David Robertson v. Oksana Robertson

ACCEPTED
13-14-00523-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/9/2015 11:29:20 AM
DORIAN RAMIREZ
CLERK
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
4/9/2015 11:29:20 AM
No. 13-14-00523-CV DORIAN E. RAMIREZ
Clerk
IN THE COURT OF APPEALS FOR THE
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
David Robertson, Appellant
v.
Oksana Robertson, Appellee
ORAL ARGUMENT REQUESTED
Brief of David Robertson
On appeal from judgment
in cause number 2013-FAM-2820-E
In 148th District Court
Nueces County, Texas
Hon. Guy Williams, Presiding
Clint F. Sare
Texas Bar No. 788354
P.O. Box 1694
Bryan, Texas 77806
(979) 822-1505
Counsel for David Robertson
IDENTITY OF PARTIES AND COUNSEL
Appellant: David Robertson
Appellate Counsel: Clint F. Sare
P.O. Box 1694
Bryan, Texas 77806
Trial Counsel: William Douglas Bloodworth, II
1012 University Ave.
Huntsville Texas 77320
Prior trial counsel:
Larry Adams
870 First City Tower II
Corpus Christi, Texas 78401
James E Monnig
310 S. St Mary’s St. Ste 1470
San Antonio Texas 78205
Appellee: Oksana Robertson
Appellate Counsel: Audrey M. Vicknair
802 N. Carancahua Ste. 1350
Corpus Christi, Texas 78401
Trial Counsel: Michael O’Reilly
500 N. Shoreline Blvd, Ste. 604
Corpus Christi Texas 78401
Prior trial counsel:
William Dudley
1126 Third St.
Corpus Christi, Texas 78404
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................ ii
Table of Contents .................................................................................................... iii
Index of Authorities ................................................................................................ iv
Statement of the Case ............................................................................................... 1
Points of Error .......................................................................................................... 1
Statement of Facts .................................................................................................... 2
Summary of the Argument..................................................................................... 11
Argument ............................................................................................................... 12
Point 1. The trial court erred in rendering partial summary judgment finding an
enforceable agreement between the parties ....................................................... 12
A. David’s Summary Judgment Evidence Was Proper. ................................ 12
B. Rendition of Partial Summary Judgment for Oksana was Error Because the
Summary Judgment Evidence Shows a Genuine Question of Fact on
Enforceability of the Agreement. ................................................................... 14
C. The Trial Court Erred in Rendering Partial Summary Judgment for
Oksana Because it Failed to Apply the Proper Statute. ................................. 22
Point 2. The trial court erred in making a division of property which divested
Appellant of separate property. .......................................................................... 24
Point 3. The trial court erred in granting relief which went beyond the
agreement sought to be enforced. ...................................................................... 24
Point 4. The trial court erred in making a division of post-divorce income. .... 25
Point 5. The trial court erred in awarding attorney’s fees pursuant to the
property agreement in the absence of any pleadings requesting attorney’s fees
under the agreement. .......................................................................................... 28
Prayer for Relief ..................................................................................................... 29
Certificate of Compliance ...................................................................................... 30
with Brief limitations and Service ......................................................................... 30
iii
Appendix ................................................................................................................ 31
INDEX OF AUTHORITIES
Cases
Anguish v. State, 991 S.W.2d 883 (Tex.App.—Houston [1st Dist.] 1999, pet. ref'd)
............................................................................................................................ 20
Cooper v. Cochran, 288 S.W.3d 522 (Tex. App.—Dallas 2009, no pet.) . 20, 21, 22
Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) .............................. 28
Dailey v. Albertson's, Inc., 83 S.W.3d 222 (Tex.App.--El Paso 2002, no pet.) .... 13
Deltuva v. Deltuva, 113 S.W.3d 882 (Tex.App.-Dallas 2003, no pet.) ................. 26
Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977) ....................................... 24
Fed. Fin. Co. v. Delgado, 1 S.W.3d 181 (Tex. App.—Corpus Christi 1999, no
pet.) .................................................................................................................... 14
Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771 (Tex.App.—
Houston [1st Dist.] 2009, pet. denied) ............................................................... 28
Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995). ............................................... 18
In re Vesta Ins. Group, 192 S.W.3d 759 (Tex. 2006) ............................................ 17
Kessler v. State, 850 S.W.2d 217 (Tex.App.—Fort Worth 1993, no pet.) ............ 20
Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931 (Tex.App.—Austin 1987, no
writ) .................................................................................................................... 25
Malooly Bros. Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970) .................................. 12
Mart. v. Martin, 287 S.W.3d 260 (Tex.App.—Dallas 2009, pet. denied) 19, 21, 22
McDowell v. State, 235 S.W.3d 294 (Tex. App.—Texarkana 2007, no pet.) ....... 19
Moore v. Moore, 383 S.W.3d 190 (Tex.App.—Dallas 2012, pet. denied). ........... 17
Nesmith v. Berger, 64 S.W.3d 110 (Tex. App.—Austin 2001, pet. denied) ......... 19
iv
Oil Field Haulers Ass'n v. Railroad Comm'n, 381 S.W.2d 183 (Tex. 1964). ....... 28
Osborn v. Osborn, 961 S.W.2d 408 (Tex.App.-Houston [1st Dist.] 1997, pet.
denied) ................................................................................................................ 23
Osorno v. Osorno, 76 S.W.3d 509 (Tex.App--Houston [14th Dist.] 2002, no
pet.). ................................................................................................................... 18
Pickens v. Pickens, 62 S.W.3d 212 (Tex.App.--Dallas 2001, pet. denied)............ 26
Provident Life v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) ................................... 15
Republic Nat. Leasing Corp. v. Schindler, 717 S.W.2d 606 (Tex. 1986).............. 14
Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834 (Tex.App.—Dallas
2008, no pet.) ..................................................................................................... 28
Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex.1996) (per curiam) ............... 13
Sanders v. Republic Nat. Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App.—Tyler
1965, no writ) ............................................................................................... 20, 22
Seelback v. Chubb, 7 S.W.3d 749 (Tex.App.—Texarkana 1999, pet. denied) ..... 17
Sheshunoff v. Sheshunoff,172 S.W.3d 686 (Tex.App.--Austin 2005, pet. denied) 18
Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665 (Tex. App.--Texarkana
1996, writ denied). ............................................................................................. 12
Taft v. Sherman, 301 S.W.3d 452 (Tex.App.—Amarillo 2009, no pet.) ............... 12
Tellez v. Tellez, 345 S.W.3d 689 (Tex.App.—Dallas 2011, no pet.) ............... 26, 27
Tenneco Oil Co. v. Gulsby Eng'g, Inc., 846 S.W.2d 599 (Tex.App.—Houston
[14th Dist.] 1993, writ denied) ........................................................................... 19
Tower Contracting Co., Inc. of Tex. v. Burden Bros., Inc., 482 S.W.2d 330
(Tex.Civ.App.—Dallas 1972 writ ref n.r.e.) ...................................................... 20
Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550 (Tex.App.--
Hous. [14th Dist.] 2010, no pet.) ....................................................................... 13
Statutes
Tex. Civ. Prac. & Rem. Code § 38.002 ................................................................. 29
Tex. Fam. Code § 3.001 ......................................................................................... 23
v
Tex. Fam. Code § 4.105 ............................................................................. 14, 16, 31
Tex. Fam. Code § 4.206 ................................................................................... 22, 23
Tex. Fam. Code § 6.502(a) .................................................................................... 25
Tex. Fam. Code § 8.051 ......................................................................................... 26
Tex. Fam. Code § 8.054 ......................................................................................... 27
Tex. Penal Code § 8.05 .......................................................................................... 19
Rules
Tex. R. App. P. 43.4 ............................................................................................... 29
Tex. R. Civ. P. 166(a)(f) ........................................................................................ 13
Tex. R. Civ. P. 166a(i) ........................................................................................... 15
Tex. R. Civ. P. 301 ................................................................................................. 28
Tex. R. Civ. P. 67 ................................................................................................... 28
vi
STATEMENT OF THE CASE
Appellant brings this appeal from a final decree of divorce based on a
partial summary judgment holding a conversion agreement between the
parties was valid and enforceable. Based on that ruling, the trial court
denied Appellant a jury trial, and made a division of property in accordance
with the purported agreement and granting additional relief.
POINTS OF ERROR
Point 1. The trial court erred in rendering partial summary judgment
finding an enforceable agreement between the parties.
Point 2. The trial court erred in making a division of property which
divested Appellant of separate property.
Point 3. The trial court erred in granting relief which went beyond the
agreement sought to be enforced by the Appellee.
Point 4. The trial court erred in making a division of post-divorce
income.
Point 5. The trial court erred in awarding attorney’s fees pursuant to
the property agreement in the absence of a pleading requesting
attorney’s fees under the agreement.
STATEMENT OF FACTS
In 1982 David Robertson was seriously injured in a workplace
accident. (CR 180; 2 RR 45). As a result of the accident and complications
from the initial injuries he is a quadriplegic who must use an electric
wheelchair (CR 180; 2 RR 43-44), requires 24 hour nursing care (CR 180)
and takes medication daily to manage pain. (CR 39). David received only a
small payment from workers compensation from the time of that injury until
1998. 1 At that time the insurance carrier for his former employer agreed to
payment for the full-time nursing care he required. (CR 180). The initial
monthly payments were $15,000.00. (CR 180, 190 2, 192).
In 1999 David and his grandmother purchased a house in Junction
Texas for the grandmother’s use. (CR 193). At that time Oksana Robertson
was a resident of Kremenchuk in the Ukraine. (CR 41). David and Oksana
met online in February 2002 and, starting in April of that year, and took two
trips to meet in the Dominican Republic. (CR 40, 42). They discussed
marriage the first time they met. (CR 44). They were married in Livingston,
1
The record reflects that as of 2012 David received $139 per week from worker’s
compensation and $426 per month in social security benefits. (CR 28).
2
The initial settlement was with Royal Insurance, the predecessor to Arrowpoint Capital.
2
Texas in September 2002. (CR 44). In November they purchased a house in
Corpus Christi that was modified to accommodate David’s needs and they
moved there. (2 RR 59). The house was purchased with a down payment
from David’s separate property and the remainder on his credit. (CR 181,
198). David depended on Oksana for much of his daily care and they only
paid a nurse a few hours a day to reduce nursing costs. (CR 182; 2 RR 22).
During the marriage David also paid for Oksana to go to school to become a
massage therapist. (CR 181).
Not long after the marriage Oksana began threatening David with
divorce if he did not do what she wanted. He executed a will in 2003
naming Oksana a beneficiary under threats of divorce. (CR 105-106). He
adopted her son in 2004. (2 RR 18, 105).
In 2005 two disputes arose with the insurance carrier concerning
payment for his nursing care. One centered on the failure to pay cost of
living increases. (CR 180). In August 2007 David hired attorney Daniel
Horne to resolve those disputes. (CR 182). An agreement was reached on
the cost of living dispute which provided for a lump sum payment of
$220,000. (CR 180; 2 RR 64). $20,000 went to David’s attorney. (2 RR
62). David made a gift of $100,000 to Oksana. (CR 182; 2 RR 33-34, 62).
He also put $20,000 into a college fund for her son. (CR 182; 2 RR 62). Of
3
the remaining $80,000, he invested $40,000 in coins and paid for
improvements to the house. (2 RR 65). A dispute remained over the
carrier’s efforts to reduce the monthly payments for nursing care.
David, as sole plaintiff, brought suit against the carrier 3 for bad faith
settlement practices. (CR 182, 202). While that litigation was pending
David executed a second will after Oksana accused him of trying to “cheat
her out of everything.” (CR 106). She also sought to have him assign part of
his monthly payments to her and transfer property to her. (CR 182). David
and Oksana consulted with an attorney named Robert Johnson, who they
knew because he was also their neighbor, about David’s pending suit. (CR
182). The conversations with Johnson led David to believe any recovery in
his suit would be community property. (CR 186). Mr. Horne withdrew on
the eve of trial in 2012 when the David declined to accept a settlement offer.
(CR 63-64, 66).
During that time David traveled between Corpus Christi and Junction
where he was helping his grandmother remodel the house there. (CR 183).
Those trips required David to hire nurses for his care because Oksana would
not travel with him. (CR 183). The expense of this nursing care was a
3
The carrier is variously identified as Arrowood Indemnity (CR 202, 595) or Arrowpoint
Capital. (CR 125, 561). The record does not explain the discrepancy.
4
source of conflict. (CR 183). David agreed to a specific monthly limit on
his nursing care, leaving more money for other living expenses. (CR 184).
David testified that Oksana wanted to control every dollar and that if
he did not do what she wanted she had threatened to ensure the payments for
his nursing care would end and he would be in a nursing home. 4 (CR 75-
76). Fearing there may be nothing from the case against the insurance
company, Oksana increased pressure on David to transfer property to her.
(CR 183). David had significant anxiety over that. (CR 76-77).
In early June 2012 Mr. Johnson contacted defense counsel to see if the
offer was still available. (CR 67). It was, with conditions concerning
payment of attorney’s fees and hospital liens. (CR 185, 595). A week later
the Robertsons met with Mr. Johnson again. (CR 125). The following day
Mr. Johnson sent a letter acknowledge he had given legal advice on the
claims against Arrowpoint Capital and possible claims against Mr. Horne in
that case but he then withdrew from any further advice to them. He advised
each to get their own attorney due to conflicts of interest between them but
said if they could resolve the conflicts it would allow his continued
representation. (Id.). The impending settlement did not resolve Oksana’s
attempts to have David transfer property to her. (CR 185).
4
The testimony was given in David’s deposition and offered as summary judgment
evidence by Oksana.
5
David tried to resolve the conflicts with Oksana so Mr. Johnson could
represent them in the bad faith claim. (CR 70). This included going to
marriage counseling. (CR 67). Oksana went to one session. (CR 71, 185).
After David was unable to find another attorney to represent him in that
case, the pressure of Oksana increased. (CR 185).
On July 12, 2012, David signed an agreement drafted by an attorney
named Duncan Neblett who had been contacted by Oksana but who did not
claim to represent either party. He did not disclose to David that he had a
previous attorney-client relationship with Oksana, advising her on marital
property law. This was only revealed during the deposition of Mr. Neblett.
(CR 234). The events leading up to that date are detailed in David’s
summary judgment affidavit. (CR 185-88). The document was described as
a marriage contract and partition agreement. (CR 18). It purported to be a
“partition or exchange” of property between them during marriage and
establish payment of monthly expenses. (CR 18). It did not list any
property as separate, but only purported to make a division of community
property and income. (CR 18). Schedules A and B listed property to be the
separate property of David and Oksana respectively. Schedule B listed the
couple’s residence as Oksana’s separate property. (CR 29). The real property
listed as David’s consisted of empty lots and his interest in the residence in
6
Junction owned before marriage. (CR 28). Each could sell the property listed
as theirs without restriction.
Schedule C listed typical monthly expenses and required that all be
paid out of the monthly check David received from Arrowpoint Capital for
nursing care. (CR 30). The agreement contained a provision estopping the
parties from “making any claim [] to any separate property or the separate
estate of the other party.” (CR 20-21). Under that agreement David was
prohibited from making changes to his will without Oksana’s consent. (CR
22). There was no corresponding restriction on Oksana. David testified he
signed the document under the threat that Oksana would “strip me of my
nursing benefits” if he did not. (CR 58). His affidavit detailed the conduct
of Oksana leading up to execution of the agreement. (CR 187). He testified
she even threatened his life. (CR 108).
In March 2013 David went to visit the property in Junction, Texas.
Before he returned Oksana filed suit and led him to believe she had obtained
a restraining order preventing him from returning to their house. (CR 54;
SCR 4).
At a hearing on temporary orders the parties stipulated the monthly
cost of nursing care was $10,900. (2 RR 8-9). Oksana admitted to having
$90,000 of the 2007 gift from David and may have had as much as $150,000
7
in various accounts. (2 RR 34). David had accounts containing
approximately $12,000. (2 RR 61).
Following unsuccessful mediation, in December 2013 David
requested a jury trial. (CR 5). On the day previously set for a bench trial
Oksana sought to have the trial court conduct a bench trial on the validity of
the July 2012 agreement. (4 RR 7, 16). At that hearing Oksana’s counsel
informed the court she had decided not to seek summary judgment on the
validity of the contract because a controverting affidavit from David would
defeat entitlement to summary judgement. (4 RR 9, 14, 16). A little over a
month later Oksana filed a “traditional motion for partial summary
judgment.” (CR 7).
Her motion alleged that David had the burden to establish the
agreement was invalid. (CR 9). It purported to represent David’s position,
based on portions of his deposition testimony, and argued the cited portions
were insufficient to establish “duress.” (CR 13). Oksana did not provide her
affidavit in support of her motion. She only attached the affidavits of Robert
Johnson (CR 120), Duncan Neblett (CR 134) and documents which were not
authenticated by affidavit.
David filed a response supported by his affidavit setting out his injury
and medical condition (CR 181), the history of the relationship with Oksana
8
(CR 181-82, 184-87), the dispute with Arrowpoint Capital (CR 182-83), the
payments to Oksana (CR 182), the threats from Oksana (CR 185-87), and
the events surrounding execution of the disputed document. (CR 184-87).
At the hearing on Oksana’s motion she challenged David’s affidavit
(6 RR 45) but conceded the court was required to take his statements as true.
(6 RR 42). The core of her argument was that David bore the burden to
establish the agreement was not enforceable and the agreement was
enforceable because the threats alleged by David were not to take acts she
had no legal right to do. (Id.).
The trial court initially found David’s affidavit “defective” because it
did not contain the words “true and correct.” (6 RR 45, 59). The court later
stated it “gave the affidavit full consideration.” (7 RR 14). It further focused
only on the threats Oksana made on the lives of David’s family members. (6
RR 59). The court held these were insufficient to raise a fact question on
whether the agreement was signed voluntarily because they did not show
that there was an “imminent threat” to David’s life, and David had not
alleged the agreement was unconscionable. (6 RR 59, 60). The court stated
he was granting Oksana’s motion on that basis. (6 RR 63). The trial court
signed an order granting partial summary judgment finding the “marriage
contract” is valid and binding. (SCR 9; 7 RR 8, 14).
9
The trial court subsequently denied David’s request for a continuance
and to compel discovery to determine the extent of the marital property. (7
RR 17, 32). It also denied his request for a jury trial. (7 RR 32). It
conducted a final hearing on July 7, 2014. (8 RR 5). Based on the prior
rulings on the partial summary judgment and denial of a jury trial, the only
issues presented were termination of the marriage and evidence of attorney’s
fees. (8 RR 6-8). The court granted the divorce based on insupportability.
(8 RR 9, 21). Oksana presented evidence of her attorney’s fees and argued
she was entitled to them under the terms of the agreement and not the
Family Code. (8 RR 11-19, 22-24). David objected to the absence of
pleadings seeking attorney’s fees on the contract. (8 RR 25).
The trial court signed a final judgment on July 30, 2014. (CR 782). It
found the July 12, 2012 agreement was binding and enforceable, and made a
division of property that sought to track the appendices of that agreement,
declaring as Oksana’s separate property the home in Corpus Christi, a
Cadillac, two listed bank accounts and “any other bank account” in her
name, all gold and silver coins, 50% of silver coins except for some
purchased by David before marriage, 50% of the proceeds of David’s suit
against Arrowpoint Capital and any malpractice claim against David’s
original attorney, in addition to any property she acquired before marriage.
10
She received all income from her massage business in addition to 50% of the
net proceeds of David’s monthly payments from Arrowpoint after payment
of specified bills. (CR 784)
The court considered and denied Appellant’s Motion for New Trial
which was based on the denial of his motion for continuance, denial of a jury
trial, the factual sufficiency of the evidence, granting the partial summary
judgment, and division of property. (CR 777, 781).
SUMMARY OF THE ARGUMENT
The trial court improperly granted partial summary judgment holding
a marital property agreement was error because the agreement sought to
dispose of separate property and did not comply with statutory requirements
for such agreements. The agreement was unenforceable because it purported
to govern post-marriage income which is not authorized by statute. Even if
the agreement was authorized by statute, the summary judgment evidence
showed a genuine question of fact on enforceability of the agreement.
11
ARGUMENT
Point 1. The trial court erred in rendering partial summary judgment
finding an enforceable agreement between the parties
There are multiple reasons the trial court erred in rendering partial
summary judgment finding the July 12, 2012 agreement valid and
enforceable. Appellant presents each of those reasons in a single point as
permitted by Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.
1970). The argument attacking each ground under a global challenge to
summary judgment is proper and does not render the point multifarious. See
e.g., Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 669 (Tex.
App.--Texarkana 1996, writ denied). Additionally, a party may challenge
the granting of partial summary judgment following rendition of a final
judgment. Taft v. Sherman, 301 S.W.3d 452, 457 (Tex.App.—Amarillo
2009, no pet.).
A. David’s Summary Judgment Evidence Was Proper.
During the hearing on Oksana’s Motion for Partial Summary
Judgment she objected to David’s affidavit on the basis it did not contain the
“magic words” “true and correct” and “within my knowledge.” (6 RR 45).
At the same time she agreed the court needed to accept the statements in his
12
affidavit as true. (6 RR 42). The trial court apparently agreed and found the
affidavit defective, but stated he was considering it for the purpose of the
hearing. (6 RR 59-60).
Although the trial court stated he was considering the affidavit,
because the affidavit is central to the issues before this court, Appellant
presents this argument to confirm Oksana’s challenges to the affidavit were
without merit and the affidavit must be considered.
Oksana’s argument that an affidavit must contain the “magic words”
is not an accurate statement of the law. The requirements for an affidavit
presented as summary judgment evidence is set out in Rule of Civil
Procedure 166(a)(f). It provides:
affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.
See also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per
curiam). It is not the magic words which determine the validity of an
affidavit, but whether it shows the affiant has personal knowledge and the
basis for that knowledge. Valenzuela v. State & County Mut. Fire Ins. Co.,
317 S.W.3d 550, 553 (Tex.App.--Hous. [14th Dist.] 2010, no pet.); Dailey v.
Albertson's, Inc., 83 S.W.3d 222, 227 (Tex.App.--El Paso 2002, no pet.).
13
Parenthetically, the words “true and correct” would only apply if the
affidavit was used to authentic copies of documents. 5 Republic Nat. Leasing
Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986).
Even if an affidavit had not specifically recited the facts are true but
shows the basis of personal knowledge and is sworn to, it is not defective.
Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.—Corpus Christi
1999, no pet.)(and cases cited therein). Here David’s affidavit stated it was
based on his personal knowledge and showed the basis of his knowledge
because the affidavit described events he witnessed, actions he took and his
own thoughts and feelings. (CR 180-188). The affidavit was proper
summary judgment evidence.
B. Rendition of Partial Summary Judgment for Oksana was Error
Because the Summary Judgment Evidence Shows a Genuine Question
of Fact on Enforceability of the Agreement.
1. Oksana Had the Burden.
Oksana’s Motion improperly attempted to place the burden on David
to establish invalidity of the agreement. (CR 9). Her theory was that that
section 4.105 of the Family Code controlled enforcement of the agreement
5
It is worth noting that Oksana’s Motion for Partial Summary Judgment contained no
affidavits authenticating documents she attached. (CR 18, 34, 162).
14
and the statute requires a party challenging such an agreement to show it was
not voluntary or it was unconscionable. 6 (CR 9).
When an opposing party has a burden to establish a claim or defense a
litigant seeking summary judgment may file a no-evidence motion pursuant
to Rule of Appellate Procedure 166a(i). A proper no-evidence motion must
identify the element or elements on which there is no supporting evidence.
(Id.).
Rather than file a no-evidence motion for summary judgment,7
Oksana chose to file a traditional motion. Consequently, she assumed the
burden to conclusively establish there is no genuine question of material fact
on enforceability of the agreement even taking all evidence favorable to the
nonmovant as true and indulging every reasonable inference in favor of
David as the non-movant. Provident Life v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). The trial court erred in holding David had the burden to
establish invalidity of the agreement to avoid summary judgment.
6
While purporting to quote from the Family Code in her motion, Oksana’s counsel
embellished the statutory language with a parenthetical statement that is not part of the
statute and without indicating the addition. (CR 9).
7
Or even a combined traditional and no-evidence motion. See, e.g., Binur v.
Jacobo, 135 S.W.3d 646, 650–51 (Tex.2004).
15
2. The Trial Court Applied the Wrong Standard on Voluntariness.
Because Oksana filed a traditional motion for partial summary
judgment she had the burden to negate each basis on which enforceability of
the agreement could be challenged. Even assuming the agreement was a
Marital Property Agreement governed by sections 4.101 - .106 of the Family
Code, under section 4.105(a)(1) such an agreement is unenforceable if it is
not signed voluntarily.
At trial Oksana argued this statute required evidence that David
signed the agreement under duress. (CR 9, 10, 14, 121; 6 RR 41). She also
contended that, even taking as true David’s testimony that she had
threatened to give Arrowpoint Capital a basis to terminate David’s monthly
payments for nursing care, 8 that was not evidence she threatened to do an act
she did not have a legal right to take. (CR 14; 6 RR 42-43).
In deciding the voluntariness issue, the trial court made clear that he
believed there had to be evidence of an “imminent threat” to David’s life. (6
RR 59-61, 63). Both of those positions are incorrect.
The Family Code does not define involuntary for purposes of section
4.105. Subsection (c) expressly provides that it is the exclusive defense to
8
David’s affidavit was evidence that Oksana said she would testify that David had used
the money for nursing care “improperly.” (CR 187). It reflected other pressure from
Oksana including requiring David to make her irrevocable beneficiary of an insurance
policy before she would agree that the differences which prevented Johnson from
representing them had been resolved. (CR 186-87).
16
marital contracts. Consequently the common law defenses of fraud and
duress are not directly applicable. Moore v. Moore, 383 S.W.3d 190, 195
(Tex.App.—Dallas 2012, pet. denied). Courts may, however, consider
evidence of fraud and duress to determine voluntariness. Id.
Oksana’s position that she had a legal right to make statements to
Arrowpoint Capital for the purpose of ending David’s nursing benefits is
wholly without merit. There was no information from any source that David
had breached any agreement which resulted in the payments for nursing
care. Oksana was not a party to that agreement. It was made years before
she ever met David. (CR 190). An action by Oksana that affected that
agreement would have been illegal because it would be tortuous interference
with the contract between David and the insurance carrier. See In re Vesta
Ins. Group, 192 S.W.3d 759, 761 (Tex. 2006). The elements of tortious
interference with contract are the existence of a valid contract (CR 190), and
willful and intentional interference by a stranger to the contract. Id. It is
sufficient to show the conduct made performance of the contract more
burdensome or difficult. Seelback v. Chubb, 7 S.W.3d 749 (Tex.App.—
Texarkana 1999, pet. denied). Here the conduct would have caused
substantial loss to David of the benefits of the contract.
17
The authority on which Oksana relied does not support her claim she
had a right to threaten interference with David’s contract with Arrowpoint
Capital. In Sheshunoff v. Sheshunoff, the spouse challenging the validity of
a marital agreement alleged his wife had threatened to “withdraw her loan
guarantee” which would result in a lender calling the line of credit for the
husband’s companies. 172 S.W3d 686, 698 (Tex.App.--Austin 2005, pet.
denied). In holding the trial court did not err in granting partial summary
judgment on the agreement the court of appeals expressly declined to make a
determination of whether she had a legal right to withdraw the loan
guarantee. 9 172 S.W.3d at 700 n. 19. Instead it looked at a number of other
factors including: the sophistication of both parties, the fact the 37 page
agreement was the third agreement between the spouses and that it had been
negotiated over a period of months with the assistance of attorneys for each
party. Id. at 699.
The other case on which Oksana relied was Osorno v. Osorno, 76 S.
W.3d 509 (Tex.App--Houston [14th Dist.] 2002, no pet.). There a wife
challenged a premarital agreement as involuntary on the basis her husband
required her to sign the agreement as a condition for getting married. Id. at
511. Looking to contract law cases holding duress typically arises only from
9
Because she was a party to the guarantee, any action she took would not be tortuous
interference with the contract. Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995).
18
a threat to do something the party has no legal right to do, the court held the
husband had no legal duty to marry the wife. Id. Consequently, it held
conditioning the husband’s agreement to marry on execution of a property
agreement was not duress. Id. This case provides no support for Oksana’s
position. Oksana had no legal right to threaten interference with David’s
contractual rights to payments for nursing care. Compare Nesmith v.
Berger, 64 S.W.3d 110, 114 (Tex. App.—Austin 2001, pet. denied)(threat to
not go on honeymoon without agreement was not duress); Tenneco Oil Co.
v. Gulsby Eng'g, Inc., 846 S.W.2d 599, 604 (Tex.App.—Houston [14th
Dist.] 1993, writ denied)(Party had a right to withhold payment under
contract and threat to do so did not make agreement involuntary), with
Martin v. Martin, 287 S.W.3d 260 (Tex.App.—Dallas 2009, pet. denied)
(threat of financial ruin if wife did not sign property agreement precluded
summary judgment on enforceability of agreement). Like Martin, the partial
summary judgment evidence here raised a material question of fact on
voluntariness.
With regard to the trial court’s view that there must be an “imminent
threat,” that is the standard applicable to the legal defense of duress in a
criminal prosecution. See McDowell v. State, 235 S.W.3d 294, 296 (Tex.
App.—Texarkana 2007, no pet.) (citing Tex. Penal Code § 8.05(a)); Anguish
19
v. State, 991 S.W.2d 883, 886 (Tex.App.—Houston [1st Dist.] 1999, pet.
ref'd); Kessler v. State, 850 S.W.2d 217, 222 (Tex.App.—Fort Worth 1993,
no pet.). That requirement has an immediacy component, the person making
the threat must intend and be prepared to carry out the threat immediately.
Anguish, 991 S.W.2d at 886. In the context of a civil proceeding, only the
restraint on the party’s free will must be imminent. See Tower Contracting
Co., Inc. of Tex. v. Burden Bros., Inc., 482 S.W.2d 330, 335
(Tex.Civ.App.—Dallas 1972 writ ref n.r.e.). See also Cooper v. Cochran,
288 S.W.3d 522, 533 (Tex. App.—Dallas 2009, no pet.).
Here the threats to compel execution of the agreement were economic
and mental.10 Threats which result in fear of economic injury, by an act
which the party has no legal right to do, are sufficient to show duress. This
has long been the governing rule in Texas as discussed in Sanders v.
Republic Nat. Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App.—Tyler 1965,
no writ). That court held:
But where the party making the demand has, or is supposed to
have, the power to injure the business or property interests of
the one upon whom the demand is made, without resort to the
courts to enforce the demand, and threatens to do an act which
would cause such injury, and which he has no right to do, and
thereby enforces compliance with his demand, against the will
10
Although there was also evidence of physical threats, the summary judgment evidence
was focused on the threats concerned interference or termination the monthly nursing
care payments and the effect that would have on David. (CR 187).
20
of such party through fear of injury to his business or property,
such threats amount to duress.
Id. at. 554
The Dallas Court of Appeals considered a factually similar case in
Martin v. Martin, 287 S.W.3d 260 (Tex.App.—Dallas 2009, pet. denied).
There the summary judgment evidence showed the husband pressured the
wife to sign an agreement transferring property under a threat that the family
would be “financially ruined” by pending litigation and they would “have
nothing” if she did not sign the agreement. Id. at 265. Although the
husband had reluctantly provided financial information and the wife had
consulted with her own attorney, the Court of Appeals reversed a no-
evidence motion for summary judgment in favor of the husband on validity
of the agreement. Id.
The threat to deprive David of future payments for nursing care and
statements that he would be in a nursing home (CR 75-75) are the very types
of threats which were held sufficient to invalidate a property transfer
agreement in Cooper, 288 S.W.3d at 533.
The trial court erred in granting partial summary judgment for Oksana
on the basis there was no evidence of an imminent threat of physical injury.
(6 RR 59-60). The evidence of threats of financial injury and resulting
nursing home care (CR 187-88) were sufficient to raise a question of fact on
21
the voluntariness of the agreement. Martin, 287 S.W.3d at 265; Cooper, 288
S.W.3d at 533; Sanders 389 S.W.2d at 554.
C. The Trial Court Erred in Rendering Partial Summary Judgment
for Oksana Because it Failed to Apply the Proper Statute.
Sections 4.102 of the Family Code provides that at any time spouses
may “partition and exchange between themselves all or part of their
community property, then existing or to be acquired.” Section 4.103
authorizes an agreement between spouses that income from separate
property shall remain the separate property of that spouse. Section 4.104
only requires that an agreement under the prior two sections be in writing.
The Legislature has established different procedures for converting
separate property to community property. Such an agreement is not
enforceable if; 1) it was not executed voluntarily or 2) the spouse did not
receive a “fair and reasonable disclosure of the legal effect” of the
agreement. Tex. Fam. Code § 4.206(a). The Statute goes on to provide the
type of notice that is required to show adequate disclosure.
The document at issue went well beyond the partition and exchange of
community property. The undisputed evidence showed the payments from
Arrowpoint Capital arose from David’s pre-marriage personal injury. (CR
180, 190). They were for the full-time nursing care he required. (CR 180).
22
The agreement purported to divide these payments, not only during marriage
but apparently for the rest of David’s life. The document purported to make
a division of David’s interest in the property in Junction, Texas. That was
also his separate property. (CR 193).
Recovery for personal injuries also remains separate property, even if
the injury occurs during marriage. Tex. Fam. Code § 3.001. See also,
Osborn v. Osborn, 961 S.W.2d 408, 414 (Tex.App.-Houston [1st Dist.]
1997, pet. denied) (community property presumption does not apply to
personal injury recovery). Here the injury occurred long before marriage
and the payments during marriage were for nursing care, not loss of earning
capacity. (CR 180, 190).
By attempting to make a division of separate property, the agreement
was a conversion agreement governed by sections 4.201 through 4.206 of
the Family Code. The disclosures contained on the agreement failed to
comply with the disclosures required by section 4.205. The record shows
David did not have an attorney to provide disclosures in addition to those in
the document. David raised this deficiency in the agreement with the trial
court. (CR 162). Because the document was not executed in compliance
with sections 4.205 of the Family Code, the trial court erred in rendering
partial summary judgment for Oksana.
23
Point 2. The trial court erred in making a division of property which
divested Appellant of separate property.
Texas courts are prohibited from divesting spouses of separate
property on divorce. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.
1977).
The trial court’s decree made an award of David’s separate property,
including 50 percent of any recovery in a suit brought by David to recover
damages for personal injuries to David and 50 percent of any recovery for
legal malpractice in that suit, to Oksana. (CR 783). Because there was no
agreement in compliance with section 4.205 of the Family Code converting
separate property to community property, the property was David’s separate
property at the time of the divorce. The trial court’s award of that property
to Oksana was error. Eggemeyer, supra.
Point 3. The trial court erred in granting relief which went beyond the
agreement sought to be enforced.
The trial court’s final judgment ordered that Oksana Robertson “shall
remain the beneficiary [of life insurance insuring the life of David
Robertson] and she is designated as the irrevocable beneficiary after this
24
divorce is granted.” (CR 787). The property agreement on which Oksana
relied, and the trial court found valid, contained no such requirement. (CR
18-32). Because the trial court held the agreement left no disputed issues for
trial (7 RR 32; 8 RR 6-8), no evidence was presented to support an award
beyond the terms of the agreement. (8 RR 19-21).
Consequently there was no evidence on which the trial court could
have based its order designating Oksana as irrevocable beneficiary of
David’s life insurance policy after the divorce. 11 The order was not
supported by either the pleadings or evidence and was error. Tex. R. Civ. P.
301. Moreover, it was an abuse of discretion to render an order without any
evidence on which to base an exercise of discretion. Landon v. Jean-Paul
Budinger, Inc., 724 S.W.2d 931, 939 (Tex.App.—Austin 1987, no writ)
(describing ways in which a court can abuse its discretion).
Point 4. The trial court erred in making a division of post-divorce income.
The trial court’s judgment required David to pay living expenses of
Oksana including, inter alia, the mortgage on property awarded to Oksana,
her vehicle insurance, utilities, pool maintenance, life insurance and health
11
That restriction only existed as part of agreed temporary orders. (P.Ex. 2). Temporary
orders only govern “while a suit for dissolution of marriage is pending.” Tex. Fam. Code
§ 6.502(a).
25
insurance. (CR 786-787) There was no time limit on these payments. The
decree also required David to give Oksana 50 percent of any amount
remaining after payment of the living expenses. This requirement was also
not limited by time. (CR 788).
Because Texas is a community property system, for most of its history
Texas law did not provide for spousal support following a divorce. Post-
divorce spousal maintenance was first authorized by the Legislature in 1997.
See Tex. Fam. Code 8.051. The purpose of spousal maintenance is to
provide temporary and rehabilitative support for a spouse whose ability to
support themselves has eroded over time while engaged in homemaking
activities and whose capital assets are insufficient to provide support. Tellez
v. Tellez, 345 S.W.3d 689, 691 (Tex.App.—Dallas 2011, no pet.); Deltuva v.
Deltuva, 113 S.W.3d 882, 888 (Tex.App.-Dallas 2003, no pet.).
A trial court may exercise its discretion and award spousal
maintenance if the party seeking maintenance meets specific eligibility
requirements. See Tex. Fam. Code § 8.051(2); Pickens v. Pickens, 62
S.W.3d 212, 214–15 (Tex.App.--Dallas 2001, pet. denied). When a divorce
is sought in a marriage lasting ten years or more, a spouse is eligible to seek
spousal maintenance if the spouse lacks sufficient property to meet
minimum reasonable needs and cannot support himself due to an
26
incapacitating physical or mental disability. See Tex. Fam.Code Ann. §
8.051. The Legislature placed limitations on the term of maintenance
payments based on the length of the marriage. Tex. Fam. Code § 8.054. It
created exceptions for spouses who have a physical or mental disability or
another “compelling impediment” to earning income for their “minimum
needs.” Id. A trial court has discretion in ordering spousal maintenance but
that discretion must be exercised within the guiding rules and principles
established by the Legislature. Tellez, 345 S.W.3d at 691.
Oksana did not file any pleading requesting spousal maintenance. The
evidence showed David had severe physical disabilities and Oksana had
none. There was no evidence of an impediment to providing for her own
minimum needs. Moreover, there is no legislative authority in the Family
Code for an agreement with regard to division of a former spouse’s income
after divorce.
The trial court erred in rendering a judgment that made a disposition
of post-divorce income: a) without any evidence of Oksana’s inability to
provide for her minimum needs, b) without any time limitation. The award
was an abuse of discretion because it was made without reference to the
guiding rules and principles established by the Legislature.
27
Point 5. The trial court erred in awarding attorney’s fees pursuant to the
property agreement in the absence of any pleadings requesting attorney’s
fees under the agreement.
The trial court’s judgment awarded Oksana $27,499 in attorney’s fees
“pursuant to section 8.10 of the Partition of Property and Allocation of
Income Agreement.” (CR 789).
It is fundamental that a judgment must conform to the pleadings and
the nature of the case proved. Tex. R. Civ. P. 301; Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 813 (Tex. 1983). A judgment may not grant a party
more relief than requested in the pleadings with very limited exceptions.
Tex. R. Civ. P. 67, 301; Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287
S.W.3d 771, 779 (Tex.App.—Houston [1st Dist.] 2009, pet. denied). This
rule is applicable to an award of attorneys’ fees. Rivera v. Countrywide
Home Loans, Inc., 262 S.W.3d 834, 842 (Tex.App.—Dallas 2008, no pet.).
A judgment which does not conform to the pleadings must be reversed on
appeal. Oil Field Haulers Ass'n v. Railroad Comm'n, 381 S.W.2d 183, 191
(Tex. 1964).
Oksana’s live pleadings sought attorney’s fees “to effect an equitable
division of the estate of the parties.” (CR5). It did not request attorney’s
fees pursuant to the agreement. Section 8.10 of the property agreement
provided for an award of attorney’s fees if a party “brings an action or other
28
proceeding to enforce this agreement.” (CR 23). David objected to the
absence of any pleadings seeking to recover attorney’s fees under the
agreement. (8 RR 10).
Moreover, recovery of attorney’s fees for a suit on a contract is also
governed by Chapter 38 of the Civil Practice and Remedies Code. Section
38.002 establishes prerequisites to recovery of attorney’s fees under that
Chapter. There must be a demand for payment and the failure to pay for 30
days. Tex. Civ. Prac. & Rem. Code § 38.002. There was no evidence of a
demand.
The trial court erred in awarding attorney’s fees under the property
agreement because there were no pleadings to support that award and no
evidence of compliance with Chapter 38 of the Civil Practice and Remedies
Code.
PRAYER FOR RELIEF
Appellant prays this court reverse the judgment of the trial court and
remand the case for trial on the merits before a jury. Appellant also prays
the court tax costs against appellee. Tex. R. App. P. 43.4.
Respectfully submitted:
_/s/ Clint Sare______
Clint F. Sare
Texas Bar Num. 788354
29
P.O. Box 1694
Bryan Texas, 77806
(979) 822-1505
CERTIFICATE OF COMPLIANCE
WITH BRIEF LIMITATIONS AND SERVICE
I certify the foregoing document does not exceed the word count
limitation of Rule of Appellate Procedure 9.4(i) based on the computer
software word count of 6760 words.
I certify a copy of appellant’s brief was served on counsel for appellee
by electronic service on April 9, 2015.
_/s/ Clint Sare________
Clint F. Sare
30
APPENDIX
Appendix A. Marital Property Agreement
Appendix B. Order Granting Partial Summary
Appendix C. Final Judgment
Appendix D. Family Code § 4.105
31
Appendix A
<.) PARTITION OF PROPERTY Al'lD ALLOCATION OF INCOME AGREEMENT
The parties to this Partition of Property and Allocation of Income Agreement
are DAVID ROBERTSON ("Husband") and OKSANA ROBERTSON ("Wife") of
Nueces County, Texas
Stipulations
I. The parties are entering into this Agreement in accordance with article
XVI, section 15, of the Texas Constitution, as amended, and relevant
sections of the Texas Family Code, as amended.
2. The pnrtica acknowledge and agree that they are making and entering into
this Agreement voluntarily and without the intention to defraud or
prejudice preexisting creditors or each other.
The parties own certain real and/or personal property and are recipients of
monthly income as described in Schedules A, B and C, which are attached
to this Agreement. The parties intend by this agreement to partition or
exchange those properties between themselves and to establish the
protocol for paying their monthly expenses out of the income described in
Schedule C. The Parties also intend to continue to own property jointly. A
~) partial list of those items is set out in Schedule D.
5. The parties intend to clarify their respective property rights to eliminate
any uncertainty about those rights.
In consideration of the mutual promises, agreements, part1t10ns, exchanges,
releases, and waivers contained in this agreement and in consideration of the parties'
desire to establish certain rights and obligations by this agreement, and with the intent to
be fully bound by the terms of this agreement, the parties covenant, agree, and contract as
follows:
Article 1
Statement of Facts
1.1 Property of Parties
Husband and \Vife own certain estate, real, personal and mixed, described in
Schedules A and B attached to this agreement.
~)
!nitials of DAJD ROBERTSON
O.R..
Initials of OKSANA ROBERTSON
1 18
1.2 Disclosure
Each party represents and warrants to the other party that he or she has, to the best
of his or her ability, made to the other party a complete and accurate, fair and reasonable
disclosure of the nature and extent of the community property of the parties, including
values, and financial obligations, contingent or otherwise, and other documentation
exchanged between the parties before their execution of this agreement. Each party
additionally acknowledges that he or she has been provided a fair and reasonable
disclosure of the community property and financial obligations of the parties before the
execution of this agreement. Further, and before the execution of this agreement, each
party has previously offered to provide, or has provided, to the other party all information
and documentation pertaining to all community property, including income and value,
and all financial obligations that have been requested by the other party. Each party
acknowledges that he or she has, or reasonably could have had, full and complete
knowledge of the community estate of the parties and of all financial obligations of the
community estate of the parties.
Article 2
Partition of Property
2.1 Property Partitioned to Husband
(.. ) •.
The parties agree that Husband will own, possess, and enjoy as his sole and
separate estate, free from any claim of Wife, the property listed in Schedule A, which is
attached to this agreement and incorporated in it for all purposes. Wife partitions and
exchanges to Husband all her community-property interest in and to all the property
listed in Schedule A, together with any insurance policies covering the prope1iy and any
escrow accounts that relate to it. Wife grants, releases, and confirms to Husband and to
his heirs and assigns all right, title, and interest in and claims to the property listed in
Schedule A, to have and to hold the same, with all and singular the hereditaments a.11d
appurtenances thereto belonging forever.
2.2 Property Partitioned to Wife
The parties agree that Wife will own, possess, and enjoy as her sole and separate
estate, free from any claim of Husband, the property listed in Schedule B, which is
attached to this agreement and incorporated in it for all purposes. Husband partitions and
exchanges to Wife all his community-property interest in and to all the property listed in
Schedule B, together with any insurance policies covering the property and any escrow
accounts that relate to it. Husband grants, releases, and confirms to Wife and to her heirs
and assigns all right, title, and interest in and claims to the property listed in Schedule B,
to have and to hold the same, with all and singular the hereditaments and appurtenances
thereto belonging forever.
)
Article 3
Initials ofDAVID ROBERTSON
c.12.
Initials of OKSANA ROBERTSON
2 19
Income or Property Derived from Separate Property
3.1 Income from Husband's Separate Property
Except as noted below, Wife agrees that all income, changes, mutations, and
increases in kind or in value of Husband's separate property following the execution of
this agreement a.pd all property that he may hereafter acquire, including all property
acquired as a result of the reinvestment of income from his separate property, will be the
separate property of Husband. Income from separate property includes but is not limited
to interest, rents, royalties, stocks, splits, and dividends. Wife forever releases,
relinquishes, and renounces any interest in such income, changes, mutations, and
increases in kind or in value derived from Husband's separate property, including all
property acquired as a result of the reinvestment of income from his separate property, in
consideration of Husband's reciprocal agreement and release, relinquishment, and
renunciation. All future earnings and income arising from Husband's separate property
will be the separate property of Husband unless the parties agree in writing to the
contrary.
3.2 Jncomefrom Wife's Separate Property
Husband agrees that all income, changes, mutations, and increases in kind or in
~\ j
value of Wife's separate property following the execution of this agreement and all
property that he may hereafter acquire, including all property acquired as a result of the
reinvestment of income from his separate property, will be the separate property of Wife.
Income from separate property includes but is not limited to interest, rents, royalties,
stocks, splits, and dividends. Husband forever releases, relinquishes, and renounces any
interest in such income, changes, mutations, and increases in kind or in value derived
from Wife's separate property, including all property acquired as a result of the
reinvestment of income from her separate property, in consideration of Wife's reciprocal
agreement and release, relinquishment, and renunciation. All future earnings and income
arising from Wife's separate property v.ill be the separate property of Wife unless the
parties agree in writing to the contrary.
3.3 Waiver of Claims
Each party agrees that the property being partitioned and exchanged between the
parties as their respective separate property will be free from all claims that the other
party may have before the date of this agreement, as well as all claims that may arise
following the execution o this agreement. Any money used for the benefit of the other
party will be presumed to be a gift to the other party, as contrasted with a payment for
which reimbursement or repayment is later expected, unless the parties agree otherwise in
writing. This waiver applies during the lifetime of both parties, as well as on the death of
either or both parties. This waiver extends to any rights, whether choate or inchoate, that
may arise under the laws of Texas or any other jurisdiction. Each party further agrees
) that, by signing this agreement and accepting any benefit whatsoever under it, he or she is
estopped from making any claim of any kind at any time to any separate property or the
~
Initials ofDVIDROBERTSON
c. t<..
Initials o/OKSANA ROBERTSON
3 20
u
separate estate of the other party, except as may expressly be provided for in this
agreement.
Article 4
ilfa1tagement of Properties
4.1 Management of Properties
Each party has the full, free, and unrestricted right to manage the separate
property over which he or she has control under section 3.101 of the Texas Family Code
or succeeding provisions of similar import and nature, including without limitation the
right to convey or encumber the property; to dispose of it by sale, gift, or otherwise; and
to deal with it without taking into consideration any rights or interests of the other party.
If the joinder of DAVID ROBERTSON or OKSANA ROBERTSON ("joining party")
should be required by law in connection with the execution of any document by the other
party with respect to the separate property of the other party, on request and from time to
time, the joining party must execute all such documents necessary to effect the desires of
the other party, including gift tax returns, but without any personal liability of the joining
party. Neither party has the authority to encumber or dispose of the other party's separate
property without the other party's express written consent.
~\
Article 5
I Reimbursement
5.1 No Reimbursement Claims
Husband waives the right to assert any claim for reimbursement that he might
presently or in the future have on behalf of or against the community estate. Husband
further waives the right to assert any claim for reimbursement that he might presently or
in the future have against the separate estate of Wife.
Wife waives the right to assert any claim for reimbursement that she might
presently or in the future have on behalf of or against the community estate. Wife further
waives the right to assert any claim for reimbursement that she might presently or in the
future have against the separate estate of Husband.
Article 6
Economic Contributions
6.1 No Claims for Economic Contribution
Husband waives the right to assert any claim for economic contribution, as
defined by the Texas Family Code, that he might presently or in the future have on behalf
of or against the community estate. Husband further waives the right to assert any claim
) for economic contribution, as defined by the Texas Family Code, that he might presently
or in the future have against the separate estate of Wife.
lnitials of DA 'VID ROBERTSON
0. R...
Initials ofOKSANA ROBERTSON
4 21
Wife waives the right to assert any claim for economic contribution, as defined by
the Texas Family Code, that she might presently or in the future have on behalf of or
against the community estate. Wife further waives the right to asse1t any claim for
economic contribution, as defined by the Texas Family Code, that she might presently or
in the future have against the separate estate of Husband.
Article 7
Undisclosed Property and Jointly Owned Property
All community property not listed in schedule A or B attached to this agreement
is owned by the parties as equal cotenants with right of survivorship. Each party hereby
grants, conveys, and assigns to the other party an undivided one-half interest in any such
unlisted community property owned in the name of the granting party. A partial list of the
significant community property remaining is identified as Schedule D. Husband also
agrees that he will not change his will dated July 16, 2010 without the agreement of Wife.
Article 8
Other Provisions
8.1 Conflict Resolution
The Parties acknowledge that from time to time there may be disputes between them in
the interpretation of tliis agreement and agree that they wiH resolve those differences in a
civil manner. If the Parties cannot reach a resolution of a conflict they agree to avail
themselves to the mediation process prior to the institution of legal proceedings.
8.2 Entire Agreement
Each party has carefully read this agreement, including all schedules attached to it
and other documents to which it refers, and has executed it in reliance on the party's own
judgment. This agreement expresses the entire agreement between the parties concerning
the subject it purports to cover.
8.3 Incorporation of Schedules
All schedules and other instruments referred to in this agreement are incorporated
into this agreement as completely as if they were copies verbatim in the body of it.
8.4 Partial Invalidity
If any provision of this agreement is for any reason found to be unenforceable, all
other provisions nonetheless remain enforceable.
O.R.
Initials of DAV!D'ROBERTSON Initials of OKSANA ROBERTSON
5 22
8.5 Enforceability
This agreement may be enforced by suit in law or equity by either of the parties or
by their heirs, executors, attorneys, or assigns. Each party agrees that, by signing this
agreement and accepting any benefit whatsoever under it, he or she is estopped and
barred from making any claim of any kind at any time to any separate property or the
separate estate of the other party or to any property described in this agreement as being
the separate property of the other party. Each party waives his or her right to make
claims to any separate property of the other party or to any property designated as
belonging to the separate estate of the other party, whether the property is acquired before
or after this agreement is signed.
8.6 Successors
This agreement binds and inures to the benefit of the parties and their respective
legatees, devisees, heirs, executors, legal and personal representatives, assigns,
transferees, and successors in interest.
8. 7 Amendment or Modification
This agreement may be waived, abandoned, modified, amended, discharged, or
terminated only by a written instrument signed by both parties that specifically identifies
(.,.) the waiver, abandonment, modification, amendment, discharge, or termination.
8.8 Effective Date
This agreement talces effect when it is executed by both parties and will remain in
effect even when the parties' marriage is dissolved by death or otherwise.
8.9 Execution of Documents
Each party agrees to cooperate fully with the other in performing all acts and in
executing, acknowledging, and delivering all instruments and documents required to
accomplish the intent of this agreement, including but not limited to deeds, assignments,
and promissory notes. Each party agrees to execute all documents required to accomplish
the intent of this agreement within fourteen (14) days after the documents are presented
to the party for execution.
8.10 Attorney's Fees and Expenses/or Enforcement
If either party defaults in perf01ming any obligation under this agreement so that
the other party is required to engage the services of an attorney for enforcement or relief,
or if either party brings an action or other proceeding to enforce this agreement or to
enforce any judgment, decree, or order made by a court in connection with this
agreement, the defaulting party must pay all reasonable attorney's fees, expert's fees, and
other costs of the other party.
/n;t;a:~}D
6
ROBERTSON
o. R.
Initials ofOKSANA ROBERTSON
23
8.11 Waiver of Breach or Term
The waiver of any breach of any provision of this agreement does not waive any
other breach of that or any other provision. Waiver of any term of th.is agreement may be
accomplished only concerning future performance and only by a written instrument
signed by both parties expressly stating the provisions waived.
8.12 Titles and Captions
Article headings, titles, and captions contained in this agreement are merely for
reference and do not define, limit, extend, or describe the scope of this agreement or any
provision.
8.13 Representation
Duncan Neblett, Jr. is the attorney who has prepared this agreement. However he
is not representing either party, but has relied only on the information given to him by the
Parties.
8.14 Place of Performance and Governing Law
All rights, duties, and obligations under this agreement are payable and
enforceable in Nueces County, Texas. This agreement must be construed, and its
performance enforced, under Texas law.
8.15 Multi.pie Originals
This agreement is executed in multiple originals. This agreement is signed after
execution of the Waiver of Disclosure ofFinai1.cial Information.
Article9
Repl'esentations and Warranties
WARNING
EACH PARTY TO THIS AGREEMENT UNDERSTANDS THAT BY
SIGNING THIS DOCUMENT HE OR SHE IS PERMA.t~E1''TL Y
SURRENDERING RIGHTS AND CLAIMS HE OR SHE WOULD OTHERWISE
HAVE UNDER TEXAS LAW AND UNDER THE LAW OF OTHER
JURISDICTIONS.
9.1 Representations and Warranties ofHusband
My name is DAVID ROBERTSON. I represent and warrant that:
)
0 R..
Initials of DA PW ROBERTSON Initials of OKSANA ROBERTSON
7 24
1. I have carefully read each and every page of this agreement and the
scheduled attached or referred to, in their entirety.
2. I have been advised by attorney Duncan Neblett Jr. about the law relating
to the subject matter of this agreement and about the spousal rights and
liabilities of both Parties. I acknowledge that he has advised me some of
the provisions of this agreement may not be enforceable.
3. r AM ENTERING INTO THIS AGREEMENT VOLUNTARJL Y.
4. I have given careful and mature thought to the making ofthis agreement.
5. I folly and completely understand each provision of this agreement,
concerning both the subject matter and the legal effect. I further
acknowledge that this agreement was not procured by fraud, duress, or
overreaching.
6. I have investigated the property and financial obligations of OKSANA
ROBERTSON sufficiently to satisfy any questions I have in that regard,
and I expressly waive any right to disclosure of the property and financial
obligations of OKSANA ROBERTSON beyond the disclosures provided.
(.,) 7. I fully understand that, by signing this agreement and accepting any
benefit whatsoever under it, I will be estopped from making any claim of
any kind at any time to any separate property or the separate estate of
OKSANA ROBERTSON, except as expressly provided for in this
agreement.
8. I fully illlderstand that by executing this agreement I may be adversely
affecting my inheritance rights and property and that I am permanently
surrendering right to income and property I would otherwise have under
Texas law.
9. I am executing this agreement with intent to be bound fully by all its
DAVID ROBERTSON
9.2 Representations and Warranties of Wife .,/
) My name is OKSANA ROBERTSON. I represent and warrant that:
r· {l
~
Initials ofDA VJD ROB"'ERTSON
0. R..
Initials ojOKSANA ROBERTSO.N
8 25
1. I have carefully read each and every page of this agreement and the
scheduled attached or referred to, in their entirety.
2. I have been advised by attorney Duncan Neblett Jr. about the law relating
to the subject matter of this agreement and about the spousal rights and
liabilities of both Parties. I acknowledge that he has advised me some of
the provisions of this agreement may not be enforceable.
3. I AM ENTERING INTO THIS AGREEMENT VOLUNTARILY.
4. I have given careful and mature thought to the making of this agreement.
5. I fully and completely understand each provision of this agreement,
concerning both the subject matter and the legal effect. I further
acknowledge that this agreement was not procured by fraud, duress, or
overreaching.
6. I have investigated the property and financial obligations of DAVID
ROBERTSON sufficiently to satisfy any questions I have in that regard,
and I expressly waive any right to disclosure of the property and financial
obligations of DAVID ROBERTSON beyond the disclosures provided.
l,, I 7. I full understand that, by signing this agreement and accepting any benefit
whatsoever under it, I will be estopped from making any claim of any kind
at any time to any separate property or the separate estate of DAVID
ROBERTSON, except as expressly provided for in this agreement.
8. I fully understand that by executing this agreement I may be adversely
affecting my inheritance rights and property and that I am permanently
surrendering right to income and property I would otherwise have under
Texas law.
9. I am executing this agreement vvith intent to be bound fully by all its
tenns.
Oks ilNLQ..
OKSANA ROBERTSON
Re-& eA-/cy.o/t-.__
EXECUTED in multiple originals on the dates at the times of the
acknowledgements shown beiow.
lJ STATE OF TEXAS
'COUNTY OF NUECES
§
§
OBERTSON
0. !!.. .
Initials ofOKSANA ROBERTSON
26
This instrument was acknowledged before me at ~·.co ..12_.M. on
J.)lj l;;. , 2012 by DAVID ROBERTSON.
.:-('~~!~r~;,,,,,
\:,:!iii\~~--~
ERIN A. JOHNSON
i~~f~ Notary Publi?, ~tate of _Texas
~~,~~~§ My Comrn1ss1on Expires
June 08, 2015
~n\!Av.-c 0
NOTARY PUBLIC, State ofTexas
""''""'~
I, the notary public whose signature appears above, certify that I am not an
attorney representing either party to this agreement.
STATE OF TEXAS §
COUNTY OF ;NUECES §
This instrument was acknowledged before me at 3·. ci) t_.M. on
)
_, 2 Yj \ 2 , 2012 by OKSANA ROBERTSON.
&~*
$':$.~.~·~;:•,,,,, ERIN A. JOHNSON
!~~~ Notary Public, State of Texas /
~..),P'\~..j My Commission Expires
~.:~f.f.i.1~~~ June 08, 2015 NOT ARY PUBLIC,
I, the notary public whose signature appears above, certify that I am not an
attorney representing either party to this agreement.
(.., )
Initials of DAVID ROBERTSON
o. R.
Initials of OKSANA ROBERTSON
JO 27
Schedule A
Property to Husband
1. Real Property, improvements, furniture and furnishings located in Junction, Texas
2. Lots 21-24 block 15, Ocean Drive, Corpus Christi, Texas
3. Handicap-equipped Van
4. All fire arms in his possession or control
5. USAA Account# 01394-8838-3 and any other bank account solely in his name
6. $3,000 in silver coins and $3000 in gold coins purchased prior to marriage
7. Any prope1ty acquired prior to marriage
8. Monthly Social Security checks currently in the monthly amount of $426.00
(.)
9. $139/week received as Workman's Compensation benefits
Initials of DAVID ROBERTSON
0. R..
Initials of OKSANA ROBERTSON
,I
28
. '
Schedule B
Property to Wife
1. Real prope1ty and improvements including furniture, furnishings and fixtures located at
13729 Three Fathoms Bank, Corpus Christi, Texas
2. Cadillac automobile
3. Account #0310085950 at American Bank
Account #807760927 at First Victoria Bank and any other other bank account solely in
her name
~) 4. Gold coins and jewelry
5. All "massage" business income
6. Any property acquired prior to marriage
r-... ,-,
j)_f~.
lnitiais of DAV{D ROBERTSON
0. R..
Initials o/OICSANA ROBERTSON
1
29
Schedule C
Identification and Expense Allocation of Monthly Income received
from Arrowpoint Capital (currently $22,674.00/Mo)
This income shall be deposited monthly in a community account and from it the
following payments shall be promptly made. For illustration purposes payee and approximate
current payment amounts are used; however the Parties expressly agree that these payments will
change both fn amount and payee depending upon circumstance. However it is the Parties
intention to provide for the payment their regular living expenses pursuant to this arrangement:
Monthly Exper1se:
Allstate (vehicle insurance) $359.75
City of Corpus Christi (gas, water etc.) $164.60
(.,,
)
Green Mountain (electricity) $488.83
Pool Maintenance $120.00
Wells Fargo (Ocean Drive) $880.00
Frost Bank (Ocean Drive) $2052.14
Safeguard (security) $21.65
Bank of America (Three Fathoms Bank) $2338.94
Maintenance (Ocean Drive Lot) $60.00
U.S. Financial (insurance) $397.41
W.F. Loen (insurance) $233.27
American General (insurance) $55.22
Humana Insurance (insurance) $495.36
<. ) 0. !?_.·
lniti~ls of DJWID ROBERTSON Initials cf OK.SANA ROBERTSON
I
30
Schedule C Cont.
Vonage $30.00
Time Warner (cable) $92.12
Frost Bank (van payment) $777.00
Actava (cable) $14.95
On Star $31.28
Visa-Frost- to be used only for food and gasoline for each party
LVN and Companion Care for David [$5600/mo if David not living with
Wife- $2000/mo if living at homeJ
The Parties also agree that the annual advalorum taxes on the property located on Ocean Drive,
Corpus Christi, Texas (currently $6800 per annum) and college expenses of their son Kostyantyn
(ctU-rently about $5600 per annum after scholarship) shall be paid from this source.
~) The Balance shall be divided 50%- 50% to each party and shall become that pa1iy's separate
property.
In the event that the Parties divorce this income allocation will not change.
(..)
Initials of DAVID ROBERTSON
Q. R..
Initials ofOKSA.NA ROBERTSON
2
31
Schedule D
Partial list of jointly owned property
1. Silver coins except approximately $3000 in coins purchased prior to ma.ITiage
2. Any proceeds from Cause No. 09-712-G David Robertson Vs. Arrowpoint Capital
Corporation - 319 1h District Court, Nueces County, Texas and in claim against attorney
Daniel Home arising out of his httn