Wieslaw Orzechowski v. Elzbieta Orzechowska

Affirmed and Memorandum Opinion filed July 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00055-CV
WIESLAW ORZECHOWSKI, Appellant
V.
ELZBIETA ORZECHOWSKA, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2018-27927
MEMORANDUM OPINION
In this appeal from a final decree of divorce, the sole issue presented is
whether the trial court abused its discretion in its division of the community estate.
For the reasons given below, we conclude that the trial court did not abuse its
discretion.
BACKGROUND
After more than thirty years of marriage, Elzbieta Orzechowska (“Elizabeth”)
petitioned for divorce from her husband Wieslaw Orzechowski (“Wes”). The case
proceeded to a bench trial, where the main issues focused on allegations of cruel
treatment and fraud on the community.
Regarding the cruel treatment, Elizabeth testified that Wes frequently made
disparaging comments about her in front of their peers and children. These
comments attacked her appearance (“ugly,” “old and wrinkly,” “fat pig,” “fat cow,”
“too fat to be respected”); her individual worth (“filth,” “stupid,” “a nobody”); and
her profession as a medical assistant (“low-level job,” “someone who wipes handles
after patients”).
The latter category of comments stemmed from the parties’ unequal earning
power. Wes worked as an electrical engineer, and in that more highly skilled
position, he earned significantly greater wages than Elizabeth. Because of those
greater wages, Wes exerted substantial control over the family’s finances, and he
sometimes exercised that control against Elizabeth’s interests. When Elizabeth’s
relatives were sick in Poland, he refused to give her any of “his money” to travel
abroad and see them.
Elizabeth also testified that Wes was deliberately callous on sensitive
occasions. For example, after her mother died of a stroke, Elizabeth said that Wes
blamed the death on Elizabeth for being a bad person and a bad daughter. And at one
holiday dinner, Elizabeth said that Wes made the following toast in front of the entire
family: “I wish this is our last Christmas. The next time, next Christmas you spend
under the bridge.”
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The couple’s daughter corroborated the allegations of verbal abuse, as did two
other members of the couple’s close-knit Polish community. In response, Wes
testified that Elizabeth and all of her witnesses were liars and that he had never
abused his wife.
As for the allegations of fraud, Elizabeth testified that Wes withdrew many
thousands of dollars in cash and stuffed the cash in envelopes for friends to carry
into Poland, where the cash was destined for his sister. Elizabeth testified that Wes’s
sister did not need the cash because the sister and her husband were financially
stable: they both worked as university professors and they lived in a prestigious
district in Warsaw. When Elizabeth confronted Wes about the withdrawals, he said
that the money was his and that he could do with it as he pleased.
Elizabeth also produced evidence that Wes maintained control over multiple
financial accounts. Wes refused to disclose some of those accounts himself, but
Elizabeth discovered them after subpoenaing the financial institutions. Elizabeth
examined the transfers in all of the accounts, and she determined that some of the
transfers had no legitimate explanation and that hundreds of thousands of dollars
were missing from the community estate.
Wes explained in a response to interrogatories that the transfers were
completed for “safety purposes” and to avoid having too much money on debit
accounts. At trial, he did not elaborate further or explain the missing funds.
The trial court determined that the marriage should be dissolved on the basis
of Wes’s cruelty. The trial court also determined that Wes committed a fraud on the
community by depleting the community estate of nearly $572,000. The trial court
reconstituted the community estate with the amount of Wes’s fraud, and then
awarded that entire amount to Wes as an illusory asset. As for Elizabeth, the trial
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court awarded her the marital home and most of the remaining tangible assets that
had been discovered.
Under the trial court’s division of property, Wes received more than 50% of
the reconstituted community estate, with the bulk of his award being the illusory
asset for his past fraud. For purposes of calculation only, if this illusory asset were
removed from consideration but the division of property were otherwise kept the
same, then Wes’s share would be reduced to less than 10% of the existing
community estate, with the bulk of that share being his vehicle.
ANALYSIS
The trial court’s division of the community estate must be just and right,
having due regard for the rights of each spouse. See Tex. Fam. Code § 7.001.
Although the trial court may consider fault in the dissolution of the marriage, a just
and right division should not be punitive against the errant spouse. See Young v.
Young, 609 S.W.2d 758, 762 (Tex. 1980). A just and right division need not be equal
either, but it must be equitable. See Zeptner v. Zeptner, 111 S.W.3d 727, 740 (Tex.
App.—Fort Worth 2003, no pet.).
In making an equitable division, the trial court is afforded wide discretion. See
Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). We presume that the trial
court exercised that discretion properly, and we will not disturb the trial court’s
decision unless we can determine that the trial court clearly abused its discretion.
See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
When the standard of review is abuse of discretion, challenges to the legal and
factual sufficiency of the evidence are not independent grounds for reversal, but they
are factors to be considered in determining whether the trial court abused its
discretion. See In re Marriage of O’Brien, 436 S.W.3d 78, 82 (Tex. App.—Houston
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[14th Dist.] 2014, no pet.). Ultimately, the test for abuse of discretion is whether the
trial court acted arbitrarily or unreasonably, and the burden of making that showing
falls on the party challenging the trial court’s division of property. Id.As the challenging party here, Wes argues that he met his burden because, in
his view, the trial court’s division of property was punitive. Wes largely bases this
argument on two points: first, that the finding of cruelty was improper; and second,
that the trial court failed to consider other factors that offset the evidence of his fraud.
We examine both points in turn.
I. Cruelty
Wes does not argue that the trial court abused its discretion because the
evidence is legally or factually insufficient to support the trial court’s finding of
cruelty. Instead, Wes argues that the trial court’s finding was improper as a matter
of law because “name-calling does not constitute cruelty.” This argument lacks merit
because it is contrary to binding precedent. See McCullough v. McCullough, 120
Tex. 209, 218, 36 S.W.2d 459, 462 (1931) (“It is the settled law of this state that the
cruel treatment provided by our statute as a ground for divorce is not confined to
physical violence alone, but may consist of a series of studied and deliberate insults
and provocations.”).
Even if there had been no evidence of name-calling, there was still other
evidence that would support the trial court’s finding of cruelty. In addition to the
verbal abuse discussed previously, Elizabeth testified that Wes was physically
abusive on at least two occasions: one in which he fell into a drunken rage and threw
hot tea in her face; and the other in which he forcibly grabbed her wrists, pushed her
around the kitchen, and threatened to kill her because she had requested a divorce.
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Wes suggests in his brief that this evidence of physical abuse could not
support a finding of cruelty because Elizabeth never notified the police, but Wes
cites to no authority showing that a police report is a prerequisite to such a finding.
We are not aware of any such authority either. In fact, our court has articulated a
standard for cruelty that makes no mention of police reports: “To constitute cruel
treatment, the conduct of the accused party must rise to such a level as to render the
couple’s living together insupportable.” Henry v. Henry, 48 S.W.3d 468, 473 (Tex.
App.—Houston [14th Dist.] 2001, no pet.). The evidence here amply satisfied that
standard.
In one other point, Wes argues that the evidence of abuse was negated by
evidence showing that the couple reconciled their differences by vacationing in
Mexico. But the record still contained evidence that Wes’s cruel treatment continued
even after the couple returned from vacation. For example, he told Elizabeth that she
deserved the death of her mother. He also openly wished to have no more holidays
with Elizabeth and their children, and he expressed his desire to leave Elizabeth
penniless and living under a bridge.
There was also evidence that, post-separation, Wes refused to give Elizabeth
digital copies of their family photographs, which were stored on his hard drive. He
also refused to pay for Elizabeth’s hand surgery, and he withheld insurance
payments that she needed to replace her own vehicle.
Based on the record as a whole, we cannot say that the trial court acted
arbitrarily or unreasonably by making its finding of cruelty. The trial court was
permitted to consider that finding in its division of the community estate, so long as
the division was not punitive. See Bradshaw v. Bradshaw, 555 S.W.3d 539, 543
(Tex. 2018) (plurality op.).
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II. Fraud
In arguing that the division of property was punitive, Wes focuses primarily
on the trial court’s finding that he committed a fraud on the community. But once
again, Wes does not contend that the trial court abused its discretion because there
is legally or factually insufficient evidence to support that finding. Instead, Wes
argues that the trial court’s ultimate division of property was punitive because the
trial court only considered his fraud, to the exclusion of other factors.
The factor that Wes emphasizes most heavily is Elizabeth’s alleged fraud on
the community. Wes directs us to evidence that Elizabeth invested a substantial
amount of money in bonds without his knowledge or consent. There was a dispute
at trial as to the exact amount of the investment: Elizabeth testified that the amount
was $280,000, whereas Wes claimed that the amount was $560,000. There was no
dispute, however, that the investment was made for the benefit of the couple’s
children, and that the entire investment was lost when the invested company went
bankrupt.
The trial court did not make a finding that Elizabeth committed a fraud on the
community, and Wes now points to that omission in arguing that the trial court’s
division was punitive against him alone. This argument lacks merit because the trial
court was not required to find that Elizabeth committed a fraud.
This court previously discussed the principles associated with establishing a
fraud on the community in Cantu v. Cantu, 556 S.W.3d 420 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). There, we explained the following:
Fraud is presumed whenever one spouse disposes of the other spouse’s
one-half interest in community property without that other spouse’s
knowledge or consent. This presumption can arise not only by evidence
of specific transfers or gifts of community assets outside of the
community, but also by evidence that community funds are
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unaccounted for by the spouse in control of those funds. Once the
presumption of fraud arises, the burden shifts to the disposing spouse
to prove the fairness of the disposition.
Id. at 427.
Even if we assumed for the sake of argument that Wes held a community
interest in the invested funds and that Elizabeth made the investment without Wes’s
knowledge or consent, the trial court could have reasonably found that Elizabeth’s
disposition of the funds was fair because she invested the funds for the benefit of the
children. Indeed, Elizabeth testified that she purchased the bonds because she was
concerned that Wes had been draining the children’s bank accounts and because Wes
had threatened to leave them all penniless. Because the evidence did not establish as
a matter of law that Elizabeth had committed a fraud on the community, the trial
court had no obligation to factor Elizabeth’s investment in its calculation of the
reconstituted estate or in its equitable division of property.
In another point, Wes contends that the trial court abused its discretion in its
calculation of fraud because the trial court failed to account that Wes had paid for
the family’s living expenses. But Wes has not supplied any citations to the record in
support of this point, which was his burden as the appellant. See Tex. App. P. 38.1(i).
Nor has he supplied any citations to authority showing that the trial court must credit
such expenditures by offsetting the finding of fraud. Id. We overrule this point as
inadequately briefed.
III. Bank Account
Wes asserts one other point in his brief that must be addressed. He claims that
the trial court erroneously awarded the same bank account to both spouses in the
division of the community estate. This point is not supported by the record. In one
section of the decree, the trial court awarded Wes $11,500 in missing funds from the
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subject bank account as an illusory asset for his fraud on the community. In a
separate section of the decree, the trial court awarded Elizabeth the existing balance
of the subject bank account—not the funds that were missing from it. Wes has failed
to show that the trial court awarded the same property to both spouses.
CONCLUSION
The final decree of divorce is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Spain and Wilson.
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