Dalal Hibri Monroe v. David Allen Monroe ( 2011 )

CONCURRING OPINION
No. 04-10-00561-CV
Dalal Hibri MONROE,
Appellant
v.
David Allen MONROE,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-12444
Honorable Peter Sakai, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Concurring Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 7, 2011
I concur in the judgment of the majority. I write separately, however, to address the issue
of whether the parties’ premarital and marital agreements should have restricted the trial court’s
exercise of discretion in dividing the marital estate. In addressing this issue I am mindful that the
trial court enjoys broad discretion in dividing the parties’ estate. Murff v. Murff, 615 S.W.2d
696, 698-99 (Tex. 1981).
In addition to the evidentiary arguments discussed in the majority opinion, Dalal
contends the trial court abused its discretion in rendering a division of property that undermines
or nullifies the premarital and marital agreements signed by the Monroes. Dalal notes that such
marital agreements are permitted by both the Texas Constitution and the Texas Family Code, and
are binding and enforceable under Texas law. See TEX. CONST. art. XVI, § 15; TEX. FAM. CODE
ANN. §§ 4.202, 4.205 (West 2006). Dalal contends the trial court divided the property
Concurring Opinion 04-10-00561-CV
disproportionately in an effort to balance or cure what the court saw as an inequitable situation
caused by David’s conversion of his separate property into community property. Dalal further
argues that using equitable principles to overcome the effect of enforceable negotiated
agreements circumvents the law related to marital property agreements, defeats the state’s public
policy regarding enforcement of such agreements, and constitutes an abuse of discretion.
At first blush Dalal’s argument appears compelling. David unsuccessfully contested the
enforceability of the premarital and marital agreements. His decision to convert his separate
property into community property was freely made, even if made under a self-described spell of
“reckless . . . love.” But David should not be released from the effects of his negotiated
agreements just because his love for Dalal was not reciprocated. If the record showed no more
than a spell of reckless love that ultimately dissipated and the trial court’s effort to soften that
blow, then there might be merit to Dalal’s claim that the court abused its discretion. The record,
however, shows much more.
As noted by the majority, Dalal challenges six of the trial court’s findings of fact. It is
likewise important to note the many findings of fact not challenged by Dalal. Among some of
the unchallenged findings of fact are the following:
6. The husband’s separate estate was almost completely depleted as a result
of the parties’ marriage.
7. The wife did not contribute any of her separate property to the community
estate.
8. The community estate did not increase in value as a result of any effort by
the wife.
9. Both parties came into the marriage with debts, and wife’s debts were paid
off during the marriage, but the husband’s debts are still unpaid.
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Concurring Opinion 04-10-00561-CV
15. There is no credible, probative evidence of the fair market value of the
stock of Telesis Group, Inc. However, according to the testimony of Dalal
Monroe, the value of Telesis Holdings, Inc. is $4.4 million dollars, and the
Court finds the value of Telesis Holdings, Inc. is $4.4 million dollars.
Other significant findings of fact unchallenged by Dalal address: (1) the financial
instability of e-Watch, Inc. and e-Watch of Nevada, Inc.; (2) the minimal value of Telesis Group,
Inc. stock if David is not personally involved in the operation of the companies owned by the
corporation; and (3) the contingent liabilities (in an unknown amount) pertaining to the various
corporations, all of which are assessed against David. It is against this backdrop of unchallenged
findings that Dalal’s contention must be viewed.
By the express terms of the marital agreements, the parties are estopped from claiming
upon divorce that the property converted into community property is in fact separate property.
Their agreements do not state, however, that upon divorce the trial court could not consider the
genesis of the community estate as one of the many factors a trial court generally reviews in
ordering a just and right division of the marital estate. Clearly the trial court did consider the
genesis of the community estate, but it also considered much more: Dalal’s separate debt was
extinguished during the marriage, but David’s was not; the community estate was increased by
David’s efforts, but not by any efforts by Dalal; the success of the various corporations brought
into the community estate by David depended upon his participation; and several of the
corporations were financially unsound with significant debt, all of which was assessed against
David in the property division.
Based on these facts, which are supported by the record, I do not believe this court can
conclude that the trial court rendered a disproportionate division in favor of David to offset the
effect of the marital property agreements. Simply put, it was Dalal’s burden to establish an
abuse of discretion, and she has failed to do so. See Garza v. Garza, 217 S.W.3d 538, 549 (Tex.
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Concurring Opinion 04-10-00561-CV
App.—San Antonio 2006, no pet.) (stating two-prong test for review of the sufficiency of
evidence to support trial court’s division of the marital estate). In another case, under another set
of facts, an appellate court may well conclude that a trial court’s discretion is restricted in some
fashion by the terms of a marital property agreement. But in this case, Dalal has failed to
establish that the trial court impermissibly undermined the marital agreements in rendering the
property division.
For these reasons, I concur in the judgment affirming the trial court’s final decree of
divorce.
Catherine Stone, Chief Justice
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