Michele DiBassie v. Damon DiBassie ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00287-CV
__________________
MICHELE DIBASSIE, Appellant
V.
DAMON DIBASSIE, Appellee
__________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 19-01-00879-CV
__________________________________________________________________
MEMORANDUM OPINION
This is an appeal from a final decree of divorce. Appellant Michele DiBassie
contends the trial court abused its discretion in making a disproportionate division
of property in favor of appellee Damon DiBassie. Michele argues the trial court erred
by awarding Damon property and assets that belonged to Structural Concrete
Systems, LLC (“SCS”), a separate legal entity; crediting her with the value of real
property that had been gifted to their daughter; and entering a judgment against her.
Michele also argues the trial court erred by relying on findings of fact that are based
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on insufficient evidence and not supported by the record. We affirm the trial court’s
judgment.
BACKGROUND
Michele and Damon married in 1993 and started SCS in 2001. In 2019,
Damon sued Michele seeking a divorce. In his Petition, Damon claimed the marriage
had become insupportable due to discord or a conflict in personalities that destroyed
the legitimate ends of their marriage. In his Second Amended Petition for Divorce,
Damon added SCS as a Co-Respondent, 1 and he requested that the trial court divide
the marital estate in a just and right manner. Damon also requested that the trial court
award him a disproportionate share of the parties’ estate for the following reasons:
fault in the breakup of the marriage; benefits the innocent spouse may have derived
from the continuation of the marriage; disparity of earning power of the spouses and
their ability to support themselves; community indebtedness and liabilities; tax
consequences of the division of property; business opportunities of the spouses; need
for future support; nature of the property in the division; wasting of community
assets; reimbursement; attorney’s fees to be paid; and actual and constructive fraud
committed by Michele.
Damon further alleged that both he and Michele have separate estates and
requested the trial court to confirm his separate property and reimburse his separate
1Structural Concrete Systems, LLC is not a party to this appeal.
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estate for funds or assets expended by his separate estate for the benefit of Michele’s
separate estate. Damon requested that the trial court reimburse the community estate
for funds and or assets expended by the community estate for payment of unsecured
liabilities of Michele’s separate estate and for the value of community time, toil,
talent, and effort expended by Michele to benefit or enhance her separate estate.
Damon alleged that SCS was the alter ego of Michele and acted solely as a conduit
for the performance of Michele and her business. Damon explained that he owned
49% of SCS and Michele owned 51%, and SCS holds both his and Michele’s
property either on deposit, in safekeeping, in safe deposit boxes, or in a trust or
fiduciary capacity.
In his Third Amended Petition, Damon alleged Michele was guilty of
committing constructive fraud and breaching the fiduciary duty she owed him during
their marriage. Damon also alleged that Michele wasted, spent, and/or disposed of
his share of the community property without his knowledge or consent, and she
misused and misapplied community property, money, and assets. Damon requested
the trial court to calculate the value by which the community estate was depleted as
a result of Michele’s fraud, calculate and determine the amount of the reconstituted
estate, divide the value of the reconstituted estate between the parties in a manner
the trial court deemed just and right, and grant legal and equitable relief to
accomplish a just and right division, including a money judgment against Michele.
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Damon also requested relief from Michele as the majority shareholder of SCS
and claimed Michele tortiously interfered with his relations with SCS and
improperly withdrew him as a member of SCS and from SCS’s bank accounts.
Damon explained that Michele’s actions terminated his reasonable expectation to
continue his business relationship with Michele and SCS and caused him damages.
Damon alleged that Michele committed fraud on the community and breached her
fiduciary duty by attempting to withdraw him as a member of SCS, and if the trial
court found his withdrawal was valid, Damon argued that Michele committed breach
of contract by failing to pay him a distribution as required by SCS’s Regulations.
Damon requested attorney’s fees and an accounting and appraisal of SCS’s fair
market value. Damon also alleged a claim for conversion, pled that the restraints in
the alleged Employment Agreement and SCS’s Regulations violated the Texas
Business and Commerce Code and were unenforceable, and sought actual and
exemplary damages.
Damon filed a First Supplemental Petition to Petitioner’s Third Amended
Petition for Divorce alleging that Michele misappropriated funds by purchasing a
home in Galveston (“Galveston Home”) with community funds and putting the title
in their daughter’s name. Damon asked the trial court to impress a constructive trust
on the Galveston Home and award it to him. Damon filed a Fourth Amended Petition
for Divorce, alleging, among other things, that because he never signed or agreed to
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SCS’s Regulations, the Regulations do not bind him or govern SCS or Michele’s
attempt to withdraw him from SCS. Damon also requested declaratory relief,
including declarations that SCS’s Regulations, the 2018 document withdrawing him
from SCS, and the Employment, Noncompetition, and Confidentiality Agreement
were invalid.
Michele filed a Third Amended Counter-Petition for Divorce and alleged that
Damon committed fraud on the community estate, breached his fiduciary duty, and
wasted community property. Michele asked the trial court to award her a
disproportionate share of the community estate, reconstitute the community estate,
confirm her separate property, award her a money judgment for damages on her
independent tort claims, and award her attorney’s fees, expenses, and costs. In
response, Damon filed a Revised Fourth Amended Petition for Divorce to address
Michele’s new claims.
During the pendency of the divorce, Michele filed for bankruptcy, and the
divorce proceeding was removed to United States Bankruptcy Court for the Southern
District of Texas and then remanded back to the state court for the disposition on its
merits. In its Order Granting Damon’s Motion for Abstention and Remand, the
bankruptcy court found that forum shopping was an issue in Michele’s bankruptcy
case because the removal of a property division incident to a divorce to a Federal
Bankruptcy Court is not a normal or typical occurrence. After the divorce proceeding
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was remanded back to state court, the trial court conducted a bench trial. The issues
contested in the appeal hinge largely on whether the final judgment represents a fair
division of the parties’ marital estate. We discuss the testimony of the witnesses
relevant to the parties’ arguments raised in their appellate briefs.
Michele testified she and Damon were married in 1993 and have one adult
daughter who resides in Galveston. They ceased to live together in November 2018.
Michele explained that in December 2001, she and Damon started SCS, a
commercial construction company engaged in concrete repair organized as a limited
liability company, with a principal place of business in Houston, Texas, and they
were the only managing members. Prior to working for SCS, Michele worked for
her family business, as a legal secretary in the concrete industry, and as a database
manager. Michele testified that she completed some college but does not have a
degree or any licenses or certificates.
Michele testified that Daniel Hoffman, an accountant and attorney, drafted
SCS’s Regulations in 2002. Michele testified that she had Damon’s consent to cut
and paste a copy of his electronic signature on the Regulations. Michele explained
that the Regulations provided that, unless otherwise agreed by unanimous decision
of all members, a member could be withdrawn from SCS upon filing a voluntary
bankruptcy petition, dying, being adjudicated incompetent, filing a dissolution of a
certificate by a corporation, distributing an estate’s entire interest in the company,
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or upon the affirmative vote of a majority of the remaining members. Michele agreed
that the Regulations did not provide for the withdrawal of a member based on a
criminal conviction. Michele also explained that upon withdrawal, the member is
entitled to a distribution of the fair market value of the member’s interest to be
determined by an agreement of the members or by an appraiser if the members
cannot agree. Michele testified that the Regulations Hoffman prepared did not
contain any noncompete, non-solicitation, or confidentiality clauses.
Michele testified about a second set of regulations that also contained
electronic signatures and included (1) an additional withdrawal provision, providing
for withdrawal upon the occurrence of being adjudicated guilty of any criminal
offense and (2) a different determination of the fair market value of the member’s
interest being based upon actual assets of the company. Michele did not know why
there were two signed versions of the regulations and claimed that she did not add
the provision or know who had done so. Michele agreed that in 2009, she had
included Hoffman’s original version of SCS’s Regulations with an application for
woman business entity owned status with the city of Austin.
Michele also testified about the Employment Noncompetition and
Confidentiality Agreement, which was dated December 2001. Michele testified the
agreement was created in 2010 and backdated to SCS’s date of inception because of
an appeal with the City of Houston concerning SCS’s entity status. Michele
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explained that she received the form for the agreement from an unknown attorney,
modified the form to include SCS and Damon, and cut and pasted Damon’s
electronic signature on the agreement with his permission. Michele testified that in
addition to other things, the noncompetition agreement prohibited Damon from
competing with SCS. When asked what consideration Damon received for signing
the agreement, Michele explained that SCS’s certification was granted, but she later
testified that in addition to Damon’s member interest in SCS, he received a $60,000
yearly salary as consideration, which was to be paid at the end of every month that
SCS had a positive cash flow. Michele testified that the agreement also contained a
provision that an employee may be terminated for having a conviction of or entering
a plea of nolo contendere to a charge of a felony or misdemeanor involving moral
turpitude. Michele agreed that prior to 2010, the year Michele testified the agreement
was created, Damon had been convicted of driving while intoxicated.
Michele explained that after Damon was in jail in September and October of
2018, he returned to work in November and left SCS on December 1, 2018. Michele
testified that she withdrew Damon from being a member of SCS in December 2018,
because he tried to withdraw money from SCS’s bank account, shut down SCS’s
online profile, and cancelled her business debit card. Michele explained that the
Withdrawal was signed on January 7, 2019, but she backdated the date on the
Withdrawal to be effective the day he left SCS. Michele testified that between
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December 1, 2018 and January 7, 2019 she moved money out of SCS’s account so
Damon could not withdraw any money. Michele explained that she used the criminal
provision in the second set of regulations to withdraw Damon as a member. Michele
also explained that between December 1 and January 7, she did not inform Damon
she had withdrawn him as a member of SCS, and she did not pay Damon for the
value of his interest in SCS as specified by the Regulations. Michele testified that
they attended mediation and agreed to have SCS valuated by Jeannie McClure, and
Michele provided the financial statements, tax returns, and general ledger.
Michele testified that on June 19, 2019, her accountant rendered SCS’s
financial statements for the period ending December 31, 2018, and she assumed
McClure had the financial statement to perform her valuation but admitted that
McClure may not have had the document because her original valuation was
performed on June 30, 2019. Michele testified that the 2018 financial statements
show the members’ equity was $2,469,486, and a member’s bonus of $928,866 was
taken to receive a tax reduction. After paying taxes on the bonus, she redeposited the
money into SCS’s account. Michele explained it was “just an accounting action[,]”
and she never discussed it with Damon, and at the end of 2018, it appeared that she
and Damon had taken $1,154,586 in distributions. Michele also explained that SCS’s
statements of cash flow shows SCS had $2,117,505 in investment account
receivables in three Merrill Lynch accounts and that there was a decrease of
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$1,833,078, but she was not sure where that number came from. Michele testified
that she provided information to the accountant showing that going into 2019, SCS
had a backlog of $1,000,000 and estimated revenues of $2,017,604 from additional
contracts to be performed in January 2019. Michele explained that she never
presented financial statements that were materially misleading. Michele testified that
SCS’s 2018 tax return shows it had $3.2 million in ordinary business income, which
differs from SCS’s 2018 financial statements.
Regarding SCS’s financial statement dated June 30, 2019, Michele agreed that
the accountant included a statement that “‘[m]anagement has elected to omit
substantially all the Disclosures and statements of cash flows required by accounting
principles generally accepted in the United States of America.’” Michele testified
that she did not understand what that statement meant and claims she did not omit
anything. Michele explained that the June 30 balance sheet was based on the period
of December 31, 2018 through June 30, 2019, which was after Damon took a
$1,000,000 distribution from his Merrill Lynch account, and the balance sheet
showed $2,290,565 in member equity and $1,080,372 in the investment accounts.
Michele did not know why the member equity on December 31, 2018, which was
$2,469,000, had only decreased to $2,290,565 as of June 30, 2019, despite Damon
having taken his $1,000,000 distribution. Michele testified she guessed Damon
received the partial distribution of $956,711; however, she did not know who
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received the $514,686 member distribution without looking at the supporting
documents, but she claimed she took distributions to pay Damon’s bills. Michele
explained that Damon’s $1,000,000 was pledged to SCS, and after he took his
distribution, SCS’s balance sheet showed that amount as a loss, which affected
SCS’s bonding capacity.
Michele also testified about SCS’s financial statement for December 31, 2019,
which had not been finalized as of August 2020, because they were still working on
the numbers concerning the property and equipment on the balance sheet. Michele
explained she had never really worried about the balance sheet’s accuracy, but they
needed to perform inventories to get an accurate number for the bonding company.
Michele testified that she had produced SCS’s general ledger as of December 31,
2019, in a pdf format. Michele explained that the general ledger shows she received
a paycheck on December 28, 2018 for $318,342, but she claimed it went into petty
cash and back into her member’s contribution account to pay wages. Michele did
not know why the ledger showed her member’s capital contribution account received
an uncashed paycheck marked petty cash for $532,789.63 on that same date. Michele
explained that the capital contribution was not split between her and Damon’s capital
accounts because it “wasn’t a real paycheck. It was just in order to get over the
threshold for the tax deduction.” Michele also explained that on December 3, 2018,
she moved $275,700 from SCS to the DiBassie Leasing account so Damon would
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not deplete the account. Michele testified that she did not know why the funds she
transferred to DiBassie Leasing flowed through Damon’s member capital account,
but she claimed it was perhaps to pay for the Bobcat. Michele testified that Damon’s
Merrill Lynch member account was solely in his name and she had a similar account
in her name that contained $1,056,384.53 as of December 31, 2018, and both
accounts were set up when they started their divorce proceeding. Michele explained
that in 2019, $2,274,452 in total distributions went out, and Damon only received
the $1,000,000 distribution when he left SCS. Michele testified that the other
distributions are not entirely hers, and she takes out $27,000 per month for payroll.
Michele further testified that she filed for bankruptcy in May 2020, and in her
bankruptcy schedule she claimed the Richards property that she and Damon owned
was valued at $800,000, but the land only appraised for $150,000. Michele testified
that she listed herself as the 100% owner of SCS because she believed she had paid
Damon for his 49% interest when he took his $1,000,000 distribution that was listed
as an asset on SCS’s balance sheet. Michele explained that she listed SCS’s value as
$457,000, which was the cash in the company, excluded any accounts receivables,
and added the value of all the equipment and assets that were in their personal names
to their community property. Michele also omitted other assets, including their wine
collection, gun safe, and fifth wheel. Michele further testified that they paid
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$90,312.50 for their Houston Oaks membership to celebrate Damon’s birthday, and
she used distributions from SCS to pay for bills from Houston Oaks.
In July 2019, Michele used proceeds from her individual Merrill Lynch
account to purchase their daughter a home for $279,361, and she testified that she
did not discuss the purchase with Damon when she made it. Michele explained that
she also transferred money from her individual Merrill Lynch account to SCS’s
checking account to pay business expenses, and she transferred money out of SCS’s
checking account into her personal account to pay her personal expenses. Michele
testified that in 2019, she spent approximately $60,000 traveling to France, Spain,
and Africa, and she gave money to a relative. Michele also testified that between
January 2019 and June 2020 she “possibly” spent $137,319.19 on travel expenses.
In 2020, Michele paid $60,000 cash for her daughter’s car using money from SCS,
and Damon agreed to the purchase. In her bankruptcy filings, Michele disclosed that
in 2019, she received $415,129 in distribution from SCS, which included the money
to purchase her daughter’s home. Michele’s inventory included her valuations for
their community property, and she valued SCS at $1.39 million, which included the
prefab building valued at $130,238.
Michele explained that she sought to remove the divorce proceeding and
protective orders to bankruptcy court, but the bankruptcy court granted Damon’s
motions to dismiss her bankruptcy and remanded the cases back to state court.
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Michele agreed that the bankruptcy court found that forum shopping was an issue in
her case, but she claimed she filed bankruptcy because of attorney’s fees. Michele
testified that she was still in bankruptcy because the court vacated its dismissal order,
but Damon had filed another motion to dismiss. Michele explained that she paid her
divorce attorney with her salary from SCS and member distributions.
Michele testified that their home on Imperial Oak (“the Imperial Oak
property”) sits on two lots totaling four acres, and SCS is located in a trailer or prefab
office on their property behind the home. Michele explained they owned a total of
ten acres, which included adjacent land known as the Country Pines property.
Michele testified that the Imperial Oaks property appraised for $555,000, and the
Country Pines property appraised for $158,000. Michele testified that on December
1, Damon came to the Imperial Oak property and removed property from SCS.
Michele explained that Damon took, among other things, the Kubota UTV, lawn
mower, Kubota lawn tractor, his truck, and tools. Michele explained that the Kubota
tractor was in Damon’s name as well as all the vehicles SCS uses, and she did not
know if the Kubota UTV was in Damon’s name. Michele also testified that she
purchased the Cashel Glen property two years prior to marrying Damon, and during
the marriage, she made approximately $70,000 in payments on the property, which
was paid off two years prior to trial.
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Michele explained that she had pled cruelty in the divorce due to suffering
physical, mental, and sexual abuse by Damon. Michele further explained that
Damon’s alcohol and drug problems created a volatile marriage and affected SCS’s
business. Michele also testified that Damon cheated on her in 2017 and 2018.
Damon testified that he did not approve or consent to Michele’s spending,
including her buying their daughter a new car. Damon testified that his inventory
shows the value of his estate. Damon further testified that his proposed division of
property valued the Richards property at $190,000, which included the $75,000 steel
structure that had been erected since he had valued the property at the appraised
value of $130,000 on his inventory. Damon explained that he paid $52,000 for his
fifth wheel trailer that is three years old. Damon requested that the trial court award
him the Imperial Oaks property, the Richards property, and the Country Pines
property. Damon also testified he did not approve the purchase of the Galveston
home, and he asked the court to either impose a constructive trust on the home or
consider it as part of his waste claim. Damon explained that he was concerned about
the trial court awarding him a personal judgment against Michele because she could
discharge it in her bankruptcy, and he requested that any judgment be against SCS.
Damon testified he noticed several issues when he reviewed SCS’s 2019
general ledger that Michele provided. Damon explained that fraudulent costs had
been added to at least seven jobs to make it appear that the profits were lower and to
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devalue the company. Damon had requested the native form of SCS’s Quickbooks
to reconcile the jobs, but Michele filed bankruptcy and the trial court halted its
proceeding. Damon testified that he was also unable to depose Chris Reeves, one of
SCS’s managers, about excessive bonuses and cash Michele gave him in 2019.
Damon testified that he believed Michele fraudulently filed bankruptcy after
spending excessively and that he had to pay approximately $75,000 in attorney’s
fees to have his divorce case remanded back to state court.
Damon explained that he alleged a breach of contract claim against Michele
for using false documents to withdraw him from SCS and for failing to pay him for
his portion of SCS. Damon testified that he did not receive any money from SCS in
2019 or 2020, but he had $968,815.88 in January 2019, $560,000 in January 2020,
and had spent nearly $1,000,000 in twenty months. Damon explained that since he
filed for divorce, he had spent, among other amounts, over $33,000 in travel, $8,000
in liquor stores, $20,000 on his girlfriend’s eye surgery, $45,000 on a tractor, several
hundred thousand dollars on improvements to the Richards property, accounting
expenses on his new business, and he bought a Harley Davidson. Damon testified
that he also sold an airplane.
Damon testified that in 2019, Michele took $1,600,000 in distributions from
SCS plus her salary and cash she wasted, and in 2020, she spent more than $500,000.
Damon explained that Michele spent approximately $315,000 on the Galveston
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home and over $130,000 in travel expenses from January 2019 to June 2020 for her
and their daughter. Damon also explained that Michele failed to cooperate with the
litigation and discovery requests and filed bankruptcy, and her behavior hindered the
process, caused him to incur excess attorney’s fees, and resulted in Michele
wastefully spending money on attorney’s fees. Damon testified that SCS’s June 2020
financials show approximately $2,900,000 of backlogs of contracts, but Michele
failed to provide documentation of that amount.
Damon explained that he has a Bachelor of Science in psychology with a
minor in history, and he went to school to be a general contractor. Damon also
explained that his work history includes forensic investigations and knowledge of
structural repair for concrete structures. Damon testified that he provided the
industry knowledge to perform SCS’s work and shared his knowledge with SCS’s
employees. Damon further testified that when he filed for divorce he alleged cruel
treatment because Michele told him she had all the books and records, she would
ruin him, and make sure he never worked again.
Damon explained that in 2017, he got his third DWI, pled guilty in August
2018, and served sixty days in county jail. Damon testified that he was working for
SCS in 2018, and he did not receive actual notice about his removal until he went to
Chase bank to get statements for the divorce. Damon further testified that he never
transferred money out of the Chase account. Damon explained that he never signed
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SCS’s Regulations or gave Michele approval to use his signature on the Regulations
that would allow his removal for a criminal charge or conviction. Damon testified
that he found two sets of regulations on his computer’s hard drive, and the 2018
version contained the criminal kick-out language, but the 2001 or 2002 version did
not. Damon also explained that he never saw, signed, or authorized Michele to sign
a document that would prevent him from competing or soliciting business or clients,
and he never received a $60,000 salary from SCS as compensation for signing the
alleged noncompete agreement. Damon testified that the noncompete employment
agreement indicates it was created in 2001, but it contains the Imperial Oaks
property’s address, which they acquired in 2008. Damon further testified that he
gave the computer hard drive to Aaron Hughes, a forensic computer specialist.
Damon requested a disproportionate share of the community estate because
Michele caused him to incur increased attorney’s fees and she committed fraud by
alleging that he signed “some document, kicking me out [sic] my own company and
taking over the bank accounts and spending money the way she has.” Damon
explained the whole process has been hindered and his attorney never got SCS’s true
Quickbook records. Damon testified that there has been a disparity in earning power
because in 2019 and 2020 he had no income. Damon explained that he created
Technical Structural Repair Group, LLC (“TSR”) and is waiting until the divorce is
finalized to start conducting business, but he needs money to reestablish himself.
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Damon explained that he had lost his earning capacity due to the alleged noncompete
agreement and because Michele had badmouthed him in the industry. Damon
requested that the court impose a judgment against SCS to equalize the division of
the money he is owed for the value of SCS. Damon also testified that he is unable to
pay his attorney’s fees, which exceed $450,000. Damon explained that he made
multiple attempts to mediate and settle the case. Damon testified that Michele
breached her fiduciary duty to him as a member of SCS by copying and pasting his
name on documents, spending excessively, purchasing their daughter a home
without his knowledge, and failing to provide discovery and turn over SCS’s
Quickbooks in native form.
McClure, a CPA who specializes in business valuation and certified forensics,
testified that she was jointly appointed as a business valuation expert to assess the
fair market value of SCS. McClure testified that she prepared her original report on
June 30, 2019 and a supplemental report, which contains her most recent valuation,
on December 31, 2019. McClure concluded that SCS’s fair market equity value was
$1,390,000 as of December 31, 2019. McClure testified that Michele’s commitment
of working capital was approximately $1,080,000 on June 30, 2019, $440,000 on
December 31, 2019, and “just south of $40,000[]” on June 30, 2020. McClure
explained that working capital is an important element of her valuation, and the
reduction was not a withdrawal of funds from SCS but a withdrawal from Michele’s
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personal brokerage account. McClure also explained that having the December 31,
2019 financials could have made a difference in her report.
Robert Vega, the manager of a computer technology store, testified that his
staff copied the hard drive of the computer Damon took from the marital home.
Aaron Hughes, a forensic analyst of electronic devices, testified that he was provided
sample copies of SCS’s original Regulations, the altered regulations, and an external
hard drive and was asked to identify various versions of the sample documents on
the hard drive. Hughes testified that SCS’s original Regulations were created on
January 4, 2002 and did not contain the criminal kick-out, noncompete, or the non-
solicitation language. Hughes explained that the altered document containing the
criminal kick-out, noncompete, and non-solicitation language was created on August
30, 2018, and stored in a folder titled “divorce[.]”
James Hamon, a certified real estate appraiser, testified that he appraised the
Imperial Oaks property, the Country Pines property, and the Richards property.
Hamon testified that the value of the Country Pines property is $158,000, excluding
the mobile home and storage containers. Hamon testified that the value of the
Imperial Oaks property is $555,000, which included all improvements fixated on the
property. Hamon explained that the workshop on the Imperial Oaks property was
assessed at $20,000.
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John Baggett testified that he met Damon and Michele at the Houston Oaks
country club, had known them for approximately three years, and traveled with them
to Italy twice. Baggett explained that Damon did not have a reputation of being a
belligerent, abusive drunk, but was a “social drinker, like anybody else.” Baggett
also explained that he never saw Damon get violent or upset or hear about him
having bad behavior at Houston Oaks. Baggett testified that he lives at Houston
Oaks, and he was upset about Damon being removed from the club. Baggett further
testified that on one occasion he witnessed Michele being verbally abusive and
shouting very loudly with expletives at an unknown man. Steve Winter, another
member of Houston Oaks, testified that he knew Michele and Damon from the club
and had traveled with them. Winter explained that he never saw Damon be a
belligerent drunk, act unruly at the club, or be abusive.
The trial court granted the parties a divorce based on the grounds of
insupportability. The trial court awarded Damon the following property: Imperial
Oaks home and property excluding the shop, the Richards property; Country Pines
lot excluding mobile home and containers; Merrill Lynch account ending in 450;
Merrill Lynch account ending in 551; Chase account for TRS ending in 0066; Chase
account for TRS ending in 2903; Merrill Lynch SEP account ending in 284;
ownership of the limited liability company known as TSR and all assets and debts
of TSR; 2018 GMC Denali; 2018 Ram 3500; 2015 Harley Davidson; 2011 Kubota
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UTV; 2018 fifth wheel; 2018 Kubota lawnmower; 2019 John Deer Tractor; Kubota
M-56 with equipment; prefab office trailer; 2019 Harley Davidson; golf cart at
Richards property; 2011 Club car golf cart; Kubota M1489; proceeds from the
airplane sale; jewelry and personal effects in his possession; gun safe and guns;
personal property in his possession; one half or copies of all pictures; J.J. Watt
helmet; tools; pressure washer; car accessories, motorcycle gear and equipment;
military stuff; nail puller; weighs and weight bench equipment; scuba diving gear;
tanks and helmets; his college books; clothes and suits; and his U of H ring, diamond
ring, and any other jewelry belonging to him in Michele’s possession. The trial court
ordered Damon to pay the debt associated with his awarded property, one-half of the
parties’ 2019 IRS tax liability, and the following debts: American Express account
ending in 3006; American Express account ending in 2004; Capital One account
ending in 2069 or 2096; Chase account ending in 3909; Chase account ending in
4862; American Express account ending in 2005; and American Express account in
the name of TSR ending in 3003.
The trial court awarded Michele the following property: any interest the
community estate may have in the Galveston home; Chase account ending in 0140;
Merrill Lynch account ending in 367; Chase account ending in 8250; the business
known as SCS; all assets and debts of that business; Merrill Lynch SEP account
ending in 283; 2014 Tesla; any interest the community estate has in daughter’s car;
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golf cart at Galveston home; two Arabian horses; 2017 Toro lawn tractor; 2004
Alumacraft boat, trailer, and motor; 2005 Premier pontoon boat, trailer, and motor;
all wine in her possession that was previously in the cellar of Houston Oaks; her
jewelry and personal effects in her possession; the Houston Oaks membership; and
any personal property in her possession not awarded to Damon. The trial court
ordered Michele to pay the debt on the American Express account ending in 4004
and a $300,000 judgment with interest to Damon to equalize the division of the
marital estate and found the division of the marital estate to be just and fair. The trial
court also confirmed the Cashel Glen property as Michele’s separate property. The
trial court stated, “I’m not awarding the assets and debts of the business. I’m
awarding the ownership of the business to wife.”
Damon filed a Motion for Clarification on the Trial Court’s Ruling, seeking
among other things, whether the prefab office building the trial court awarded to him
was the same mobile home awarded to Michele and whether the trial court awarded
either party to pay their attorney’s fees. Michele filed a response to Damon’s motion,
arguing, among other things, that certain property the trial court awarded Damon
belonged to SCS and should have been awarded to her. The Final Decree of Divorce
incorporated the trial court’s oral pronouncement and ordered Michele to pay one-
half of the parties’ 2019 IRS tax liability and SCS’s attorney’s fees and for each
party to pay their own attorney’s fees.
23
Michele filed a Request for Findings of Fact and Conclusions of law. The trial
court issued Findings of Fact and Conclusions of Law. The trial court found, among
other things, that Michele’s removal of the divorce case and both parties’
Applications for Protective Orders to bankruptcy court was done to avoid the
jurisdiction of the divorce court and forum shop and caused unnecessary expense
and attorney’s fees; Michele used community funds to gift her daughter the
Galveston Home without Damon’s consent or agreement; Michele’s trial testimony
was not credible; Damon did not sign or consent to a noncompete agreement,
nondisclosure agreement, or a non-solicitation agreement; and both parties
committed waste during the pendency of the divorce. The trial court found that it
considered the following factors in making a just and right division: fault in the
breakup; relative education of the spouses; disparity in incomes, earning capacities,
or business skills; relative age and physical condition of the parties; other financial
obligations including attorney’s fees; size of any separate estate; whether any
particular piece of property has a unique benefit to one party; any gifts between the
spouses as well as excessive gifts to children; tax consequences of assets; Michele
having committed fraud on the community during the marriage; each party’s
behavior during the divorce; source of assets used to acquire the community estate;
attorney’s fees Michele spent to remove the divorce and protective order cases to
bankruptcy court and her attempt to prevent those cases from being returned to state
24
court; attorney’s fees Michele spent to prosecute the divorce case and her actions
which resulted in increased fees; Michele’s failure to attend the last day of trial and
submit to further cross-examination; wasting of community assets by both parties;
Michele’s breach of fiduciary duty; the spouse’s earning power and business
opportunities; attorney’s fees paid and to be paid; and Damon’s need for future
support.
The trial court’s findings of fact include the value of any cash, real property,
financial accounts, business interest, motor vehicles, household effects, clothing, and
judgments the parties were awarded as well as the value of any liabilities or
reimbursement they were ordered to pay. The trial court found the division of
community property and liabilities is a just and right division, resulting in slightly
above 50% of the community estate being awarded to Damon and slightly below
50% being awarded to Michele. The trial court also found that part of the just and
right division of assets and liabilities of the marriage included awarding Damon a
$300,000 judgment with interest against Michele. The trial court further found that
the community estate was entitled to reimbursement of $30,000 from Michele for
funds spent to benefit Michele’s separate estate. The trial court denied Michele’s
Motion for New Trial or Alternatively Motion to Modify, Correct or Reform Final
Decree of Divorce.
25
ANALYSIS
In six issues on appeal, Michele complains that the trial court made an unequal
division of the community estate in Damon’s favor. Michele challenges the trial
court’s findings supporting the division of the community estate, arguing that there
is either no evidence or insufficient evidence to support the trial court’s findings that
she (1) gifted the Galveston home without Damon’s consent; (2) committed fraud
on the community during the marriage; (3) breached her fiduciary duty; (4) removed
the divorce and protective order cases to bankruptcy court and attempted to prevent
the case from being returned to state court to avoid the divorce court’s jurisdiction
and forum shop; (5) caused increased attorney’s fees; and (6) that Damon needed
future support and did not sign or consent to a nondisclosure agreement.
We review a trial court’s division of community property for an abuse of
discretion. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The test for abuse
of discretion is whether the trial court acted arbitrarily or unreasonably, or whether
it acted without reference to any guiding rules or principles. See Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The law requires
an equitable, not an equal, division of the community estate. See Tex. Fam. Code
Ann. § 7.001; Bradshaw v. Bradshaw, 555 S.W.3d 539, 546 (Tex. 2018) (Devine,
J., concurring); In re Marriage of Harrison, 557 S.W.3d 99, 140 (Tex. App—
Houston [14th Dist.] 2018, pet. denied). A trial court does not abuse its discretion if
26
there is some evidence of a substantive and probative character to support the
division. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
In a bench trial, the judge is the factfinder and the sole judge of the credibility
of the witnesses and weight to be given their testimony. See Murff, 615 S.W.2d at
700; Zagorski v. Zagorski, 116 S.W.3d 309, 318 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). To determine whether the trial court divided the community
estate in a “just and right” manner, we must have the trial court’s findings of the
value of those assets. Harrison, 557 S.W.3d at 141. Michele’s complaints concern
whether legally and factually sufficient evidence supports the trial court’s findings.
“When a party attacks the legal sufficiency of an adverse finding on an issue on
which [she] has the burden of proof, [she] must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. Marathon
Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)); see Danner v. Danner, No. 09-18-
00385-CV, 2020 WL 6325725, at *5 (Tex. App. Beaumont Oct. 29, 2020, 2018, pet.
denied) (mem op.). In our review of a finding challenged for legal sufficiency, we
consider the evidence “in the light most favorable to the verdict and indulge every
reasonable inference that would support” the challenged finding. City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005). “But if the evidence allows only one
inference,” we may not disregard the evidence when deciding whether legally
27
sufficient evidence supports the finding the appellant has challenged in her appeal.
Id. As applied to Michele’s appeal, the standard of review requires that we disregard
evidence that contradicts the trial court’s finding that Michele challenges unless the
trial court, based on the evidence, only had one choice–to find in Michele’s favor on
the findings she challenges in her appeal. See Kroger Tex. Ltd. P’ship v. Suberu, 216
S.W.3d 788, 793 (Tex. 2006).
We review the trial court’s findings of fact for factual sufficiency of the
evidence under the same legal standards as applied to review jury verdicts for factual
sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When
a party attacks the factual sufficiency of the evidence on an issue on which she had
the burden of proof, “she must demonstrate on appeal that the adverse finding is
against the great weight and preponderance of the evidence.” Dow Chem. Co., 46
S.W.3d at 242. In a factual sufficiency review, we examine all the evidence and view
it in a neutral light. See id. But unless the evidence is so weak or the trial court’s
finding is clearly wrong and unjust given the great weight and preponderance of the
evidence, we cannot set the finding the appellant challenges aside when resolving
the appeal. Id. In other words, we cannot substitute our judgment for the factfinder’s
if the evidence supports the challenged finding. See In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006) (discussing factual sufficiency); see also In re J.L., 163 S.W.3d 79,
86–87 (Tex. 2005) (discussing legal sufficiency).
28
When dividing a couple’s marital estate, trial courts have a statutory duty to
“order a division of the estate of the parties in a matter 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. Trial courts may consider several factors
in dividing a marital estate, including the disparity of incomes and parties’ earning
capacities, the benefits that a spouse would have derived from the marriage had it
continued, each spouse’s “business opportunities, education, relative physical
conditions, relative financial condition and obligations, disparity of ages, size of
separate estates, and the nature of the property.” Murff, 615 S.W.2d at 699. When
the appellant complains the trial court abused its discretion because it did not fairly
divide the couple’s estate, we will not overturn the trial court’s division of the
property if the record contains some evidence of a substantive and probative
character supporting it. Hinton v. Burns, 433 S.W.3d 189, 193 (Tex. App.—Dallas
2014, no pet.) (citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas
2005, pet. denied)).
In family law cases, the abuse-of-discretion standard overlaps with the
traditional legal and factual sufficiency standards of review, and legal and factual
sufficiency issues are not independent grounds asserting error but are factors
relevant to the appellate court’s evaluation of whether an abuse of discretion
occurred. Hinton, 433 S.W.3d at 193; Moroch, 174 S.W.3d at 857; see also In re
29
A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.) (discussing standard).
To decide whether an abuse of discretion occurred, we consider whether the trial
court (1) had sufficient evidence to exercise its discretion and (2) erred in that
discretion. Hinton, 433 S.W.3d at 193–94; In re A.B.P., 291 S.W.3d at 95. The first
prong of this two-part test focuses on whether the ruling the trial court made is
supported by sufficient evidence. Hinton, 433 S.W.3d at 194; Moroch, 174 S.W.3d
at 857. In a case in which some evidence supports the trial court’s ruling, the second
part of the test requires the appellate court to determine whether that evidence, after
considering the elicited evidence, shows the ruling the trial court made is one that is
reasonable. Hinton, 433 S.W.3d at 194; Moroch, 174 S.W.3d at 857. We review the
record in the light most favorable to the trial court’s judgment to determine whether
some evidence supports it, and we will uphold the judgment on any legal theory that
finds support in the evidence. Harrison, 557 S.W.3d at 131.
In issue one, Michele argues the trial court erred by awarding Damon property
and assets that belonged to SCS because the Texas Business Organizations Act
prohibits the trial court from transferring or interfering with the property rights of a
limited liability company. See Tex. Bus. Orgs. Code Ann. § 101.106(b). In issue
two, Michele complains that the trial court’s erroneous award of SCS’s equipment
to Damon substantially diminished SCS’s value because SCS did not have the
necessary machinery, equipment, and tools to bid or work on any projects. Michele
30
argues the trial court’s finding that these assets did not belong to SCS is contrary to
Damon’s testimony, lacks evidentiary support, and is so against the overwhelming
weight of the evidence as to be manifestly unfair. Michele contends the evidence
shows the assets belong to SCS and should have been included in the trial court’s
award of SCS to her.
When the characterization of property is at issue in a divorce proceeding, the
trial court is required to presume that any property possessed by either spouse during
the marriage is community property. Moroch, 174 S.W.3d at 856; In re Marriage of
Collier, 419 S.W.3d 390, 402–03 (Tex. App.—Amarillo 2011, no pet.). To
overcome the community presumption, a spouse claiming the specific property is
not part of the community must trace the property and establish the time and means
by which the spouse obtained possession of the property. In re Marriage of Collier,
419 S.W.3d at 403.
SCS is a limited liability company, and as such, is a legal entity separate from
its members. See Sherman v. Boston, 486 S.W.3d 88, 94 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied). Damon, as a member of SCS, does not have an interest in
any specific property of the company. See Tex. Bus. Orgs. Code Ann. § 101.106(b).
Property owned by a limited liability company is neither community property nor
the separate property of its members. See id. § 101.106(a)–(a-1); Mandell v.
Mandell, 310 S.W.3d 531, 539 (Tex. App.—Fort Worth 2010, pet. denied). The
31
business property that is subject to division in a divorce is the interest in the limited
liability company and not the company’s specific assets. Tex. Bus. Orgs. Code Ann.
§ 101.106(a-1) (noting membership interest may be community property), (b) (LLC
member does not have interest in any specific company property); In re Marriage of
Collier, 419 S.W.3d at 403. Additionally, property acquired on the credit of the
community is community property. In re Marriage of Collier, 419 S.W.3d at 403
(citation omitted).
Michele contends the trial court erred by including the following SCS
property in the community estate: the Kubota M56 front loader tractor, Kubota
M1489 front loader tractor, all tools, 2018 GMC Denali pickup, 2018 Dodge Ram
3500 pickup, 2011 Kubota UTV, 2018 Kubota lawnmower, 2019 John Deere tractor,
2011 golf cart, scuba diving gear, and proceeds from the sale of the airplane. Michele
argues that SCS’s financial statements and tax return show the machinery and
equipment awarded to Damon were assets of SCS, and McClure’s report shows her
valuation of SCS was based on SCS’s property.
SCS’s financial statements do not specifically identify any machinery or
equipment, and the tax return’s depreciation and amortization report only identifies
a 2018 GMC Sierra as a vehicle used more than 50% in a qualified business use.
Michele’s Inventory and Proposed Division of Property identified the following
property as subject to division: proceeds from the sale of the airplane, 2019 John
32
Deere tractor, 2018 GMC Denali pickup, 2018 Dodge Ram 3500 pickup, Kubota
lawnmower, 2011 Kubota UTV, and golf cart. Damon’s inventory and Amended
Proposed Division lists the Galveston home as community property as well as the
2018 GMC Denali pickup, 2018 Dodge Ram 3500 pickup, 2011 Kubota UTV, 2018
Kubota lawnmower, 2019 John Deere tractor, M56 Kubota, 2011 golf cart, Kubota
1489 front loader tractor, and proceeds from the sale of the airplane. Damon’s
inventory also lists SCS’s business interests, which includes multiple vehicles,
equipment, and tools.
During trial, Michele explained that in her bankruptcy she listed SCS’s value
as $457,000, which was the cash in the company, excluded any accounts receivables,
and added the value of all SCS’s equipment and assets, which were in their personal
names, to their community property. Michele testified Damon took the Kubota UTV,
lawn mower, Kubota lawn tractor, his truck, and tools, and she explained that the
Kubota tractor and all the vehicles SCS uses were in Damon’s name, but she did not
know if the Kubota UTV was in his name. Although Michele argues McClure listed
and valued SCS’s machinery, equipment, furniture, fixtures, vehicles, and leasehold
improvements in determining the fair market value of SCS and noted that valuation
was based on tangible assets, McClure’s report does not list the specific machinery
and equipment she considered in her valuation. Additionally, McClure’s valuation
notes that it is based on tangible assets and assumes that all necessary fixed assets
33
are included in the transaction, but she states she made no attempt to verify title or
status of ownership to the assets.
Damon explained he sold the airplane about a year before the trial because it
required expensive avionic upgrades, and there were costs associated with the sale,
which included hanger fees and maintenance. Damon testified that he would like to
have his personal tools that he left at the Imperial Oaks Property, and he valued the
tools at approximately $1,500. Damon also testified that he had to purchase new
tools and equipment. Damon further testified that he has underwater diving gear and
suits that are his personal items even though he also used the gear for work.
Based on our review of the record, Michele failed to offer evidence regarding
the means by which the parties obtained possession of the airplane, vehicles,
equipment, and tools she complains about. See In re Marriage of Collier, 419
S.W.3d at 404. Consequently, we conclude that Michele failed to meet the burden
of overcoming the statutory presumption that the complained of property possessed
during the marriage was community property. See id.; Moroch, 174 S.W.3d at 855.
Additionally, the parties’ inventories and proposed division of property
characterized the property as community property. Based on the record before us,
we conclude the trial court did not abuse its discretion by awarding the complained
of assets to Damon because there is some evidence of a substantive and probative
character to support the division and based on that evidence, the trial court’s decision
34
was reasonable. See Butnaru, 84 S.W.3d at 211; Murff, 615 S.W.2d at 698; Hinton,
433 S.W.3d at 193. We overrule issues one and two.
In issue three, Michele complains the trial court erred by attributing the value
of the Galveston Home to her because she and Damon gifted that real property to
their daughter. Michele complains the trial court could not award the Galveston
Home to her because it was not her separate property or part of the community estate,
and the trial court erred by including the $280,000 purchase price on her side of the
property division ledger. Michele argues the trial court’s mischaracterization of the
Galveston Home as community property materially affected the just and right
division of the community estate. Michele further argues that Damon offered no
evidence to overcome the presumption of the property being a gift to their daughter.
The record shows that during trial, Michele’s attorney agreed that the
$280,000 for the Galveston Home should be included as one of Michele’s assets in
the property division, and her inventory and proposed division of property includes
the Galveston Home as community property that should be awarded to her. Damon’s
Inventory and Amended Proposed Division also lists the Galveston Home as
community property. The evidence before the trial court also showed that in 2019,
Damon received $968,816 in distributions from SCS and Michele received
$1,587,432 in distributions, which included $279,362 for the purchase of the
Galveston Home. Also, in her bankruptcy filing, Michele disclosed that in 2019, she
35
received $415,129 in distributions from SCS, which included the money to purchase
the Galveston Home.
Michele testified that when she purchased the Galveston Home in July 2019,
she did not discuss the purchase with Damon. Damon testified that he did not
approve the purchase of the Galveston Home, and he asked the trial court to either
impose a constructive trust on the home or consider it as part of his waste claim.
While Michele testified that she used proceeds from her individual Merrill Lynch
account to purchase the Galveston Home, she also testified that she transferred
money from her individual Merrill Lynch account into SCS’s checking and then into
her personal account to pay her personal expenses.
The trial court found that during the marriage, Michele used community funds
to gift their daughter the Galveston Home without Damon’s consent or agreement
and that the transfer did not benefit the community estate. The trial court also found
Michele’s trial testimony was not credible and considered that Michele committed
fraud on the community during the marriage. As the sole judge of the credibility of
the witnesses and weight to be given their testimony, the trial court was free to
disbelieve Michele’s testimony regarding her purchase of the Galveston Home. See
Murff, 615 S.W.2d at 700. We conclude the trial court did not abuse its discretion by
including the Galveston Home in the division of the community estate and awarding
Michele the Galveston Home because there is some evidence of a substantive and
36
probative character to support the division and based on that evidence, the trial
court’s decision was reasonable. See Butnaru, 84 S.W.3d at 211; Murff, 615 S.W.2d
at 698; Hinton, 433 S.W.3d at 193. We overrule issue three.
In issue four, Michele argues the trial court erred by entering a judgment
against her for $300,000 to equalize the division of community assets because the
trial court had already made an unequal division in Damon’s favor. Michele
contends the $300,000 judgment against her was detrimental and had no
justification. Michele explained that Damon alleged she committed fraud on the
community by purchasing the Galveston Home, but she argues that the evidence
does not support the trial court’s finding that she committed actual fraud on the
community. Michele also argues there is no evidence of fraud by her or that she
breached her fiduciary duty to the community.
“A fiduciary duty exists between a husband and a wife as the community
property controlled by each spouse.” Puntarelli v. Peterson, 405 S.W.3d 131, 137
(Tex. App.—Houston [1st Dist.] 2013, no pet.); Zieba v. Martin, 928 S.W.2d 782,
789 (Tex. App.—Houston [14th Dist.] 1996, no writ) (op. on reh’g). Each spouse
owns an undivided one-half interest in all community assets and funds regardless of
which spouse has control, and a relationship of trust and confidence exists which
requires that a spouse’s disposition of community property be fair to the other
spouse. Massey v. Massey, 807 S.W.2d 391, 401–02 (Tex. App.—Houston [1st
37
Dist.] 1991, writ denied). The managing spouse has the burden to prove that her
disposition of community property was fair, and the trial court may consider a
spouse’s disposition when making a just and right division. Slicker v. Slicker, 464
S.W.3d 850, 861–62 (Tex. App.—Dallas 2015, no pet.); Massey, 807 S.W.2d at 402(citations omitted).
A claim that a spouse committed fraud on the community must be asserted for
consideration in the trial court’s just and right division of the community estate. Chu
v. Hong, 249 S.W.3d 441, 444–45 (Tex. 2008). The evidence presented regarding
fraud on the community is relevant to the property division, and the trial court may
consider a wrong by one spouse to justify an unequal division of property. See
Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (citation omitted);
Markowitz v. Markowitz, 118 S.W.3d 82, 90–91 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (plurality on reh’g). Fraud is presumed when one spouse disposes
of the other spouse’s interest in community property without the other spouse’s
knowledge or consent. Cantu v. Cantu, 556 S.W.3d 420, 427 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). The presumption can arise by evidence of specific
transfers or gifts of community assets outside of the community and by evidence that
community funds are unaccounted for by the spouse in control of those funds. Id.Once the presumption arises, the burden of proof shifts to the disposing spouse to
prove the fairness of the disposition of the other spouse’s one-half community
38
ownership. Id.; Puntarelli, 405 S.W.3d at 138. While a spouse may make moderate
gifts for just causes to persons outside the community, an excessive gift may be set
aside as a constructive fraud on the other spouse, and no dishonesty of purpose or
intent to deceive is required to establish constructive fraud. Puntarelli, 405 S.W.3d
at 138–39; Mazique v. Mazique, 742 S.W.2d 805, 808 (Tex. App.—Houston [1st
Dist.] 1987, no writ).
When the trial court makes a finding of fraud, it must determine the value by
which the community estate was depleted as a result of the fraud on the community
and the amount of the reconstituted estate. Tex. Fam. Code Ann. § 7.009(b); Cantu,
556 S.W.3d at 427. The reconstituted estate is the total value of the community estate
that would have existed had the fraud not occurred. Tex. Fam. Code Ann. § 7.009(a).
A trial court can achieve a just and right division of the community estate by
awarding a disproportionate share of the remaining community assets to the wronged
spouse or by awarding a money judgment to the wronged spouse against the spouse
who committed fraud, or a combination of both. Id. § 7.009(c); see Murff, 615
S.W.2d at 699.
In his First Supplemental Petition to Petitioner’s Third Amended Petition for
Divorce, Damon alleged that during the divorce proceeding and in violation of the
Montgomery County’s First Amended Standing Order Regarding Children, Pets,
Property and Conduct of the Parties, Michele breached her fiduciary duty and
39
committed fraud by purchasing the Galveston Home in their daughter’s name with
community property funds. During trial, Michele testified that when she purchased
the Galveston Home for $279,361, she did not discuss the purchase with Damon,
and Damon testified that he did not approve the purchase of the Galveston Home.
Michele testified that she did not know she was under standing orders from
Montgomery County when she made the purchase. Michele also testified that she
paid the expenses on the home, and the property taxes were paid directly by SCS
and written off as a distribution. Damon testified that Michele spent approximately
$315,000 on the Galveston Home’s purchase, improvements, and maintenance.
As the factfinder, the trial court had the exclusive right to exercise its
discretion by believing that Michele did not have Damon’s knowledge or consent to
use community property to purchase the Galveston Home. See Murff, 615 S.W.2d at
700. We conclude the evidence does not conclusively establish that as the managing
spouse, Michele purchased the Galveston home with Damon’s knowledge or consent
or that the evidence the trial court relied on to conclude Michele did not have
Damon’s knowledge or consent is so weak it is outweighed by the greater weight
and preponderance of the evidence admitted at trial. See Dow Chem. Co., 46 S.W.3d
at 242. We further conclude the evidence does not conclusively establish that
Michele disposed of community property in a manner that is fair to Damon or that
the evidence the trial court relied on to conclude Michele did not dispose of
40
community property in a manner that was fair to Damon is so weak it is outweighed
by the greater weight and preponderance of the evidence admitted at trial. See id.;
see also Slicker, 464 S.W.3d at 862; Massey, 807 S.W.2d at 401.
In making a just and right division, the trial court could have considered the
evidence that was presented showing that Michele committed fraud on the
community and breached her fiduciary duty, and after accounting for the $300,000
judgment, the trial court then awarded Damon slightly more than 50% of the
community estate. We conclude the trial court did not abuse its discretion by finding
that part of the just and right division included awarding Damon a $300,000
judgment with interest against Michele because there is some evidence of a
substantive and probative character to support the division and based on that
evidence, the trial court’s decision was reasonable. See Butnaru, 84 S.W.3d at 211;
Murff, 615 S.W.2d at 698; Hinton, 433 S.W.3d at 193. We overrule issue four.
In issue five, Michele contends the trial court abused its discretion by entering
an unfair division of property in Damon’s favor. Michele explained that she had less
education, work experience, earning capacity, and business experience than Damon,
and as the innocent spouse, she would have received substantially greater benefits
had the marriage continued. Michele also explained that she suffered Damon’s
emotional and physical abuse, tolerated his alcoholic rages, and was the victim of
41
his adultery and intentional acts to damage SCS. Michele maintains that the trial
court failed to divide the marital estate in a just and right manner.
During the trial, the trial court considered evidence about the non-exclusive
factors that a judge is to consider in determining a just and fair property division,
including fault in the breakup; the spouses’ education and work experience; their
earning capacities, business experience, and business opportunities; their age and
health; the current disparity in their income; the nature of the community property;
the size of the separate estate; and the benefit the spouse not at fault would have
received had the marriage continued. See Murff, 615 S.W.2d at 698; Villalpando v.
Villalpando, 480 S.W.3d 801, 807 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(citation omitted). The judge had the opportunity to see both parties testify and to
judge their credibility, and the judge found Michele’s testimony was not credible.
Under these circumstances, we conclude the trial court did not abuse its
discretion in awarding Damon a disproportionate share of the community estate
because the trial court had sufficient information to exercise its discretion and did
not divide the community estate in a manner that is manifestly unjust or unfair. See
Murff, 615 S.W.2d at 698–99; Villalpando, 480 S.W.3d at 807. We overrule issue
five.
In issue six, Michele challenges the trial court’s findings concerning the
division of the community estate, alleging there is legally and factually insufficient
42
evidence to support the findings. Michele argues the evidence does not support the
trial court’s finding that Damon needed future support because he left the marriage
with over $1,075,000 from his Merrill Lynch account, set up a competing business,
and had years of experience in the concrete renovation and construction business. In
making its determination of a just and right division, the trial court found that it
considered Damon’s need for future support. We focus on the whether the trial
court’s finding was reasonable based on the evidence admitted at trial. As the party
who complains about the adverse finding, Michele must establish that either the
evidence in the trial court conclusively established Damon did not need future
support, or that the evidence the trial court relied on to conclude Damon needed
future support is so weak it is outweighed by the greater weight and preponderance
of the evidence admitted at trial. See Danner, 2020 WL 6325725, at *5, 7.
The trial court heard evidence that there had been a disparity in earning power,
and that in 2019 and 2020, Damon had no income. The trial court heard Damon
testify that although he created TSR, he had to wait until the divorce was finalized
to conduct business because of the alleged noncompete agreement. The trial court
also considered Damon’s testimony that he needed money to reestablish himself
because he lost his earning capacity due to the alleged noncompete agreement and
because Michele had “badmouthed” him in the industry. We conclude the is legally
and factually sufficient. The evidence does not conclusively establish that Damon
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did not need future support and the evidence the trial court relied on to conclude that
Damon’s needs for future support was a factor in making a just and right division is
not so weak that it is outweighed by the greater weight and preponderance of the
evidence admitted at trial. See id.Michele also complains about the trial court’s findings that her removal of the
divorce and protective order cases to bankruptcy court and her attempt to prevent
the cases from being returned to state court was done to avoid the divorce court’s
jurisdiction and forum shop and caused the parties to expend unnecessary expenses
and attorney’s fees. Michele argues she was justified in filing bankruptcy, and
Damon presented no evidence she was forum shopping or attempting to avoid
discovery.
Damon testified that he believed Michele fraudulently filed bankruptcy after
spending excessively and that he had to pay approximately $75,000 in attorney’s
fees to have his divorce case remanded back to state court. He also explained that
Michele failed to cooperate with the litigation and discovery requests before filing
bankruptcy, and her behavior hindered the process and caused him to incur excess
attorney’s fees. The trial court considered evidence that the bankruptcy court found
that forum shopping was an issue in Michele’s bankruptcy case because the removal
of a property division incident to a divorce to a Federal Bankruptcy Court was not a
normal or typical occurrence. Michele agreed that the bankruptcy court found that
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forum shopping was an issue but claimed she filed bankruptcy because she tried to
stop Damon’s attorney from getting attorney’s fees. Michele testified that she filed
bankruptcy before she had to turn over the native Quickbooks and before two SCS
employees could be deposed. Michele also testified that she filed a motion for
reconsideration of the remand order, which was denied.
We conclude the evidence does not conclusively establish that Michele’s
removal of the divorce and protective order cases to bankruptcy court and her
attempt to prevent the cases from being returned to state court was not done to avoid
the divorce court’s jurisdiction and forum shop and did not result in unnecessary
expenses and attorney’s fees. See id. We further conclude that the evidence the trial
court relied on to conclude that Michele’s removal to bankruptcy court and her
attempt to prevent the cases from being returned were factors in making a just and
right division is not so weak it is outweighed by the greater weight and
preponderance of the evidence admitted at trial. See id.Michele challenges the trial court’s finding that Damon did not sign or consent
to a nondisclosure of SCS’s confidential information. Michele testified that she had
Damon’s consent to cut and paste a copy of his electronic signature on the
Regulations Hoffman prepared, which did not contain any noncompete, non-
solicitation, or confidentiality clauses.Michele also testified that she created the
Employment Noncompetition and Confidentiality Agreement in 2010 and backdated
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it to 2001, and she cut and pasted Damon’s electronic signature on the agreement
with his permission. Michele explained that in addition to Damon’s 49%-member
interest in SCS, he received a $60,000 yearly salary as consideration for signing the
agreement.
Damon explained that he never saw, signed, or authorized Michele to sign a
document that would prevent him from competing or soliciting business or clients,
and he never received a $60,000 salary from SCS as compensation for signing the
alleged noncompete agreement. Damon testified that the noncompete agreement
indicates it was created in 2001, but it contains the Imperial Oaks property’s address,
which they acquired in 2008. Damon explained he would never have signed the
agreement because it made no sense when he provided the knowledge and
experience to SCS. Hughes testified that SCS’s original Regulations that were
created in 2002 did not contain noncompete or the non-solicitation language and that
the altered document containing the noncompete and non-solicitation language was
created in 2018 and stored in a folder titled “divorce[.]”
As the factfinder, the trial court had the exclusive right to exercise its
discretion by believing Damon’s testimony that he never signed the agreement. See
Murff, 615 S.W.2d at 700. We conclude the evidence does not conclusively establish
that Damon signed the agreement or that the evidence the trial court relied on to
conclude Damon did not sign or consent to the agreement is so weak it is outweighed
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by the greater weight and preponderance of the evidence admitted at trial. See Dow
Chem. Co., 46 S.W.3d at 242. On appeal, Michele argues that Damon’s consent is
irrelevant because he has a common law duty of nondisclosure. Based on our review
of the record, this argument is not preserved for our review because Michele did not
make the argument at trial. See Tex. R. App. P. 33.1.
Michele also challenges the trial court’s findings that she committed fraud on
the community during the marriage and breached her fiduciary duty. We have
already explained in issue four that the evidence was sufficient to support the trial
court’s findings that Michele committed fraud on the community and breached her
fiduciary duty by using community funds to purchase the Galveston Home without
Damon’s knowledge or consent and that by doing so, she did not dispose of
community property in a manner that was fair to Damon. We overrule issue six.
Having overruled each of Michele’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on June 16, 2022
Opinion Delivered November 17, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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