                          NUMBER 13-14-00523-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DAVID ROBERTSON,                                                             Appellant,

                                            v.

OKSANA ROBERTSON,                                                            Appellee.


                    On appeal from the 148th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

              Before Justices Rodriguez, Garza, and Longoria
               Memorandum Opinion by Justice Rodriguez
       Appellant David Robertson appeals from a partial summary judgment entered in

favor of appellee Oksana Robertson, as finalized by a divorce decree. Oksana’s motion

for partial summary judgment asked the trial court to determine the validity of the marital
agreement between the parties. The trial court determined that the marital agreement

was valid and enforceable and granted the partial summary judgment in Oksana’s favor;

the divorce decree included the terms of the marital agreement.1 David raises five issues

on appeal, asserting that the trial court erred by: (1) finding that the marital agreement

was (a) valid, and (b) enforceable; (2) dividing his separate property as part of the just

and right property division; (3) granting relief beyond the marital agreement Oksana

sought to enforce; (4) “making a division of post-divorce income”; and (5) awarding

attorney’s fees in the absence of any pleadings “requesting attorney’s fees under the

agreement.” We affirm in part and reverse and remand in part.

                                      I.     BACKGROUND

       In 1982, David was seriously injured in a workplace accident that left him a

quadriplegic; David requires twenty-four-hour nursing care. He initially received $15,000

a month for his medical and living expenses.             David continues to receive monthly

payments from the insurance carrier. In February 2002, David met Oksana online. At

that time Oksana lived in Kremenchuk, Ukraine. By September 2002, David and Oksana

were married. Prior to marriage, David owned a home in Junction, Texas. After their

marriage, in November of 2002, David purchased a home in Corpus Christi, Texas.

       In 2005, David disputed the insurance carrier’s failure to pay cost-of-living

adjustments. As a result of that dispute, the insurance carrier agreed to pay David a

one-time lump-sum payment of $220,000. Out of this payment David gifted $100,000 to



       1 The trial court severed its ruling on Oksana’s motion for partial summary judgment and the

subsequent divorce decree from Oksana’s remaining claims regarding enforcement of the marital
agreement, thereby creating a final and appealable judgment.
                                                2
Oksana and $20,000 to Oksana’s son. Of the remaining $100,000, $20,000 was paid to

David’s attorney, and David invested the rest in coins and in improvements to their Corpus

Christi home.

      David also filed a separate lawsuit against the insurance carrier alleging bad faith

settlement practices and disputing the insurance company’s efforts to reduce the monthly

payments for his nursing care. In the divorce proceedings, David alleged that, while his

litigation was ongoing against his insurance carrier, Oksana threatened to inform the

insurance carrier’s attorney that he was misusing his insurance funds. David alleged

that if Oksana carried out her threat he feared the insurance company would reduce or

stop his monthly payments. He claimed that because of Oksana’s threats he signed an

agreement with Oksana titled “Partition of Property and Allocation of Income Agreement”

(marital agreement). An attorney with whom Oksana had previously consulted drafted

the marital agreement.         Signed July 12, 2012, the marital agreement purports to

accomplish the following actions: (1) the partition of David and Oksana’s community

property into separate property; and (2) the provision of an “allocation of income” between

the parties. The marital agreement prohibits David from changing the terms of his will

without receiving Oksana’s prior written consent2 and stipulates that half of any future

recovery received as a result of David’s bad faith lawsuit is Oksana’s separate property.

      In March 2013, Oksana filed for divorce and sought to enforce the marital

agreement. Before trial, Oksana filed a traditional partial motion for summary judgment




      2   On appeal, David does not challenge this provision of the agreement.

                                                   3
asking the court to determine whether the marital agreement was valid and enforceable.

The trial court determined it was and granted Oksana’s motion for partial summary

judgment. Subsequently, the trial court entered the divorce decree enforcing the marital

agreement and implementing its terms. This appeal followed.

                II.     VALIDITY AND ENFORCEABILITY OF MARITAL AGREEMENT

        By his first issue, David contends that the trial court erred when it granted Oksana’s

motion for partial summary judgment and determined that the alleged marital agreement

was (a) valid and (b) enforceable.3

A.      Validity of Marital Agreement

        Specifically, in addressing the validity of the marital agreement, David argues that

the marital agreement did not comply with the statutory requirements set forth by the

Texas Constitution and the Texas Family Code and therefore is void as a matter of law.

Oksana responds and argues that the marital agreement was authorized by the

constitution and family code.

        1.      Applicable Law Regarding Characterization of Property

        Whether the marital agreement met the statutory requirements set forth in the

Texas Constitution and Texas Family Code is a question of law that we review de novo.

See Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 653 (Tex. 2013). In this

case, the property characterization is important because it impacts our review of the

validity of the marital agreement between David and Oksana. The marital agreement




        3We address David’s contention that the marital agreement was invalid in part A of Section II, and
we address David’s contention that the marital agreement was unenforceable in part B of Section II.
                                                    4
purported to partition the parties’ marital community estate into each parties’ separate

estate, thereby resolving the division of the estate upon divorce.        However, marital

agreements and how they affect the characterization of property are controlled by the

Texas Constitution and the Texas Family Code. See TEX. CONST. art. XVI, § 15; TEX.

FAM. CODE ANN. §§ 4.001–.206 (West, Westlaw through 2015 R.S.).

       “[T]he characterization of property as community or separate—in other words, the

determination of to whom the property belongs—matters most when a marriage ends.”

W. Michael Wiist, Trust Income: Separate or Community Property?, 51 BAYLOR L. REV.

1149, 1153 (Fall 1999). How the marriage ends affects how property is divided. Id.

Typically, in the context of a divorce, the spouses’ community property is subject to a “just

and right” division by the trial court. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137,

139 (Tex. 1977). However, a trial court, in performing its just and right property division,

is not authorized to divest either spouse of his or her separate property. See Cameron

v. Cameron, 641 S.W.2d 210, 215 (Tex. 1982); Wilson v. Wilson, 44 S.W.3d 597, 600

(Tex. App.—Fort Worth 2001, no pet.).

       In Texas, it is “the Texas Constitution, not the legislature or the parties involved

[that] ultimately defines what is separate or community property.”              Thomas M.

Featherston and Amy E. Douhitt, Changing the Rules by Agreement: The New Era in

Characterization, Management, and Liability of Marital Property, 49 BAYLOR L. REV. 271,

274 (Spring 1997); see also TEX. CONST. art. XVI, § 15. Both the Texas Constitution and

Texas Family Code allow spouses to recharacterize their property. See TEX. CONST. art.

XVI, § 15; TEX. FAM. CODE §§ 4.102, .202. There are three types of marital agreements

                                             5
into which spouses can enter to change the characterization of their property: they can

partition, exchange, or convert their property. See TEX. CONST. art. XVI, § 15; TEX. FAM.

CODE §§ 4.102, .202.

             a.     Marital Agreements that Partition or Exchange Community
                    Property into Separate Property.

      Partition and exchange agreements work to change the characterization of

community property into the separate property of each spouse. See TEX. CONST. art.

XVI, § 15; TEX. FAM. CODE § 4.102. These agreements are expressly permitted by the

constitution. See TEX. CONST. art. XVI, § 15.

      [S]pouses, without the intention to defraud pre-existing creditors, may by
      written instrument from time to time [1] partition between themselves all or
      part of their property, then existing or to be acquired or [2] exchange
      between themselves the community interest of one spouse . . . in any
      property for the community interest of the other spouse . . . in other
      community property then existing or to be acquired, whereupon the portion
      or interest set aside to each spouse shall be and constitute a part of the
      separate property and estate of such spouse. . . .

Id. Practically, a marital agreement that partitions or exchanges the spouses’ community

property interest divides the community estate to each spouse as their separate property.

See id.

      Chapter 4 subsection B of the Texas Family Code pertains to marital agreements

that partition or exchange community property and provides the applicable framework for

the creation and enforcement of such agreements. See TEX. FAM. CODE ANN. §§ 4.102,

.104, .105. As per the constitution, a partition or exchange agreement must be in writing

and signed by both parties.    See TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN.

§ 4.104. The agreement can be enforceable without consideration. TEX. FAM. CODE

                                           6
ANN. § 4.104.

      The family code also provides that a partition or exchange agreement is not

enforceable if the party contesting the agreement 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.

Id. § 4.105(a).      Section 4.105 provides the exclusive remedies or defenses to the

enforcement of a partition or exchange agreement. See id. § 4.105(c).

                b.     Marital Agreements that Convert Separate Property into
                       Community Property.

      A conversion changes a spouse’s separate property into community property.

See id. § 4.201 (West, Westlaw through 2015 R.S.).           A spouse’s ability to convert

separate property to community property has only existed since 2000. Long v. Long,

234 S.W.3d 34, 42–43 (Tex. App.—El Paso 2007, no pet.). Texas enacted section 4.202

of the family code in 1999 to permit spouses to convert one spouse’s separate property

into community property. Id. (citing TEX. FAM. CODE ANN. Title 1, Chapter 4, Subchapter




                                              7
C, § 4.201 et. seq., added by Acts 1999, 76th Leg., R.S., ch. 692, §3, eff. Jan. 1, 2000).4

“With the enactment of transmutation statutes, spouses now have expanded options in

dealing with their financial resources.” Id. Section 4.201 of the family code allows

spouses to agree that all or part of the separate property owned by either or both spouses

be converted to community property. TEX. FAM. CODE ANN. § 4.202.

       Section 4.203 provides the following formalities that are required in a conversion

agreement:

       (a) An agreement to convert separate property to community property:

              (1) must be in writing and:

                     (A) be signed by the spouses;

                     (B) identify the property being converted; and

                     (C) specify that the property is being converted to the
                         spouses' community property; and

              (2) is enforceable without consideration.

       (b) The mere transfer of a spouse's separate property to the name of the
           other spouse or to the name of both spouses is not sufficient to convert
           the property to community property under this subchapter.

Id. § 4.203. Marital agreements that convert separate property into community property

require more specificity than marital agreements that partition or exchange community

property into separate property. Compare id. with id. § 4.103.

       Additionally, the family code provides greater hurdles for enforcing marital

agreements that do away with a spouse’s separate property. See id. § 4.205. Like a


       4These transmutation statutes required a constitutional amendment, which was approved on
November 2, 1999. Long v. Long, 234 S.W.3d 34, 43 (Tex. App.—El Paso 2007, no pet.).
                                              8
marital agreement that works a partition or exchange, a marital agreement converting

separate property to community property is rendered unenforceable if the party contesting

its enforcement can establish that the agreement was not executed voluntarily. See id.

A marital agreement converting separate property to community property is also

unenforceable if the spouse contesting the marital agreement can prove that there was

not a “fair and reasonable disclosure of the legal effect of converting the property to

community property.”     Id. § 4.205(a).   Section 4.205(b) provides that the following

language must be included in a conversion agreement to create a rebuttable presumption

that there was a “fair and reasonable disclosure” of the legal effect of converting separate

property to community property:

       THIS INSTRUMENT CHANGES SEPARATE PROPERTY TO
       COMMUNITY PROPERTY.         THIS MAY HAVE ADVERSE
       CONSEQUENCES DURING MARRIAGE AND ON TERMINATION OF
       THE MARRIAGE BY DEATH OR DIVORCE. FOR EXAMPLE:

              "EXPOSURE TO CREDITORS.      IF YOU SIGN THIS
              AGREEMENT, ALL OR PART OF THE SEPARATE
              PROPERTY BEING CONVERTED TO COMMUNITY
              PROPERTY MAY BECOME SUBJECT TO THE
              LIABILITIES OF YOUR SPOUSE. IF YOU DO NOT SIGN
              THIS AGREEMENT, YOUR SEPARATE PROPERTY IS
              GENERALLY NOT SUBJECT TO THE LIABILITIES OF
              YOUR SPOUSE UNLESS YOU ARE PERSONALLY LIABLE
              UNDER ANOTHER RULE OF LAW.”

              "LOSS OF MANAGEMENT RIGHTS. IF YOU SIGN THIS
              AGREEMENT, ALL OR PART OF THE SEPARATE
              PROPERTY BEING CONVERTED TO COMMUNITY
              PROPERTY MAY BECOME SUBJECT TO EITHER THE
              JOINT MANAGEMENT, CONTROL, AND DISPOSITION OF
              YOU AND YOUR SPOUSE OR THE SOLE MANAGEMENT,
              CONTROL, AND DISPOSITION OF YOUR SPOUSE
              ALONE. IN THAT EVENT, YOU WILL LOSE YOUR
              MANAGEMENT RIGHTS OVER THE PROPERTY. IF YOU
                                             9
              DO NOT SIGN THIS AGREEMENT,                       YOU     WILL
              GENERALLY RETAIN THOSE RIGHTS."

              "LOSS OF PROPERTY OWNERSHIP. IF YOU SIGN THIS
              AGREEMENT      AND    YOUR      MARRIAGE    IS
              SUBSEQUENTLY TERMINATED BY THE DEATH OF
              EITHER SPOUSE OR BY DIVORCE, ALL OR PART OF
              THE SEPARATE PROPERTY BEING CONVERTED TO
              COMMUNITY PROPERTY MAY BECOME THE SOLE
              PROPERTY OF YOUR SPOUSE OR YOUR SPOUSE'S
              HEIRS. IF YOU DO NOT SIGN THIS AGREEMENT, YOU
              GENERALLY CANNOT BE DEPRIVED OF OWNERSHIP
              OF YOUR SEPARATE PROPERTY ON TERMINATION OF
              YOUR MARRIAGE, WHETHER BY DEATH OR DIVORCE."

Id. § 4.205(b).

       2.     Discussion

       To be valid, the Robertsons’ marital agreement must comply with both the Texas

Constitution and the Texas Family Code:          i.e., for the parties’ marital agreement to

effectively change the character of their property—separate or community—it must be

either a partition, exchange, or conversion agreement. Therefore, in order to analyze

the validity of the marital agreement, we must first determine the nature of the agreement.

The Robertsons’ marital agreement contemplates two actions—a partition or exchange

of community property and an allocation of income.               We review each action

independently.

              a.     Partition or Exchange of Community Property Interest

       Marital agreements that partition or exchange community property create separate

property.   See TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN. § 4.102.                The

Robertsons’ marital agreement purports to affect a partition of identified real and personal

property and incorporates by reference documents identifying the marital property that is
                                            10
to be partitioned between David and Oksana. The documents are labeled Schedule A

and Schedule B: Schedule A identifies properties that are to be partitioned or exchanged

such that they are owned by David as his separate property, and Schedule B identifies

properties that are to be partitioned or exchanged such that they are owned by Oksana

as her separate property.

        Partition or exchange agreements can only affect the community interest. See

TEX. CONST. art. XVI, § 15 (noting that spouses may exchange between themselves the

community interest of one spouse for the community interest of the other spouse); TEX.

FAM. CODE ANN. § 4.102. In this case, David alleges that a number of the properties

identified in Schedule A were his separate property before the partition or exchange

occurred. 5     Additionally, Schedule B, identifying the property to be partitioned or

exchanged to Oksana as her separate property, includes “property acquired prior to

marriage” which was, by definition, already her separate property. See TEX. CONST. art.

XVI, § 15; Arnold v. Leonard, 273 S.W. 799, 810–12 (Tex. 1925); Rivera v. Hernandez,

441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied).                        Because a marital

agreement that partitions or exchanges community property has no effect on David and

Oksana’s preexisting separate property, this marital agreement purporting to partition or




        5   Schedule A identifies the following nine pieces of real and personal property that are to be
partitioned or exchanged such that they are owned by David as his separate property: (1) real property
located in Junction, Texas; (2) property on Ocean Drive, Corpus Christi, Texas; (3) a handicap-equipped
van; (4) firearms; (5) bank accounts in David’s name; (6) coins purchased prior to marriage; (7) property
acquired prior to marriage; (8) David’s monthly social security check; and (9) David’s workers’
compensation benefits. We note that the majority of the property identified in Schedule A was undisputedly
owned by David as his separate property before the partition or exchange took place.

                                                   11
exchange that separate property can have no effect on that property’s characterization. 6

See TEX. CONST. art. XVI, § 15; Arnold, 273 S.W. at 810–12; Rivera, 441 S.W.3d at 420;

see also TEX. FAM. CODE ANN. § 4.102.

        Though the agreement cannot function to partition or exchange property that is

already characterized as separate, we determine that it could effectively recharacterize

the remaining community property interest between the parties, thereby creating the

intended separate properties contemplated by the marital agreement. See TEX. CONST.

art. XVI, § 15; TEX. FAM. CODE ANN. § 4.102.                To the extent the marital agreement

purports to partition or exchange the parties’ community property, it is sufficient to do so,

and we conclude that the portion of the marital agreement that partitions or exchanges

the Robertsons’ community property into the other’s separate property is valid.7 See

TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN. § 4.102.

                b.      Allocation of Income

        The Robertsons’ marital agreement also purports to affect an income allocation

both during the parties’ marriage and continuing in the event of divorce.                      The only

reference to the “Allocation of Income” portion of the marital agreement is included in the

initial stipulations. It reads, “[t]he parties intend by this agreement to . . . establish the

protocol for paying their monthly expenses out of the income described in Schedule C.”



        6 A review of the community property actually partitioned or exchanged would be relevant to the
question of whether the marital agreement was unconscionable—an issue not before this Court on appeal.
See In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding).

        7 The Robertsons’ marital agreement provides that “[i]f any provision of this agreement is for any

reason found to be unenforceable, all other provisions remain enforceable.”

                                                    12
Schedule C is titled “Identification and Expense Allocation of Monthly Income received

from Arrowpoint Capital.”          The income received from Arrowpoint Capital is David’s

separate property.8

        Schedule C provides that David’s separate income is to be placed in a “community”

bank account and directs that all expenses be paid out of that community account. In

addition to providing for payment of all recurring household expenses and David’s nursing

expenses, Schedule C directs that any remaining income from Arrowpoint Capital “shall

be divided 50%–50% to each party and shall become that party’s separate property.”

The effect of this provision is to take David’s separate property, cause it to be deposited

into a “community” bank account, and then transfer one half of the remaining monies

(after payment of expenses) to Oksana as her separate property. 9 Finally, and by one

sentence, Schedule C also states that “[i]n the event that the Parties divorce[,] this income

allocation will not change.”

        Because this “Allocation of Income” identified in Schedule C of the marital

agreement only contemplates David’s separate property, in order to be valid, it must




        8  It is undisputed that the Arrowpoint Capital income is compensation for David’s 1982 on-the-job
injury, sustained approximately twenty years before his marriage to Oksana. As such, it is characterized
as his separate property. See Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex. App.—Houston [1st Dist.]
2003, no pet.) (recognizing that even when the injury occurs during marriage, recovery for personal injuries
is generally the injured spouse’s separate property).

        9  There is no language in Schedule C evidencing David’s intent to make a gift to Oksana. “Three
elements are necessary to establish the existence of a gift: (1) intent to make a gift; (2) delivery of the
property; and (3) acceptance of the property.” In re Estate of Hamill, 866 S.W.2d 339, 344 (Tex. App.—
Amarillo 1993, no pet.) (citing Grimsley v. Grimsley, 632 S.W.2d 174, 177 (Tex. App.—Corpus Christi 1982,
no writ) (“Among the indispensable conditions of the valid gift and the intention of the donor to absolutely
and irrevocably divest himself of the title, dominion and control of the subject gift and the praesenti at the
very time he undertakes to make the gift.”)).

                                                     13
comply with the provisions of family code section 4.205 that allows for the conversion of

separate property to community property.                See TEX. FAM. CODE ANN. § 4.205.              As

addressed above, section 4.205(b) requires that the agreement include specific statutorily

prescribed disclaimers identifying the consequences of the transmutation agreement.

See id. § 4.205(b). Schedule C did not include any disclaimer regarding the effect of the

income allocation agreement. See id.

        Because the terms of Schedule C do not comply with the explicit provisions of the

Texas Family Code, as dictated by the Texas Constitution, the agreement to allocate

income is not a valid marital agreement and cannot be enforced through a divorce

proceeding. See id. We agree with David that Schedule C of the marital agreement

that provided for an allocation of income from David’s separate property, even in the event

of divorce, is void for failure to comply with the requirements set out in the Texas

Constitution and Texas Family Code. See TEX. CONST. art. XVI, § 15; TEX. FAM. CODE

ANN. § 4.205.

        3.      Summary

        We overrule the part of David’s first issue that challenges the validity of the marital

agreement’s partition or exchange of community property, but we sustain the part of his

first issue that challenges Schedule C of the marital agreement and the allocation of

David’s income.10



        10 Because we have determined that the portion of the marital agreement that purported to allocate

David’s income between David and Oksana is void for failure to comply with the constitution and family
code, we do not reach David’s fourth issue, in which he contends that the allocation of income is
impermissible spousal income, because it is unnecessary to the disposition of this appeal. See TEX. R.
APP. P. 47.1.
                                                   14
B.     Enforceability of the Marital Agreement

       Having concluded a portion of the marital agreement is valid, we must next address

the second part of David’s first issue—his challenge to the enforceability of the marital

agreement. David contends that he raised fact questions concerning the enforceability

of the agreement, thereby precluding summary judgment. Specifically, David alleges

that he produced more than a scintilla of evidence that he did not enter into the marital

agreement voluntarily.   Oksana responds and argues that David did not put forth

summary judgment evidence to show that his participation in the marital agreement was

involuntary.

       1.      Standard of Review and Applicable Law

       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, Westlaw through 2015 R.S.); 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. Martin v. Martin, 287 S.W.3d 260, 263

(Tex. App.—Dallas 2009, pet. denied). We review a trial court's granting of a traditional

motion for summary judgment under a de novo standard of review. Creditwatch, Inc. v.

Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005). To obtain relief via a traditional motion

for summary judgment, the movant must establish that no material fact issue exists and

that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Garza v.

Exel Logistics, Inc., 161 S.W.3d 473, 475 n.10 (Tex. 2005); Mowbray v. Avery, 76 S.W.3d

663, 690 (Tex. App.—Corpus Christi 2002, pet. denied). After the movant produces

                                           15
evidence sufficient to show it is entitled to summary judgment, the non-movant must then

present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.

1996).

         A marital agreement that partitions or exchanges community property 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. TEX. FAM. CODE ANN. § 4.105.

“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.” Martin, 287 S.W.3d at 263.

         The voluntary execution of a marital agreement under section 4.105 must be

intentional and the product of free will. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 695

(Tex. App.—Austin 2005, pet. denied).        The Sheshunoff Court determined that “the

presence of such factors as fraud, duress, and undue influence may bear upon the

inquiry” of whether a partition and exchange agreement was involuntarily executed. Id.

at 607.    We can therefore look to the common-law defenses as they relate “to the

controlling issue of whether the party resisting enforcement executed the agreement

voluntarily.” Id.

         “Generally speaking, any coercion of another, either mental, physical or otherwise,

causing him to act contrary to his own free will or submit to a situation or a condition

against his own volition or interest, constitutes ‘duress.’” Pierce v. Estate of A. Haverla,

428 S.W.2d 422, 425 (Tex. App.—Tyler 1968, writ ref’d n.r.e.).

         Stated differently, duress is the deprivation by one person of another by
         putting the other in fear, in order to obtain some valuable advantage from
                                             16
       the other. To constitute duress, the threat must be of such character to
       overcome the willpower of a person and cause them to do what he or she
       otherwise would not.

Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 719 (Tex. App.—El Paso 2011, no

pet.) (internal citations omitted). The question of what constitutes duress is a matter of

law; however, the question of whether duress exists in a particular situation is generally

a question of fact that is dependent upon all the circumstances and the mental effect on

the party claiming duress. Id. at 719–20.

       It is well established in Texas that there can be no duress unless there is
       a threat to do some act which the demanding party has no legal right to do;
       there must be some illegal exaction or some fault or deception; the restraint
       must be imminent and such as to destroy the free agency without the
       present means of protection.

Spring Branch Bank v. Mengden, 628 S.W.2d 130, 134 (Tex. App.—Houston [14th Dist.]

1981, writ ref’d n.r.e.).

       2.      Discussion

       David points to two improper threats that he alleges caused him to sign the marital

agreement: 1) he alleges that Oksana threatened to contact the company that provided

his settlement income to get his nursing benefits removed by testifying that David used

his settlement monies improperly; and 2) that Oksana threatened to harm him and his

family members. David’s deposition testimony, however, clarified that Oksana’s threats

of physical harm occurred after he signed the marital agreement and therefore cannot

negate the voluntary nature of his signature. In support of his allegations, David filed a




                                            17
ten-page affidavit opposing Oksana’s motion for partial summary judgment.11 In David’s

affidavit he detailed his extreme stress and anxiety concerning his nursing benefits. He

asserts that Oksana had no legal right to contact his insurance carrier and make her

allegations of misuse because such action would constitute tortious interference with his

existing contract. See In re Vesta Ins. Grp., 192 S.W.3d 759, 761 (Tex. 2006) (setting

out the elements for tortious interference with contract).

        However, without reaching the merits of David’s contention that tortious

interference with an existing contract could constitute duress, we note that David must

also raise a fact question as to whether the alleged threats by Oksana were “imminent as

such to destroy free agency without the present means of protection” in order to defeat

Oksana’s motion for summary judgment. See Mengden, 628 S.W.2d at 134. David’s

affidavit alleged that he was under pressure from both Oksana and Robert Johnson, an

attorney that had an ambiguous relationship with both Oksana and David12, that he feared

he was on the cusp of losing his settlement monies, and that he was pressured to sign

the marital agreement immediately so that he could obtain representation to secure his

rights regarding his pending lawsuit against Arrowpoint Capital.                        None of these

allegations, however, raise a fact question on the imminency of the alleged threats—

David even stated in his affidavit that, even before he signed the marital agreement, he


        11Oksana objected to the affidavit on the ground that the affidavit was “totally defective and
meaningless” because it did not state that it was “true and correct and within [David’s] knowledge and those
magic words.” However, the trial court stated that it would consider the affidavit for the purpose of the
hearing on Oksana’s motion for partial summary judgment.

        12 David alleged that Robert Johnson represented to him that he would not be able to represent

David in the Arrowpoint Capital matter until David and Oksana entered into a marital agreement that
resolved their conflict.
                                                    18
reviewed a draft of it and performed internet research regarding means to nullify the

agreement. As such, David produced no evidence that Oksana’s threats were imminent

such that his free agency was destroyed without means of protection. See id. We

cannot determine the trial court erred when it granted Oksana’s motion for partial

summary judgment and found that the marital agreement was enforceable. We overrule

the second part of David’s first issue.

                 III.   JUST AND RIGHT DIVISION OF SEPARATE PROPERTY

       By his second issue, David contends that the trial court erred when it made a

division of property divesting him of his separate property. Specifically, David argues it

was error for the trial court to grant Oksana, as her separate property, a 50% interest in

his future recovery from two lawsuits: (1) David Robertson v. Arrowpoint Capital Corp.,

No. 09-712-G, pending before the 319th District Court of Nueces County, Texas; and (2)

any future malpractice claim against attorney Daniel Horne arising out of his handling of

the Arrowpoint Capital claim. We agree with David.

       The Texas Family Code dictates that “the [trial] court shall order a division of the

estate of the parties . . . having due regard for the rights of each party.” TEX. FAM. CODE

ANN. § 7.001 (West, Westlaw through 2015 R.S.). “In making its division, the trial court

may not divest one party of his separate property.” Graves v. Tomlison, 329 S.W.3d

128, 156 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing Cameron, 641

S.W.2d at 215). This is because the Texas Constitution prohibits the divestiture of

separate property by the trial court when dividing the estate of the parties. Id. (citing

Cameron, 641 S.W.2d at 213); Anderson v. Anderson, 282 S.W.3d 150, 155 (Tex. App.—

                                            19
El Paso 2009, no pet.). Only community property is subject to a just and right division

by the trial court. Graves, 329 S.W.3d at 156; Anderson, 282 S.W.3d at 155,

        In this case, the marital agreement provided that “[t]he parties also intend to

continue to own property jointly. A partial list of those items is set out in Schedule D.”

The marital agreement references David’s pending or future claims against Arrowpoint

Capital and attorney Daniel Horne in Schedule D. Schedule D is a document attached

to the marital agreement and titled “[p]artial list of jointly owned property.” It identifies

future proceeds from the above referenced pending and future litigation as community

property. Though the marital agreement stated that the future recoveries are community

property, it is the constitution that defines what is separate or community property.13 See

Thomas M. Featherston, Changing the Rules by Agreement:                                The New Era in

Characterization, Management, and Liability of Marital Property, 49 BAYLOR L. REV. 271,

274.

        Therefore, we must determine the characterization of David’s future recoveries.

As discussed above, any recovery from David’s insurance carrier arising out of his

personal injury claim is his separate property.                 See Cottone, 122 S.W.3d at 213.

David’s claim against Arrowpoint Capital alleges that Arrowpoint Capital acted in bad faith

in regard to his benefits. Therefore, this claim is a suit to recover compensation arising

out of his personal injury claim and it is not subject to a just and right division by the trial

court incident to divorce. See id. Likewise, David’s potential malpractice claim would



        13 Even if we were to construe Schedule D to purport to “convert” David’s separate property into

separate property, it does not comply with the statutory requirements set forth in section 4.205 of the family
code. See TEX. FAM. CODE ANN. § 4.205.
                                                     20
arise out of his attorney’s alleged mishandling of his bad-faith claim against Arrowpoint

Capital for its failure to adequately compensate him for his injuries. In both instances,

the future recoveries would compensate David for his 1982 injury and are David’s

separate property. See id.

       The trial court had no discretion to make a just and right division of David’s future

recoveries because they are his separate property. See Cameron, 641 S.W.2d at 215;

Graves, 128 S.W.3d at 156. Because the trial court erred when it awarded Oksana 50%

of David’s separate property interest in his future recovery in the divorce decree, we

sustain David’s second issue.

                                   IV.    PRESERVATION

       By his third issue, David contends that the trial court erred when it granted relief

that went beyond the marital agreement Oksana sought to enforce. By David’s fifth

issue, he contends that the trial court impermissibly awarded Oksana her attorney’s fees

pursuant to the marital agreement. Oksana responds and asserts that David did not

raise those issues to the trial court and that they are therefore not preserved for our

review. We agree with Oksana.

       A party is precluded from seeking appellate review of an issue that the party did

not properly raise in the trial court. See TEX. R. APP. P. 33.1(a)(1) (“As a prerequisite to

presenting a complaint for appellate review, the record must show that . . . the complaint

was made to the trial court . . . .”); G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458

S.W.3d 502, 516 (Tex. 2015); see also In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)

(citing cases for the proposition that “error [must be] preserved in the trial court”). David

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neither raised the issue that the trial court granted relief not included in the marital

agreement below, nor contested the trial court’s award of attorney’s fees to Oksana in the

trial court.14 We conclude that David failed to preserve his third and fifth issues and do

not reach them.

                                           VI.     CONCLUSION

        We affirm in part the portion of the judgment based on the agreement to partition

or exchange community property, and reverse in part the trial court’s judgment divesting

David of his separate property and remand for further proceedings consistent with this

opinion.



                                                                            NELDA V. RODRIGUEZ
                                                                            Justice

Delivered and filed the
3rd day of December, 2015.




          14 We note however, that “[a] [trial] court may apportion attorney’s fees in a divorce action as part

of a just and right division of property.” Phillips v. Phillips, 296 S.W.3d 656, 671 (Tex. App.—El Paso 2009,
pet. denied).
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