Affirmed and Memorandum Opinion filed August 13, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00765-CV
ALAVOOR VASUDEVAN, Appellant
V.
DEEPA VASUDEVAN, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 63935
MEMORANDUM OPINION
Appellant Alavoor Vasudevan and appellee Deepa Vasudevan were married
in March 1992 and are the parents of one adult child. After a bench trial held on
May 27, 2014, the trial court granted Deepa a divorce on the grounds of
insupportability and cruelty. Alavoor filed a motion for new trial that also
contained a notice of appeal.1 The trial court denied the motion for new trial after a
1
In her appellee’s brief, Deepa asks us to dismiss the appeal because Alavoor did not file
hearing. Alavoor presents seven issues on appeal. We affirm.
Characterization Errors
In his first issue, Alavoor contends the trial court erred in characterizing as
Deepa’s separate property a Citibank NRI Business account and a 19.8 percent
interest in DLR Interest, LP, a Texas limited partnership.
The trial court must order a division of the parties’ estate in a manner 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). Courts
employ a two-part test when reviewing alleged characterization errors. See Jurek v.
Couch-Jurek, 296 S.W.3d 864, 873 (Tex. App.—El Paso 2009, no pet.).
Application of this test requires both a showing of error and a showing that the
error was harmful. Id. Alavoor must show the trial court clearly abused its
discretion by a division or an order that is manifestly unjust and unfair. Sharma v.
Routh, 302 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (op.
on reh’g). Under this standard, legal and factual sufficiency of the evidence are not
independent grounds of error; rather, they are relevant factors in assessing whether
the trial court abused its discretion. Id.
Mischaracterization of community property as separate property is harmful
and requires reversal only if the mischaracterization affects the just and right
division of the community estate. Boyd v. Boyd, 131 S.W.3d 605, 617 (Tex.
a notice of appeal. See Tex. R. App. P. 25.1. A court of appeals has jurisdiction over an appeal if
the appellant timely files an instrument in a bona fide attempt to invoke the appellate court’s
jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Alavoor timely filed an instrument
entitled, “Reconsideration of Trial & Notice of Appeal.” In this document, Alavoor sought a new
trial and, alternatively, notified the trial court of his intent to appeal. At the hearing on Alavoor’s
motion, Deepa’s counsel acknowledged, “He’s also given notice of appeal that has - - we
received notice from the Fourteenth Court of Appeals.” On this record, we conclude Alavoor
timely filed an instrument in a bona fide attempt to perfect an appeal, which was sufficient to
invoke this court’s appellate jurisdiction.
2
App.—Fort Worth 2004, no pet.). We need not reverse the trial court if the
mischaracterization has only a de minimis effect on the division. Id. On the other
hand, if a trial court mischaracterizes separate property as community property, the
error is by definition harmful, and we must reverse and remand because the
subsequent division of the community estate would divest the spouse of his or her
separate property. Smith v. Smith, 22 S.W.3d 140, 147 (Tex. App.—Houston [14th
Dist.] 2000, no pet.).
Property possessed by either spouse during or on dissolution of marriage is
presumed to be community property. Tex. Fam. Code Ann. § 3.003 (West 2006).
The party seeking to overcome the presumption must do so by clear and
convincing evidence. Id. Clear and convincing evidence means the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established. Sharma, 302
S.W.3d at 360. The property’s character is determined at the inception of the
party’s title. Id. Inception of title occurs when a party first has a right of claim to
the property by virtue of which title is finally vested. Id.
Separate property consists of all the spouse’s property, both real and
personal, that is owned or claimed before marriage, and that is acquired after
marriage by gift, devise, or descent. Tex. Const. art. XVI, § 15. Community
property consists of property, other than separate property, acquired by either
spouse during marriage. Tex. Fam. Code Ann. § 3.002 (West 2006). To overcome
the community-property presumption, the spouse claiming certain property as
separate property must trace and clearly identify the property claimed to be
separate. Smith, 22 S.W.3d at 144. Tracing involves establishing the separate
property origin of the property through evidence showing the time and means by
which the spouse originally obtained possession of the property. Id.
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Deepa overcame the community-property presumption. The record shows
that Deepa’s mother was to receive a share of the proceeds from the sale of a house
described in a will executed by Deepa’s great aunt. Pursuant to an agreement dated
January 2, 2004, the house was sold for approximately $211,000. Deepa’s mother
died in June 2004. Deepa was her mother’s sole heir. After Deepa distributed the
proceeds to her relatives, Deepa received her mother’s share, which was
approximately $150,000. Deepa deposited the money into the Citibank NRI
account. Deepa then used $52,500 from the Citibank NRI account to purchase a
19.8 percent interest in DLP Interest, LP.
Based on the foregoing, Deepa adequately traced the origin of the funds
contained in the Citibank NRI account. The record supports a finding that Deepa
inherited the money contained in the Citibank NRI account and used a portion of
that money to purchase an interest in a limited partnership. The trial court did not
abuse its discretion when it characterized as Deepa’s separate property the Citibank
NRI account and the interest in DLP Interest, LP. We overrule Alavoor’s first
issue.
Evidentiary Rulings
In his second and fifth issues, Alavoor challenges several of the trial court’s
evidentiary rulings. We consider his second issue first.
Alavoor complains in his second issue about the trial court’s exclusion of
evidence allegedly showing that Deepa concealed gold bars and gold coins. It is
unclear from Alavoor’s brief and from the record what evidence Alavoor tried to
submit on this issue. However, in his statement of the issue on appeal, Alavoor
cites two exhibits that were excluded by the trial court: Exhibit 13 and Exhibit 14,
Page 7.
4
Exhibit 13, which is entitled “Handwriting Diary Showing word ONLY
written by Wife,” is essentially Alavoor’s commentary about what he claims are
writing samples from Deepa’s diary. Exhibit 13 contains copies of handwritten
notes. The exhibit also contains Alavoor’s own statements regarding the contents
of a deposition exhibit. Within Exhibit 13, Alavoor attempts to connect a sample of
the handwriting allegedly from Deepa’s diary to statements allegedly made during
the deposition. Deepa objected to the admission of Exhibit 13 as hearsay and
lacking the appropriate predicate for admission. The trial court sustained the
objection.
Exhibit 13 is not admissible evidence. First, Alavoor’s statement regarding
the contents of a deposition is inadmissible hearsay. See Tex. R. Evid. 801, 802.
Second, the handwriting samples were not authenticated. The authentication
requirement is satisfied when the proponent produces “evidence sufficient to
support a finding that the item is what the proponent claims it is.” Tex. R. Evid.
901(a). Alavoor did not present any evidence to support a finding that the
handwriting sample was in fact Deepa’s handwriting. On this record, we cannot
say the trial court abused its discretion when it excluded Alavoor’s Exhibit 13.
Exhibit 14, Page 7, which is entitled “(Bank locker) (WIFE handwriting),”
contains mostly illegible handwritten notes. Deepa objected to Exhibit 14, Page 7,
arguing that Alavoor did not lay the proper predicate for its admission. The trial
court sustained the objection. Again, Alavoor did not present any evidence to
support a finding that the handwriting at issue was Deepa’s handwriting. See id.
Therefore, the evidence was not properly authenticated, and the trial court properly
excluded it. We overrule Alavoor’s second issue.
In his fifth issue, Alavoor complains that the trial court improperly excluded
the following evidence: (1) his written objections to Deepa’s May 9, 2014
5
Inventory; (2) a Citibank Account Statement; (3) wedding photographs depicting
Deepa’s jewelry and containing Alavoor’s commentary; and (4) diary entries
allegedly made by Deepa. This issue is inadequately briefed. Alavoor has not cited
to any authority supporting his contention that the trial court erred in excluding the
proffered evidence. See Tex. R. App. P. 38.1(i). He has therefore presented nothing
for review, and we overrule his fifth issue.
Trial Judge Bias
In his third issue, Alavoor claims that the trial judge was biased. To the
extent Alavoor contends the trial judge should have recused himself, by failing to
file a motion to recuse, Alavoor did not preserve his complaint for appellate
review. See McElwee v. McElwee, 911 S.W.2d 182, 185–86 (Tex. App.—Houston
[1st Dist.] 1995, writ denied); see also Tex. R. Civ. P. 18a, 18b. To the extent
Alavoor contends the trial judge should have been disqualified, Alavoor has not
identified, and we have not found in our review of the record, any evidence that the
grounds for disqualification apply to the trial judge. See Tex. R. Civ. P. 18b(a).
Accordingly, we overrule Alavoor’s third issue.
Division of Community Property
Because they both relate to the trial court’s discretion in dividing a couple’s
community property, we consider Alavoor’s fourth and seventh issues together.
With these issues, Alavoor suggests that the trial court’s division of the community
estate was manifestly unjust and unfair. Alavoor asserts that the trial court abused
its discretion in dividing the property of the marital estate because the court did not
consider certain factors enunciated by the Texas Supreme Court in Murff v. Murff,
615 S.W.2d 696 (Tex. 1981). He argues the court should have divided the
community property unequally in his favor. He asks this court to award him greater
than sixty percent of the community property.
6
We review a trial court’s division of property under an abuse of discretion
standard. Von Hohn v. Von Hohn, 260 S.W.3d 631, 640 (Tex. App.—Tyler 2008,
no pet.). In considering whether the trial court abused its discretion, we review the
entire record to determine if the trial court acted arbitrarily and unreasonably. Toles
v. Toles, 45 S.W.3d 252, 266 (Tex. App.—Dallas 2001, pet. denied). A trial court
does not abuse its discretion if there is some evidence of a substantive and
probative character to support the decision. Von Hohn, 260 S.W.3d at 640. We
reverse a trial court’s division of property only if the error materially affects the
court’s just and right division of the property. Id. Once reversible error affecting
the “just and right” division of the community estate is found, an appellate court
must remand the entire community estate for a new division. Sheshtawy v.
Sheshtawy, 150 S.W.3d 772, 780 (Tex. App.—San Antonio 2004, pet. denied)
(quoting Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)).
In order to determine whether the assets of the community estate were
divided in a “just and right” manner, an appellate court must have the trial court’s
findings on the value of those assets. See Wells v. Wells, 251 S.W.3d 834, 840–41
(Tex. App.—Eastland 2008, no pet.). Without findings of fact, we do not know the
basis for the division, the values assigned to the community assets, or the
percentage of the marital estate that each party received. Hallum v. Hallum, No.
01-09-00095-CV, 2010 WL 4910232, at *6 (Tex. App.—Houston [1st Dist.] Dec.
2, 2010, no pet.) (mem. op.).2 In the absence of such findings, we presume the trial
court made all the necessary findings to support its judgment. Wells, 251 S.W.3d at
838.
2
See also Funderburgh v. Funderburgh, No. 12-08-00428-CV, 2010 WL 2982906, at *2
(Tex. App.—Tyler July 30, 2010, no pet.) (mem. op.); Wells, 251 S.W.3d at 840–41; Chacon v.
Chacon, 222 S.W.3d 909, 916 (Tex. App.—El Paso 2007, no pet.); Mohindra v. Mohindra, No.
14-06-00056-CV, 2007 WL 3072057, at *2 (Tex. App.—Houston [14th Dist.] Oct. 23, 2007, no
pet.) (mem. op.).
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Here, the trial court did not file, and Alavoor did not request, findings of fact
and conclusions of law reflecting the value the court assigned to each asset or
liability, the net value of the community property, or the factors considered by the
trial court in dividing the marital estate. Although the trial judge made oral
statements at the end of trial regarding his decision and the values he assigned to
certain assets, these statements are not findings of fact, nor are recitations in the
trial court’s judgment. Id. at 840–42; Roberts v. Roberts, 999 S.W.2d 424, 440
(Tex. App.—El Paso 1999, no pet.); see In re Doe 10, 78 S.W.3d 338, 340 n.2
(Tex. 2002). The respective inventories filed by Alavoor and Deepa that assign
values to the community property assets cannot serve as a substitute for findings of
fact by the trial court. Funderburgh, 2010 WL 2982906, at *2. Finally, unlike the
parties in Wells, the parties in this case have not conceded that Deepa actually
received a larger share than Alavoor. See 251 S.W.3d at 841; Mohindra, 2007 WL
3072057, at *2 (considering propriety of unequal division when parties did not
dispute that property was disproportionately divided). Consequently, “it is
impossible for [us] to determine that the trial court abused its discretion in its
division of the community property.” Hallum, 2010 WL 4910232, at *6; see
Chacon, 222 S.W.3d at 916.
The trial court could have considered any number or combination of factors
to arrive at the arrangement it did. Chacon, 222 S.W.3d at 916. Because we do not
know what value the trial court assigned to the community property assets or the
percentage of the property awarded to each party, we cannot conclude that the trial
court abused its discretion in dividing the community property. Accordingly, we
overrule Alavoor’s fourth and seventh issues.
Denial of Motion for New Trial
In his sixth issue, Alavoor challenges the denial of his motion for new trial.
8
Alavoor’s written motion did not state with any level of specificity the grounds
upon which he sought a new trial. At the hearing on his motion, Alavoor took issue
with the court’s granting of the divorce based on cruelty. He argued there was no
evidence he abused Deepa or was otherwise cruel to Deepa.
We review the trial court’s denial of a motion for new trial under an abuse of
discretion standard. Hinkle v. Hinkle, 223 S.W.3d 773, 783 (Tex. App.—Dallas
2007, no pet.). A trial court abuses its discretion when it acts unreasonably or in an
arbitrary manner, without reference to guiding rules or principles. Id. There is
generally no abuse of discretion when there is some evidence to support the trial
court’s decision. Id. Every reasonable presumption will be made on review in favor
of the trial court’s refusal of a new trial. Id. Review of a trial court’s action under
the abuse of discretion standard is a question of law. Id. Legal and factual
sufficiency are relevant factors to consider when determining whether the trial
court abused its discretion. Id.
Here, the evidence is legally and factually sufficient to support the trial
court’s judgment granting the divorce on fault grounds. Deepa testified that
Alavoor had threatened to burn down the couple’s house with Deepa and their
daughter inside. Deepa further testified that Alavoor had been physically abusive
during the couple’s relationship. Alavoor did not present any evidence at trial
controverting Deepa’s testimony. Because the record contains some evidence to
support the trial court’s denial of Alavoor’s motion for new trial, the decision was
neither arbitrary nor unreasonable. See id. The trial court’s decision to deny
Alavoor’s motion for new trial was not an abuse of discretion. We overrule his
sixth issue.
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Conclusion
Having overruled each of Alavoor’s issues on appeal, we affirm the trial
court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Christopher, Brown, and Wise.
10