      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00395-CV



                                   John Thomas Izzo, Appellant

                                                  v.

                                    Sharon Diane Izzo, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
       NO. 07-2606-F425, HONORABLE J. F. CLAWSON JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant John Thomas Izzo appeals from the final decree in his divorce proceeding

from appellee Sharon Diane Izzo.1 He also appeals from the trial court’s order sustaining Sharon’s

challenge to a post-marital property agreement between the parties. We affirm both the divorce

decree and the order finding the post-marital property agreement unenforceable.


                                          BACKGROUND

                The parties met in the spring of 2002, approximately one month after John started his

own law practice. Sharon, who was working as a counselor at the time, owned a residence on

Anacacho Cove in Round Rock (the “Anacacho Cove residence”), and had invested an inheritance

of around $180,000 to $200,000 in mutual funds. At the hearing on her challenge to the post-marital




       1
           We will refer to the parties by their first names to avoid confusion.
property agreement (the “enforceability hearing”), Sharon testified that in the fall of 2002, John

advised her that “investing in real estate or real property was much better than mutual funds” and

that her money “would be better used and invest[ed] in a piece of property where a law firm would

be situated.” John testified that this discussion took place because Sharon was concerned that mutual

funds were a risky investment, leading him to suggest that she invest in real estate instead. On

March 12, 2003, Sharon and John formed an entity called Federalist Investments, L.L.C.

(“Federalist”) for the purpose of purchasing land and constructing an office building that would

house John’s law firm, with the remaining office space being leased to tenants. Sharon invested

$80,000 in exchange for 80,000 shares in Federalist, and John invested $5,000 in exchange for 5,000

shares. Federalist then purchased real property on South Mays in Round Rock (the “South Mays

property”) for approximately $180,000, and constructed an office building on the site at a

construction cost of approximately $525,000.2 The parties were married on April 26, 2003.

Construction on the South Mays property was completed in 2005.

               In January 2004, Sharon deeded the Anacacho Cove residence to John. Both parties

testified that this was done for the purpose of refinancing the home. According to John, Sharon

deeded him the property because his credit rating was needed to accomplish the refinance. In




       2
           At the enforceability hearing, John estimated the fair market value of the South Mays
property to be between $700,000 and $900,000, and Federalist’s remaining debt on the property to
be $500,000. The appraisal district records list the value of the South Mays property as $821,833
in 2006. Based on this evidence, the trial court made a finding that the property’s value exceeded
$800,000 at the time the agreement was executed, so that Federalist had approximately $300,000 in
equity at that time. At the hearing, John estimated the gross rent received by Federalist from its
tenants to be approximately $5,000 per month. John’s law firm did not pay rent for its office space
in the building.

                                                 2
September 2004, the parties used the Anacacho Cove residence as collateral to purchase two lots in

the Gabriels Overlook development in Georgetown, Texas (the “Gabriels Overlook lots”). These

lots were fully paid off at the time of the parties’ divorce decree. John testified that he used income

from his law practice to make the down payments and to subsequently pay off the Gabriels

Overlook lots.3

               In the summer of 2006, John directed an associate at his firm to draft a post-marital

property agreement dividing the property owned by the parties. The agreement included a sales

provision stating that Sharon would transfer her 80,000 shares in Federalist to John in exchange for

an $80,000 note, to be paid over the course of ten years at a rate of 4.2% interest. As a result, John

would be the sole owner of Federalist, which in turn owned the South Mays property. The

agreement further designated the Anacacho Cove residence as Sharon’s separate property. With

respect to the parties’ marital estate, the agreement designated all of the community property as

John’s separate property, with the exception of personal property subject to Sharon’s sole control

and her counseling practice worth approximately $7,500. John would receive his law practice, which

he valued at approximately $778,000 shortly after the agreement was executed, personal property

subject to his sole control, and both of the Gabriels Overlook lots.4 At the time the agreement was



       3
          Had the terms of the post-marital property agreement been enforced, the income used to
pay off the lots after the effective date of the agreement would have been considered John’s separate
property, while the down payment and any payments made prior to the effective date of the
agreement would have been community property. Because the trial court ruled that the post-marital
agreement was unenforceable, the law firm income used to make the down payment and all
subsequent payments on the lots was considered community property.
       4
          John strongly disputes the trial court’s finding that his firm exceeded $750,000 in value at
the time the agreement was signed. This issue is discussed in more detail below.

                                                  3
executed, the down payment and all subsequent payments on the Gabriels Overlook lots had been

made with community funds. Thus, the terms of the agreement gave John over $800,000 in

community property, while Sharon would receive approximately $7,500 in community property.5

                At the enforceability hearing, the trial court heard testimony regarding the

circumstances surrounding the parties’ execution of the agreement. Sharon testified that John led

her to believe the marriage could not continue unless she signed the agreement, stating that she only

did so in order to alleviate the pressure from John. In addition, both parties testified to Sharon’s fear

that she would lose her $80,000 investment in Federalist unless she signed the agreement. When

asked if she executed the agreement of her own free will, Sharon answered, “Yes, I did, but under

great duress. I did not want to sign it.” When asked whether she did so voluntarily, she answered,

“No, I did not.”

                Because the agreement required the signature of an attorney on Sharon’s behalf,

Sharon took the agreement to two different attorneys before signing it. The first attorney, after

reviewing the agreement, declined to sign it. Sharon then went to the office of Patricia Brown, a

friend of both John and Sharon, on August 16, 2006. Sharon testified that she did not have an

appointment with Brown, but that she showed up at Brown’s office in the middle of the day, upset

and crying. Brown provided the following testimony about her meeting with Sharon:




        5
          In connection with its order finding the marital property agreement unenforceable, the trial
court made a finding of fact that the Gabriels Overlook lots had $100,000 in equity as of
August 2006. It is unclear how the trial court reached this calculation. Based on John’s testimony
at the enforceability hearing, it would appear that the equity in the lots at that time was closer to
$40,000. For purposes of calculating the total value of community property awarded to John in the
agreement, we will assume an equity amount of $40,000.

                                                   4
       She appeared to be very upset. She cried a good bit during that appointment and she
       seemed to me to be compelled to sign it no matter what I said about it. I wouldn’t
       have any way to really ascertain whether the document was fair or not without having
       a whole lot more information about their estate than I had at that time, but from what
       she indicated to me about what she had brought into the marriage, it would seem to
       favor John, and I asked her why she would sign it, and she said, “You don’t
       understand, I have to sign it to make the pressure stop at home.” And it seemed to
       me that she was going to sign it pretty much no matter what I said to her. She was
       quite upset.


Brown further testified that she was not provided with any records or disclosures regarding the Izzos’

finances. While Brown testified that she advised Sharon not to sign the agreement, both Sharon and

Brown signed the agreement before Sharon left the office.

               At the enforceability hearing, the parties agreed that the value of Sharon’s counseling

practice was approximately $7,500. The value of John’s law firm, however, was disputed.6 In

December 2006, four months after the post-marital property agreement was signed, another attorney

at the firm, Scott Heselmeyer, purchased a 45% interest in the firm in exchange for a $350,000 note,

to be paid off over a 30-year term. Under the terms of the agreement, John would retain a

55% interest in the firm, representing a value of $428,000. John testified that these negotiations do

not indicate that the firm had a total value of $778,000 in December 2006, stating, “Scott has since

left the law firm basically saying he made a bad deal and it wasn’t worth that.” On cross-




       6
          The parties agree that the value of John’s firm increased significantly after the marriage.
John’s income tax statement from 2002, the year before the parties married, indicates that his net
earnings from his law practice that year were $51,680. He testified that in subsequent years, his
earnings were in the hundreds of thousands of dollars. Sharon also testified that John’s earnings
from practicing law grew substantially during the marriage, stating, “[A]s his law firm grew, I sent
him a lot of clients, some of his bigger clients.”

                                                  5
examination, John acknowledged that at the time the negotiations were made and Heselmeyer agreed

to pay $350,000 for a 45% interest in the firm, Heselmeyer had access to all of the firm’s financial

books and records. According to Heselmeyer’s testimony, he was actually responsible for the firm’s

financial accounting from 2003 until the time he left the firm. In addition, John testified that

Heselmeyer worked on the firm’s contingency-fee cases and received “fairly large bonuses” when

certain cases were settled, suggesting that Heselmeyer was familiar with the potential value of

the firm’s pending cases.       John further explained that Heselmeyer’s $350,000 note had

since been forgiven.

               John filed for divorce in November 2007 and sought to enforce the terms of the post-

marital property agreement. Sharon filed a counter-petition for divorce, alleging, among other

things, involuntariness, unconscionability, and breach of fiduciary duty. The trial court conducted

a bifurcated trial on the enforceability of the agreement and ultimately issued an order sustaining

Sharon’s challenge to the agreement. In support of its order, the trial court made the following

findings of fact and conclusions of law:


       FINDINGS OF FACT

       1.      Prior to their marriage Mr. I[zz]o7 became Sharon May’s attorney, and
               Investment Advisor, and took possession of $80,000.00 of her assets.

       2.      Izzo invested May’s $80,000 in a LLC, and allocated 80% of the Equity in
               the company to her and 20% to himself, although his investment was only
               $5,000.00, all before they were married.




       7
          While the remainder of the findings of fact and conclusions of law refer to John as “Mr.
Isso,” and at times refer to Sharon as “Mrs. Isso,” we will substitute the correct spelling of “Izzo.”

                                                  6
3.    The LLC prospered under Mr. Izzo’s management, and attained a value of
      over $800,000.00 with debt of approximately $500,000.00.

4.    Mr. Izzo’s law practice grew during the marriage from a start-up nominal
      value to a value of at least $750,000.00 at the time of the execution of the
      agreement in question.

5.    Mr. Izzo invested community funds in 2 residential lots in which there was
      at least a $100,000.00 equity in August 2006.

6.    Mr. Izzo presented Sharon Izzo with a proposed marital agreement which not
      only awarded her only a token share of the community assets, but also
      required her to convey her separate property to him for a grossly inadequate
      consideration.

7.    Mr. Izzo subjected Sharon Izzo to extreme and unreasonable pressure and
      duress in order to coerce her into signing the agreement.

8.    Mr. Izzo did not advise Mrs. Izzo of the value of any of the community
      property or of the value of her separate property equity in the LLC.

9.    At some point Mrs. Izzo became convinced that she would be lucky to get her
      original investment back, and allowed Mr. Izzo to treat her investment as a
      loan.

10.   Sharon Izzo signed the marital agreement under extreme duress from
      Mr. Izzo.

11.   Even though Mr. Izzo decided to treat Mrs. Izzo’s investment as a loan, he
      did not offer any interest for the years her money was invested; nor did he
      offer a reasonable rate of interest on the deferred repayment; nor did he
      secure the note with a security agreement on the shares representing 80% of
      the LLC.


CONCLUSIONS OF LAW

1.    At the time Mr. Izzo became attorney, investment advisor and custodian of
      Sharon May’s funds a fiduciary relationship arose, incident to which Mr. Izzo
      undertook the duties the law imposes upon the fiduciary.

2.    The subsequent marriage of the parties did not relieve Mr. Izzo of the duties
      implicit in the fiduciary relationship.



                                        7
       3.      Mr. Izzo violated his fiduciary duties to Mrs. Izzo in all the particulars set
               forth in fact findings No’s. 6, 7, 8, 9, & 11.

       4.      Section 4.102 of the Texas Family Code does not provide for divesting a
               spouse of his or her separate property, but contemplates being used to convert
               community property to separate property.

       5.      Through the misuse of the foregoing statute, Mr. Izzo attempted to deprive
               Mrs. Izzo of substantial amounts of separate and community property to the
               extent of several hundreds of thousands of dollars.

       6.      The proposed “marital agreement” prepared by Mr. Izzo and forced upon
               Mrs. Izzo was unconscionable[] when it was signed.

       7.      Mrs. Izzo did not sign the agreement voluntarily, but under extreme duress,
               coercion[,] and out of desperation.

       8.      Mrs. Izzo was not provided a fair and reasonable disclosure of the property
               or financial obligations of Mr. Izzo.

       9.      Mrs. Izzo did not voluntarily and expressly waive, in writing[,] any right to
               disclosure of the property or financial obligations of Mr. Izzo.

       10.     Mrs. Izzo did not have, or reasonably could not have had, adequate
               knowledge of the property or financial obligations of Mr. Izzo.


               In March 2009, the trial court conducted a separate trial on the divorce. In the final

divorce decree, the trial court divided the community property by awarding John his law practice,

a motor vehicle, and personal property subject to his sole control. Sharon was awarded her

counseling business, a motor vehicle, personal property subject to her sole control, and the Gabriels

Overlook lots. The trial court also confirmed 80,000 shares of Federalist as Sharon’s separate

property and 5,000 shares of Federalist as John’s separate property. The trial court further confirmed

the Anacacho Cove residence as Sharon’s separate property and an additional motor vehicle as

John’s separate property. In findings of fact issued after the divorce decree, the trial court



                                                  8
determined that as of the date of the divorce, the value of Sharon’s counseling business was $7,500,

the value of John’s law practice was at least $500,000, and the combined value of the Gabriels

Overlook lots was $106,041.96.

               John now appeals from both the order sustaining Sharon’s challenge to the

enforceability of the post-marital property agreement and the final decree of divorce.


                                    STANDARD OF REVIEW

               The party challenging the enforceability of a marital property agreement bears the

burden of proving the agreement was involuntary or unconscionable. See Tex. Fam. Code Ann.

§ 4.105 (West 2006); Pletcher v. Goetz, 9 S.W.3d 442, 445 (Tex. App.—Fort Worth 1999,

pet. denied) (op. on reh’g). Whether a party executed an agreement voluntarily is a question of fact

dependent upon all the circumstances and the mental effect on the party claiming involuntary

execution. Martin v. Martin, 287 S.W.3d 260, 263 (Tex. App.—Dallas 2009, pet. denied). As a

reviewing court, we may not substitute our judgment for that of the trial court with respect to the

resolution of factual issues committed to the trial court’s discretion. Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992). In resolving factual issues, the trial court is the sole judge of the credibility

of the witnesses and the weight to be given their testimony. Raymond v. Rahme, 78 S.W.3d 552, 556

(Tex. App.—Austin 2002, no pet.).

               The trial court has broad discretion in dividing the marital estate at divorce. See

Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). On appeal, we presume that the trial court

exercised this discretion properly and will reverse the cause only where there is a clear abuse of

discretion. See Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). A clear abuse of discretion is shown



                                                  9
only if the division of the property is manifestly unjust. See Mann v. Mann, 607 S.W.2d 243, 245

(Tex. 1980). “The party attacking the property division bears the heavy burden of showing that the

trial court’s property division was not just and right.” Pletcher, 9 S.W.3d at 446.


                                            DISCUSSION

                While John raises 57 points of error on appeal, these points can be generally

summarized as two distinct issues.8 First, he argues that the trial court erred in finding the post-

marital property agreement to be unenforceable, challenging each of the findings of fact and

conclusions of law issued in support of this determination. Second, he argues that the trial court’s

division of property in the final decree of divorce was “grossly disproportionate” and a clear abuse

of discretion. In support of this argument, John challenges the trial court’s finding that his law firm

had a value of at least $500,000 at the time of the divorce.


I.      Post-Marital Property Agreement

                Chapter 4 of the Texas Family Code governs premarital and post-marital property

agreements. See Tex. Fam. Code Ann. §§ 4.001-.206 (West 2006). Section 4.102 allows spouses


        8
           In his initial brief on appeal, John also raised a point of error arguing that the trial court
erred in failing to file findings of fact and conclusions of law in support of the divorce decree. Based
on the supplemental clerk’s record and John’s supplemental brief, it appears that findings of fact and
conclusions of law were in fact filed. This point of error is therefore moot.

        John also raises a point of error arguing that Sharon ratified the post-marital property
agreement by accepting payments from John pursuant to the provision governing the sale of her
interest in Federalist. Ratification is an affirmative defense and must be pleaded to avoid waiver.
Petroleum Anchor Equip., Inc. v. Tyra, 419 S.W.2d 829, 834 (Tex. 1967). Because John did not
raise the issue of ratification until his motion for new trial, this point of error has been waived. See
id.

                                                   10
to enter into agreements for the partition or exchange of community property into separate property.

Id. § 4.102. In challenging the enforceability of the parties’ post-marital agreement, Sharon invoked

family code section 4.105, which states:


       (a) A partition or exchange agreement is not enforceable if the party against whom
       enforcement is requested proves that:

               (1) the party did not sign the agreement voluntarily; or

               (2) the agreement was unconscionable when it was signed and, before
               execution of the agreement, that party:

                       (A) was not provided a fair and reasonable disclosure of the property
                       or financial obligations of the other party;

                       (B) did not voluntarily and expressly waive, in writing, any right to
                       disclosure of the property or financial obligations of the other party
                       beyond the disclosure provided; and

                       (C) did not have, or reasonably could not have had, adequate
                       knowledge of the property or financial obligations of the other party.

       (b) An issue of unconscionability of a partition or exchange agreement shall be
       decided by the court as a matter of law.

       (c) The remedies and defenses in this section are the exclusive remedies or defenses,
       including common law remedies or defenses.


Id. § 4.105.
               In sustaining Sharon’s challenge, the trial court found that she had satisfied

her burden of proof on both of the available grounds for invalidating an agreement under

section 4.105—involuntariness and unconscionability. See id. Because only one ground is necessary

to satisfy section 4.105, the trial court’s order may be affirmed if Sharon has satisfied her burden of

proof on either involuntariness or unconscionability.

                                                  11
               Involuntary Execution

               A partition or exchange agreement under family code section 4.105 is not enforceable

if the party challenging enforcement establishes that he or she did not sign the agreement voluntarily.

Id. While section 4.105 does not define “voluntarily,” courts have “generally construed it to mean

an action that is taken intentionally or by the free exercise of one’s will.” Martin, 287 S.W.3d at

263. “Generally, whether a party executed an agreement voluntarily . . . is a question of fact

dependent upon all the circumstances and the mental effect on the party claiming involuntary

execution.” Id.

               Because the existence of a fiduciary relationship between the parties is relevant to our

analysis of whether the property agreement was executed involuntarily, particularly the mental effect

on Sharon as the party claiming involuntary execution, we will begin our analysis by reviewing the

trial court’s finding that a fiduciary duty arose between the parties when John acted as Sharon’s

attorney, investment advisor, and custodian of her funds prior to the marriage.

               At the time the parties formed Federalist for the purpose of developing commercial

property, Sharon was employed as a counselor, and there is no indication that she had any

professional background in real estate development or finance. John was a practicing attorney and

had previously worked for two or three years at a commercial real estate company.9 According to




       9
         John testified that he gained no financial knowledge while working at the commercial real
estate company because he simply “dealt with personnel and things like[] that.” His testimony on
cross-examination suggests that this assertion conflicts with representations he made on Federalist’s
loan applications to the Small Business Administration regarding his background in the securities
and investment industry.

                                                  12
Sharon, the formation of Federalist came about when John suggested that she move her investments

out of mutual funds and into a commercial property venture with him. Specifically, Sharon testified:


        [H]e said that investing in real estate or real property was much better than mutual
        funds because you never knew what the market was going to do and real estate was
        much more stable and that my money would be better used and investing in a piece
        of property where a law firm would be situated would give me much better return for
        my money.


                 John also testified that he came to Sharon with the idea of investing her inheritance

in commercial property rather than mutual funds. He further testified that his plan was to utilize the

commercial property to house his law firm and lease out the remainder of the building. John

disagreed, however, with Sharon’s testimony that he told her real property would yield a better return

than mutual funds, stating, “I simply told her that I thought real estate was safer.” At any rate, based

on John’s advice, Sharon invested $80,000 in Federalist in exchange for an 80% interest. John

received a 20% interest, despite having invested only $5,000, or approximately 6% of the original

capital. The formation documents for Federalist were drawn up by Heselmeyer, who was then an

associate in John’s law firm. Federalist’s articles of organization identify John as the organizer

of the entity.

                 An attorney-client relationship may be implied from the actions of the parties, see

Bright v. Addison, 171 S.W.3d 588, 596 (Tex. App.—Dallas 2005, pet. denied), and does not depend

on the payment of a fee, see Prigmore v. Hardware Mut. Ins. Co., 225 S.W.2d 897, 899 (Tex. Civ.

App.—Amarillo 1949, no writ). In organizing Federalist and managing the drafting of the formation

documents, John provided Sharon with the legal services typically related to entity formation.



                                                  13
Sharon, by signing the formation documents created at John’s direction, manifested her intent to

receive those services. See MacFarlane v. Nelson, No. 03-04-00488-CV, 2005 Tex. App. LEXIS

7681, at *13 (Tex. App.—Austin Sept. 15, 2005, pet. denied) (mem. op.) (citing Restatement (Third)

of the Law Governing Lawyers § 14 (2000)) (attorney-client relationship is implied when both

attorney and client manifest their intent that legal services will be provided).

               Based on this record, there is sufficient evidence to support the trial court’s finding

of fact that John became Sharon’s attorney, investment advisor, and custodian of her assets prior to

the parties’ marriage. As a result, we also agree with the trial court’s conclusion that John owed

Sharon a fiduciary duty that arose prior to the parties’ marriage. See Meyer v. Cathey, 167 S.W.3d

327, 330 (Tex. 2005) (holding that fiduciary duties arise as matter of law in certain formal

relationships, including attorney-client and trustee relationships); Western Reserve Life Assurance

Co. v. Graben, 233 S.W.3d 360, 373 (Tex. App.—Fort Worth 2007, no pet.) (upholding finding of

existence of fiduciary relationship between investment advisor and clients in light of formal

relationship of principal and agent).

               Significantly, the fiduciary duty John owed to Sharon in acting as her attorney and

investment advisor is independent from the general fiduciary duty that he owed to Sharon as her

spouse, a duty which this Court has previously held to be insufficient, standing alone, to raise a fact

issue on involuntary execution of a marital property agreement. See Sheshunoff v. Sheshunoff,

172 S.W.3d 686, 701 (Tex. App.—Austin 2005, pet. denied) (stating that despite fiduciary duty

between spouses, “the legislature manifested the strong policy preference that voluntarily made

marital property agreements be enforced”). Nevertheless, it is worth noting that even if the only

fiduciary responsibility in this case arose from the general duty between spouses, such a duty would

                                                  14
remain relevant to our analysis of the statutory affirmative defenses to enforcement of a post-marital

property agreement. See Marsh v. Marsh, 949 S.W.2d 734, 740 n.4 (Tex. App.—Houston

[14th Dist.] 1997, no writ) (noting that statutory defenses for both premarital and post-marital

agreements are identical, but that “in post-marital agreements a fiduciary duty exists that is not

present in premarital agreements between prospective spouses”); see also Thomas M. Featherston,

Jr. & Amy E. Douthitt, Changing the Rules by Agreement: The New Era in Characterization,

Management, and Liability of Marital Property, 49 Baylor L. Rev. 271, 314 (1997) (“Both the

formalities required and the rules of enforcement for marital agreements are essentially the same as

for premarital agreements. . . . On the other hand, [post-marital] agreements may be particularly

susceptible to charges of involuntariness and unconscionability, because of the relative positions of

the parties.”).10 The fiduciary duty between spouses extends to a duty to disclose material

information in business transactions, as one Texas court has held that where spouses signed an

agreement covering the disposition of their stock in a company for which one of the spouses was a

founder, officer, and director, the spouse with “an insider’s knowledge of the affairs and prospects”

of the company had a fiduciary duty to deal fairly with the other spouse in acquiring from her any


       10
            The fiduciary duty between spouses terminates during contested divorce proceedings in
which both parties are represented by counsel. See Solares v. Solares, 232 S.W.3d 873, 881
(Tex. App.—Dallas 2007, no pet.). However, this rule of automatic termination is inapplicable to
this case, as it is undisputed that the parties executed the agreement prior to any divorce proceedings.
This Court has declined to adopt “a categorical rule that spouses who hire separate counsel to
negotiate a property division can never owe fiduciary duties to one another.” Sheshunoff
v. Sheshunoff, 172 S.W.3d 686, 701 n.21 (Tex. App.—Austin 2005, pet. denied). Even if such a rule
did apply, the record reflects that Brown, the attorney who signed the post-marital agreement as
Sharon’s counsel, did not actually “negotiate” the property division, but merely reviewed the
completed agreement and in fact advised Sharon not to sign it. In any event, as previously discussed,
the fiduciary duty John owed to Sharon goes above and beyond the general fiduciary relationship
between spouses because he acted as Sharon’s attorney and investment advisor in connection with
her investment in Federalist.

                                                  15
rights in the stock, including a duty to disclose the true value of the company. Miller v. Miller,

700 S.W.2d 941, 945-46 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (citing Johnson v. Peckham,

120 S.W.2d 786, 787-88 (Tex. 1938) (holding that partner has “absolute duty to disclose” to co-

partner, whose interest he was purchasing, all important information as to value)). The existence of

a duty to disclose material facts is even more compelling in the present case, where John was acting

in a fiduciary capacity separate and apart from his fiduciary obligation as Sharon’s spouse.

               Having determined that John owed Sharon a fiduciary duty as her attorney and

investment advisor in addition to the fiduciary duty that generally exists between spouses, we now

review the evidence for support of the trial court’s conclusion that John breached this duty. The

fiduciary obligation imposes a duty to exercise good faith and candor, to disclose all relevant

information, and to refrain from using the relationship to benefit the fiduciary’s personal interest,

except with full knowledge and consent of the principal. See, e.g., Kinzbach Tool Co. v. Corbett-

Wallace Corp., 160 S.W.2d 509, 512 (Tex. 1942); Chien v. Chen, 759 S.W.2d 484, 495

(Tex. App.—Austin 1988, no writ); see also Goffney v. Rabson, 56 S.W.3d 186, 193

(Tex. App.—Houston [14th Dist.] 2001, no pet.) (stating that fiduciary relationship between

attorneys and clients requires “absolute perfect candor, openness and honesty, and the absence of any

concealment or deception”). In this case, John advised Sharon to invest $80,000 in Federalist, a real

estate development company in which he would own a minority interest. At a later date, once

Federalist’s property holdings had dramatically increased in value, John persuaded Sharon to sign

a marital property agreement requiring her to sell her interest in Federalist to him for the $80,000 she




                                                  16
had originally invested. As the trial court accurately pointed out, this arrangement turned Sharon’s

$80,000 investment into an interest-free loan that provided great financial benefit to John.11

                The record reflects that at the time Sharon contributed $80,000 to Federalist, both she

and John viewed that contribution as an investment. Both parties testified that Sharon invested in

Federalist because she wanted to transfer her inheritance out of mutual funds and into real estate.

According to Sharon’s testimony, John persuaded her to invest in Federalist by explaining that her

money would be safer there than in mutual funds. After convincing Sharon to invest her funds in

this manner, John later pressured her to sign an agreement that would retroactively transform her

investment into an interest-free loan for the time period beginning with the capitalization of

Federalist in early 2002 and ending with the execution of the agreement in August 2006. The

promissory note that resulted from the marital property agreement was a ten-year, unsecured note

with an annual interest rate of 4.2%, a rate the trial court described as “unconscionably low.”

                Sharon testified at the enforceability hearing that with respect to her initial investment

in Federalist, it “was [John’s] idea to turn it into a loan.” She further stated that she signed the post-

marital agreement, which provided for the sale of her interest in Federalist, because she was afraid

that if she did not, she would lose the $80,000 that she had initially invested.12 The parties’ marital



        11
           A transaction between a fiduciary and his principal is considered unfair if the fiduciary
significantly benefits from it at the expense of the principal as viewed in the light of the
circumstances existing at the time of the transaction. See Miller v. Miller, 700 S.W.2d 941, 947
(Tex. App.—Dallas 1985, writ ref’d n.r.e.) (citing Archer v. Griffith, 390 S.W.2d 735, 740
(Tex. 1964)).
        12
          Federalist had approximately $300,000 in equity in the South Mays property at the time
the agreement was executed. See supra note 2.

                                                   17
therapist also testified to her understanding that Sharon thought she was in danger of losing her

$80,000 investment in Federalist.

               This evidence supports the trial court’s finding of fact that “[a]t some point [Sharon]

became convinced that she would be lucky to get her original investment back, and allowed [John]

to treat her investment as a loan.” The trial court elaborated on this finding at the enforceability

hearing, stating:


       [T]he circumstances presented here in court indicate a course of action calculated to
       involve her funds in Mr. Izzo’s business[] or his professional practice and perhaps
       then putting it in as an investment and encouraging her to regard that as an
       investment and then to somehow create a mental state on her part where she begins
       to be willing to accept . . . a refund of her money over a long period of time at an
       unconscionably low rate of interest simply because she is concerned for the safety of
       her funds.13


               In inducing Sharon to believe that she was at risk of losing her initial $80,000, John

failed to disclose the value of Federalist, which at that time had approximately $300,000 worth of

equity in the South Mays property. He then purchased Sharon’s shares with an $80,000 note at a low

rate of interest that was not secured by a security interest in the company. In entering into this

business arrangement with John, Sharon relied on him to exercise the good faith and candor required

of a fiduciary. See generally Horton v. Robinson, 776 S.W.2d 260, 265 (Tex. App.—El Paso 1989,

no writ) (affirming jury finding of breach of fiduciary duty in case where appellee went into business



       13
          The trial court also noted on the record that John “is somewhat lacking in credibility
because his memory seems to be selective and to be conveniently self-serving” and because he is “an
uncomfortable witness on the stand.” The trial court further noted that Sharon appeared credible,
describing her as a “forthcoming witness.”

                                                 18
with attorney and friend, stating, “A layman would be expected to rely upon one who was an attorney

when a new business was started, particularly where they were long-time friends and an attorney-

client relationship had previously existed.”). While acting as a fiduciary in connection with Sharon’s

investment in Federalist, John persuaded her to execute an agreement that provided a financial

windfall to him at Sharon’s expense. As such, we cannot conclude that John exhibited the good faith

and candor required of a fiduciary in conducting this transaction. Therefore, we hold that

the evidence is sufficient to uphold the trial court’s finding that John breached his fiduciary

duty to Sharon.

               John’s formal fiduciary relationship with Sharon as her attorney and investment

advisor, his subsequent breach of fiduciary duty, and the benefits he received as a result of that

breach, particularly the transformation of Sharon’s investment in the real property venture into an

interest-free loan for his benefit, trigger a presumption of undue influence in connection with the

marital property agreement. “Whenever a fiduciary receives a benefit or makes a profit from

transactions with his principal . . . , a presumption of fraud, unfairness or undue influence arises.”

Dozier v. Dozier, No. A14-87-00130-CV, 1988 Tex. App. LEXIS 1163, at *20 (Tex. App.—Houston

[14th Dist.] May 26, 1988, writ denied) (not designated for publication); see also Pace v. McEwen,

574 S.W.2d 792, 796 (Tex. App.—El Paso 1978, writ ref’d n.r.e.) (holding that because fiduciary

relationship existed between stock broker/investment advisor and client, elderly client’s gift of stock

to advisor for no consideration reflected exercise of undue influence).

               This Court has suggested that “common-law concepts including duress, lack of

capacity, fraud, and undue influence, along with the parties’ relative bargaining power and

knowledge regarding the meaning and effect of the agreement, could bear upon the ultimate

                                                  19
determination of voluntariness.” Sheshunoff, 172 S.W.3d at 695-96 (citing In re Marriage of Bonds,

5 P.3d 815, 824 (Cal. 2000) (“[T]he question is viewed as one involving such ordinary contract

defenses as fraud, undue influence, or duress, along with some examination of the parties’

knowledge of the rights being waived, or at least knowledge of the intent of the agreement.”)). Thus,

any exercise of undue influence by John in his capacity as a fiduciary bears directly on our

determination of whether there is sufficient evidence to support the trial court’s finding that Sharon

did not execute the agreement voluntarily. As a result, we will first review the evidence of any

undue influence exercised by John before addressing the parties’ relative bargaining power and

whether Sharon had adequate knowledge of the meaning and effect of the agreement. See id.; see

also Martin, 287 S.W.3d at 263 (observing that voluntariness “is a question of fact dependent upon

all the circumstances and the mental effect on the party claiming involuntary execution”).

               “In deciding whether there has been undue influence, the court should consider three

factors: (1) the existence and exertion of an influence; (2) whether the influence operated to subvert

or overpower the person’s mind when executing the document; and (3) whether the person would

have executed the document but for the influence.” Wils v. Robinson, 934 S.W.2d 774, 780

(Tex. App.—Houston [14th Dist.] 1996), writ granted, judgm’t vacated w.r.m., 938 S.W.2d 717

(Tex. 1997). In this case, Sharon testified that she did not want to sign the marital property

agreement, ultimately signing it only in response to John’s insistence that she had to do so in order

to save the marriage and his representations that it was necessary to secure her investment. During

the time John was acting as a fiduciary in connection with the investment of Sharon’s funds, he

threatened to dissolve the marriage unless she signed an agreement that divested her of that



                                                 20
investment in a manner that provided him with a substantial financial benefit. This type of

arrangement, in which the fiduciary greatly benefits to the detriment of the principal, clearly suggests

the existence and exertion of an influence. See Pace, 574 S.W.2d at 796.

                The testimony of both Sharon and Brown supports the notion that John’s influence

operated to overpower Sharon’s mind when executing the document and that she would not have

executed it but for the influence. See Wils, 934 S.W.2d at 780. Brown testified that when Sharon

came to her office, she was in a state of great mental distress over John’s insistence that she sign the

agreement, crying and repeating, “You don’t understand, I just have to sign this.” Brown explained

that she advised Sharon not to sign the agreement and asked her why she would sign an agreement

that appeared to favor John, and Sharon responded, “You don’t understand, I have to sign it to make

the pressure stop at home.” As previously noted, Sharon also testified that she did not want to sign

the agreement, and that she only did because of John’s pressure and influence.

                Sharon explained in her testimony that she feared the loss of her entire $80,000

investment in Federalist, and that John assured her that she could get the money back if she would

just sign the agreement. She further testified that she did not understand the sales provision of the

agreement, stating, “[W]hat I didn’t understand was how Federalist[] Investments worked, about the

shares and my ownership in that and in exchange for paying me back the money. I didn’t really

understand all of that as well as everything that was his earnings and my earnings.” This testimony

supports the trial court’s finding that John, while acting as a fiduciary, led Sharon to believe that she

had to sign the agreement in order to protect her $80,000 in invested funds, despite the fact that

Federalist had over $300,000 in equity in the South Mays property at the time and was collecting



                                                   21
$5,000 in rent from tenants each month. It further suggests that in pressuring her to sign the

agreement out of fear of losing her $80,000 investment, John failed to disclose to Sharon that the

agreement actually divested her of the substantial gain that had already materialized from that

investment.    These actions surpass mere persuasion or entreaty, reaching the level of

undue influence.     See Neal v. Texas Dep’t of Human Servs., 814 S.W.2d 216, 221-22

(Tex. App.—San Antonio 1991, writ denied) (holding that while “the law . . . does not condemn all

persuasion, entreaty, cajolery, importunity, intercession, argument, and solicitation,” undue influence

occurred—and agreement was signed involuntarily—in light of actions that “cannot rightfully be

considered a type of persuasion, entreaty, cajolery, or the like”).

               The evidence also supports a finding that Sharon lacked meaningful bargaining

power. The agreement was drafted by an attorney in John’s law firm, at John’s direction. Sharon,

after seeking advice from one attorney who refused to sign the agreement, took the agreement to

Brown and explained that because of the pressure from John, she would have to sign the agreement

regardless of its contents. Brown testified that Sharon showed up at her office with no appointment,

that Brown was unable to evaluate the conscionability of the agreement because she had very little

knowledge of the value of the property at issue, and that she advised Sharon not to sign the

agreement. Despite her reservations, Brown ultimately signed the agreement as Sharon’s counsel,

noting that Sharon was extremely upset and insistent that she had to have an attorney’s signature in

order to satisfy John’s demands. Brown did not attempt to negotiate any aspects of the agreement




                                                  22
on Sharon’s behalf, nor did she charge Sharon for her time reviewing the agreement.14 Thus,

Sharon did not have the advantage of meaningful representation by counsel at the time the

agreement was signed.

                In addition, as previously discussed, Sharon testified that she did not understand the

meaning or effect of the agreement, stating, “[W]hat I didn’t understand was how Federalist[]

Investments worked, about the shares and my ownership in that and in exchange for paying me back

the money. I didn’t really understand all of that as well as everything that was his earnings and my

earnings.” Sharon’s testimony that she did not understand the meaning or effect of the agreement

is supported by Heselmeyer’s testimony at the enforceability hearing that Sharon lacked the basic

financial knowledge needed to run rudimentary accounting software. Specifically, Heselmeyer stated

that in 2003, Sharon had briefly attempted to manage the financial books and records for John’s law

firm, but that she was unable to do so because she did not “have the knowledge base to do that.”

When asked, “[S]he didn’t have the computer skills or the financial skills to get in there and run even

something as rudimentary as Quickbooks?” Heselmeyer answered, “I would agree with that.”15

                Sharon was also unaware of the value of John’s law practice, preventing her from

fully understanding the effect of the agreement’s provision confirming it as John’s separate property.

By John’s own testimony at the enforceability hearing, he did not provide Sharon with any

documents reflecting the value of his law practice or any of the properties at issue in the post-marital

        14
          Sharon testified that she did make a request that two pieces of furniture be classified in
the agreement as her separate property, stating, “I didn’t totally understand the whole thing, but, yes,
I did make that change.”
       15
          Heselmeyer testified that he did not recall Sharon ever reviewing the firm’s financial
information after 2003.

                                                  23
property agreement at the time the document was executed, nor did he provide any such documents

to Brown, the attorney signing the agreement on Sharon’s behalf. Sharon testified that she received

no financial documents of any kind in connection with the agreement, and that she attempted to ask

both John and Heselmeyer about the substance of the agreement, but received no answers.16 When

asked about the questions she sought to have answered, Sharon stated, “About the property, what

did it entail; when I would sign it; just to go over it with me in detail, and neither one of them ever

did.” Sharon acknowledged that she had signed the family’s income tax returns and had access to

their personal bank accounts, but maintained that she did not have access to John’s law firm accounts

or financial records. John, on the other hand, asserted that Sharon had online access to the firm’s

bank accounts and could have accessed the firm’s records at any time through his computer. The

trial court was free to disbelieve John’s testimony, but even assuming Sharon was able to access the

firm’s books and records, Heselmeyer’s testimony suggests that she did not have the requisite

financial and computer literacy to obtain financial information in this manner. Furthermore, any

computer access Sharon might have had would not have yielded information regarding the potential

value of any contingency-fee cases in the pipeline at the time the agreement was executed. This

information, while highly relevant to the firm’s value, could not be ascertained from a review of the

law firm’s bank statements. The value of a law firm that frequently operates on a contingency-fee

basis is not readily apparent to a layperson, often requiring the opinions of an expert witness to

establish. See, e.g., Von Hohn v. Von Hohn, 260 S.W.3d 631, 637-38 (Tex. App.—Tyler 2008,


       16
          Both John and Heselmeyer testified that Sharon had no questions about the agreement that
went unanswered. The trial court, as finder of fact, was free to resolve this conflicting testimony and
appears to have done so in Sharon’s favor.

                                                  24
no pet.) (approving expert testimony in divorce case regarding value of contingency-fee practice,

including value of potential settlements); Fountain v. Knebel, 45 S.W.3d 736, 740

(Tex. App.—Dallas 2001, no pet.) (determining harmful error occurred when wife’s expert lacked

sufficient information to render opinion on value of husband’s law firm and wife was prevented from

conducting additional discovery). Based on the foregoing, we consider the evidence sufficient to

support a finding that Sharon did not understand the meaning or effect of the agreement at the time

it was executed.

               Given the evidence of John’s breach of a fiduciary duty, the existence of undue

influence, Sharon’s lack of bargaining power, and her inadequate understanding of the meaning and

effect of the agreement, we hold that the totality of the circumstances provides sufficient evidence

to uphold the trial court’s finding that Sharon did not sign the agreement voluntarily. See

Sheshunoff, 172 S.W.3d at 696-97 (observing that “undue influence, along with the parties’ relative

bargaining power and knowledge regarding the meaning and effect of the agreement, could bear

upon the ultimate determination of voluntariness”); Vela v. Marywood, 17 S.W.3d 750, 762

(Tex. App.—Austin 2000, pet. denied) (“Although the face of the affidavit reflects it was signed

knowingly and voluntarily, we must consider the surrounding circumstances to determine if

[appellant]’s signature on the document was procured by misrepresentation, fraud, or the like.”); see

also Martin, 287 S.W.3d at 264-65 (holding that fact issue existed on voluntariness where husband

provided no financial disclosures related to businesses subject to property agreement and pressured

wife to sign agreement by claiming that “family would be financially ruined” without it).




                                                 25
               Because the trial court’s order invalidating the marital property agreement may be

upheld solely on the basis of involuntariness, we need not also address the issue of whether the

agreement was unconscionable when signed. See Tex. Fam. Code Ann. § 4.105; see also Tex. R.

App. P. 47.1 (courts of appeals must hand down opinions that are as brief as possible, addressing

those issues necessary to final disposition on appeal).


       Applicability of Section 4.105

               Sharon takes the position on appeal that section 4.105 of the family code does not

apply to the portion of the post-marital agreement governing the sale of Federalist because section

4.105 governs only “partition and exchange agreements” converting community property into

separate property, and does not allow for agreements to convert one spouse’s separate property into

the other spouse’s separate property. See Tex. Fam. Code Ann. § 4.105 (governing enforcement of

“partition and exchange agreement”); see also id. § 4.102 (allowing spouses to “partition and

exchange between themselves all or part of their community property” so that it becomes the

separate property of the transferee). Sharon argues that all common law remedies and defenses,

which are not available to a spouse challenging enforcement of an agreement under section 4.105,

are available to her in connection with the agreement to sell her interest in Federalist. See id.

§ 4.105(c) (“The remedies and defenses in this section are the exclusive remedies or defenses,

including common law remedies or defenses.”). Based on our conclusion that Sharon has

established the statutory affirmative defense of involuntariness under section 4.105, we need not

further address whether common law remedies or defenses are available to her. Even if section

4.105 does not apply to the sale provision of the marital agreement, the evidence is sufficient to

                                                 26
support a finding that Sharon did not sign the agreement voluntarily, rendering it unenforceable

under common law. See Southwestern Underground Supply & Envtl. Servs. v. Amerivac, Inc.,

894 S.W.2d 15, 18 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“Since lack of

voluntariness would negate mutual assent, a necessary predicate to the formation of a contract, it

would also negate the underlying contract.”).

               We affirm the trial court’s order sustaining Sharon’s challenge to the

enforceability of the post-marital property agreement, and overrule John’s issues on appeal in

connection with this order.


II.    Divorce Decree

               John argues that even if we affirm the trial court’s order finding the post-marital

property agreement unenforceable, the divorce decree should be reversed because the trial court

abused its discretion in dividing the parties’ community property.

               In a decree of divorce, the trial court “shall order a division of the estate of the parties

in a manner that the court deems just and right, having due regard for the rights of each party.”

Tex. Fam. Code Ann. § 7.001 (West 2006). In making the “just and right” division of community

property, the trial court is vested with broad discretion. Murff, 615 S.W.2d at 698. The marital

estate need not be equally divided, and the court may consider factors such as the disparity in the

earning capacities of the parties. Id. at 699.

               Under the final decree of divorce, the community property awarded to John included

his law practice with an estimated value of $500,000, a motor vehicle with an estimated value of

$12,785, and the bank accounts and personal property subject to his sole control, with an estimated

                                                   27
value of $10,000. Sharon was awarded her counseling business with an estimated value of $7,500,

a motor vehicle with negative value, the Gabriels Overlook lots with an estimated value of

$106,041.96, and bank accounts and personal property subject to her sole control, with an

estimated value of $3,000. Based on these estimated values, John was awarded community

property worth approximately $522,785, and Sharon was awarded community property worth

approximately $116,542.

               While the community property awarded to John exceeded the value of the community

property awarded to Sharon by over 400%, John contends that the community property division was

inequitable and unjust because the trial court overvalued his law practice. According to John, the

firm was worth approximately $6,000 at the time of the divorce, rather than the $500,000 amount

found by the trial court. John does not take issue with the estimated values assigned to the remaining

items of community property, arguing only that the law firm value was highly inflated.

               The trial court based its valuation of the firm, at least in part, on the fact that in

negotiating with Heselmeyer for the sale of a 45% interest in December 2006, John estimated that

the practice had a value of approximately $778,000. John testified at the divorce hearing, however,

that he had overvalued the firm in negotiating with Heselmeyer, and that the firm had dramatically

decreased in value since December 2006 because Heselmeyer had left the firm, taking a number of

staff members and cases with him. He also testified that he had recently suffered from a number of

health problems which prevented him from working and further diminished the value of the firm.

On cross-examination, John testified that he placed no value whatsoever on any cases currently in

progress at the firm, so that his accounts receivable had a current value of $0. He then revealed that



                                                 28
he had recently taken on eight contingency-fee cases, but took the position that he was taking on

cases without assessing their potential value, so he had “no idea that anything is going to come of

those.” John testified that the law firm checking account contained $23,837.07, and that its trust

account contained $149,724.11.17 John also explained that the law firm paid no rent to Federalist

for use of its office space, but that the firm “supplement[s] the shortfall” between the rent from other

tenants and the full mortgage payment. John’s testimony suggests that when the building is fully

rented, the shortfall is approximately $800 a month.

                Based on the foregoing, we cannot conclude that the trial court clearly abused its

discretion in dividing the parties’ community estate. See Bell, 513 S.W.2d at 22 (holding that in

reviewing division of community property, “it must be presumed that the trial court exercised its

discretion properly” and “a case should be reversed only where there is a clear abuse of discretion”).

Even if the law firm’s true value was as low as $100,000, far less than the $500,000 amount

determined by the trial court, John still received a greater share of the community estate than Sharon.

The fact that the firm’s trust account contained $149,724 at the time of trial, a substantial portion of

which represented retainers for ongoing cases, suggests that the firm did not have a nominal value

of $6,000, as John contends. The trial court, as finder of fact, was free to disbelieve John’s

testimony that the cases currently pending at the firm had no value whatsoever. Finally, even if


        17
            John testified that the firm’s trust account reflected amounts on retainer, stating, “That is
money sitting there for work to be done.” When asked, “By and large that’s . . . money that people
have paid you that’s on retainer, like for a family law case; is that correct?” John answered, “That’s
what it is, period. Those are just retainers that are in there for work to be done.” While he later
testified that his trust account also held funds for clients in situations involving sales of real property,
he did not know how much of the $149,724 could be attributed to sales of real property because he
does not “pay attention to any of these numbers.”

                                                    29
Sharon had received a greater share of community property, the division need not be equal in order

to be equitable. See id. In dividing the marital estate, the trial court has discretion to consider factors

such as a disparity in the earning capacities of the parties, a factor that in this case would support an

award of a larger portion of the marital estate to Sharon. See Murff, 615 S.W.2d at 698. Therefore,

we hold that the trial court did not clearly abuse its discretion in dividing the community estate.

John’s points of error relating to the trial court’s division of community property are overruled.


                                            CONCLUSION

                We affirm both the trial court’s order finding the marital property agreement

unenforceable and the final decree of divorce.




                                                 __________________________________________

                                                 Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: May 14, 2010




                                                    30
