                                   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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