Opinion
No. 09-09-00319-CV
Submitted on May 17, 2010.
Opinion Delivered July 22, 2010.
On Appeal from the County Court at Law No. 3 Montgomery County, Texas, Trial Cause No. 07-05-04907 CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
The trial court annulled the marriage of appellant, Assoliya Villarreal, and appellee, Michael Villarreal, because of fraudulent inducement. TEX. FAM. CODE ANN. § 6.107 (Vernon 2006). The court also confirmed that property taken from Michael by fraud was Michael's property. Assoliya raises seventeen issues on appeal. None of the seventeen issues presents a meritorious argument that the trial court erred. We affirm the judgment.
See TEX. GOV'T CODE ANN. § 25.1722 (Vernon 2004).
STANDARD OF REVIEW
A trial court may grant a petitioner an annulment of a marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force. TEX. FAM. CODE ANN. § 6.107; see also generally Tex. S. Univ. v. State Street Bank Trust Co., 212 S.W.3d 893, 914 (Tex. App.-Houston [1st] 2007, pet. denied) (elements of fraudulent inducement). A trial court's findings of fact are reviewed for legal and factual sufficiency of the evidence under the same legal standards applied to review jury verdicts. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). In a legal sufficiency review, we consider the evidence in the light most favorable to the trial court's findings and indulge every reasonable inference that would support them. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable trier of fact could, and disregard contrary evidence unless a reasonable trier of fact could not. Id. at 827. In a factual sufficiency review, a finding will be overturned only if it is so against the great weight and preponderance of the evidence or so lacking in evidentiary support as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. Conclusions of law are reviewed de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
THE MEETING
Michael and Assoliya met on a social website. In the fall of 2004, after communicating with Assoliya over the internet for six months, Michael traveled to Russia to meet her. She wanted to get married. Assoliya told Michael she needed money for living expenses. Michael began sending her money.
Michael visited Assoliya in the spring of 2005. The relationship progressed and the next fall, on his third trip to visit her, Michael and Assoliya decided to marry. Assoliya applied for a fiancé visa. She joined Michael in Conroe, Texas, on June 21, 2006. He believed he loved her and believed she loved him. They married on July 3, 2006.
PROPERTY TRANSFER
Assoliya told Michael that she did not feel secure in their marriage because his assets, including his house and cars, were not in her name. Michael presented bank statements at trial to show that when he left town on business, Assoliya would make multiple trips to the automated teller machine and withdraw $400 or $500 each time.
Assoliya wanted the Mercedes in her name but apparently the bank would not allow her name on the title without remaking the loan on the car. In September 2006, Michael put the title to his Corvette in her name at her request. Also at Assoliya's request, Michael deeded half of his interest in his house to her in November 2006. He had purchased the house just prior to meeting Assoliya. Michael explained that, from the time they were married until October or November, he and Assoliya were intimate. Then, she began locking herself in another room in the house.
THE ARGUMENTS
They argued about money. They argued about her immigration status. They argued because Assoliya wanted Michael's assets put in her name. Michael testified Assoliya expressed rage and anger when they argued. Michael felt pressured.
Assoliya said Michael would call her "stupid." He tried to entice her to stay in the relationship with material goods, and threatened to have her deported if she did not have sex with him. Assoliya stated Michael was controlling and physically abusive.
In December 2006, they had an argument. Michael says Assoliya threw a coffee mug at his head. Assoliya claimed Michael was abusive. When the police arrived, Assoliya told them not to arrest Michael. She felt sorry for him.
The next day they argued about whether Assoliya's scheduled immigration interview would take place. The interview required Michael's attendance. When he began to leave the house in his vehicle, Assoliya climbed on top of the vehicle while Michael was driving. She grabbed onto the wipers. Michael stopped the car.
THE SEPARATION
Michael went to live with his parents. In January 2007, Michael and Assoliya reconciled. Michael moved back into the house. They separated again in April 2007. Assoliya stayed at a women's shelter for over a month.
Two nights after they separated, Michael found the ring he gave her when they exchanged wedding vows. Assoliya had hidden the ring. After Michael found it, he put it in her closet, but ultimately kept it. She requested the ring back many times. Michael refused.
He found a man's business card hidden in the house. Assoliya testified that shortly after she and Michael married they argued about sex. Michael wanted to have sex every day. She stated the business card Michael found was from a man she met at the gym. She explained they were just friends, but acknowledged that she did not want Michael to know about their friendship because Michael was jealous.
Assoliya's mother testified that she knew Assoliya was in love with Michael, and that Assoliya appeared to be in love with Michael when she left with him for the United States. Six months after Michael and Assoliya married, Assoliya's mother visited them in the United States and observed them arguing.
On May 14, 2007, Michael filed a petition for divorce. Assoliya filed a pro se counterpetition for divorce. She asserted the marriage was insupportable because of Michael's cruel treatment. She requested that the trial court deny Michael access to her daughter, divide the community estate in a just and right manner, award her spousal maintenance, and issue certain temporary orders.
THE COMPUTER
When Michael moved back into his house, he noticed Russian icons on his computer which were links to what appeared to be five or six Russian dating websites. He found various profiles created by Assoliya. One of her profiles contained a photograph of her taken about two weeks after she and Michael had married. Based on the new information, Michael filed an amended petition seeking an annulment of the marriage. Michael's petition also asked that the court "restore [his] separate property[.]"
He also sought to void his adoption of Assoliya's daughter. The trial court struck Michael's pleading seeking to terminate the adoption, because at the time of trial the daughter was no longer a minor and had not been served with notice of the lawsuit.
Ernesto Rojas, a licensed investigator and computer examiner, testified as an expert witness at trial. Rojas was asked to examine the contents of Michael's computer for evidence related to Michael's relationship with Assoliya. No remote management program had been installed on the computer, so the computer activity was by someone with physical access to the computer. Rojas was able to tell that the Russian files and pictures created on the computer were created by Assoliya. He was able to tie her user identification to the creation of files and to her various email accounts.
Rojas prepared a timeline corresponding to the dates Michael was out of town on business and to Assoliya's computer activity during those periods. Rojas determined that on June 25, 2006, four days after Assoliya arrived in the United States, she installed "Skype" on the computer. Rojas explained that Skype is a program installed on a computer to allow the user to either access video phone service or voice service on a computer-to-computer basis anywhere on the internet.
The timeline demonstrated that, shortly after arriving in Texas, there were 19 "hits" to dating websites by Assoliya. The timeline also showed 32 "hits" of Assoliya viewing pictures of men downloaded to the computer from July 2, 2006, through July 4, 2006 — the day prior to the wedding through the day after the wedding. Rojas could tell a user had "deleted" the pictures of the men from the computer. This removed them from the operating system's directory structure, but the files remained in a location on the hard drive for recovery purposes. The images were part of a dating web page that also depicted Assoliya. Information concerning when the pictures were viewed was still "intact." The timeline showed as many as 521 "hits" to dating websites by Assoliya during one occasion when Michael was out of town on business. She also created several profiles of herself for the websites. One profile listed her sexual preference as bisexual. Michael testified she had never revealed that preference to him. Rojas discovered Assoliya had thirteen or fourteen email addresses, and that they were used in some cases concurrently.
Rojas testified that a sophisticated "eraser" program had been installed. He explained that an eraser program is installed for the purpose of permanently wiping evidence from hard drives. Although the program had been installed, apparently the user did not have enough experience with the program to successfully complete all of the necessary steps. Rojas was able to tie the program to Assoliya.
He also tied several Russian "chats" to Assoliya's user identification. A translator at trial translated the chats. On September 19, 2006, Assoliya told someone in a chat that she needed "to get an ID and a green card. Then I can move." Later that month, she told someone in a chat that "I am married to the American. Very bad match. Waiting for papers to get out of here. I have only been in States for three months." The chats introduced as evidence were chats between Assoliya and numerous people. Some chats contained sexual content. The chats included explanations by Assoliya that she was deleting messages and profiles so that Michael would not see them. She made plans to meet at least one of the men. Some of the chats showed that, around the time Michael began putting assets in her name, Assoliya was exchanging phone numbers with other men and calling them.
Michael testified that he stopped living with Assoliya on April 27, 2007. After he ceased living with her, he learned of her computer activity, and suspected the fraud. He testified he would never have married her if he had known she was bisexual, and would never have transferred assets to her if he had known of her activities with other men. Since discovering the computer activity, he has not been intimate with her or allowed her back into the house.
Assoliya claimed she continued to chat with people on the internet after the marriage because she could not speak fluent English, could not communicate with her husband, and felt lonely. She explained she created the profiles in Russia, but admitted continuing to check them in the days around her wedding because she "wanted to have simple conversation, talk to people." She claimed she "didn't seek for anybody."
THE FINDINGS
The trial court found that Assoliya used fraud to induce Michael into the marriage, and that Michael had not voluntarily cohabitated with Assoliya since learning of the fraud. The court annulled the marriage.
The court also found that Assoliya engaged in a scheme to defraud Michael of his property. Specifically, the trial court found that the transfer of the wedding ring, the Corvette, and the half-interest in the real estate owned by Michael prior to the marriage were based on Assoliya's marital promise, and induced by fraud. The trial court set aside those gifts and "confirmed" the property as Michael's separate property. The trial court also confirmed as Michael's separate property all interest in his employment benefit plans.
APPELLANT'S ISSUES
In Assoliya's first six issues, she challenges the legal and factual sufficiency of the evidence supporting the trial court's findings that (1) the marriage is voidable and subject to annulment under section 6.107 of the Texas Family Code, (2) she used fraud to induce Michael to marry her, (3) she knew at her wedding that her representations to Michael that she loved him and would be faithful were false when she made them, (4) her representations were made as a scheme to induce Michael to marry her so she could acquire his property and achieve immigration status for her and her daughter, and (5) Michael was induced to marry her based on her misrepresentations. In her twelfth issue, she argues the trial court erred in not granting the divorce on grounds of insupportability.
As the factfinder in this case, the trial court was the sole judge of the credibility of the witnesses. See Wilson, 168 S.W.3d at 819. The court could reasonably believe Michael's testimony, and that of his witnesses, and reject Assoliya's testimony, and that of her witnesses, and conclude Michael was induced by fraud to enter into the marriage. See id. at 827. The trial court could reasonably find that Assoliya had always intended to leave Michael after obtaining his property and establishing her right to remain in the country. The court could reasonably find she made representations and promises she intended Michael to rely on, and as a result, he married her and transferred property to her. See TEX. FAM. CODE ANN. § 6.107(1). The evidence indicates Michael did not cohabitate with Assoliya after learning of the computer activity and discovering the fraud. See TEX. FAM. CODE ANN. § 6.107(2). There is legally and factually sufficient evidence in the record to support the trial court's findings of fraud, and to support the trial court's annulment of the marriage based on fraud. See Wilson, 168 S.W.3d at 827; see also State Street Bank, 212 S.W.3d at 914. Issues one, two, three, four, five, six, and twelve are overruled.
In issues seven through ten, Assoliya specifically challenges the legal and factual sufficiency of the evidence supporting the trial court's findings that (1) she engaged in a scheme to defraud Michael of his separate property, (2) the gifts were induced by her misrepresentations and were not voluntarily made by Michael, and (3) the gifts of the ring, the Corvette, and one-half interest of their home were induced by fraud and therefore set aside as Michael's separate property. In issue eleven, Assoliya asserted that the trial court should not have rendered judgment against her decreeing these gifts as Michael's separate property. In issue seventeen, she maintains the trial court should have rendered judgment that Michael converted the ring, and the trial court should have ordered the ring returned to her.
Assoliya's thirteenth, fourteenth, fifteenth, and sixteenth issues relate to the trial court's characterization of certain assets and the trial court's division of property. In issues thirteen and sixteen, she argues that the court should have entered a decree recognizing the property accrued during the marriage as community property and should have made a fair and just division of property; she argues that the evidence does not support the trial court's conclusion of law as to what constitutes a fair and equitable division of property acquired during the marriage. In issues fourteen and fifteen, she maintains the court should not have rendered judgment that Michael's two employment benefit plans were his separate property rather than community property, and she argues that the evidence does not support the findings by the trial court.
The trial court returned Michael's personal effects, the ring, the house, the vehicles, and the interest in the employment plans to Michael as his property. The trial court's findings of fraud are supported by the evidence and are not in error, and there is no error in the trial court's judgment annulling the marriage. The evidence is legally and factually sufficient to establish that the transfers of property, as well as the marriage, were induced by fraud. See Middleman v. Atlantic Mut. Ins. Co., 597 S.W.2d 565, 568 (Tex. Civ. App. -Waco 1980, writ ref'd n.r.e.) (holding that fraud vitiates every transaction tainted by it). Generally when fraud occurs in other contexts an equitable remedy is available to prevent unjust enrichment. See id.; see also Martin v. Cadle Co., 133 S.W.3d 897, 903 (Tex. App.-Dallas 2004, pet. denied) ("Rescission is an equitable remedy that operates to extinguish a contract that is legally valid but must be set aside due to fraud, mistake, or for some other reason to avoid unjust enrichment."); Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 455 (Tex. App.-Houston [14th] 1998, pet. denied) ("Re[s]cission is an equitable remedy that may be granted upon certain grounds such as fraud."). Similarly, when a marriage is annulled for fraud in the inducement and one of the purposes of the fraud is to obtain property, an equitable remedy is available to prevent unjust enrichment. The trial court could reasonably conclude it would be unjust to allow Assoliya to retain property obtained from Michael by fraud. Under the circumstances presented, the trial court did not err in returning the transferred property to Michael. Appellant's remaining issues are overruled. We affirm the trial court's judgment.
AFFIRMED.