## Facts

- Whitney Ely Fanning and Nita Kissel Fanning, both practicing attorneys with successful law practices, signed a written premarital agreement on August 15, 1980.
- The premarital agreement provided that each spouse’s personal earnings from his or her law practice would remain that spouse’s separate property.
- The premarital agreement also listed separate-property assets and stated that income from those separate assets would remain the owning spouse’s separate property.
- The parties acknowledged that, under then-current Texas law, much of what they would earn or acquire during marriage would ordinarily be community property, but they conditioned parts of their agreement on a proposed amendment to the Texas Constitution that would permit spouses to recharacterize certain property interests by written agreement.
- The parties married on September 27, 1980.
- Texas voters approved the constitutional amendment to Tex. Const. art. XVI, § 15 in November 1980, authorizing spouses by written agreement to partition or exchange community property (including community property to be acquired) and to agree that income from separate property would be separate property.
- In 1981, after the amendment, Whitney and Nita executed a written partition agreement stating that there would no longer be any community-property interest in income derived from the separate property of either spouse.
- Nita filed for divorce. In the final decree, the trial court refused to enforce the premarital agreement and the 1981 partition agreement, awarded most of the parties’ assets and custody of their three children to Nita, and ordered Whitney to pay $3,000 per month in child support.
- The decree’s property division treated certain property as subject to division in a way that divested Whitney of property he claimed was his separate property under the agreements.
- Whitney appealed, challenging (1) the trial court’s failure to enforce the premarital and partition agreements, (2) the divestiture and mischaracterization of separate property, and (3) the custody and support rulings.

## Issues

1. Whether the parties’ premarital agreement—written in contemplation of a pending constitutional amendment—was valid and enforceable once the amendment was adopted.
2. Whether the parties’ 1981 partition agreement validly eliminated any community-property interest in income from either spouse’s separate property.
3. Whether the trial court erred by dividing property contrary to the parties’ enforceable agreements and by divesting Whitney of separate property.
4. Whether the trial court abused its discretion in awarding custody of the children to Nita and ordering Whitney to pay $3,000 per month in child support.

## Decision

- The court of appeals held that the premarital agreement was not void merely because it contemplated a future constitutional authorization; once the amendment passed, the agreement’s provisions could be given effect to the extent authorized by the Constitution and the Family Code.
- The court held that the 1981 partition agreement was an enforceable written partition/exchange agreement under the post-amendment constitutional framework and must be applied in characterizing income from separate property.
- The court reversed the portion of the divorce decree that divested Whitney of title to his separate property and divided property contrary to the parties’ agreements, and it remanded for further proceedings and a property division consistent with proper characterization and the enforceable agreements.
- The court affirmed the portion of the decree awarding custody of the children to Nita and requiring Whitney to pay $3,000 per month in child support.

## Legal Principles

- Texas recognizes enforceable premarital agreements concerning property rights when they comply with constitutional and statutory authority.
- Contract terms may be written to become operative upon a later change in law; if the parties’ intent is clear and the later change supplies legal authority for the agreed characterization, the agreement may be enforced after the change.
- After the 1980 amendment to Tex. Const. art. XVI, § 15, spouses may, by written agreement, partition or exchange community property (including community property to be acquired) so that it becomes separate property, and may agree that income from separate property is separate property.
- A party seeking to avoid a premarital agreement bears the statutory burden (under the Family Code provisions governing premarital agreements) to prove grounds such as involuntariness or unconscionability coupled with inadequate disclosure; absent that proof, the agreement is enforceable.
- In a divorce, a trial court has discretion to make a “just and right” division of community property, but it may not divest a spouse of title to separate property; mischaracterization that results in divestiture requires reversal and remand for a new division.
- Child-custody and child-support rulings are reviewed for abuse of discretion and will be affirmed if supported by evidence related to the children’s best interests and the obligor’s ability to pay.

## Conclusion

The Waco Court of Appeals enforced the Fannings’ premarital and 1981 partition agreements as authorized after the 1980 constitutional amendment, reversed and remanded the property division to the extent it divested Whitney of separate property and conflicted with the agreements, and affirmed the award of custody to Nita and the $3,000-per-month child support order.


Fanning v. Fanning, 828 S.W.2d 135 (1992)