SEPARATE OPINION BY JUSTICE GUZMAN
CONCURRING AND DISSSENTING OPINION
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
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).
/s/ Eva M. Guzman
Judgment rendered and Majority and Concurring and Dissenting
Opinions filed June 17, 2008.
Panel consists of Justices Yates, Guzman, and Brown. (Yates, J.,