IN THE SUPREME COURT OF TEXAS

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No. 16-0770 

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IN THE MATTER OF THE MARRIAGE OF I.C. AND Q.C. 

AND IN THE INTEREST OF S.C. AND K.C., CHILDREN

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

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Argued February 8, 2018 

JUSTICE BLACKLOCK delivered the opinion of the Court. 

JUSTICE LEHRMANN filed a concurring opinion. 

In this divorce case, the wife sought rescission of a premarital agreement. The trial court 

found that the wife’s attempt to rescind the premarital agreement triggered a clause in the 

agreement under which she lost a $5 million payment otherwise due to her. The court of appeals 

affirmed. We affirm. 

I. Background 

Rebecca and James Dondero married in 2005. Prior to their marriage, they entered into an 

“Agreement in Contemplation of Marriage” (“Agreement”). Under section 13(h) of the 

Agreement, James would make a lump-sum cash payment to Rebecca upon the entry of a divorce 

decree. The Agreement also contained what the parties call a “no-contest” or “forfeiture” clause, 

under which Rebecca could lose her contractual right to the lump-sum payment. Section 31 states: 
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If either party brings an action or other proceeding to enforce this 

Agreement or to enforce any judgment, decree, or order made by a court in 

connection with this Agreement, the prevailing party shall be entitled to reasonable 

attorney’s fees and other necessary costs from the other party. If either party seeks 

to invalidate some or all of this Agreement, or seeks to recover property in a manner 

at variance with this Agreement, then such party shall be liable to the other party 

for all reasonable and necessary attorney’s fees and costs incurred by such other 

party in defending this [sic] or her rights under this Agreement. In addition, if 

BECKY seeks to invalidate some or all of this Agreement, or seeks to recover 

property in a manner at variance with this Agreement, then BECKY shall forfeit 

the cash payment set forth in Section 13(h). 

James filed for divorce in 2011. Rebecca filed a counter-petition seeking to enforce the 

Agreement. Because James fell behind in certain periodic payment obligations required by the 

Agreement, Rebecca petitioned the trial court to compel those payments. The court ordered James 

to pay the back-due amounts. Thereafter, in 2012, Rebecca filed an amended counter-petition, 

asserting claims for breach of contract, anticipatory breach, and breach of fiduciary duty. Her 

petition requested rescission of the Agreement “in the alternative” because of James’s failure to 

pay and because “the agreement was marred with fraud.” Rebecca continued to pursue rescission 

of the Agreement in several amended counter-petitions. She also moved for summary judgment 

on her breach-of-contract claim, arguing in part that she was entitled to rescission of the Agreement 

as a matter of law. She contended that “it is now Becky’s option to elect to rescind the Agreement 

in its entirety,” that “Becky is now free to treat the Agreement as extinguished,” and that 

“Rescission works to avoid the contract and return the parties to their earlier positions as if no 

contract had existed.” James responded with an amended divorce petition seeking a declaratory 

judgment that Rebecca’s pursuit of rescission triggered section 31 of the Agreement, thereby 

forfeiting her section 13(h) cash payment. He moved for partial summary judgment on this point. 

Rebecca responded by reasserting her request for rescission as a remedy for James’s breach of the 
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Agreement. As the dispute approached trial, Rebecca asserted several affirmative defenses. James 

moved for summary judgment on each. The court granted summary judgment in favor of James 

on most of Rebecca’s affirmative defenses but denied summary judgment on the defenses of prior 

material breach and repudiation. 

The first jury trial concluded in late 2013. The jury found that Rebecca sought to invalidate 

the Agreement in violation of section 31 but was excused because of James’s prior material breach. 

James moved for a new trial, which the court granted in late 2014. James moved for summary 

judgment on Rebecca’s previously upheld affirmative defenses of prior material breach and 

repudiation. This time, the trial court granted James’s formerly denied motion and ordered that 

Rebecca’s “affirmative defenses of prior material breach and repudiation are dismissed with 

prejudice.” 

In 2015, the trial court granted James’s motion for summary judgment on his declaratory 

judgment claim. The court concluded that “(1) [Rebecca] sought to invalidate all or a part of the 

Agreement in Contemplation of Marriage (the ‘Agreement’); (2) [Rebecca] sought to recover 

property in a manner at variance with the Agreement; and (3) [Rebecca] has forfeited any cash 

payment under Section 13(h) of the Agreement.” Rebecca appealed. The court of appeals 

affirmed. ___ S.W.3d ___ (Tex. App.—Dallas 2016, pet. granted) (mem. op.). We granted 

Rebecca’s petition for review. 

II. Analysis 

“A declaratory judgment granted on a traditional motion for summary judgment is 

reviewed de novo.” Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). This appeal 

turns primarily on interpretation of a contract, and “[g]enerally, in Texas, courts interpret 
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premarital agreements like other written contracts.” Williams v. Williams, 246 S.W.3d 207, 210 

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing as an example Beck v. Beck, 814 S.W.2d 

745, 748–49 (Tex. 1991), which uses the terms “premarital agreement” and “contract” 

interchangeably). The interpretation of an unambiguous contract is a question of law for the court. 

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). 

Under section 31 of the Agreement, Rebecca “shall forfeit” her cash payment if she “seeks 

to invalidate some or all of [the] Agreement,” or if she “seeks to recover property in a manner at 

variance with [the] Agreement.” Despite this clear contractual language, Rebecca asked the trial 

court to rescind the Agreement and return the parties to their pre-contractual positions. The trial 

court and the court of appeals correctly concluded that Rebecca’s unsuccessful attempt at 

rescission triggered the Agreement’s forfeiture clause, under which she lost her contractual 

entitlement to the lump-sum cash payment. 

When interpreting a contract, our “primary objective is to ascertain and give effect to the 

parties’ intent as expressed in the instrument. Objective manifestations of intent control,” not the 

subjective intent of the parties. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763–64 (Tex. 2018). 

Unless the contract indicates that the parties used a term in a technical or unusual sense, contractual 

terms are given their plain, ordinary, and generally accepted meaning. Dynegy Midstream Servs. 

v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009); Heritage Res., Inc. v. NationsBank, 939 

S.W.2d 118, 121 (Tex. 1996). 

The Agreement states that James and Rebecca “inten[ded] and desire[d] that [the] 

Agreement [would] define the respective rights of each of them in the property of the other after 

their Marriage” if it ended in divorce. Had Rebecca succeeded in rescinding the Agreement, her 
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payments would instead have been determined by the Texas Family Code’s provisions for a just 

and right division of the community property. This manner of property division would have been 

“at variance with” several provisions of the Agreement. Section 1 of the Agreement provided that 

there would be no community estate. Section 5 similarly provided that “[a]ny property that is 

acquired by either party during the Marriage, regardless of the source of the consideration 

exchanged for the property, will be owned only as separate property of the party in whose name 

the title is taken,” and that property purchased in the names of both spouses shall be treated as 

jointly owned by the spouses. Section 7 waived any claim that commingling of property would 

cause it to lose its character as separate property. In sections 1(m) and 16, the parties agreed that 

Texas’s community property laws shall not apply. Distribution under the Family Code would have 

been “at variance with” each of these provisions and with the Agreement’s overall design to 

substitute certain payment amounts for the default legal rules of marital property division. See 

generally TEX. FAM. CODE §§ 3.001–.410 (regarding marital property rights and liabilities). 

By seeking to rescind the Agreement, Rebecca sought what could have been a greater 

distribution of the marital estate under the Texas Family Code and related Texas common law than 

she would have received had the Agreement remained in place. She sought to undo the payment 

provisions of the Agreement that were designed and agreed to as an alternative to whatever a 

contested divorce would have otherwise yielded. Her repeated, and ultimately unsuccessful, 

requests for rescission of the Agreement were attempts to recover at variance with the property 

distribution contemplated by the Agreement and therefore triggered section 31, under which she 

forfeits the lump-sum payment. 
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Rebecca sought the creation of a community estate and her share of it, perhaps thinking 

that this distribution of the marital estate would exceed the payment she would have received under 

the Agreement. Indeed, she argued in a motion for reconsideration that she would have recovered 

“substantially more had the parties not entered into a premarital agreement.” She likewise argued 

that rescission would result in “the existence of a marriage without a premarital agreement and the 

subsequent creation of a community estate.” Section 1(h) of the Agreement states that there would 

be no equitable distribution of property. Yet Rebecca asked the court to rescind the Agreement 

and “to equitably divide the property accumulated during the marriage under the community 

property laws.” She pursued this outcome through discovery, summary judgment motions, and 

trial. If these actions are not an attempt “to recover property in a manner at variance with [the] 

Agreement,” it is difficult to imagine what is.1

 

Rebecca argues that her request for rescission “in the alternative” was not enough to trigger 

the forfeiture clause. We disagree. Rebecca went so far as to seek summary judgment on her 

entitlement to rescission; this “alternative” remedy was not a mere backup plan. In moving for 

summary judgment on rescission, Rebecca sought “to recover property in a manner at variance 

with [the] Agreement.” 

Rebecca asks us to adopt or imply a just-cause exception to the Agreement’s forfeiture 

clause because she brought her rescission request “in good faith and upon probable cause” that 

James had already breached the Agreement. See Calvery v. Calvery, 55 S.W.2d 527, 530 (Tex. 

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 The forfeiture clause is also triggered if Rebecca “seeks to invalidate some or all of [the] Agreement.” In 

seeking rescission, Rebecca asserted that the parties should be treated “as though no Agreement exists,” which on its 

face appears to be an effort to invalidate the Agreement. However, Rebecca argues that she has never contended that 

the Agreement is invalid, and in fact has always argued that it is a valid, enforceable contract. Rather, she sought 

rescission solely as a remedy for James’s repudiation. Because we hold that Rebecca triggered the forfeiture clause 

by seeking to recover property in a manner at variance with the Agreement, we need not address this argument. 
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1932) (“The great weight of authority sustains the rule that a forfeiture of rights under the terms 

of a will will not be enforced where the contest of the will was made in good faith and upon 

probable cause.”). We decline to do so. The trial court ruled that James did not breach the 

Agreement. Rebecca did not appeal that ruling. We cannot find just cause for Rebecca’s failure 

to abide by the no-contest clause based on a breach by James that the trial court found did not 

happen. 

Rebecca argues that she had no choice but to seek rescission after James failed to make 

scheduled payments under the Agreement. But there were several options available under section 

31 to remedy James’s failure to pay, such as filing a breach-of-contract suit seeking monetary 

expectation damages, a petition for enforcement, or a motion for temporary orders. Indeed, 

Rebecca in fact took these very actions and was successful at persuading the trial court to order 

James to pay. Even after that, however, she persisted in seeking rescission of the Agreement. She 

did not have to seek that remedy, but she did. Having failed to achieve that result, she remains 

bound by the contractual consequences of her decision to “seek[] to recover property in a manner 

at variance with [the] Agreement.” The parties could have agreed that James’s failure to make a 

periodic payment would nullify the entire Agreement and result in property distribution under the 

normal rules. They did not. “We have long held that courts will not rewrite agreements to insert 

provisions parties could have included or to imply restraints for which they have not bargained.” 

Tenneco Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 646 (Tex. 1996). 

 While the Family Code generally permits premarital agreements like the one at issue here, 

it also provides that an unconscionable agreement or one not entered into voluntarily is not 

enforceable. TEX. FAM. CODE § 4.006(a). Recognizing an additional just-cause or good-faith 
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exception to the enforcement of the Agreement, as Rebecca urges, would both judicially expand 

section 4.006 and run afoul of our longstanding preference to protect the freedom of contract by 

enforcing contracts as written. Texas has a “strong public policy favoring freedom of contract” 

that is “firmly embedded in our jurisprudence.” Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 

471 (Tex. 2016). We have repeatedly recognized 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.” Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 

(Tex. 2007). We rarely find a contract unenforceable on public policy grounds. Premarital 

agreements are no exception. See, e.g., Beck, 814 S.W.2d at 749 (“The legislature and the people 

of Texas have made the public policy determination that premarital agreements should be 

enforced. If we refuse to enforce [Husband’s] and [Wife’s] premarital agreement, we would 

thwart, rather than advance, our state’s public policy enforcing these contracts.”). 

In addition, Texas law disfavors equitable exceptions to the enforcement of contracts as 

written. “Where a valid contract prescribes particular remedies or imposes particular obligations, 

equity generally must yield unless the contract violates positive law or offends public policy.” 

Fortis Benefits v. Cantu, 234 S.W.3d 642, 648–49 (Tex. 2007). In this case, the Agreement 

provided Rebecca with regular monetary support, and she was separately promised a large sum of 

cash if she did not contest the Agreement. We find no sound basis for holding the Agreement 

unconscionable or otherwise against public policy. In sum, the Agreement as written is not 

unconscionable and should not be modified by court-manufactured exceptions. 

Finally, Rebecca contends that the Agreement should be construed to avoid a forfeiture. 

E.g., Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam) 
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(“Forfeitures are not favored in Texas, and contracts are construed to avoid them.”). But the parties 

here expressly agreed to a forfeiture in the no-contest clause, which provides clear consequences 

if Rebecca seeks to invalidate the Agreement or recover at variance with it. Rebecca had no 

absolute right to the lump-sum payment. She had a conditional right premised on her compliance 

with the Agreement’s no-contest clause. Application of a freely agreed-to and unambiguously 

worded no-contest clause is not the kind of “forfeiture” Texas law seeks to avoid. Both the trial 

court and the court of appeals correctly enforced the Agreement as written. 

For these reasons, we hold that by unsuccessfully seeking rescission of the Agreement and 

pursuing that remedy throughout the litigation, Rebecca “[sought] to recover property in a manner 

at variance with [the] Agreement.” She therefore lost her contractual right to the lump-sum 

payment pursuant to section 31 of the Agreement. The judgment of the court of appeals is 

affirmed. 

 __________________________________ 

James D. Blacklock 

 Justice 

OPINION DELIVERED: June 29, 2018