Liudmila A. Yuryeva v. Delos N. McManus ( 2013 )

Opinion issued November 26, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00988-CV
———————————
LIUDMILA A. YURYEVA, Appellant
V.
DELOS N. MCMANUS, Appellee
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Case No. 09DCV173747
MEMORANDUM OPINION
In this appeal of a judgment granting a final divorce decree, Liudmila A.
Yuryeva contends in five issues the judgment should be reversed and she should be
granted a new trial because (1) McManus was not a resident of Texas when filing
for divorce as required by section 6.301 of the Texas Family Code, 1 and therefore
the venue was improper; (2) the trial court did not have jurisdiction to grant the
divorce; (3) the trial court failed to award child support or to grant her a greater
division of the estate despite McManus’s alleged adoption of her son; (4) the trial
court abused its discretion in dividing the marital estate; and (5) the trial court was
biased against her. We affirm.
Background
In 2001, Liudmila Yuryeva, a citizen of Belarus, and Delos McManus first
met in Moscow. According to Yuryeva, a few days after meeting for the first time,
McManus asked her to marry him. McManus filed an immigrant fiancé petition so
that Yuryeva and her son, G.Y., could move to the United States. In support of the
petition, McManus signed a U.S. Department of Justice Immigration and
Naturalization Service “Affidavit of Support,” guaranteeing that he would provide
“an annual income at or above 125 percent of the federal poverty line” to support
Yuryeva and her son. In 2005, McManus and Yuryeva were married in a legal
ceremony in Fort Bend County, Texas. They lived in Texas, where McManus
formed a business, leased a car, and made several investments. In 2006, the couple
purchased a home in Sugar Land, Texas.
1
TEX. FAM. CODE ANN. § 6.301 (West 2006).
2
In 2008, McManus and Yuryeva entered a two-year lease for a second home
in California. While Yuryeva and her son lived in the California house, McManus
lived and worked in Oklahoma. McManus testified that he was unable to afford for
Yuryeva to continue living in California and he tried to persuade her to return to
their home in Sugar Land, Texas. Unable to persuade her to return, in August
2009, McManus filed a petition for divorce in Fort Bend County, Texas. Yuryeva
continued to live in California, and McManus remained in Oklahoma.
In their pleadings, both McManus and Yuryeva stated that they had been
domiciliaries of Texas for the preceding six-month period, residents of Fort Bend
County for the preceding ninety-day period, and that there was no child “born or
adopted of this marriage, and none is expected.” In 2010, after a preliminary
hearing but before the divorce trial, McManus granted his attorney, Don Schwartz,
a durable power of attorney to sell the couple’s house in Sugar Land. Schwartz
sold the house and deposited the $84,706.71 proceeds from the sale with the Fort
Bend County District Clerk.
Yuryeva had two different attorneys in this case. Each withdrew because of
non-payment. At the time of trial, Yuryeva appeared pro se. At trial, McManus and
Yuryeva each filed an inventory, appraisement, and list of claims related to the
division of the marital estate. Yuryeva did not request the trial court to make
findings of fact or conclusions of law regarding the division of their estate, other
3
than those contained in the divorce decree. In 2012, the trial court divided the
marital estate, awarding to Yuryeva,
(1) All household furniture, furnishings, fixtures, goods, art
objects, collectibles, appliances, equipment and personal
property in the possession of the wife or subject to her control,
including bedroom set and TV console bought by husband, sofa
set, bedroom set, four TVs with stands, washer, dryer, nine-
piece office set, camera and sewing machines with supplies and
expensive materials.
(2) All clothing, jewelry, and other personal effects in the
possession of the wife or subject to her sole control, including
rings, earrings, fashion designer clothing, bags and accessories,
two laptop computers and printers.
(3) All sums of cash in the possession of the wife or subject to her
sole control, including funds on deposit, together with accrued
but unpaid interest, in banks, savings institutions, or other
financial institutions, which accounts stand in the wife’s sole
name or from which the wife has the sole right to withdraw
funds or which are subject to the wife’s sole control.
(4) 2007 Audi motor vehicle, together with all prepaid insurance,
keys, and title documents.
(5) Mila’s Design, Inc. certificates of stock.
(6) The sum of $15,000 out of the funds on deposit with the Fort
Bend County District Clerk’s Office of which the District Clerk
is ordered to pay said sum of $15,000 to Liudmila A. Yuryeva.
(7) Judgment against Delos N. McManus in the sum of $25,000 to
be paid as hereinafter stated in this decree under paragraph H-4
for which let execution issue for nonpayment thereof.
The trial court awarded McManus the following:
(1) All household furniture, furnishings, fixtures, goods, art
objects, collectibles, appliances, equipment and personal
4
property in the possession of the husband or subject to his
control.
(2) All clothing, jewelry, and other personal property in the
possession of the husband or subject to his sole control.
(3) All sums of cash in the possession of the husband or subject to
his sole control, including funds on deposit, together with
accrued but unpaid interest, in banks, savings institutions, or
other financial institutions, which accounts stand in the
husband’s sole name or from which the husband has the sole
right to withdraw funds or which are subject to the husband’s
sole control.
(4) All sums, whether matured or unmatured, accrued or
unaccrued, vested or otherwise, together with all increases
thereof, the proceeds therefrom, and any other rights related to
any profit-sharing plan, retirement plan, Keogh plan, pension
plan, employee stock option plan, 401(k) plan, employee
savings plan, accrued unpaid bonuses, disability plan, or other
benefits existing by reason of the husband’s past, present, or
future employment.
(5) All individual retirement accounts, simplified employee
pensions, annuities, and variable annuity life insurance benefits
in the husband’s name.
(6) The 2005 GMC S1E Pickup motor vehicle, together will all
prepaid insurance, keys, and title documents.
(7) The 2004 GMC Denali motor vehicle, together with all prepaid
insurance, keys, and title documents.
(8) Rotary Steerable System, Inc. certificates of stock.
(9) Interest on funds on deposit with Fort Bend County District
Clerk.
Additionally, the trial court determined that the remaining funds on deposit with
the Fort Bend County Clerk, less the $15,000 awarded to Yuryeva, were
5
McManus’s separate property. The divorce decree does not address the affidavit of
support. Yuryeva timely appealed.
Waiver of Divorce Suit Requirements
We first address Yuryeva’s contention that the trial court erred in granting
the divorce because McManus was not a resident of Texas when he filed for
divorce as required by section 6.301 of the Texas Family Code and that the
“venue” was improper. 2
A. Standard of review
A suit for divorce may be maintained if either the petitioner or the
respondent (1) has been domiciled in the state for the preceding six months and (2)
resided in the county of suit for the preceding 90 days. 3 The section 6.301
residency requirements are not jurisdictional; they are requirements necessary to
bring a divorce action. See Oak v. Oak, 814 S.W.2d 834, 837–38 (Tex. App.—
2
Yuryeva also argues that California, rather than Fort Bend County, was the proper
“venue” for the divorce. See TEX. FAM. CODE. ANN. §§ 6.301–302 (West 2006).
However, section 6.301 is not a venue statute per se—instead it “controls the right
to maintain a suit.” Oak v. Oak, 814 S.W.2d 834, 837 (Tex. App.—Houston [14th
Dist.] 1991, writ denied). Because she challenges both the residency and
domiciliary requirements along with the court’s authority to divide the estate, we
construe her claim as both a challenge of the section 6.301 requirements and a
personal jurisdictional challenge. See TEX. FAM. CODE. ANN. § 6.305 (outlining
requirements for acquiring jurisdiction over nonresident respondent); see, e.g.
Dawson-Austin v. Austin, 968 S.W.2d 319, 326–27 (Tex. 1998) (holding court did
not have personal jurisdiction when petitioner was non-resident without sufficient
contacts with the state).
3
See TEX. FAM. CODE ANN. § 6.301 (establishing general residency rule for divorce
suits).
6
Houston [14th Dist.] 1991, writ denied) (applying predecessor statute); see also
Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no pet.)
(applying Texas Family Code section 6.301).
B. Yuryeva admitted that domiciliary and residency requirements were
met
Yuryeva argues that when McManus filed for divorce, he was not living in
Texas, had claimed California residency, and provided false information to obtain
a Texas driver’s license. Yuryeva also contends that she was not domiciled in
Texas and that she was a California resident. McManus responds that Yuryeva
waived her right to appeal the trial court’s finding that the divorce residency and
domiciliary requirements were met. We agree.
A party’s admission in her pleadings of her residence and domicile
constitutes a judicial admission and no additional evidence is necessary to prove
the admitted facts. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 207–
08 (Tex. 2000); see also Dokmanovic v. Schwartz, 880 S.W.2d 272, 277 (Tex.
App.—Houston [14th Dist.] 1994, no writ) (admission of residency in petition
sufficient to establish residency). Judicial admission of residency and domiciliary
requirements precludes a party from later appealing the sufficiency of the evidence
that such requirements were satisfied. See Dokmanovic, 880 S.W.2d at 277; see
also Harmon v. Harmon, 879 S.W.2d 213, 216–17 (Tex. App.—Houston [14th
Dist.] 1994, writ denied).
7
In his divorce petition, McManus stated that he had “been a domiciliary of
Texas for the preceding six-month period and a resident of this county for the
preceding ninety-day period.” In her counterpetition, Yuryeva responded that she
also met the section 6.301 residence and domiciliary requirements. Yuryeva’s
pleadings constituted a judicial admission that she met the domiciliary and
residency requirements. Therefore, Yuryeva waived her right to challenge whether
the divorce suit requirements were met. See TEX. R. CIV. P. 120a(1); see
Dokmanovic, 880 S.W.2d at 277.
Accordingly, we overrule her first issue.
Jurisdiction
Second, Yuryeva argues that the trial court did not have personal jurisdiction
because she was not a Texas resident when McManus filed for divorce. McManus
argues that Yuryeva judicially admitted that the trial court had personal jurisdiction
over the divorce. We agree.
A. Standard of review
Challenges to a trial court’s personal jurisdiction over defendants are
reviewed de novo. Aduli v. Aduli, 368 S.W.3d 805, 813 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). When a trial court does not issue findings of fact or
conclusions of law, “we presume that all factual disputes were resolved in favor of
the trial court’s ruling.” Id. However, if the record includes both the reporter’s and
8
clerk’s records, a party may challenge the legal and factual sufficiency of the trial
court’s implied findings of fact. Id.; see also BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). We will uphold the trial court’s
judgment unless “it is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust.” Aduli, 368 S.W.3d at 811–14 (citation omitted); see
also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
B. Yuryeva judicially admitted the trial court had personal jurisdiction
over her
Yuryeva argues that she was not a resident of Texas when McManus filed
for divorce and that the divorce should have been transferred to California.
If a respondent is not domiciled in, nor a resident of, Texas and wants to
challenge personal jurisdiction, she must either make a special appearance or wait
to collaterally attack the judgment when the moving party seeks to enforce the
judgment. 4 See Kramer v. Kramer, 668 S.W.2d 457, 458 (Tex. App.—El Paso
1984, no writ). The special appearance must be filed before a motion to transfer
venue or any other plea, pleading, motion, or filing that makes a general
appearance.5 A respondent waives her right to challenge personal jurisdiction if she
makes a general appearance. Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304–
05 (Tex. 2004).
4
TEX. R. CIV. P. 120a.
5
TEX. R. CIV. P. 120a(1).
9
In her counterpetition for divorce, Yuryeva did not make a special
appearance or otherwise contest the court’s personal jurisdiction. Nor did she offer
evidence that the last marital residence was outside of Texas. See, e.g. Aduli, 368
S.W.3d at 813–17 (holding evidence sufficient that trial court had personal
jurisdiction when last marital residence was in Texas). To the contrary, in her
counterpetition, Yuryeva admitted that she was a Texas resident.
We hold that Yuryeva made a general appearance in the case and, therefore,
she judicially admitted the court had personal jurisdiction over her.
We overrule Yuryeva’s second issue.
Child Support
Third, Yuryeva argues that the trial court abused its discretion in dividing
the marital estate because it did not account for her son. McManus responds that
because Yuryeva did not request the trial court to make findings of fact or
conclusions of law, we should imply all necessary fact findings in support of the
trial court’s judgment and that the trial court impliedly found that he did not adopt
Yuryeva’s son.
A. Standard of review
A trial court has broad discretion in dividing a marital estate. See Murff v.
Murff, 615 S.W.2d 696, 698 (Tex. 1981). Section 7.001 of the Texas Family Code
provides that “[i]n a decree of divorce or annulment, the court shall order a
10
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 (West 2006). We review the just and right division
of community estates for abuse of discretion. See Bell
v. Bell, 513 S.W.2d 20, 22 (Tex. 1974); see also Frommer v. Frommer, 981
S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet dism’d). A trial court
abuses its discretion when it acts arbitrarily or unreasonably. See Murff, 615
S.W.2d at 698; see also Frommer, 981 S.W.2d at 814. We presume the trial court
properly exercised its discretion in dividing the estate, unless the division is
manifestly unfair. Murff, 615 S.W.2d at 699; see also Frommer, 981 S.W.2d at
814.
B. The trial court did not err by not considering Yuryeva’s son in dividing
the marital estate
Yuryeva contends that the trial court’s division of the marital estate failed to
consider evidence that she had a son whom McManus adopted by marriage.
Specifically, Yuryeva maintains that in dividing the estate, the trial court failed to
include child support for her son because it harbored prejudice against immigrant
children. McManus responds that Yuryeva waived her right to child support
because she did not mention her son in her counterpetition. We conclude that
Yuryeva’s pleadings failed to request child support or an increased share of the
marital estate to care for her son. Additionally, the evidence was factually
11
sufficient to support the trial court’s conclusion that there were no children born or
adopted of the marriage.
1. Yuryeva failed to claim a child adopted or born of the marriage
A petition to divorce a married couple with a child must identify (1) the
name and date of birth of the child, (2) the petitioner’s relationship to the child, (3)
the name of the alleged father, and (4) the requested action. See TEX. FAM. CODE.
ANN. § 102.008 (West 2006) (outlining requirements for suit affecting parent-child
relationship); TEX. R. CIV. P. 79. If a party does not request relief, the trial court
does not have jurisdiction to grant it. See Cunningham v. Parkdale Bank, 660
S.W.2d 810, 813 (Tex. 1983); see also Binder v. Joe, 193 S.W.3d 29, 32–33 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
Yuryeva maintains that she has a son “who under Federal Law of the USA
qualified as an orphan” and that McManus adopted him by marriage and claimed
him as a dependent for tax purposes. However, Yuryeva failed to include any
reference to her son in her counterpetition. See TEX. FAM. CODE. ANN. § 102.008.
To the contrary, she affirmed that “there is no child born or adopted of this
marriage, and none is expected.” Furthermore, Yuryeva did not reference specific
costs or financial responsibilities associated with caring for her son. Because
Yuryeva did not identify her son in her counterpetition, she judicially admitted that
McManus did not adopt her son.
12
2. Yuryeva presented insufficient evidence of adoption by estoppel
Even though she did not raise the issue in her counterpetition, Yuryeva
argues that the trial court erred in not making a finding that McManus became her
son’s father through adoption by estoppel. More specifically, she argues that
McManus promised to adopt her son. See Heien v. Crabtree, 369 S.W.2d 28, 30
(Tex. 1963) (stating that living in a parent-child relationship is insufficient to prove
adoption, but promises and conduct can warrant finding of adoption by estoppel);
see also Hickey v. Johnson, 672 S.W.2d 33, 34 (Tex. App.—Houston [14th Dist.]
1984, no writ) (agreeing to adopt and claiming child as dependent on tax returns
evidences adoption by estoppel). Yuryeva did not testify that the couple went
through formal adoption proceedings. Nor did she present evidence that McManus
planned to formally adopt her son. As evidence of McManus’s disposition toward
her son, Yuryeva points to an affidavit of support of her immigration to the United
States signed by McManus. The affidavit includes McManus’s sworn statement to
support both Yuryeva and her son at or above 125 percent of the federal poverty
line.6 The affidavit does not, however, prove that McManus promised to or agreed
to adopt Yuryeva’s son. See Hickey, 672 S.W.2d at 34. Yuryeva also alleged that
McManus claimed her son as a dependent on tax returns, but the accountant who
6
See Immigration and Nationality Act § 213A; 8 U.S.C. § 1183a (2006)
(sponsoring individual must provide annual income not less than 125 percent of
federal poverty line for duration of affidavit).
13
prepared the returns could not affirmatively testify that, by claiming him as a
dependent, McManus was the legal father of Yuryeva’s son.
Unlike Hickey, the record does not reflect that McManus promised to adopt
Yuryeva’s son. More importantly, Yuryeva did not ask the trial court to find
adoption by estoppel. See, e.g., Hickey, 627 S.W.2d at 34. Because Yuryeva did
not provide sufficient evidence that McManus planned to adopt her son and did not
request a finding of adoption by estoppel, we conclude that the trial court did not
err by not including child support for her son. See Hickey, 672 S.W.2d at 34.
3. Yuryeva did not request enforcement of spousal and child support
related to her immigrant status
Yuryeva also argues that the trial court erred in dividing the estate by not
enforcing McManus’s obligations under the affidavit of support he signed when
Yuryeva and her son immigrated to the United States. McManus responds that
Yuryeva “never raised any immigration issues for the Court to rule upon.” We
conclude that, by not requesting the court to enforce the affidavit, Yuryeva waived
any right to have the trial court enforce the support obligation within the divorce
decree.
The Immigration and Nationality Act (“INA”) provides that when an
immigrant is “likely to become a public charge,” a qualified sponsor must
complete an affidavit of support promising to support the sponsored immigrant “at
an annual income of at least 125 percent of the Federal poverty line.” Immigration
14
and Nationality Act (INA) § 213a; 8 U.S.C. § 1183a (2006). The INA specifies
varying events that will terminate the support obligation, none of which are at issue
in this appeal. INA § 213A; 8 U.S.C. § 1183a.
An affidavit of support executed as a part of the condition for an immigrant
to enter the United States is an enforceable contract. See In re Marriage of Kamali
and Alizadeh, 356 S.W.3d 544, 546–47 (Tex. App.—Texarkana 2011, no pet.). A
sponsored immigrant may bring an action “in any appropriate court” against her
sponsor to enforce his support obligations. INA § 213A; 8 U.S.C. § 1183a. In
Alizadeh, the court of appeals held that a divorce decree could not limit the support
required by an affidavit for sponsorship of an alien seeking residency in the United
States. Id. at 545–46. The trial court acknowledged the existence of the affidavit of
support, “but decreed that the obligation for support ended thirty-six months from
the date of entry of the divorce decree.” Id. at 545. The appellate court held that the
divorce decree impermissibly limited the scope of sponsoring spouse’s obligations.
Id. at 546–47. The court reasoned that the affidavit of support is “a legally
enforceable contract between the sponsor and both the United States Government
and the sponsored immigrant.” Id. at 547 (quoting Shumye v. Felleke,
555 F. Supp. 2d 1020, 1022–24 (N.D. Cal. 2008); see also 8 U.S.C. § 1183a(a)(1)
(referring to affidavit “as a contract”); 8 U.S.C. § 1183a(e)(1) (stating sponsored
immigrant may enforce affidavit in “any appropriate court.”). Because the divorce
15
decree conflicted with the sponsoring spouse’s affidavit obligations, the appellate
court held that the sponsoring spouse was obligated to meet the terms of the
affidavit, notwithstanding the divorce. Id. at 547–48.
Similarly, Yuryeva offered into evidence the affidavit of support detailing
McManus’s ongoing duty to support Yuryeva. She also testified that, in the months
leading up to the divorce, McManus had not met his obligations under the
affidavit. Furthermore, McManus’s attorney conceded McManus’s obligation and
stipulated that “when [Yuryeva] came here, there was an agreement that they were
to live together and [McManus] would support her.” Unlike Alizedah, however, the
trial court’s divorce decree here did not reference or limit McManus’s obligation
under the affidavit of support. Yuryeva also did not request the court to enforce the
affidavit when she filed her petition. Yuryeva, therefore, cannot complain of the
trial court’s failure to act on the affidavit.
Though she failed to request enforcement within the divorce decree, the pre-
marital contractual obligation under the affidavit of support survives the divorce.
See Shumye v. Felleke, 555 F. Supp. 2d 1020, 1022 (N.D. Cal. 2008) (recognizing
sponsored wife could pursue a post-divorce contract claim to enforce affidavit of
support); Moody v. Sorokina, 830 N.Y.S.2d 399, 400–02 (N.Y. App. Div. 2007)
(holding “the sponsored immigrant’s right to support under the Form I–864
affidavit of support is unaffected by a judgment of divorce”). A sponsored
16
immigrant may bring an action to enforce an affidavit of support “in any
appropriate court.” 8 U.S.C. § 1183a; see e.g. Varnes v. Varnes, No. 13-08-0048-
CV, 2009 WL 1089471, at *4–5 (Tex. App.—Corpus Christi Apr. 23, 2009, no
pet.) (mem. op.).
We hold that the trial court did not abuse its discretion by not enforcing the
affidavit within the divorce decree. See Alizadeh, 356 S.W.3d at 547–48. We
overrule Yuryeva’s third issue.
Division of Marital Estate
In her fourth issue, Yuryeva contends that the trial court abused its discretion
by unequally dividing the estate. She maintains that the trial court erred by
accepting McManus’s sworn inventory and appraisal of their property and not
making findings of fact to support the division. McManus responds that Yuryeva
presents no evidence that the trial court abused its discretion in dividing the estate.
A. Standard of review
A trial court has broad discretion in dividing the marital estate. Murff, 615
S.W.2d at 698. When dividing a marital estate, the trial court shall divide the
property 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.” Vannerson v. Vannerson,
857 S.W.2d 659, 668 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (citation
omitted). A trial court abuses its discretion when the court acts arbitrarily or
17
unreasonably. See Vannerson, 857 S.W.2d at 668. We presume that the trial court
exercises its discretion. Murff, 615 S.W.2d at 698–99; Aduli, 368 S.W.3d at 820
The division of a marital estate need not be equal; there must only be a
reasonable basis for the division. See Id. A trial court may decree an unequal
division of the estate when a reasonable basis for doing so exists. Vannerson, 857
S.W.2d at 669. We only consider whether the trial court abused its discretion in
dividing the estate; we do not have authority to render judgment dividing the
marital property. See McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976);
see also Robles v. Robles, 965 S.W.2d 605, 621–22 (Tex. App.—Houston [1st
Dist.] 1998, pet. denied). We conclude that trial court did not abuse its discretion in
dividing the marital estate.
Yuryeva argues that the trial court awarded her property that has no value or
does not exist. She complains that in crafting the decree, the trial court erroneously
relied upon “false financial statement[s]” regarding the house in Sugar Land
purchased during the marriage, McManus’s separate property, and McManus’s tax
obligations. McManus contends that we are required to imply all necessary
findings of fact to uphold the division of the marital estate, there is sufficient
evidence supporting the trial court’s division of the estate, and the trial court did
not abuse its discretion.
18
Upon a request, a trial court is required to make findings of fact or
conclusions of law regarding the evidence supporting its division of a martial
estate. See TEX. R. CIV. P. 296–99a, 306c; TEX. FAM. CODE. ANN. § 6.711 (West
2006). Yuryeva did not request the trial court to make findings of fact or
conclusions of law. See TEX. FAM. CODE ANN. § 6.711. When the complaining
party does not request findings of fact, we presume that the trial court’s judgment
implies all findings of fact necessary to support it. See Sixth RMA Partners, L.P. v.
Sibley, 111 S.W.3d 46, 52 (Tex. 2003); see Gainous v. Gainous, 219 S.W.3d 97,
103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
Even though a party fails to request findings of fact, she may still appeal the
factual sufficiency of the property division. Vannerson, 857 S.W.2d at 668; see
also Sibley, 111 S.W.3d at 52. Under that circumstance, we consider only the
evidence “most favorable to the issue and [] disregard entirely that which is
opposed to it or contradictory in its nature.” Worford, 801 S.W.2d at 109; see also
Smith v. Smith, 22 S.W.3d 140, 150 (Tex. App.—Houston [14th Dist.] 2000, no
pet.). We must affirm a judgment if it can be upheld on any legal theory supported
by evidence. Smith, 22 S.W.3d at 149–50; see also Gainous, 219 S.W.3d at 103.
Yuryeva argues that the trial court inequitably divided the estate.
Specifically, she maintains that the court did not grant her the entire proceeds from
the sale of the house located in Sugar Land. While the divorce was pending,
19
McManus’s attorney sold the couple’s Sugar Land house and deposited the
$84,706.71 in proceeds from the sale with the District Clerk. Yuryeva argues that
the house was her separate property and that she should have received the proceeds
from the sale. Yuryeva, however, presented no evidence that the house was her
separate property or that she should have received all of the profit from its sale. In
the final decree, the trial court divided the property according to the submitted
inventories and reconciled the different values reported in those inventories.
Gainous, 219 S.W.3d at 103. We presume that the court made all necessary
findings of fact, relying on the party’s evidence, including the inventories of
community property that Yuryeva and McManus both presented to the court. See
Gainous, 219 S.W.3d at 103. We conclude that the trial court did not abuse its
discretion in dividing the profits from the sale of the house. Id.
Yuryeva also argues that McManus falsified financial records and that the
court improperly relied on those documents in dividing the estate. Yuryeva,
however, presented no evidence to support her allegations of fraud. Based on the
record evidence, we presume the trial court made an implied finding of no fraud.
We hold that the trial court did not err in dividing the marital estate.
We overrule Yuryeva’s fourth issue.
20
Trial Court’s Alleged Prejudice
In her fifth issue, Yuryeva contends that McManus’s attorney “intentionally
and know[ingly] suppl[ied the trial] court with false financial statement[s],” signed
an unidentified “frivolous pleading,” committed legal malpractice, and violated the
Texas Disciplinary Rules of Professional Conduct. Based on these alleged errors,
Yuryeva contends that the trial court should be reversed and she should be granted
a new trial.
Yuryeva, however, fails to identify any specific misconduct during the trial
by McManus’s attorney or identify any evidence in the record of any misconduct
by McManus’s attorney. She further complains that the trial judge did not “care”
that McManus’s attorney falsified evidence. Lastly, she argues that the trial court
was biased against her based on his ruling about her son and the division of the
estate. We have previously disposed of Yuryeva’s contentions regarding child
support and the division of the estate. We find no evidence in the record to support
her allegations of misconduct or bias.
We overrule Yuryeva’s fifth issue.
Conclusion
We affirm the trial court’s judgment.
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Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
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