NO. 07-03-0066-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A APRIL 5, 2005

______________________________ KELLY D. DICKSON, APPELLANT

V. N. WAYNE DICKSON, APPELLEE

_________________________________ FROM THE COUNTY COURT AT LAW NO. 4 OF MONTGOMERY COUNTY; NO. 01-10 -06330; H ONORABLE MARY AN N TURNE R, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORAND UM OPINION Appellant

Kelly D. Dickson challenges the trial court’s orde r e nforcing a marital agreement between her and appellee N. Wayne Dickson. By a sole issue, she maintains the trial court erred in preventing her from present ing evidence on whether the marital1 K ellydoes not argue breach in her brief nor does she cite legal a uthority o r

reference the record in support thereof. Consequently, that portion of her i ssue is waived. See Tex. R. App. P. 3 8.1(h).

2 Section 4.105(c) res tric ts the available remedies or defenses for challengi ng enforcementof a mari ta l agr eement executed after September 1, 1993, to voluntariness and unconscionabili ty. C ommon law defenses

can no l onger beasserted
. See In re Marriage of Smith, 115 S.W.3 d 126, 13 1 n.1 (Tex.App.–T exarkan a 2003, p et. denie d). 2 agreementwas entered into voluntarily by granting Wayne’s motion in limine and motion to strike her pleadings. She also contends the agreement was breached. 1 We affirm
. Kellyand Wayne were married in 1999. By his petition for divorce, Wayne alleged the parties had entered into a marital property agreement and sought e nforce men t thereund er. Byher answer and counter-petition, Kelly alleged the agreement was entered into under “ fraud , duress, coercion , and Pet itioner f ailed to disclos e all as sets, fail ed to perform conditions precedent, and Petitioner breached the agreement and commingled funds.” In response to Kelly’s pleadin g, by onedocument , Wayne filed a “Motion in Limine, Motion to Strike, and Special Exceptions”by which he contended, among other things, that the defenses raised by

Kelly were common law defenses which were not a llowable under sectio n 4.105 of the Texas Family Code Annotated (Vernon 1998) to challenge enforcementof a mari tal agree ment. 2 Following a he aring, the trial court granted the3 The marital agreement dated September 29, 2000, and the supplemental

agreement dated September 10, 2001, are not included in the appellate record. 3 m o tion in limine and motion to strike. Based o n the court’s ruling, the jury was released, the parties were granted a divorce, and the property was di vided. 3 Byher sole issue, Kelly contends the trial co urt erred in preventing her from presenting evidence on whether the marital agreement was entered into voluntarily by granting Wayne’s motion in limine and motion to strike her pleadings. We disagree. We look to the substance of a motion and not its title to determinethe reli ef sought
. Surgitek, Brist ol-Myers Cor p. v. Able, 997 S.W.2d 598, 601 (Tex. 1999). One of the objectives of a special exception is to poi nt out a defect or insufficiency in a pleading. See Tex. R. Civ. P
. 91 . Kelly plead the marital agreement was entered into under “fraud, duress, coercion . . . .” Wayne responded, am ong othe r things, that Kelly failed to plead allowable defenses under section 4.105 of the Family Code and requested that

th e trial court strike th em. Whil e both pa rties ass ert in the ir briefsthat the tr ial court de nied Wayne’s special exceptions, we conc lude the legal effect of the trial court’s ruling i n granting Wayne’s motion in limine and motion to strike was based on a mis nomer of Wayne’s motions and, in essence, r esulted in spe cial exc eptions to Kelly’s common law defensesbeing s ustained
. When special excepti ons are s ustained , a party whose pleadings are affected has an opportunity to amend as a matter of right or may refuse to amend, stand on the4

pleadings, and test the validity of the court’s ruling on appeal. Slentz v. American Airlines, In c. 817 S.W.2d 366, 369 (Tex.App.–Austin 1991, writ deni ed). The trial court is clot he d with broad discretion in ruling on special exceptions and its ruling will not be disturbed on appeal absent ashowing of abuseof discre tion. Id. at 368. An appel late court must assume that the allegati ons of the petition are true in determ ining th e corre ctness of the trial court’s ruling sustaining special excep tions. Fidel ity & Casualty Co. v. Shubert, 646 S.W.2d 27 0, 278 (T ex.App.– Tyler 19 83, writ r

ef’d n.r.e .). Following the trial court’s ruling, Kelly did not seek leave to amend her pleading nor does she complain on appeal that she was denied the oppo rtunity to do so. See Amador v. Tan, 855S.W.2d 13 1, 133 n. 1 (Tex.Ap p.--El Pa so 1993, writ deni ed). Rather she chose to proceed to trial which is consistent with standi ng on her plea dings. See In re H.D ., Jr., 5 11 S.W.2d 615, 617-18 (Tex.Civ.App.–Amarillo 1974, no writ). That being so , w e conclude the trial court did not err in refusing to hear evide nce on whether the marital agreemen t was entered into volunta rily. Finally, before an appellate court may reverse a judgment, an appell ant must persuade the court

that the error complained of amounted to such a denial of his rights as was rea sonably calculated to cause and probably d id cause the rendition of an improp e r judgment. See Tex. R. A pp. P. 44 .1. See alsoIn re Marriage of Scott, 117 S.W.2d 580, 584 (Tex.App.–Amarillo 2003, no pet.) (holding that demonstrating harm is “of import since the burden l ay on [ap pellant] to establ ish on a ppeal th at the pu rp orted error caused the5

rendition of an improper judgment”). Kelly does not argue that error, if any, in striking her defenses caused the rendition of an improper judgment. We overrule her sole contention. We have not overlooked Kelly’sreliance on Matelski v. Matelski, 840 S.W.2d 124, 128 (Tex.App.–Fort Worth 1992, no writ), in support of her argument that thevoluntariness of entering into a marital agreemen t i s subsumed by the same evidence as the common lawdefenses

of fraud, duress, a nd coerci on. Matelski , howev er, predates section 4.105 of the Family Code which provides volun tariness and unconscionability as t he exclusive remedies for challenging enforcement of a marital agreement. Kelly did not cite, nor have we found, any post-1993 legal authority in support of he r content ion . We decline to hold thatthe common law defenses of fraud, duress, and coercion we re intended as a remedy to chall enge a ma rital agr eement un der secti on 4.105
. Accordingly, the judgment of the trial court is affirmed. Per Curiam Johnson, C.J., not participating.