, tax refunds, etc.

....

5. Retirement funds with V.A.L.I.C.

....

PROPERTY OWNED SOLELY BY ELIZABETH ANN WINGER:

....

4. Any and all income, including salaries, tax refunds, unemployment compensation, etc.

During the marriage, Pianka earned some $163,000 as a professor and rancher, while Winger lost money operating her business, the Flat Creek General Store. In its final judgment granting the divorce, the trial court divided the couple's property in accordance with their premarital agreement. Pianka was awarded all of the $55,538.64 that he contributed to his retirement account from his earnings during the marriage. ¹

In two points of error, appellant complains that neither the Texas Constitution nor the relevant statute in effect on the date the agreement was signed authorized the premarital partition or exchange of future earnings. We will overrule both points of error.

THE 1980 CONSTITUTIONAL AMENDMENT PERMITS PERSONS ABOUT TO

MARRY TO PARTITION OR EXCHANGE THEIR FUTURE EARNINGS

In her first point of error, appellant complains that the trial court erred in concluding that the parties' agreement validly partitioned their future personal earnings because the Texas Constitution does not authorize the prenuptial partition of parties' future earnings.

Texas has retained the basic features of the community property system rooted in its Mexican and Spanish heritage, but its marital property law has been changed numerous times as a result of constitutional amendments, legislative enactments, and judicial decisions. Thomas M. Featherston, Jr. & Julie A. Springer, Marital Property Law in Texas: The Past, Present and Future, 39 Baylor L.Rev. 861, 862 (1987). Historically, neither married persons nor persons about to marry could by "mere agreement" convert the character of income or community property into separate property. Williams v. Williams, 569 S.W.2d 867, 870 (Tex.1978); see also Kellett v. Trice, 95 Tex. 160, 66 S.W. 51, 53-54 (1902); King v. Bruce, 197 S.W.2d 830 (Tex.Civ.App.1946), rev'd on other grounds, 145 Tex. 647, 201 S.W.2d 803 (1947). The Texas Constitution was amended in 1948, making it possible for spouses to partition their existing community property. Tex. Const. art. XVI, § 15 (1948, amended 1980); Joseph W. McKnight, Family Law: Husband and Wife, 35 Sw.L.J. 93, 101 (1981).

In 1980 the Texas Constitution again was amended, authorizing spouses as well as persons about to marry to partition or exchange their interests in property then existing or to be acquired in the future. The amended article provided in relevant part All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may be written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; and the spouses may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned by one of them, or which thereafter might be acquired, shall be the separate property of that spouse; and if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property.

Tex. Const. art. XVI, § 15 (1980, amended 1987) (emphasis added). ²

Because the amendment does not expressly refer to salaries or personal earnings, a debate has ensued as to whether future personal earnings constitute "property ... to be acquired" that is subject to partition. W. Fred Cameron, Robert S. Hoffman & Alan V. Ytterberg, Marital and Premarital Agreements, 39 Baylor L.Rev. 1096, 1116 (1987); see also S. Christine Mercing, Comment, The Uniform Premarital Agreement Act: Survey of Its Impact in Texas and Across the Nation, 42 Baylor L.Rev. 825, 845-47 (1990). Many commentators and practitioners have assumed that salary and income are included within the meaning of "property" as used in section 15. Cameron, Hoffman & Ytterberg, supra, at 1116; see also Featherston & Springer, supra, at 886-87 (a "community free marriage" is possible because section 15 allows all future community property, including salary and wages, to be partitioned into the spouses' separate properties); Joseph W. McKnight, The Constitutional Redefinition of Texas Matrimonial Property as It Affects Antenuptial and Interspousal Transactions, 13 St. Mary's L.J. 449, 458 (1982) (the amendment's reference to community property clearly includes personal earnings).

Although this question is squarely presented here, other courts have struggled with the issue. Another court of appeals recently reached the same conclusion as we do. Fanning v. Fanning, 828 S.W.2d 135, No. 10-90-112-CV (Tex.App.--Waco, March 4, 1992, no writ). Others have implied that by premarital agreement parties may declare that future earnings of the spouses will be separate, rather than community, property. See Chiles v. Chiles, 779 S.W.2d 127, 128 (Tex.App.1989, writ denied) (upholding a premarital agreement that precluded the acquisition of any community property during the marriage); Dewey v. Dewey, 745 S.W.2d 514, 517 (Tex.App.1988, writ denied) (holding that husband's income was community property because premarital agreement did not mention salaries or state that there would be no accumulation of community estate); Bradley v. Bradley, 725 S.W.2d 503, 504 (Tex.App.1987, no writ) (premarital agreement specified that parties intended earnings from their "respective personal efforts" would be separate property, but such earnings were held to be community because spouses failed to partition their community estate yearly as required by their agreement); see also Huff v. Huff, 554 S.W.2d 841, 843 (Tex.Civ.App.1977, writ dism'd) (pre-1980 amendment holding that premarital agreement that future income would be separate property did not violate Article XVI, section 15).

The Historic Context: What Did Texas Voters Decide?

Appellant argues that the historical context of the 1980 amendment shows that it addressed only income arising from separate property, not personal earnings. The primary rule in interpreting the Texas Constitution is to give effect to the intent of the voters who adopted it. Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989); Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 152 (1942); Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 265 (1922); State v. Clements, 319 S.W.2d 450, 452 (Tex.Civ.App.1958, writ ref'd).

Appellant suggests that the amendment was passed in response to specific federal court estate tax decisions. These cases held that where one spouse made a gift of income-producing property to the other spouse, even though the gift became the recipient's separate property, one-half the income the property produced thereafter nevertheless was includable in the donor spouse's estate. See, e.g., Estate of Castleberry v. Commissioner, 68 T.C. 682, 686-87 (1977), rev'd sub nom., Estate of Wyly v. Commissioner, 610 F.2d 1282 (5th Cir.1980). The tax court reasoned that under Article XVI, section 15, the income arising from the separate property continued to be characterized as community property. Id. at 686-87.

Clearly, appellant is correct at least to the extent that the last provision of the 1980 amendment alters the result in Castleberry:

[T]he spouses may ... agree between themselves that the income or property from all or part of the separate property then owned by one of them, or which thereafter might be acquired, shall be the separate property of that...