                                 NO. 07-03-0066-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                    APRIL 5, 2005

                        ______________________________


                          KELLY D. DICKSON, APPELLANT

                                          V.

                          N. WAYNE DICKSON, APPELLEE


                      _________________________________

    FROM THE COUNTY COURT AT LAW NO. 4 OF MONTGOMERY COUNTY;

           NO. 01-10-06330; HONORABLE MARY ANN TURNER, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Appellant Kelly D. Dickson challenges the trial court’s order enforcing a marital

agreement between her and appellee N. Wayne Dickson. By a sole issue, she maintains

the trial court erred in preventing her from presenting evidence on whether the marital
agreement was entered into voluntarily by granting Wayne’s motion in limine and motion

to strike her pleadings. She also contends the agreement was breached.1 We affirm.


       Kelly and Wayne were married in 1999. By his petition for divorce, Wayne alleged

the parties had entered into a marital property agreement and sought enforcement

thereunder. By her answer and counter-petition, Kelly alleged the agreement was entered

into under “fraud, duress, coercion, and Petitioner failed to disclose all assets, failed to

perform conditions precedent, and Petitioner breached the agreement and commingled

funds.”


       In response to Kelly’s pleading, by one document, Wayne filed a “Motion in Limine,

Motion to Strike, and Special Exceptions” by which he contended, among other things, that

the defenses raised by Kelly were common law defenses which were not allowable under

section 4.105 of the Texas Family Code Annotated (Vernon 1998) to challenge

enforcement of a marital agreement.2 Following a hearing, the trial court granted the




      1
       Kelly does not argue breach in her brief nor does she cite legal authority or
reference the record in support thereof. Consequently, that portion of her issue is waived.
See Tex. R. App. P. 38.1(h).
       2
       Section 4.105(c) restricts the available remedies or defenses for challenging
enforcement of a marital agreement executed after September 1, 1993, to voluntariness
and unconscionability. Common law defenses can no longer be asserted. See In re
Marriage of Smith, 115 S.W.3d 126, 131 n.1 (Tex.App.–Texarkana 2003, pet. denied).

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motion in limine and motion to strike. Based on the court’s ruling, the jury was released,

the parties were granted a divorce, and the property was divided.3


       By her sole issue, Kelly contends the trial court erred in preventing her from

presenting evidence on whether the marital agreement was entered into voluntarily by

granting Wayne’s motion in limine and motion to strike her pleadings. We disagree.


       We look to the substance of a motion and not its title to determine the relief sought.

Surgitek, Bristol-Myers Corp. v. Able, 997 S.W.2d 598, 601 (Tex. 1999). One of the

objectives of a special exception is to point out a defect or insufficiency in a pleading. See

Tex. R. Civ. P. 91. Kelly plead the marital agreement was entered into under “fraud,

duress, coercion . . . .” Wayne responded, among other things, that Kelly failed to plead

allowable defenses under section 4.105 of the Family Code and requested that the trial

court strike them. While both parties assert in their briefs that the trial court denied

Wayne’s special exceptions, we conclude the legal effect of the trial court’s ruling in

granting Wayne’s motion in limine and motion to strike was based on a misnomer of

Wayne’s motions and, in essence, resulted in special exceptions to Kelly’s common law

defenses being sustained.


       When special exceptions are sustained, a party whose pleadings are affected has

an opportunity to amend as a matter of right or may refuse to amend, stand on the


       3
      The marital agreement dated September 29, 2000, and the supplemental
agreement dated September 10, 2001, are not included in the appellate record.

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pleadings, and test the validity of the court’s ruling on appeal. Slentz v. American Airlines,

Inc. 817 S.W.2d 366, 369 (Tex.App.–Austin 1991, writ denied). The trial court is clothed

with broad discretion in ruling on special exceptions and its ruling will not be disturbed on

appeal absent a showing of abuse of discretion. Id. at 368. An appellate court must

assume that the allegations of the petition are true in determining the correctness of the

trial court’s ruling sustaining special exceptions. Fidelity & Casualty Co. v. Shubert, 646

S.W.2d 270, 278 (Tex.App.–Tyler 1983, writ ref’d n.r.e.).


       Following the trial court’s ruling, Kelly did not seek leave to amend her pleading nor

does she complain on appeal that she was denied the opportunity to do so. See Amador

v. Tan, 855 S.W.2d 131, 133 n.1 (Tex.App.--El Paso 1993, writ denied). Rather she chose

to proceed to trial which is consistent with standing on her pleadings. See In re H.D., Jr.,

511 S.W.2d 615, 617-18 (Tex.Civ.App.–Amarillo 1974, no writ). That being so, we

conclude the trial court did not err in refusing to hear evidence on whether the marital

agreement was entered into voluntarily.


       Finally, before an appellate court may reverse a judgment, an appellant must

persuade the court that the error complained of amounted to such a denial of his rights as

was reasonably calculated to cause and probably did cause the rendition of an improper

judgment. See Tex. R. App. P. 44.1. See also In re Marriage of Scott, 117 S.W.2d 580,

584 (Tex.App.–Amarillo 2003, no pet.) (holding that demonstrating harm is “of import since

the burden lay on [appellant] to establish on appeal that the purported error caused the


                                              4
rendition of an improper judgment”). Kelly does not argue that error, if any, in striking her

defenses caused the rendition of an improper judgment. We overrule her sole contention.


       We have not overlooked Kelly’s reliance on Matelski v. Matelski, 840 S.W.2d 124,

128 (Tex.App.–Fort Worth 1992, no writ), in support of her argument that the voluntariness

of entering into a marital agreement is subsumed by the same evidence as the common

law defenses of fraud, duress, and coercion. Matelski, however, predates section 4.105

of the Family Code which provides voluntariness and unconscionability as the exclusive

remedies for challenging enforcement of a marital agreement. Kelly did not cite, nor have

we found, any post-1993 legal authority in support of her contention. We decline to hold

that the common law defenses of fraud, duress, and coercion were intended as a remedy

to challenge a marital agreement under section 4.105.


       Accordingly, the judgment of the trial court is affirmed.


                                                  Per Curiam


Johnson, C.J., not participating.




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