MAJORITY OPINION
LESLIE B. YATES, Justice.
In this divorce case, appellant Amir Ahmed appeals from the trial court's order awarding his ex-wife, appellee Afreen S. Ahmed, $50,000 pursuant to an Islamic marriage certificate signed by the parties. We affirm in part and reverse and remand in part.
Amir and Afreen married in a civil ceremony in November 1999. Both are of Indian descent, and both practice the Islamic faith. The marriage was arranged
Divorce proceedings began in July 2005. The trial court determined that the Mahr was a marital contract executed by the parties "in contemplation of a forthcoming marriage" and "a valid, binding, and enforceable contract under Sections 4.001-003 of the Texas Family Code," which governs premarital agreements. According, the trial court awarded Afreen $50,000 as liquidated contract damages.
On appeal, Amir argues that the trial court erred in enforcing the Mahr because (1) it is not a valid premarital agreement under the Family Code, (2) its terms are too vague and uncertain to be enforced, (3) the evidence is legally and factually insufficient to support the $50,000 award, (4) it is a religious agreement and enforcing it violates the Establishment Clause of the United States Constitution, (5) it encourages divorce, which is against public policy, and (6) according to Islamic law, enforcing a Mahr is inconsistent with an additional division of marital property.
Afreen argues that Amir has waived error on all these arguments except sufficiency. At trial, Amir's only trial objection to admitting the Mahr agreement was that it is "irrelevant" because the divorce was filed in Texas. In a post-trial hearing in which the trial court indicated it was enforcing the Mahr agreement, Amir made no objections, requesting only that payments be deferred until he finished a medical training fellowship. After the trial court issued its final judgment and findings, Amir filed a motion for new trial, stating in relevant part:
Afreen argues that because the motion for new trial mentions only legal and factual sufficiency, all of Amir's other arguments on appeal are not preserved. The trial court made specific findings that the Mahr agreement constitutes a valid, enforceable premarital agreement. Amir challenges these specific findings, arguing there is no evidence of the criteria necessary to enforce such an agreement or to show the terms of this agreement in a definite, certain manner. These direct challenges to the trial court's findings in this nonjury trial can be made for the first time on appeal. See TEX.R.APP. P. 33.1(d). However, Amir's other arguments — those regarding the Establishment Clause, public policy, and Islamic law — do not challenge a specific trial court finding on those issues and were not otherwise raised to the trial court. Thus, these arguments are waived. See TEX.R.APP. P. 33.1(a); Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 405 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (noting that even constitutional challenges can be waived).
In reviewing a trial court's findings of fact for legal and factual sufficiency,
Amir argues that the Mahr agreement cannot be enforced as a premarital agreement because the parties made the agreement after being married. We agree. A premarital agreement is "an agreement between prospective spouses made in contemplation of marriage." TEX. FAM.CODE ANN. § 4.001(1) (Vernon 2006). It is undisputed that the parties were married in a civil ceremony six months before they signed the agreement. Afreen argues that the date of the religious ceremony controls and because their religious ceremony came after signing the Mahr agreement, it qualifies as a premarital agreement. Afreen's authority does not support this argument. Although the cases she cites involve religious ceremonies, they do not address the issue of two separate ceremonies
Afreen argues in the alternative that the Mahr agreement can be enforced as a postmarital partition and exchange agreement under Family Code section 4.102. See In re ExxonMobil Corp., 97 S.W.3d 353, 358 n. 5 (Tex.App.-Houston
Nevertheless, we cannot conclude whether the Mahr agreement constitutes a valid postmarital partition and exchange agreement in this case based on the other statutory requirements for such agreements. For example, partition and exchange agreements require an intent to convert community property into separate property. See TEX. FAM.CODE ANN. § 4.102 (Vernon 2006). However, the record is devoid of any evidence as to whether or not the parties intended the Mahr payment to come from Amir's separate property or from the community property. Thus, because Afreen's alternative theory is not established in the record, we cannot affirm the trial court's judgment on this basis. See In re ExxonMobil, 97 S.W.3d at 358 (noting that alternative ground must be "supported by the record"); State v. Stone, 271 S.W.2d 741, 753 (Tex.Civ. App.-Beaumont 1954, no pet.) (holding that appellate court cannot affirm on alternative ground if fact issues exist as to that ground).
Because the trial court's improper award of $50,000 to Afreen pursuant to enforcement of the Mahr agreement as a premarital agreement materially impacted the trial court's distribution of the parties' assets, we must remand for the trial court to reconsider this distribution. See Jacobs v. Jacobs, 687 S.W.2d 731, 732-33 (Tex. 1985); Nelson v. Nelson, 193 S.W.3d 624, 634 (Tex.App.-Eastland 2006, no pet.); Evans v. Evans, 14 S.W.3d 343, 347 (Tex. App.-Houston [14th Dist.] 2000, no pet.).
Furthermore, we believe it serves the interests of justice to allow
In this case, the trial court evaluated the Mahr agreement as a premarital agreement, and the parties neither argued nor developed evidence regarding any other theories of enforcement. Thus, we believe remanding on the issue of enforceability of the Mahr agreement, rather than rendering judgment, is in the interests of justice in this case. See Fanning v. Fanning, 847 S.W.2d 225, 226 (Tex.1993) (remanding to allow wife opportunity to challenge enforceability of premarital agreement on other grounds); Scott Bader, Inc., 248 S.W.3d at 822 (remanding to allow plaintiff who improperly calculated damages opportunity to show proper measure).
We reverse the portion of the trial court's judgment awarding Afreen $50,000 pursuant to the Mahr agreement as a premarital agreement and remand for the trial court to determine if the Mahr agreement is enforceable on other grounds. We also reverse the portion of the trial court's judgment distributing the parties' assets and remand for the trial court to reconsider its distribution in light of this court's opinion and other rulings it may make regarding the enforceability of the Mahr
GUZMAN, J., concurring and dissenting.
EVA M. GUZMAN, Justice, concurring and dissenting.
I agree with the majority's analysis and its conclusion that the Mahr is unenforceable as a premarital agreement. I further agree that the trial court's award enforcing the agreement must be reversed and the case remanded for reconsideration of the distribution of the parties' assets. I respectfully disagree, however, with the majority's conclusion that, on these facts, the interests of justice are served by allowing Afreen the opportunity to recharacterize the Mahr and relitigate its enforceability under another theory. The parties do not contend that the case was tried on the wrong theory, and the decision to try the Mahr solely as a premarital agreement presumably reflects the intent of the contracting parties. I would therefore conclude that this is not an appropriate case for the exercise of a power that is best reserved for more compelling circumstances. Cf. Fanning v. Fanning, 847 S.W.2d 225, 226 (Tex.1993) (per curiam) (op. on reh'g) (remand in interests of justice after law changed while appeal was pending); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966) (counsel represented that party relied on statement in Texas Supreme Court opinion that was subsequently disapproved); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (trial court's sanctions prevented development of evidence).
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