In the Interest of I.F., E.F. and F.F., Children v. the State of Texas ( 2023 )

AFFIRMED and Opinion Filed March 1, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00530-CV
IN THE INTEREST OF I.F., E.F. AND F.F., CHILDREN
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-21932
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Garcia
This case involves a suit for the dissolution of marriage referred to arbitration
pursuant to a postnuptial agreement (the “Agreement”). In three issues, Malcom
Fajemirokun (“Husband”) argues: (i) the trial court had no authority to determine
the validity of the Agreement, (ii) the trial court abused its discretion by referring
the matter to arbitration because there was no valid agreement to arbitrate, and (iii)
the trial court’s appointment of the arbitrator was contrary to the terms of the
Agreement. Concluding Husband’s arguments are without merit, we affirm the trial
court’s judgment.
I. Background
Husband and Lola Fajemirokun (“Wife”) were married in 2010 and signed the
Agreement during the marriage. The Agreement provides for binding arbitration in
accordance with Texas law, including the Texas Family Code.
Wife filed a petition for divorce in 2019 and Husband filed a counterpetition.
Both Parties subsequently amended their pleadings. Wife’s second amended petition
requested that the divorce be referred to arbitration in accordance with the
Agreement.
The court conducted an evidentiary hearing on the validity of the Agreement
and the requested referral to arbitration. After the hearing, the court ruled that the
Agreement is valid and enforceable and signed an order referring the case to
arbitration.
Both parties appeared for arbitration. After Wife rested, at Husband’s
direction, Husband’s attorney refused to proceed. Husband provided no testimony
regarding custody, possession, access to and support for the children, or division of
property.
The arbitrator signed an award and Wife requested that the court confirm the
award. The court conducted a hearing, confirmed the award, and entered the final
decree of divorce from which Husband now appeals.
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II. Analysis
We note at the outset that Husband appears before us pro se. We construe
liberally pro se pleadings and briefs; however, we hold pro se litigants to the same
standards as licensed attorneys and require them to comply with applicable laws and
rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.
1978). To do otherwise would give a pro se litigant an unfair advantage over a
litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53
(Tex. App.—San Antonio 1999, pet. denied). The law is well established that, to
present an issue to this Court, a party’s brief shall contain, among other things, a
concise, nonargumentative statement of the facts of the case, supported by record
references, and a clear and concise argument for the contention made with
appropriate citations to authorities and the record. TEX. R. APP. P. 38.1; McIntyre v.
Wilson, 50 S.W.3d 674, 682 (Tex. App.—Dallas 2001, pet. denied). Bare assertions
of error, without argument or authority, waive error. See Sullivan v. Bickel & Brewer,
943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied); see also Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate
court has discretion to waive point of error due to inadequate briefing). When a party
fails to adequately brief a complaint, he waives the issue on appeal. Devine v. Dallas
County, 130 S.W.3d 512, 514 (Tex. App.—Dallas 2004, no pet.). Within this
framework, we address Husband’s issues.
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A. The Validity of the Agreement
We understand Husband’s first issue to argue the trial court had no authority
to address the validity of the Agreement. Specifically, Husband’s first issue states:
The district court erred in law when it assumed jurisdiction and
entertained the validity of the prenuptial agreement and made a
pronouncement that the agreement was enforceable, which decision
formed the basis for the judgment of the trial court.1
In a July 9, 2020 hearing, Wife’s counsel argued the court had a duty to
determine the validity of the arbitration clause before sending the case to arbitration.
Husband’s counsel responded that Husband disputed the validity of the entire
agreement. The court noted its obligation under TEX. FAM. CODE ANN. § 6.6015 to
determine the validity and enforcement of a contract with an arbitration clause, ruled
that the court would determine whether to order arbitration and whether the
arbitration clause is valid, and continued the hearing to a later date. Husband did not
object.
The hearing resumed on July 22, 2020. Wife’s counsel argued that the purpose
of the hearing was to determine the validity of the arbitration clause. Husband’s
counsel made no opening statement, and offered no evidence, argument, or objection
concerning arbitration or the scope of the hearing. Instead, Husband’s evidence
consisted solely of evidence challenging the validity of the entire Agreement.
1
But Husband’ brief also states the issue in different ways. For example, Husband also describes the
issue as “The question of whether the entire postnuptial agreement as a whole was fraudulently induced
was for the arbitrator or the court to decide.” (Emphasis added). And the text that follows does not further
inform our understanding of Husband’s assertions of error.
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Husband never argued that the court had no authority to determine the validity of the
Agreement. Indeed, Husband was the one who put the validity of the Agreement
before the court. Having done so, Husband cannot now complain the court had no
authority to decide the validity of the Agreement, and the issue has not been
preserved for our review. See TEX. R. APP. P. 33.1.
Finally, even if the issue had been preserved, the trial court had the authority
to determine the validity of the Agreement under these facts. See TEX. FAM. CODE
ANN. §§ 6.6015, 153.00715. Husband’s first issue is resolved against him.
B. Referral to Arbitration
We understand Husband’s second issue to argue the trial court abused its
discretion by referring the case to arbitration.2 But Husband did not object to
arbitration per se, nor did he object to the appointment of the arbitrator. Husband did
not move to stay arbitration. He appeared at the arbitration and participated until he
walked out. Thus, the objection to arbitration has not been preserved for our review.
See TEX. R. APP. P. 33.1.
Even if the issue had been preserved, Husband’s argument fails. Husband’s
complaint on appeal concerns the validity of the Agreement itself, not the arbitration
2
To the extent Husband intended to argue otherwise, the issue is waived for inadequate briefing. See
TEX. R. APP. P. 38.1.
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clause within the Agreement. The record, however, supports the trial court’s
conclusion that the Agreement is valid and enforceable.
The party contesting the validity and enforceability of a postnuptial agreement
has the burden to prove that the agreement is not enforceable. In re Eaton, No. 02-
14-00239-CV, 2014 WL 4771608 at *4 (Tex. App.—Fort Worth 2014, no pet.)
(mem. op.). The Family Code sets forth the exclusive remedies and defenses against
the enforcement of a partition or exchange agreement:
(a) A partition or exchange agreement is not enforceable if the party
against whom enforcement is requested proves that:
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before
the execution of the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property or
financial obligations of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party
beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate knowledge
of the property or financial obligations of the other party.
(b) An issue of unconscionability of a partition or exchange agreement
shall be decided by the court as a matter of law.
(c) The remedies and defenses in this section are the exclusive remedies
or defenses, including common law defenses.
TEX. FAM. CODE ANN. § 4.105.
Husband’s argument is that the Agreement at issue is not the agreement he
signed. But he offered no evidence other than his own testimony in support of this
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allegation. As the court found at the conclusion of the July 20 hearing, Husband
admitted that he signed the Agreement and failed to offer into evidence any
alternative agreement he claims to have signed.
Wife testified that she and Husband signed a “postnup agreement,” and had
ridden in the same car to the location where the Agreement was signed. The
Agreement was admitted into evidence. Wife explained that she and Husband signed
each page of the Agreement in front of a notary public and she witnessed Husband
signing the Agreement. Both Husband and Wife provided their driver’s licenses to
the notary and the notary reviewed each license.
The Notary Public who acknowledged the Agreement also testified that it was
her signature on the Agreement and her notary stamp. The Notary Public also
testified that she listed information related to the identity of the parties in her notary
book and had each party sign the book. The pages from the notary book were
admitted into evidence.
Husband admitted that he traveled to the bank where the Agreement was
signed with Wife. He further acknowledged that he signed a postnuptial agreement
on the same date reflected on the Agreement attached to Wife’s second amended
petition.
Under these circumstances, the trial court did not err in concluding the
Agreement is valid and enforceable. Because the Agreement required the parties to
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attend binding arbitration, the trial court did not abuse its discretion by referring the
parties to arbitration. We resolve Husband’s second issue against him.
C. Appointment of the Arbitrator
Husband’s third issue argues the “provisions for the appointment of the
arbitrator was (sic) not complied with.” But Husband fails to explain how non-
compliance occurred, why he maintains it occurred, or provide citations to the
record. The issue is waived for inadequate briefing. See TEX. R. APP. P. 38.1;
Sullivan, 943 S.W.2d at 486.
Moreover, the record reflects that Husband did not timely object to the
arbitrator Wife proposed or to the appointment of that arbitrator by the court. He did
not request that the arbitration be stayed, or in any other way bring the alleged error
to the trial court’s attention. Therefore, the issue has not been preserved for our
review. See TEX. R. APP. P. 33.1. Husband’s third issue is resolved against him.
III. Conclusion
Having resolved all of Husband’s issues against him, we affirm the trial
court’s judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
210530F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF I.F., E.F. On Appeal from the 255th Judicial
AND F.F., CHILDREN, District Court, Dallas County, Texas
No. 05-21-00530-CV Trial Court Cause No. DF-19-21932.
Opinion delivered by Justice Garcia.
Justices Reichek and Nowell
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee
recover her costs of this appeal from appellant IN THE INTEREST OF I.F., E.F.
AND F.F., CHILDREN.
Judgment entered March 1, 2023
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