Overcoming a Premarital Agreement: Opinions, June 7, 2018

The Fourteenth Court of Appeals released a memorandum opinion in In re Veldekens, No. 14-16-00770-CV, primarily regarding a premarital agreement and the evidence necessary to overcome its separate property provisions.

The day before the parties married in 2007, they executed a premarital agreement which precluded the accumulation of community property during the marriage. Seven years later, wife filed for divorce. After a bench trial, the marital residence was confirmed as wife’s separate property. The husband appealed.

In his first issue, husband argued the trial court erred in ruling the marital property was wife’s separate property because he presented evidence that wife sold a one-half interest in the property to him, including a sales contract and a hand-written note acknowledging husband’s one-half interest. However, it appears from the opinion that either the husband did not provide or admit into evidence a copy of the purported sales contract or the sales contract itself failed to convey a one-half interest in the property to wife. Wife evidently testified that she did not intend to sell a one-half interest in the property to husband and the trial court could have determined her testimony was credible. And the trial court reasonably could have determined that the $50,000 paid by husband to wife was a gift. The Court of Appeals affirmed the trial court’s finding that the property was wife’s separate property and overruled the husband’s first issue.

This also led the COA to overrule the husband’s second issue. Under the terms of the premarital agreement, the parties were barred from making a claim for any property designated as separate property and making such a claim could entitle the other party to attorney’s fees for defending the claim. The Court of Appeals affirmed the trial court’s finding of attorney’s fees for wife in defending against husband’s claim for the marital property.

Finally, in his third issue, the husband alleged the trial court abused its discretion in not awarding him a full SPO. He made the novel argument that “[i]t is well past the time for Texas courts to discard the undefined legal vernacular of ‘best interest’ in resolving conservatorship issues and set forth viable guidelines for determining when a trial court can strip a parent of its alienable right to statutorily mandated periods of possession with his or her children.” The COA cited the Holley factors and then recited the trial court’s findings of fact that the husband uses abusive language around the children, calls the mother inappropriate and extremely vulgar names in the presence of the children, he becomes more frustrated and abusive toward the mother the longer his visitation period lasts, he is stressed by getting the children ready for school in the morning, the children are often stressed when the father participates in the morning routine, husband tended to exercise his possession at his parents’ house which was forty miles from the school, and for these reasons the children should not have overnights on Sunday or Thursday nights. The COA affirmed.

 

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