Leax v. Leax (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Keyes)
(suit for annulment, marriage and divorce fraud, serial wife divorcee, pattern of domestic violence
allegations, concealment of numerous prior marriages, fraud in the inducement)
AFFIRM TC JUDGMENT:   
Before Justices Keyes, Hanks and Bland. Opinion by Justice Evelyn Keyes
01-08-00149-CV Elaine Leax v. Robert W. Leax
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York  
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O P I N I O N

Appellant, Elaine Leax ("Elaine"), appeals the trial court's decree annulling her marriage to
appellee, Robert Leax ("Robert"). In three issues, Elaine contends that (1) the evidence was legally
and factually insufficient to support the trial court's decree granting an annulment; (2) the trial court
failed to divide the parties' estate in a just and right manner; and (3) the trial court erred in
admitting any evidence regarding Robert's separate property.

We affirm.

Background

Elaine and Robert were married on July 1, 2001 and moved into Robert's home, located on
Shalford Drive in Spring, Texas. They separated on March 12, 2007, when Elaine moved out while
Robert was away on a cruise with his youngest daughter. Robert and Elaine did not have any
children together. Elaine took the majority of the household items from their home, and she
removed approximately $33,000.00 from a shared checking account, leaving approximately
$1,700.00 in the account.

Elaine then filed a petition for divorce. In her petition, Elaine alleged that the marriage had become
insupportable because of discord or conflict of personalities between herself and Robert and that
Robert was guilty of cruel treatment toward her. She asked for a disproportionate division of the
property based on the alleged cruel treatment, her disability, her loss of the benefits of the
marriage, and Robert's superior earning capacity, education, and separate estate. Robert denied
Elaine's allegation of cruelty.

In response to some interrogatories, Elaine disclosed the existence of eight previous marriages.
This prompted Robert to file his "Second Amended Counterpetition for Annulment and
Counterpetition for Divorce," asking for annulment on the basis of fraud and seeking a
disproportionate share of the marital estate due to Elaine's fraud and fault in the break-up in the
marriage, among other factors.

On September 5, 2007, the trial court signed its "Order Compelling Discovery Responses,"
requiring Robert to respond fully to Elaine's requests for production or to pay $500 in attorney's
fees if he failed to comply. Robert later argued that he was not given notice of the hearing at which
the order compelling discovery was entered. Robert further argued that he had already produced
any required documents to Elaine's previous attorney.

At a bench trial on December 3, 2007, the trial court heard testimony from both Robert and Elaine
regarding whether the trial court should grant an annulment and regarding proper division of the
parties' estate. Elaine testified that Robert made threats against her and called her names in 2006
and 2007 and that she moved out while he was on the cruise because she wanted to avoid being
hurt or killed. Elaine also testified about specific property that she took from the house when she
left that was acquired during the marriage, including a disputed china cabinet. Elaine testified that
she believed she was entitled to a disproportionate share of their community estate because of the
alleged cruel treatment and because of her disability. She testified that Robert made $130,000.00
last year, while she received monthly disability income of only $1,600.00 each month.

Robert testified that he had been married to his previous wife for 25 years until she died of cancer.
He met Elaine, fell in love with her, and proposed to her. He testified that he knew when they were
dating that she had been married and divorced twice before. He also testified that, just prior to their
marriage, she admitted to a third previous marriage when it became obvious that Robert was likely
to find out through other means. Elaine told Robert that she did not tell him about the third marriage
because she knew Robert would not like the fact that she had had another marriage. Robert
testified that he specifically asked Elaine whether there were any other marriages in her past, and
she told him that there were not. Robert testified that he would not have married Elaine if he had
known that she had previously been married eight times. Elaine responded by testifying that she
had revealed all of her prior marriages to Robert before they were married.

Regarding the circumstances of their separation, Robert testified that he won a cruise through his
employer and that he and Elaine had planned to go on the cruise together. Sometime before the
cruise occurred, Elaine told Robert that she did not intend to go on the cruise because she was
having anxiety attacks at the thought of being on the open seas. Robert decided to cancel the trip
because Elaine did not want to go, but Elaine suggested that he go with his youngest daughter.
Robert left on the cruise thinking he was in a happy marriage, and he spoke with Elaine by phone
several times while he was gone on the cruise. Elaine was supposed to pick Robert up from the
airport. However, she told Robert over the phone that she was ill and could not drive to get him, so
she arranged to have a car left at the airport for him. She asked Robert to call her when he was 30
minutes away from home. Robert testified that he thought Elaine might have been planning a
surprise party for him for his sixtieth birthday, but when he got home he discovered that Elaine had
moved out of the house and had taken the majority of their household items and furniture with her,
including a china cabinet that they had purchased on their first anniversary and a flat screen
television that Robert had won at work.

Elaine also removed $33,066.72 from their joint bank account, leaving $1,700.00 in the account.
The majority of this money was from a large bonus Robert had received a few days after he left on
the cruise. Elaine put the money into an account in her name. Robert testified that he had no idea
why Elaine was now claiming that he had treated her cruelly because he had never threatened her
or called her any names. Robert also testified regarding a pending personal injury suit that Elaine
was pursuing for a car accident in which she had been rear-ended in 2004. Robert testified that he
believed she was seeking damages in excess of $100,000 and that they had paid over $30,000 in
medical expenses related to her injuries.

The trial court issued its decree declaring the marriage void and granting the annulment on
December 19, 2007. The trial court's decree also rendered judgment apportioning the parties'
estate. Robert was awarded the home on Shalford Drive, all "retirement accounts, 401(k)'s, stocks,
bonds, and other investment accounts" in his name, 100% of all accounts in his own name, 50% of
any joint accounts, all personal property in his possession plus the flat screen television in Elaine's
possession, and a 1998 Honda Civic. Elaine was awarded all of the personal property that was in
her possession except for the flat screen television, all real estate in her name, all "retirement
accounts, 401(k)'s, stock and bonds, and other investment accounts" in her name, 100% of all
accounts in her own name, 50% of any joint accounts, the china cabinet given to her by Robert,
and a 1999 Honda CRV.

Elaine requested findings of fact and conclusions of law, which the trial court filed on January 16,
2007. The trial court found that Elaine misled Robert concerning the number of her previous
marriages and "intentionally withheld from [him] the existence of five other marriages." The trial
court further found that Elaine's "misstatements . . . were both material and were made for the
purpose of inducing [Robert] to rely upon them in entering into the purported marriage," that Robert
did rely on Elaine's representations regarding the number of her previous marriages when he
entered the marriage with Elaine, and that his reliance was reasonable and resulted in harm to him.
The trial court found that Elaine induced Robert to take a cruise without her, and, while Robert was
gone, she removed "most of the household furnishings from the parties' residence and withdrew
$33,000.00 from the parties' financial account." Finally, the trial court found that Robert and Elaine
did not voluntarily cohabitate after Robert learned of the existence of the five additional,
undisclosed marriages and divorces. The trial court then concluded that Robert was entitled to an
annulment of the marriage on the basis of fraud pursuant to section 6.107 of the Texas Family
Code.

Regarding the division of property, the trial court found that both Robert and Elaine "acquired, prior
to the purported marriage, various financial, retirement, and insurance accounts." The trial court
found:

Except as specifically set forth below, the Court finds that an equitable division of the property
acquired during the purported marriage should be that each party be awarded the automobile
standing in such party's name [a 1999 Honda CRV for Elaine and a 1998 Honda Civic for Robert],
and all other property held in their respective names, including, but not limited to: real estate,
personal property, retirement accounts, 401Ks, stocks and bonds, and investment accounts. Each
party should be awarded the property standing in their [sic] name as of the date of the purported
marriage.

The trial court's findings of fact also stated:

An equitable division of any joint accounts should be fifty percent to each party. Individual accounts
should be awarded to the party in whose name the account stands.

Robert Leax should be awarded fifty percent of the $33,000.00 removed from the account by Elaine
Leax on the date of separation.

The Court finds that [Robert] gave a certain disputed china cabinet to [Elaine] during the purported
marriage as a wedding gift and that it should be awarded to [Elaine].

The Court finds that during the purported marriage, [Robert] won a flat screen television currently in
the possession of [Elaine] and that such television should be awarded to [Robert].

All other requests for relief by the parties should be denied.

Annulment

In her first issue, Elaine argues that the trial court erred in granting an annulment instead of a
divorce because the evidence was legally and factually insufficient to support granting an
annulment under the Texas Family Code.

A. Standard of Review

We review conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,
794 (Tex. 2002). Findings of fact in a case tried to the court have the same force and dignity as a
jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.
Civ. App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). The trial court's findings of fact are not
conclusive when, as here, we have a complete reporter's record. Middleton v. Kawasaki Steel
Corp., 687 S.W.2d 42, 44 (Tex. App.--Houston [14th Dist.]), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.
1985). The trial court's findings of fact are reviewable for legal and factual sufficiency of the
evidence using the same standards that are applied in reviewing the sufficiency of the evidence
underlying jury findings. Vannerson v. Vannerson, 857 S.W.2d 659, 667 (Tex. App.--Houston [1st
Dist.] 1993, writ denied).

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for
which she did not have the burden of proof, she must demonstrate that there is no evidence to
support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In a legal
sufficiency, or "no-evidence," review, we determine whether the evidence would enable reasonable
and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). In conducting this review, we credit favorable evidence if reasonable jurors could
and disregard contrary evidence unless reasonable jurors could not. Id. We consider the evidence
in the light most favorable to the finding under review and indulge every reasonable inference that
would support it. Id. at 822. We must sustain a no-evidence contention only if (1) the record reveals
a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to
prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the
opposite of the vital fact. Id. at 810; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997).

In reviewing a challenge to the factual sufficiency of the evidence, we must consider and weigh all of
the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. Arias v. Brookstone, L.P., 265 S.W.3d 459, 468
(Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986)).

The fact finder is the sole judge of witnesses' credibility; it may choose to believe one witness over
another, and a reviewing court cannot impose its own opinion to the contrary. Wilson, 168 S.W.3d
at 819; Arias, 265 S.W.3d at 468. Because it is the fact finder's province to resolve conflicting
evidence, we must assume that the fact finder resolved all evidentiary conflicts in accordance with
its decision if a reasonable human being could have done so. Wilson, 168 S.W.3d at 819; Arias,
265 S.W.3d at 468. An appellate court may not impose its own opinion to the contrary of the fact
finder's implicit credibility determinations. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.

B. Analysis

The trial court found that Elaine misled Robert concerning the number of her previous marriages
and intentionally withheld from him the existence of five previous marriages. The trial court also
found that Elaine's misrepresentation was material and was made for the purpose of inducing
Robert to enter into the marriage, that Robert did rely on Elaine's representations regarding the
number of her previous marriages when he entered the marriage with Elaine, and that his reliance
was reasonable and resulted in harm to him. The trial court concluded that Robert was entitled to
an annulment of the marriage on the basis of fraud pursuant to section 6.107 of the Texas Family
Code.

Section 6.107 provides:

The court may grant an annulment of a marriage to a party to the marriage if:

(1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage;
and

(2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or
since being released from the duress or force.

Tex. Fam. Code Ann. § 6.107 (Vernon 2006). We were unable find any cases from Texas courts
specifically articulating the proof necessary to warrant annulling a marriage on the basis of fraud. (1)

Fraudulent inducement is a type of fraud. Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d
893, 914 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). Fraudulent inducement is established
by proving that a false material representation was made that (1) was known to be false when it was
made, (2) was intended to be acted upon, (3) was relied upon, and (4) caused injury. Id. American
courts generally have held that marriages can be annulled on the basis of fraud only if the fraud
concerns an issue essential to the marriage. See, e.g., Elliott v. James, 977 P.2d 727, 730 (Alaska
1999) ("Decisions from other jurisdictions generally hold that marriages are presumed valid and can
be annulled on the basis of fraud only if the fraud concerns an issue essential to the marriage.");
Wolfe v. Wolfe, 389 N.E.2d 1143, 1144 (Ill. 1979) ("[A] marriage contract can be voided only if the
nature of the fraud itself affects the essentials of the marriage."); Guggenmos v. Guggenmos, 359
N.W.2d 87, 91 (Neb. 1984) ("While [exaggerations of accomplishments, character, and
circumstances] constitute a species of fraud, they do not afford a basis for destruction of the
marriage."); Attor v. Attor, 894 A.2d 83, 87-88 (N.J. Super. Ct. App. Div. 2006) ("The New Jersey
Courts have held that where a marriage has been consummated, the fraud alleged must be of an
extreme nature, that goes to one of the essentials of marriage."); Stegienko v. Stegienko, 295 N.W.
252, 254 (Mich. 1940) (noting fraud must be "of a nature wholly subversive of the true essence of
the marriage relationship" to support annulment of marriage).

Several courts have held that the nondisclosure of a prior marriage and divorce does not qualify as
an extreme enough fraud to annul a marriage. See Attor, 894 A.2d at 88 (citing Gerard v.
Distefano, 202 A.2d 220 (N.J. Super. Ct. App. Div. 1964) ("The nondisclosure of a prior marriage
and divorce is not such a fraud, for it in no way impedes the carrying out of the marital obligations
and does not go to the fundamentals of the relationship.")); Hess v. Pettigrew, 247 N.W.90, 95
(Mich. 1933) (holding concealment of prior marriage is generally not fraud justifying annulment).
However, at least one jurisdiction has held that the wife's concealment of five of her previous seven
marriages on the application for a marriage license was sufficient fraud to serve as a basis to annul
the marriage. Mayo v. Mayo, 617 S.E.2d 672, 674-75 (N.C. Ct. App. 2005).

Here, Robert testified that while he and Elaine were dating she told him that she had been married
twice. Just before their marriage, Elaine was compelled to reveal a third previous marriage to
Robert. At this time, Robert asked Elaine directly whether she had had any other prior marriages,
and she told him that she had not. Robert testified that if he had known Elaine had actually been
married eight times previously, he would not have married her. He testified that he did not discover
the other five marriages until after Elaine had moved out of the house, taken most of the household
furnishings, withdrawn $33,000 from their financial account, and filed for divorce while he was away
on a cruise.

Elaine testified that Robert knew about all of her previous marriages at the time that they got
married. She testified that she waited until he left on the cruise to move out of the house and file for
divorce because she was afraid that he might hurt her. However, there was no record of any
protective orders or incident reports of domestic violence presented at trial, and Elaine had made
similar allegations in two of her previous eight divorce proceedings.

The trial court, as the fact finder, was the sole judge of the credibility of these two witnesses. See
Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. The findings of fact clearly show that the trial
court found Robert's testimony to be more credible than Elaine's. See id. In light of Robert's
testimony at trial, we conclude that there was legally sufficient evidence to support the trial court's
finding of Elaine's fraud. See Wilson, 168 S.W.3d at 810 (discussing legally sufficient evidence);
State Street Bank, 212 S.W.3d at 914 (discussing elements of fraudulent inducement). Therefore
the evidence was legally sufficient to support the trial court's annulment of the marriage based on
fraud.

Furthermore, in light of all the evidence, we cannot conclude that the trial court's findings are so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Arias,
265 S.W.3d at 468. Robert testified that he was unaware of five of Elaine's eight previous
marriages. This is certainly more significant than a spouse concealing only one previous marriage
and divorce and clearly goes to the essentials of the marriage. See Mayo, 617 S.E.2d at 674-75.
The only contrary evidence was Elaine's own testimony that Robert knew of all of her previous
marriages at the time that they married. This is not enough for us to conclude that the trial court's
findings were against the great weight of the evidence.

Elaine argues that section 6.107 should not have applied to her case because only section 6.109 of
the Texas Family Code allows a trial court to annul a marriage because of a concealed marriage,
and the terms of section 6.109 do not allow an annulment in this case. Section 6.109 allows a court
to annul a marriage when one spouse concealed a prior divorce that occurred within the 30-day
period preceding the date of the marriage ceremony. See Tex. Fam. Code Ann. § 6.109 (Vernon
2006). This statute is clearly not applicable to Robert and Elaine's situation, as Robert's petition for
annulment was based on the concealment of five previous marriages that occurred over a number
of years. Elaine argues that "'[c]oncealed divorces' that do not fall within the 30-day window of
[section 6.109] cannot constitute grounds for annulment merely by re-categorizing them as 'fraud'
under section 6.107." However, Robert did not "merely re-categorize" Elaine's prior marriages and
divorces. As we have already discussed, the extreme number of Elaine's concealed previous
marriages was sufficient to justify annulment based on Elaine's use of fraud "to induce [Robert] to
enter into the marriage" under section 6.107 of the Family Code.

We overrule Elaine's first issue.

Division of Assets

In her second and third issues, Elaine challenges the trial court's division of the marital estate.

A. Admissibility of Robert's Testimony

In her third issue, Elaine argues that the trial court erred in admitting any evidence regarding
Robert's separate property because Robert failed to comply with a previous discovery order, failed
to file responses to requests for disclosure, and failed to file an inventory, as required under the
local rules of court. At trial, Elaine objected to Robert's attempts to testify regarding his separate
property on the grounds that Robert failed to comply with a court order to produce the information
prior to trial. Robert responded that he had already produced the requested information several
months earlier and that he was not given notice of the hearing at which the trial court entered its
order. The following exchange took place:

[trial court]: Sustain that objection based upon my order to produce separate property. . . .

[Robert's counsel]: Well, Your Honor, that order was rendered without notice to us.

[trial court]: I have no idea. Move along.

[Robert's counsel]: [to Robert] When did you purchase your house on Shalford?

[Elaine's counsel]: Judge, I'm going to object. He's trying to get into evidence of separate property
here.

[trial court]: Overruled.

The trial court clarified that it was "ruling on documents as opposed to live testimony" and that it
would allow Robert to testify but would not admit into evidence the documents supporting the
testimony.

Local Rule 4.2 of the Harris County Family Trial Division provides that

A party's final Inventory, Financial Information Statement and financial information required under
the Tex. Fam. Code . . . and a proposed division of property shall be exchanged no later than ten
(10) days before trial, and shall be filed before the commencement of trial. . . . This rule providing
for the exchange of information shall constitute a discovery request under the T[exas] R[ules of]
C[ivil] P[rocedure], and failure to comply with this rule may be grounds for sanctions.

Harris County Fam. Trial Div. Loc. R. 4.2.

A trial court is authorized to sanction a party for failure to comply with an order or discovery
request. Tex. R. Civ. P. 215.2. Sanctions can include

an order charging all or any portion of the expenses of discovery or taxable court costs or both
against the disobedient party or the attorney advising him; [or]

an order refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in evidence.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to
obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court,
the reasonable expenses, including attorney fees, caused by the failure. . . .

Tex. R. Civ. P. 215.2(b)(2), (4), (8).

Discovery sanctions imposed by a trial court are within that court's discretion, and a trial court's
decision regarding discovery sanctions will be set aside only if the court clearly abused its
discretion. United Bus. Mach., Inc. v. Southwestern Bell Media, Inc., 817 S.W.2d 120, 122 (Tex.
App.--Houston [1st Dist.] 1991, no writ). Likewise, the decision to admit or exclude evidence is
generally within the trial court's discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). To
establish a clear abuse of discretion, it must be shown that the trial court's action was arbitrary or
unreasonable in light of all the circumstances of the case. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985). The trial court may consider everything that has occurred during
the history of the litigation when determining how to sanction a party. Berry-Parks Rental Equip. Co.
v. Sinsheimer, 842 S.W.2d 754, 757 (Tex. App.--Houston [1st Dist.] 1992, no writ); see also
Downer, 701 S.W.2d at 241.

Here, Elaine argues that "no testimony regarding [Robert's] separate property should have been
permitted as a matter of law," and she cites Texas Rule of Civil Procedure 215.2 and Local Rule 4.2
of the Harris County Family Trial Division. However, neither of these rules requires the trial court to
exclude testimony on a topic that has been the subject of a discovery order, and Robert argued at
trial that the documents had already been produced and that he did not receive notice of the
hearing at which the trial court issued the discovery order. We cannot conclude that the trial court
abused its discretion by allowing Robert to testify regarding his separate property. See United Bus.
Mach., 817 S.W.2d at 122; In re J.P.B., 180 S.W.3d at 575; see also Holloway v. Holloway, 671
S.W.2d 51, 56 (Tex. App.--Dallas 1983, writ dism'd) (stating that witness may testify concerning
source of funds in account without producing records).

We overrule Elaine's third issue.

B. Just and Right Division of the Parties' Estate

In her second issue, Elaine argues that the trial court erred by failing to divide the parties' estate in
a just and right manner. As part of this issue, Elaine argues that the trial court failed to divide some
of the community assets properly and incorrectly awarded them to Robert as his separate property.
She specifically argues that two retirement accounts in Robert's name were listed on her inventory
as community assets, that "the only competent evidence adduced at trial was that all of the parties'
property was community since the community property presumption could not have 'clearly and
convincingly' been rebutted by [Robert] but for evidence that should have been excluded," and that
the trial court erred because these accounts were not divided and were awarded to Robert as his
personal property. Elaine argues that, as a result of this error, the trial court unjustly awarded
Robert "95%" of the estate, which she argues was "a gross abuse of discretion" because she is a
disabled woman earning less that $20,000.00 annually and living in a trailer, while Robert earns
$130,000.00 annually. (2)

In its "Findings of Fact--Separate and Ostensible Community Property," the trial court found that
both Robert and Elaine "acquired, prior to the purported marriage, various financial, retirement, and
insurance accounts." The trial court held,

Except as specifically set forth below, the Court finds that an equitable division of the property
acquired during the purported marriage should be that each party be awarded the automobile
standing in such party's name [a 1999 Honda CRV for Elaine and a 1998 Honda Civic for Robert],
and all other property held in their respective names, including, but not limited to: real estate,
personal property, retirement accounts, 401Ks, stocks and bonds, and investment accounts. Each
party should be awarded the property standing in their [sic] name as of the date of the purported
marriage.

Property owned or claimed by a spouse before marriage shall be that spouse's separate property.
Tex. Const. art. XVI § 15; Tex. Fam. Code Ann. § 3.001(1) (Vernon 2006); Love v. Bailey-Love, 217
S.W.3d 33, 35 (Tex. App.--Houston [1st Dist.] 2006, no pet.). "A court may not decree that separate
property of one spouse becomes the separate property of the other spouse because 'the nature of
separate property is determined by the Texas Constitution, rather than by what is just and right.'"
Love, 217 S.W.3d at 35 (quoting Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977)).
Generally, whether property is separate or community property is determined by its character at
inception. McClary v. Thompson, 65 S.W.3d 829, 834 (Tex. App.--Fort Worth 2002, pet. denied).
However, contributions with earned income to 401(k)'s and retirement plans during marriage are
community property. See id. at 834-35 & n.2 (discussing methods for determining community
portion of defined contribution plans and defined benefit plans).

In a decree of divorce or annulment, the trial court is required to "order a division of the estate of
the parties in a manner that the court deems just and right, having due regard for the rights of each
party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Murff v.
Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). The trial court has broad discretion in making a "just
and right" division of the community estate, and its discretion will not be disturbed on appeal unless
a clear abuse of discretion is shown. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.
App.--Houston [1st Dist.] 1995, writ denied). A trial court may consider many factors when
exercising its broad discretion to divide marital property, and it is presumed it exercised its
discretion properly. Murff, 615 S.W.2d at 699. Such factors include the nature of the marital
property, the relative earning capacity and business experience of the spouses; their relative
financial condition and obligations; their education; the size of separate estates; the age, health,
and physical conditions of the parties; fault in breaking up the marriage, the benefit the innocent
spouse would have received had the marriage continued; and the probable need for future support.
See id.; Smith v. Smith, 836 S.W.2d 688, 692-93 (Tex. App.--Houston [1st Dist.] 1992, no writ).

When the circumstances demonstrate a reasonable basis for it, a trial court may order an unequal
division of community property. See Murff, 615 S.W.2d at 698-99 & n.1; Hailey v. Hailey, 176
S.W.3d 374, 380 (Tex. App.--Houston [1st Dist.] 2004, no pet.); see also Nowzaradan v.
Nowzaradan, No. 01-05-00094-CV, 2007 WL 441709, at *6 (Tex. App.--Houston [1st Dist.] Feb. 8,
2007, no pet.) (not designated for publication). The test of whether the trial court abused its
discretion is whether it acted arbitrarily or unreasonably and without reference to any guiding
principles in dividing the estate. Downer, 701 S.W.2d at 241-42; Hailey, 176 S.W.3d at 380. A
reviewing court may not reverse a trial court's judgment on property division unless the trial court
has clearly abused its discretion or has made an inequitable division. Smith, 836 S.W.2d at 692.

Here, Elaine argues that the entirety of Robert's two retirement accounts should be considered
community property because the only "competent evidence" introduced at trial indicated that the
retirement accounts were community property. We have already held that Robert's testimony
regarding his separate property was properly permitted by the trial court. His testimony and the
financial documents submitted by Elaine establish that Robert owned those accounts at least as
early as 1997, several years prior to his marriage to Elaine.

The trial court did not enter any specific findings of fact regarding what portion, if any, of either
Elaine's or Robert's retirement accounts was community property--it simply awarded each party his
or her own accounts, including any amounts that could be considered community property. Elaine
has not complained that the trial court's findings of fact are lacking in specificity or asked that the
trial court be required to issue a finding of fact establishing the exact portion of these accounts that
constituted community property. Therefore, we must determine whether the trial court abused its
discretion in dividing the estate, including its finding that awarding each party the entirety of his or
her own retirement accounts resulted in a "just and right" division of the estate.

Both Robert and Elaine sought a disproportionate share of the martial estate. Elaine argued that
she was entitled to a disproportionate share of the parties' estate because of the alleged cruelty,
because of her disability, and because of the disproportion in the parties' earning potential. Robert
argued that he was entitled to a disproportionate share of the parties' estate because of the fraud
committed by Elaine and her fault in the termination of their marriage.

The record demonstrates, however, that the trial court's disposition of the parties' estate was not
nearly as unequal as Elaine suggests. Each party was awarded the car that was in his or her
possession. Elaine was able to keep all of the items that she removed from the house, including the
disputed antique china cabinet, and she was able to keep half of the money that was in their joint
account at the time that they separated. She was required to return to Robert the flat screen
television that he won through his job and the other half of the money that she removed from their
joint checking account. Both parties were awarded in their entirety the investments, retirement
accounts, and real property that they held prior to the marriage. There is no evidence that any of
this property was part of the community estate.

To the extent that the trial court's disposition of the parties' estate did favor Robert, the trial court
acted within its discretion. See Murff, 615 S.W.2d at 698-99 & n.1; Hailey, 176 S.W.3d at 380.
Although the record does support Elaine's argument that she has a lower potential for future
earning than Robert due to her disability, the trial court was also entitled to consider Elaine's fraud
at the time of her marriage to Robert and her fault in ending the marriage. The trial court also could
have considered the evidence that Elaine had a separate estate worth more than $200,000.00 at
the time that she separated from Robert and the nature of the property that each party brought into
this relatively short-lived marriage. (3) See Murff, 615 S.W.2d at 699; Smith, 836 S.W.2d at 692-93.
We cannot conclude that the trial court acted arbitrarily or unreasonably and without reference to
any guiding principles in dividing the estate. See Downer, 701 S.W.2d at 241-42; Hailey, 176
S.W.3d at 380. Therefore, we hold that the trial court did not abuse its discretion. Smith, 836
S.W.2d at 692 (holding that reviewing court may not reverse trial court's judgment on property
division unless trial court has clearly abused its discretion or has made inequitable division). (4)

We overrule Elaine's second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Hanks, and Bland.

1. There are two Texas cases analyzing claims for annulment based on fraud. See McLarty v. McLarty, 433 S.W.2d
722 (Tex. Civ. App.--Eastland 1968) (holding concealment of wife's pregnancy by another man from minor
husband's father did not constitute grounds for annulment); McCullough v. McCullough, 69 Tex. 682, 7 S.W. 593
(1888) (holding husband could not have marriage annulled because wife was pregnant by him at time of marriage).

2. The trial court's findings of fact did not include findings that characterized and valued each asset or liability on
which disputed evidence was presented at the bench trial. See Tex. Family Code Ann. § 6.711 (Vernon 2006)
(requiring, on request of party, findings of fact and conclusions of law concerning "the characterization of each
party's assets, liabilities, claims, and offsets on which disputed evidence has been presented" and "the value or
amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been
presented"); Limbaugh v. Limbaugh, 71 S.W.3d 1, 7 & n.2 (Tex. App.--Waco 2002, no pet.) (holding that trial court
must make findings of fact on all material factual issues that involve ultimate issues in divorce and must make
findings that characterize and value each asset or liability on which disputed evidence was presented). However,
Elaine does not complain about the adequacy of the trial court's findings of fact. Therefore, she has waived this
issue. See Tex. R. App. P. 38.1(h).

3. According to her own Inventory, Elaine's separate property included a lot in Conroe, Texas valued at $25,210.00,
an investment account with Stockcross Financial Services, Inc. with a balance of $151,050.00, and a retirement
account with a balance of $45,183.17.

4. Elaine argues that comments made by the trial court during the bench trial show that it did not consider dividing
property in a just and right manner. However, the appeal is governed by the findings of fact and conclusions of law
filed by the trial court. See Tex. R. Civ. P. 299 ("When findings of fact are filed by the trial court they shall form the
basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be
supported on appeal by a presumed finding upon any ground of recovery or defense, no element of which has been
included in the findings of fact. . . ."); In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) ("[T]he judgment of the trial court
must be affirmed if it can be upheld on any legal theory that finds support in the evidence."). We will not consider
passing comments made from the bench in determining whether the trial court abused its discretion in dividing the
parties' estate. Rutledge v. Staner, 9 S.W.3d 469, 470 (Tex. App.--Tyler 1999, pet. denied) ("It is well-settled that an
appellate court cannot construe comments the trial judge may have made at the conclusion of the bench trial as
findings of fact and conclusions of law.") (citing In re W.E.R., 669 S.W.2d at 716)).




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