in the Interest of D.S., a Minor Child ( 2021 )

Affirm and Opinion Filed September 3, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00484-CV
IN THE MATTER OF THE MARRIAGE OF DAWN WEEKS SPALDING
AND STEPHEN G. SPALDING AND IN THE INTEREST OF D.S., A
CHILD
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-14244
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Garcia1
Opinion by Justice Pedersen, III
After a bifurcation in final trial from the other issues, Stephen Spalding
appeals the trial court’s judgment in favor of Dawn Weeks Spalding, which found
that a post-nuptial Partition and Exchange Agreement (PEA) was not valid or
enforceable. In five issues, Stephen asserts the trial court abused its discretion in
(i) excluding expert testimony from a handwriting expert and (ii) finding the PEA
was not valid or enforceable. We affirm the judgment of the trial court.
1
The Honorable Justice Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the
original panel. Justice Garcia joins this opinion after having reviewed the briefs and the record before the
Court.
I. BACKGROUND
A. Marital Property Agreements
Before the parties were married, Stephen and Dawn executed a Premarital
Agreement in the spring of 2000. One purpose of this Premarital Agreement was to
“help [Dawn] and at the same time keep [Stephen] protected from [Dawn’s] IRS
debt.” Regarding community property, the Premarital Agreement provides: “It is the
Parties’ intent and desire that a community property estate will be created during
their marriage.” The Premarital Agreement further enumerated six categories of
assets, which were to constitute the community estate. Stephen and Dawn initialed
each page of the Premarital Agreement. They both signed the Premarital Agreement.
Separate notaries notarized each of their signatures on the Premarital Agreement.
Stephen and Dawn were married on April 8, 2000. In May 2000, they executed
a Property Agreement Between Spouses, which ratified their Premarital Agreement
and did not otherwise disturb their prior agreements regarding the community estate.
As with their Premarital Agreement, Stephen and Dawn (i) initialed each page and
(ii) signed the Property Agreement Between Spouses. Separate notaries notarized
each of the signatures on the Property Agreement Between Spouses.
A dispute arose in 2009 between Stephen and Dawn regarding finances. In
response, Stephen hired counsel to draft the PEA, which was to “partition or
exchange that community property in order for each party, following the execution
of [the PEA], to hold and possess his or her share of the property as his or her sole
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and separate property.” The PEA included several schedules, which designated the
parties’ prior separate property and partitioned the community property as
exchanged separate property. The PEA further provided that “no community estate
will arise or be created during the remainder of their marriage.” Stephen initialed
each page and signed the PEA, and a notary notarized his signature.
B. Divorce Proceeding
Dawn filed for divorce in July 2016 and sought to enforce the Premarital
Agreement. Stephen answered, counterpetitioned for divorce, and sought to enforce
both the Premarital Agreement and the PEA. Thereafter, Dawn asserted fraud,
illegality, and unauthorized agent affirmative defenses to Stephen’s claim that the
PEA was valid and enforceable. Dawn pled that Stephen forged her name to the PEA
and moved to exclude his handwriting expert witness, Curt Baggett.
On May 3, 2018, the trial court began final trial in this proceeding. As (i) the
parties had resolved the suit affecting parent-child relationship issues at mediation
and (ii) neither party disputed the validity or enforceability of the spring 2000
Premarital Agreement or the Property Agreement Between Spouses, the remaining
issue for the trial court was whether the PEA was valid and enforceable. Stephen,
Dawn, and Baggett, testified during final trial.
Stephen testified that he signed the PEA first and that he had it notarized on
March 2, 2009. He testified he then met Dawn for lunch and witnessed Dawn sign
the PEA in his car. He testified Dawn was angry and signed the entire PEA over the
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course of ten minutes. Stephen denied any forgery. Dawn testified she did not initial
the pages or otherwise sign the PEA. Dawn testified that in 2009 she and Stephen
discussed a partition and exchange agreement, but she requested changes to the draft
partition and exchange agreement:
[DAWN’S COUNSEL]: Do you recall what changes you requested?
[DAWN]: Yes, I wanted to be put on the deed for our properties, and
also I wanted a morals clause put into the agreement because he was
constantly gone from the house, and he was usually at a bar but mostly
strip clubs.
The PEA contains neither an agreement for Dawn to be placed onto any
property, nor joint ownership of real property, nor a morals clause. Dawn testified
to an incident in which Stephen requested she sign the PEA in his car. Dawn testified
she refused to sign the PEA at that time and never signed the PEA.
The trial court heard Baggett’s deposition testimony, and he appeared to
testify in-person during trial. Baggett testified as to his qualifications, prior
experience, method, and expert opinion that Dawn had signed the PEA. Dawn’s
counsel took Baggett on voir dire and objected to his expert testimony and opinion
on the bases of his qualifications, credibility, and reliability of his testimony. The
trial court granted Dawn’s motion to exclude Baggett’s expert testimony:
[THE TRIAL COURT]: I am going to grant the challenge and sustain
[Dawn’s] objection to [Baggett’s] being qualified as an expert witness
and strike his testimony.
Thereafter, the trial court entered the following order in its January 29, 2019 Order
on Bifurcated Trial:
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(5) Petitioner’s Motion to Exclude Testimony and Report of Curt
Baggett
The Court finds, and IT IS THEREFORE ORDERED, that the expert
testimony of Curt Baggett is excluded.
The trial court entered the following order in its January 29, 2019 Final Order
Regarding Validity and Enforceability of Partition And Exchange Agreement:
Finding and Order on Validity and Enforceability of Partition and
Exchange Agreement
The Court finds, and IT IS THEREFORE ORDERED, the Partition and
Exchange agreement relied upon by Respondent is not valid or
enforceable for the reason that Petitioner did not sign the Partition and
Exchange agreement.
This appeal followed.
II. ISSUES RAISED
Appellant raises five issues on appeal:
1. The trial court erred and abused its discretion in excluding the
testimony of [Stephen]’s expert Curtis Baggett based on his alleged
lack of qualifications. The exclusion of his testimony was reversible
error because it probably caused the rendition of an improper judgment.
2. Alternatively, the trial court erred and abused its discretion in
excluding the testimony of [Stephen]’s expert Curtis Baggett based on
the alleged lack of reliability of his opinions. The exclusion of his
testimony was reversible error because it probably caused the rendition
of an improper judgment.
3. The trial court erred in ordering that the Partition and Exchange
Agreement was not valid or enforceable based on the trial court’s
finding that [Dawn] did not sign this agreement.
4. The trial court erred finding that [Dawn] did not sign the Partition
and Exchange Agreement.
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5. Alternatively, if the trial court’s order that the Partition and
Exchange Agreement was not valid or enforceable was based on the
defenses of involuntary signature or unconscionability, this constituted
error because these defenses were not properly pled by [Dawn].
III. STANDARDS OF REVIEW
A. Admissibility of Expert Testimony
We review rulings on the admissibility of expert testimony for an abuse of
discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995). A trial court abuses its discretion if it acts without reference to any guiding
rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985). Expert testimony is admissible if it will assist the trier of fact to
understand the evidence or to determine a fact in issue. TEX. R. EVID. 702.2
In applying the abuse of discretion standard, reviewing courts defer to the trial
court’s factual determinations; a reviewing court does not engage in its own factual
review but decides whether the record supports the trial court’s resolution of factual
matters. State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633–34 (Tex. 2000).
A reviewing court determines only whether the trial court properly applied the law
to the facts in reaching its legal conclusion. Id.2
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R.
EVID. 702.
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B. Sufficiency of the Evidence
The abuse of discretion standard in a family law case overlaps the traditional
sufficiency standard of review. In re S.M.V., 287 S.W.3d 435, 446 (Tex. App.—
Dallas 2009, no pet.). However, under an abuse of discretion standard, legal and
factual insufficiency are not independent grounds of error; instead, legal and factual
sufficiency are incorporated into the abuse of discretion standard as relevant factors
in assessing whether a trial court abused its discretion. Id. In applying the abuse of
discretion standard, we engage in a two-pronged analysis: (i) whether the trial court
had sufficient evidence upon which to exercise its discretion and (ii) whether the
trial court erred in applying its discretion. See Vardilos v. Vardilos, 219 S.W.3d 920,
921 (Tex. App.—Dallas 2007, no pet.).
Here, Stephen’s briefing does not specify whether he challenges the legal
sufficiency or the factual sufficiency of the evidence that Dawn signed the
agreement. When a party challenges the legal sufficiency of the evidence supporting
an adverse finding on an issue on which the party had the burden of proof, it must
show that the evidence establishes as a matter of law all vital facts in support of the
issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam).
When addressing a legal sufficiency challenge, we view the evidence in the light
most favorable to the challenged finding—crediting favorable evidence if a
reasonable fact-finder could and disregarding contrary evidence unless a reasonable
fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
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Anything more than a scintilla of evidence is legally sufficient to support the
finding. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960
S.W.2d 41, 48 (Tex. 1998).
“When an appellant challenges the factual sufficiency of the evidence on an
issue, we consider all the evidence supporting and contradicting the finding.”
Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.) (citing
Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989)). “We set aside
the finding for factual insufficiency only if the finding is so contrary to the evidence
as to be clearly wrong and manifestly unjust.” Id. (citing Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986) (per curiam)). In a bench trial, the trial court, as factfinder, is
the sole judge of the credibility of the witnesses. Id. “As long as the evidence falls
‘within the zone of reasonable disagreement,’ we will not substitute our judgment
for that of the fact-finder.” Id. (quoting City of Keller, 168 S.W.3d at 822). In
conducting a factual sufficiency review, we should detail the evidence relevant to
the issue in consideration and clearly state why the finding is factually insufficient
or is so against the great weight and preponderance of the evidence as to be
manifestly unjust, shock the conscience, or clearly demonstrate bias. Windrum v.
Kareh, 581 S.W.3d 761, 781 (Tex. 2019).
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IV. DISCUSSION
Issue One: The trial court erred and abused its discretion in excluding the
testimony of [Stephen]’s expert Curtis Baggett based on his alleged lack of
qualifications.
Texas Rule of Evidence 702 contains two hurdles, which must be overcome
before the expert testimony will be admissible. N. Dallas Diagnostic Ctr. v.
Dewberry, 900 S.W.2d 90, 94 (Tex. App.—Dallas 1995, writ denied). “Proponents
of expert testimony must establish: (1) that scientific, technical, or other specialized
knowledge will aid the trier of fact; and (2) the expert witness is qualified to testify
on the subject.” Id. As the trial court excluded the expert testimony in question under
the second prong, we focus on whether the expert was qualified to testify about
handwriting authentication.
In deciding if an expert is qualified, trial courts “must ensure that those who
purport to be experts truly have expertise concerning the actual subject about which
they are offering an opinion.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499
(Tex. 2001) (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
719 (Tex. 1998)). General experience in a specialized field does not qualify a witness
as an expert. Gammill, 972 S.W.2d at 719.
Stephen asserts the trial court erred in (i) its finding that Baggett was not
qualified to testify as an expert and (ii) its order excluding Baggett’s expert
testimony. Evidence regarding Baggett’s qualifications is found in the record within
Baggett’s deposition, his testimony before the trial court, his curriculum vitae, his
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expert report, and several documents relating to Baggett’s expert testimony from
other cases.
In his deposition, Baggett testified he had almost thirty years of experience as
a forensic document examiner and handwriting expert. He explained that he trained
under Dr. Ray Walker for ten years and completed an apprenticeship with Dr.
Walker after two years. Baggett testified that he “taught for five years at Handwriting
University” and “was dean of the school there at the Handwriting University for five
years.” Baggett taught two-hour courses once a week and also participated in annual
conventions at which he showed students how to use scientific instruments in
examining documents. Baggett explained he participated in over 6,000 cases as an
“expert in the USA who has examined documents and/or testified in every state of
the USA and at least a dozen foreign countries.” Baggett testified he published four
or five papers, including a “book for the State of Colorado on how to spot a forgery.”
Baggett’s curriculum vitae lists his education and training as follows:
U.S. Army, Military Police Officer’s School; B.A. and M.Ed.,
McNeese State University, Lake Charles, Louisiana; and post-graduate
studies at the University of Houston, Houston, Texas.
The curriculum vitae explains Baggett “has a certificate of completion from the
American Institute of Applied Science.” The record includes a “summary of cases,”
which lists numerous court cases in which Baggett had participated or appeared as
an expert.
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During trial, Baggett testified that his degrees include a B.A. in speech
education and a M.Ed. in counseling and guidance from McNeese State University
in Lake Charles. Baggett testified he took postgraduate courses in psychology at the
University of Houston. Apart from his apprenticeship with Dr. Walker, Baggett
explained that his education and training in document examination involved an
introductory class on document examination, which he took while in the U.S. Army
Military Police Officer’s School. Baggett testified he did not perform document
examination during his time in service with the U.S. Army.
Baggett testified he was not certified by (i) the American Board of Forensic
Document Examiners (ABFDE), (ii) the Board of Forensic Document Examiners,
(iii) the National Association of Document Examiners, (iv) the American Society of
Questioned Document Examiners, or (v) the Association of Forensic Document
Examiners. Baggett testified his son operated the Handwriting University at which
he served as a teacher and a dean. The record contains testimony from Baggett that
the Handwriting University has no accreditations. Neither institution that certified
Baggett’s expertise remains in business.
The record contains an opinion from our Court in which we addressed an issue
with ancillary relation to Baggett’s expertise:
Brown contends that the trial court erred in overruling his objection to
the prosecutor’s argument during the guilt or innocence phase of the
trial in which he called defense witness Curtis Baggett a “charlatan.”
Baggett testified that he was a psychologist, hypnotherapist,
psychotherapist, and graphologist, and that he had been designated by
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the court as an expert witness in this case. The court noted that Baggett
had not been properly qualified as an expert, and Baggett retracted his
testimony that the court had designated him as an expert in this case.
Baggett testified that he is not licensed as a psychologist or a
psychotherapist and has not practiced therapy full-time for fifteen
years, although he still conducts occasional weight loss and stress
management seminars. Baggett works primarily in real estate and
financial planning. A “charlatan” is defined as “a pretender to medical
knowledge: a quack.” Webster’s Third New International Dictionary
378 (1993). We conclude that the prosecutor’s argument that Baggett
was a charlatan was proper as a reasonable deduction from the
evidence. See Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim.
App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 87, 136 L.Ed.2d 44(1996).
Brown v. State, No. 05-97-00289-CR, 1999 WL 61858, at *8 (Tex. App.—Dallas
Feb. 9, 1999, no pet.) (emphasis added). The record further contains an order from
United States of America v. Revels from the United States District Court, Eastern
District of Tennessee, Chattanooga Division, in which the federal district court
discussed Baggett’s qualifications and credibility in the areas of document
examination and handwriting analysis in 2012. The federal district court excluded
Baggett’s testimony, concluding “Mr. Baggett lacks the necessary qualifications to
testify at Defendant’s sentencing hearing as an expert in the fields of document
examination and handwriting analysis.”3
3
The memorandum order stated Baggett had “questionable training experience” under Walker and:
Mr. Baggett admitted that his undergraduate and graduate studies were of no particular
relevance to his training as a document examiner, and that he could not recall whether his
Military Police Officer’s School training addressed forensic document examination
techniques.
....
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A trial court does not abuse its discretion when it makes its decision on
conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Burns v.
Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.). A trial court does
not abuse its discretion as long as some evidence of substantive and probative
character exists to support the trial court’s decision. In re S.M.V., 287 S.W.3d at 450.
Here, the record contains conflicting evidence of substantive and probative character
to support the trial court’s decision. In light of the record before us, we cannot
conclude the trial court abused its discretion in (i) its finding that Baggett was not
qualified to testify as an expert and (ii) its order excluding Baggett’s expert
testimony. We overrule Stephen’s first issue. Consequently, we do not reach
Stephen’s second issue. See TEX. R. APP. P. 47.1.
Issues Three and Four: The Partition and Exchange Agreement
Because Stephen’s third and fourth issues concern the Partition and Exchange
Agreement, we address them jointly. We understand these issues to challenge the
sufficiency of the evidence to support the trial court’s finding that Dawn did not sign
the agreement.
The only professional organization in the field of document examination that offers
certification is the ABFDE. Neither Mr. Baggett nor his mentor Ray Walker is an ABFDE
member.
....
[O]f particular concern to this Court, is the fact that several other courts have determined,
inter alia, Mr. Baggett is not qualified to testify.
....
Even under a “minimum indicia-of-reliability standard,” this Court concludes that the
issues raised with respect to Mr. Baggett’s qualifications call into doubt the reliability of
any testimony that he would offer.
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Texas Family Code § 4.102 permits partition or exchange of community
property:
At any time, the spouses may partition or exchange between themselves
all or part of their community property, then existing or to be acquired,
as the spouses may desire. Property or a property interest transferred to
a spouse by a partition or exchange agreement becomes that spouse’s
separate property. The partition or exchange of property may also
provide that future earnings and income arising from the transferred
property shall be the separate property of the owning spouse.
TEX. FAM. CODE ANN. § 4.102. Texas Family Code § 4.105 provides, in part, that
“[a] partition or exchange agreement is not enforceable if the party against whom
enforcement is requested proves that: the party did not sign the agreement
voluntarily.” Id. § 4.105(a)(1).
As discussed above, Stephen testified (i) he signed the PEA in the presence of
a notary, (ii) he had the PEA notarized as to his signature, and (iii) he then presented
the PEA to Dawn in his car, where he watched Dawn sign the PEA. Dawn testified
she never signed the PEA. Although the earlier Premarital Agreement and Property
Agreement Between Spouses had notarizations for both Stephen’s and Dawn’s
signatures, Stephen testified he did not get Dawn’s alleged signature on the PEA
notarized because his understanding was “the whole [PEA] was notarized” when his
signature was notarized—assuming “once it’s notarized it’s notarized.” Stephen
testified he worked in insurance and had documents notarized “all the time.”4 The
4
When asked about notarization in his insurance work, Stephen testified:
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PEA in the record shows varied initials of “DWS” on each page, above a line stating
“Her initials.” The PEA contains a handwritten “Jay K. Stevenson” on a line that
indicates the “attorney representing Wife.” The PEA contains a purported signature
of Dawn.
The record further includes correspondence between Stephen and Dawn from
late February 2009, in which Dawn refuses to sign the PEA and alleges Stephen
attempted to bully her into signing the PEA. During the lunch meeting at which
Stephen testified Dawn signed the PEA, Dawn testified:
[DAWN]: I remember being excited by the fact that he had called me
and asked me to go to lunch, because it was pretty rare. So I went
downtown and met him at his office and we drove in his vehicle to
lunch.
At lunch he proceeded to tell me he was going to have me arrested for
fraud for the credit card issues we were having if I did not sign this
document. He had the document in the car. When we left lunch and
went back into the car, he was trying to get me to sign it in the car. I
refused to sign it, I got out of the truck, and I threw the document back
at him.
He presented it to me at another time later than that and asked me to
sign it, left it at home. He went out to a Dallas Stars game. I took out
the page where the signatures were requested and I literally went in the
backyard and burned them because I was not happy.
[DAWN’S COUNSEL]: You don’t have Deanna notarize documents for signatures that
people haven’t signed yet or do you have her notarize blank documents?
[STEPHEN]: Honestly, we would take documents in and have her notarize them, and I
assumed that meant they were—it was done. I didn’t know the formal procedure. If you
want me to admit that we did some—made some errors and didn’t follow the proper
notarization process both on this and on some insurance documents, we are probably guilty.
We didn’t know the proper procedure.
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So I never signed this document. I would have never agreed to sign this
document. It’s ridiculous.
The record further showed neither Stephen nor Dawn could explain the handwritten
inclusion on the PEA of the name “Jay K. Stevenson” as the attorney representing
Dawn on the PEA. Stephen testified he did not write the name and did not know who
wrote it into the PEA. Dawn testified she did not write it and had not hired Jay K.
Stevenson to represent her on the PEA or any matter since 2000.
In light of the record before us, we must conclude the trial court had more than
a scintilla of evidence to support its finding that the PEA was not valid or
enforceable. See Formosa Plastics Corp. USA, 960 S.W.2d at 48. We must further
conclude the evidence fell within the zone of reasonable disagreement such that the
trial court’s finding was not against the great weight and preponderance of the
evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate
bias. Windrum, 581 S.W.3d at 781. Thus, the trial court had sufficient evidence upon
which to exercise its discretion. See Vardilos, 219 S.W.3d at 921. The trial court did
not abuse its discretion when it concluded the PEA was not valid or enforceable,
because the evidence was sufficient to find that Dawn did not sign the PEA. See id.We overrule Stephen’s third and fourth issues. We do not reach Stephen’s fifth issue.
See TEX. R. APP. P. 47.1.5
5
Regarding Stephen’s fifth issue, we note that Dawn did not raise any pleadings or arguments regarding
unconscionability or involuntary signature. We pretermit any further discussion on that issue.
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V. CONCLUSION
Having overruled Stephen’s first, third, and fourth issues, we affirm the
judgment of the trial court.
/Bill Pedersen, III//
190484f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE MATTER OF THE On Appeal from the 301st Judicial
MARRIAGE OF DAWN WEEKS District Court, Dallas County, Texas
SPALDING AND STEPHEN G. Trial Court Cause No. DF-16-14244.
SPALDING AND IN THE Opinion delivered by Justice
INTEREST OF D.S., A CHILD Pedersen, III. Justices Reichek and
Garcia participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee Dawn Weeks Spalding recover her costs of
this appeal from appellant Stephen G. Spalding.
Judgment entered this 3rd day of September, 2021.
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