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In re A.M.H.

Court of Appeals of Texas, Fourteenth District

September 17, 2019


          On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2015-61005

          Panel consists of Justices Christopher, Jewell, and Hassan.



         Kathy appeals the trial court's final divorce decree. She contends the trial court committed reversible error when it (1) found the prenuptial agreement to be enforceable; (2) made its just and right division of the parties' estate; and (3) excluded expert testimony. We affirm.


         Kathy and Michael met through a website called VietSingle in late 2005; he was 35 years old and she was about 24 years old at the time. Michael lived in Houston and Kathy lived in Vietnam. They communicated via telephone regularly. During their courtship, Michael told Kathy that he wanted his future wife to sign a prenuptial agreement to protect his assets. Michael and Kathy met for the first time in person when Michael traveled to Vietnam for Chinese New Year in 2007. After the visit, Michael and Kathy continued to talk to each other daily. One of the topics of conversation was Michael's requirement that Kathy sign a prenuptial agreement. In the summer of 2007, Michael traveled to Vietnam and he and Kathy had an engagement party. During this stay, Michael presented Kathy with a prenuptial agreement, which was drafted by Michael's attorney Joseph Bui. Kathy had the agreement translated into Vietnamese because she does not speak or read English. Kathy requested a change to the prenuptial agreement Michael presented to her, but no revision was made at the time.

         After the engagement, Michael returned to the United States. Bui prepared an application for Kathy's K1 90-day fiancée visa, and she arrived in the United States in June 2008. In August 2008, Kathy told Michael she was pregnant with his child. Michael told Kathy that she still needed to sign the prenuptial agreement, and she understood Michael would not marry her unless she signed the agreement. According to Michael, one paragraph stating that "[f]uture earnings would remain separate" was deleted in the prenuptial agreement per Kathy's request on August 5, 2008.

         As Kathy's 90-day visa was about to expire, Michael found an attorney who spoke Vietnamese in the phone book. He drove Kathy to attorney Trang-Dai Vu Hoang's office for a consultation, which lasted for one to two hours. Michael paid Hoang's $100 consultation fee, but he was not present during the consultation. After the consultation, Kathy and Michael signed the prenuptial agreement in Hoang's office on August 28, 2008.

         Michael and Kathy got married on September 3, 2008. Bui helped Kathy with the paperwork to change her immigration status from a fiancée visa to permanent residency. As part of the process, Michael executed an affidavit of support (Form I-864) as Kathy's sponsor. Kathy obtained her Green Card in 2010; she became a United States citizen a few years later. During the marriage, Kathy and Michael had two children born in 2009 and 2012, respectively.

         Kathy filed her original petition for divorce in October 2015. Michael filed an answer and original counter-petition in November 2015. The parties entered into a mediated settlement agreement regarding child support and conservatorship on October 12, 2016. Kathy filed an amended petition in April 2017. A bench trial was held with regard to the enforceability of the parties' prenuptial agreement in May 2017. After the bench trial, the trial court found the prenuptial agreement was enforceable because it was unambiguous, not unconscionable, and Kathy voluntarily signed it. The trial court signed findings of fact and conclusions of law on May 17, 2017.

         The trial court signed a final divorce decree on August 18, 2017, incorporating the parties' mediated settlement agreement and prenuptial agreement. Kathy filed a motion for new trial on September 15, 2017, which was overruled by operation of law. She filed a notice of appeal on November 16, 2017.


         I. Enforceability of the Prenuptial Agreement

         Kathy contends in her first issue that the trial court reversibly erred by finding the parties' prenuptial agreement is enforceable because the agreement is unconscionable, was involuntarily signed by Kathy, violates federal law, and violates the Texas Constitution.

         Under Texas law, prenuptial agreements are generally binding and enforceable. Matter of Marriage of I.C. and Q.C., 551 S.W.3d 119, 124 (Tex. 2018); Marsh v. Marsh, 949 S.W.2d 734, 739 (Tex. App.-Houston [14th Dist.] 1997, no writ). Such agreements are presumptively valid and enforceable unless the party against whom enforcement is sought proves that (1) she did not sign the agreement voluntarily; or (2) the agreement is unconscionable and she did not receive proper disclosures. Moore v. Moore, 383 S.W.3d 190, 194-95 (Tex. App.-Dallas 2012, pet. denied); Marsh, 949 S.W.2d at 739; see Tex. Fam. Code Ann. § 4.006(a) (Vernon 2006); Matter of Marriage of I.C. and Q.C., 551 S.W.3d at 124.

         "Texas has a 'strong public policy favoring freedom of contract' that is 'firmly embedded in our jurisprudence.'" Matter of Marriage of I.C. and Q.C., 551 S.W.3d at 124 (quoting Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 471 (Tex. 2016)). The supreme court has repeatedly stated that "parties 'shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts.'" Id. Also, courts will "rarely find a contract unenforceable on public policy grounds" and "[p]remarital agreements are no exception." Id.

         In an appeal from a bench trial, a trial court's fact findings have the same force and dignity as a jury's verdict upon jury questions, and we review the fact findings for legal and factual sufficiency of the evidence by the same standards used in reviewing the evidence supporting a jury's verdict. Sorrell v. Estate of Carlton, 504 S.W.3d 379, 382 (Tex. App.-Houston [14th Dist.] 2016), aff'd, 2019 WL 1967135 (Tex. May 3, 2019).

         In a legal sufficiency review, we consider evidence in the light most favorable to the findings and indulge every reasonable inference that would support them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If the evidence allows only one inference, neither the factfinder nor the reviewing court may disregard that evidence. Id. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the factfinder must be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency always must focus on whether the evidence would enable a reasonable and fair-minded factfinder to reach the judgment under review. Id. at 827.

         In reviewing factual sufficiency, we consider and weigh all the evidence; a judgment can be set aside only if the challenged findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Sorrell, 504 S.W.3d at 382-83.

         We review a trial court's conclusions of law de novo. Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.-Houston [14th Dist] 2010, no pet.); see BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If we determine the trial court made an erroneous conclusion of law, we will not reverse if the trial court rendered the proper judgment. Busch, 312 S.W.3d at 299; see Marchand, 83 S.W.3d at 794. We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Marchand, 83 S.W.3d at 794; Busch, 312 S.W.3d at 299.

         A. Unconscionability

         We begin by addressing Kathy's contention that the prenuptial agreement is unconscionable and therefore unenforceable. In particular, she asserts the agreement is unconscionable because:

• Michael knew Kathy was pregnant with his child "when it was made clear that she either had to sign the Prenuptial Agreement or return to Vietnam."
• "Michael knew there was no way for Kathy to remain in the United States unless he married her."
• "[F]orcing a mother to accept a likely future in which her child would seldom see his father should . . . be held as a basis for unconscionability. This is especially true when both the child and mother would be at risk of shame and humiliation" upon return to Vietnam.
• Requiring Kathy to sign the agreement "to avoid being forced to return to a third world country that is not a member of the Hague Convention" is unconscionable.
• Kathy did not have any real bargaining power because only one minor change was made to the agreement ...

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