## In the Court of Appeals Second Appella te District of Texas at Fort Worth

___________________________ No. 02

- 23

- 00045

- CV

___________________________

On Appeal from the 481st District Court Denton County, Texas Trial Court No. 16

- 09986

- 362

Before Kerr, Bassel, and Walke r, JJ. Memorandum Opinion by Justic e Kerr 

### V EENA 

### S HARMA 

### , Appellant

V



### . G UATAM 

### J ANI 

### , Appellee2 MEMORANDUM OPINION Veena Sharma appe als from the trial court ’ s final divorce decree. In three issues, she complains that (1) the trial court abused its discretion by not g ranting her

new

- tr ial motion ; (2) the evidence i s legally and factua lly insu f ficient to support the
trial court ’ s finding that she and A ppell ee Guatam Jani were informally married; and ( 3 ) the e vidence i s legally and factually insufficient to support the trial court ’ s findings
that she h ad committed fraud on the community marital e state
. Although t he trial
court did n ot abuse its di scretion by denying Sharma ’ s new

- trial motion and the
evid ence suffic es to support the trial cou rt ’ s in formal

- marri age and fraud

- on

- the

communit y fin dings, we conclude that insufficien t evidence support s the trial court ’ s finding o f the amount by which Sh ar ma defrauded the community estate

. For this reason, we reverse the t rial court ’ s decree as to the am ount of the fraud

- on

- the

community finding and r emand the case for a divi sion of pr operty consistent wi th this opinion.
I. Background Sharma and Jani , both of who m are Hin du, met t hrough an Indian m a trimonial
webs ite in lat e 2005. Th e y started living together in April 2006, and on July 8, 2006,3 th e couple participated in a ceremony conducted by a H indu p ri est at a H indu temple
in Hous ton
. The c ouple continued to coha bitate af ter th e ceremony . 1
T h e c ouple then moved to N o rth Texas

. Shar ma purchase d two homes in her name only in Justin, Texas : one on Wi ndt hor st Way in 2008 and ano ther on Jasmine
S p ring s D ri ve in 20 11

. T he couple lived together in the Windthor s t home, and the Jasmine Spring s hom e was a rental property

. In May 2013, Sharma and Jani s igned a notarized “ A ff idav it of M a rriage ” t ha t stated, “ [ W ] e are marr ied under H indu Marriage Act/ Rights/Cu stoms a nd are living together as [a] marri ed cou ple since 07

- 08

- 2 006 (date of marriage). ” In July 20 1 3 , the couple signed fertility

- treatment consent forms as h usba nd and wife. The couple ha d

a c hild in March 2014.
In December 2016, Sharma sued for divorce a nd f or so l e manag ing conservatorship of the c ouple ’ s child

. In her original divorce pe tition, Sharma alleged
that “ [t]he parties were married under the Hindu Marriage Act /Rights/C ust oms o n or abou t J uly 8 , 2006

. ” Sharm a ’ s amended divo rce petition, which she fi led in July 2017, similarly a lleged that “ [ t ]he parties were married on or about July 8, 20 06

. ” But in March 2019, she filed a “ First Amended Petition in Suit Affecting t he P a r ent Ch ild Relationship ” in which she alleged th at she had “ determin ed that she c ould not be

1 It is undi sputed that the parties did not enter into a ceremonial , or “ formal , ” marriage unde r Texa s l aw, w hich requires th e p arties to obt ain a marr iage license and participate in a m arriage ceremony

. See generally Tex . Fam. Code Ann . §§ 2.001

– .302.4 married to [Jani] because he rem ains married to his wife T rupti Jani who is from
India. ” 2 J an i coun tersu ed, alleging that Sharm a has committed actual and constructive
fraud on the community marital estate
. In spring 2019, t he trial court orde re d that Jani could li ve i n the Jasm ine Springs hom e if he satisfied the ap proximately $10,000 mortgage arrea rage on the property and if he paid the monthly mortgage pa yment of $1,694.58 starting on June
1 , 2019. Jani did so and resided in t he Jasmin e S pri ng s home durin g th e cas e . Sha rma continued to live in the Wi ndthorst home

. Starting o n November 20 , 201 9, the case was tri ed to th e bench in three
different trial court s over five noncon secutive days in 2019, 2021, and 20 22. 3 T he parties disputed the sig n if ic ance of th e 20 06 c eremony at the Hind u te mple

. Sharma
main tained that the ceremony was not a marriage ceremony but was an engagement
ceremony. She expl ained that the couple had a n engagement c eremony “ because living [to ge ther ] wit hou t any relat ion ship in our cul ture is l ike , taboo. ” S he claimed

2 Because Sharma makes no complai nt ab out th e trial court ’ s rulings on conserv atorship, possession and acces s , ch ild support, and medical a nd dental support , we do n ot dis cuss the facts related to tho se issues

.
3 On Novem ber 20, 2019 , and De ce mber 12, 2019, t he parties tried the case to th e pre siding j udge of the 462 nd Judicial Distr ict Court. In Janu ary 2021, t h e cas e wa s transfe r red to t he 4 67 t h Judicial District Court. The pr esid i ng judg e of that cou rt hear d the case on Octob er 15, 2021. In March 2022, the case was transfer red to the 481 st Ju dicial Distri ct Court. T hat court ’ s presiding judge heard the fina l tw o day s of trial on Jul y 19, 2022 , and August 3, 2022 ; si gned the f i n al divorc e decree ; and heard Sharma ’ s new

- trial motion

. Nei ther par ty objected t o this “ round

- r obin ” trial

.5 that t he ceremon y ’ s p urpose was to “ give [ a ] name to the relationship , ” which

“ legitim [ ized ] li ving togethe r , ” because “ an unmarried man and woman . . . without
any rel ationship i s not good in our cul t ure. ” Ac c ord i ng to Sh arma , an engagement
ceremony and other small ceremonies pr eced e the wedding cere mony, and the
hallmarks of a H indu marriage ceremony include a l icense issued by the pri est or a

court and a grand ceremon y and rece pt ion with t he brid e ’ s an d groo m ’ s f amilies
present
. Sharma testi fied that she and Jani did not get a license or have a large ceremony and rece ption with their famili es. She was ad a m ant that the 2006 ceremony

was n ot a marriag e ceremon y . Photograph s of the 2006 ceremony were admitted in t o ev idence. In these photograph s , Sharma and Jan i are we aring traditional India n clothing , and a pr iest and

a fami ly friend are with the cou ple in s ome of the p hotograph s . Dinesh Pancholi, a priest at a Hindu t emple in Plano, 4 testified that a Hindu
weddi n g ce re mony does not have to b e performed in front of fa mily and friends but
can be perf orm ed with just the bride, groom, and pri est present
. He further tes tified
that a license for a Hindu marriag e is required in the United States but i s not required
for a Hin du marriage in India

. He c oncluded that based on his know ledg e and experience as a Hindu priest , 5 the pho t o g r a p h s d e p i c t e d a Hindu m a r r i a g e c e remony .

4 Pa ncholi did not perform t he 2006 c eremony.

5 The tri al court did not p ermit Pan choli to testify as a n expert.6 He point ed to the pr iest ’ s presence , the couple ’ s ex cha nging rings, the placement of
vermillion in th e cen ter part of Sha rma ’ s hair , 6 a red threa d conne ctin g Sharma and Jani, and Sha rma ’ s go ld

- and

- black

- beaded n ec k lace , which he identi fied as a
mang alsutra , 7 as indicia of a Hindu marriage ce remony. Pancholi stated that based on
the photos, the ceremony wa s not an engagement ceremony ; it was a m arriage
ceremony. Jani also testified that the ceremony was a marriage cere mony. According to him, a man ’ s pla cing vermillion in the part of the woman ’ s hair and a man ’ s giving the

wo man a mangalsutra a re not part of an e ngagement ceremo ny. He did both of those things at the 2006 c e remony. Shar ma , in contrast, maint aine d that the photographs depic ted an en gagement ceremony , and when she was asked what the necklace that

s he was wearing in the photographs w as called , sh e sai d that it was “ like an y other
necklac e . ”
Sha rma also denied signing the Affida vit of Mar ri age and cla imed that her signature on that document was not her “ true signature

. ” But t he not ary who ha d
notarized the affidavit identified Sh arma at trial, tes t i fied t hat he had notar ized her signature on the affidavi t , and agree d that there was no chan ce that an yone other than Sharma had signed the affidavit

. Fu rthermore, Jani ’ s handwriting exper t testified that

6 Ve rmillion is a red po wder that is placed on the bride ’ s forehead t o si gnify that
s h e is married

.

7 A mang a ls u t ra is a type of necklace that indic ates that a woman is marri ed.7 he had compa red Shar ma ’ s signature on the aff i davi t wit h nine of her known
si gnatur es and conclu ded that the signature o n the affida vit belonged to Shar ma . But Sharma nevertheless maintained that the parties did not agree to be
married , did not live tog eth e r as husband an d wife , and d id no t hold themselve s out to others as married

. She testified that t he couple did not have joint bank account s and that they were not involved in each other ’ s finances

. 8 Sharma filed her income

taxes as “ s i n g l e ” or “ head of household ” from 20 0 6 through 20 22. Sharma further

te s tifi ed that s ince 2006, she had executed property leases as a single p erson, purchased car insurance in h er name only as a single person and co verin g only h erself , taken out li fe in surance as a single person, and purcha sed the Wi ndthorst and J asmine Sprin g s ho mes in he r name only

. 9
Sharma ad mitted that in July 2013, she and J ani had signed consent form s with
the Dallas Fertil i ty Clinic in sp a ces labe l ed “ hu sband ” and “ wife

. ” She ex p lained that
she did so because ther e was no place on the forms

— which we re a d mitt ed into
evid ence

— to explain the status of their relation ship and that when someone with the
clinic had asked her if she was married to Jani, she s aid that the co u ple was unmarried

.

8 When the Jasmin e Springs home was being use d a s a ren tal property, the tenants ma d e the ir rental payments to Sharma.

9 The Jasmine Springs deed of trust stated that Sh arma w a s “ an unmar ried woman . ” The d eed of trust for the W in dthorst home was not admitt ed into evidence , but Jani conceded tha t h is name w as no t on the W in dthorst home ’ s ti tle documents

.8 Acc ordin g to Jani , h owever, the Dallas Fertility Clinic treated o nly m a rrie d couples at that time

. In c ontra st to Sharma, Jani in s isted that the c ouple was married. He testifie d
that in late A pril or early May 2006, the couple had agreed to get married and star t ed making ce remon y preparations. He further testified that si nc e the July 2006 ceremon y , he and Sharm a ha d l ive d together , had tr aveled as husband and wife, and had held
thems elves out as m arried to their f riends and family. He affirmed that both he and
S harma had signed the Affidavit of M arriage

. He also claimed that he h ad s tated on immigratio n documents that he was married to Sharma 10 and that he had f iled his
2017 and 2018 tax re t urn s as “ married f iling separate ly

. ” 11 A s additional proof of the ir marriage , Jani offered int o ev idenc e several greetin g ca r ds directed to “ my h usband ” that Sharma had given to him

. Jani als o testified that after the 2006 ceremony, Shar ma continu ed to wear the mang al su tra that he ha d given her and that she wore it du r ing a housewarming ceremon y for the Jasmine Springs h ome aft er it w as purch a sed in
2011. But w hen conf ronted with photographs of her and Jani participating in the

10

Ja ni mov ed from In dia to t he United States in 2001

. At the tim e of trial , he
was still not a legal res ident , but he did have authorizatio n to work in the United States , a social se curity number, an d a Texas d riv er ’ s lic ense .
11

Jani had initi ally filed his 2017 and 2018 tax return s as “ sing le ” b ut amende d them to reflect “ married f iling s eparately ” becaus e , ac cording to him, his ac countant ha d made a mistake.9 housewarming ceremony , Sh arma den ied t hat the go ld

- and

- black

- beaded necklace
that she was w earing was a mang al s u tra
. In addit ion to denying that she and Jani were infor m al ly mar r i ed , Sharma
cl aimed that she and Jani could not have been married because he was still married to
Tr up ti Jani , a wo man to whom he was m arried in I n dia years before

. Jani explain ed
that h e and Tr upti had not been legally marri ed under Hindu law , b u t th ey h ad lived together for almost 16 years and had children together

. The couple sep arated in 2000

. Jani believ ed that beca use he and Trupti had lived toge ther for s o long and had
children togethe r , the couple was considered married a nd thus need ed to g et a d iv orce. He claimed that they were divorced in India in 2 001.
Also r elevant to t his appeal , the trial court h eard testim ony about Sha r ma ’ s liqui dation of a retirement accou n t and Jani ’ s mortgage pa y ments on the Jasmine
S pring s hom e . In December 2020 , Sh a rma liquidated a ret irement account , transferre d
the $20 , 98 6.04 in fu nds into h er bank account, and started withdrawi ng th ose fund s. Regarding the Ja smine Springs mortgage, the t rial court had signed tem p orary orde rs allowing Jani to live in the home i f he paid the $1,694.58 monthl y mortgage p ayment starti ng on June 1 , 2019. The month ly mort ga ge amount in th e temporary orders was based on Shar ma ’ s representation to the tr ial court.10 Jani testified that starting June 1, 2019, he had made the monthly pa y m e nts to Shar ma, 12 b ut unbekn o wnst to him , the actual monthly mortgage paym ent due to the
lender wa s less than the amount he was paying to Sharma , and she kept the difference.
Sh arma even stopped ma king the mortgage payments alt og ether for a tim e, and when

s h e mo dified the mortga ge to roll in the unpaid principal an d interest , the principa l
b a lance o n the loan in creased fro m roughly $109,000 to $114,000. Jani moved for judgment on the informal

- marriage issue. Th e trial court fo und that Jani and Sharma were m a r rie d.
The t rial court s i gned a fi nal divorce decree granting th e parti es a divorce a nd
d ividing the community estate

. The trial court award ed the W indthorst home to
Sharma and the Jasmin e Sp rings home to Jani

. In the decree, the trial court found that
S h a rma had co mmi tted a ctual and c onst ructive fraud on the commu nity an d against Jani by intentionally mispresenting the monthly mortgage amount on the Ja smine Spring s home , b y not disclosing that s h e was collecting sums from Jani th at exceeded
the mortgage p a ymen ts , by no t dis c losing th at she had ceased making month l y mortga ge payment s , a nd by collecting sums from Jani and not applying them t o the
mortgage
. The trial court further found t h at Sharma had committed actual and constructive fraud against Jani by c a us in g th e princip al bal anc e on the Jasmine S pring s home to increase by $5,000 and that she had wasted Jani ’ s com munity interest in the

12

Jani was unable to pay the mortgage pay me nt direct ly to the lende r because the loan was in Sh arma ’ s name.11 re tirement account by l i quidating it

. Th e trial court awarded Jani a $42 ,362.55 judgment against Sh arma for her fraud and was te. Sharma timely moved for a new t rial , ar g uing that the div orce decree should be

se t aside for good cause and in the interest of justice because despite her due diligence , “ vital ev idence was no t considered during the trial showing tha t [Jani ’s ]
pr ior m arr iage to T r upti Jani was nev er dissolved .” Sharma claimed that the I ndian
divor ce decree that Jani had produced to her as proof of his divor ce from Trupt i was

“ fraudulent ” because “ the doc ument [was] not a dissolution of any marria ge in volvin g” Jani

. Aft er a he aring, the trial court denied the mot ion.
Sh arma ha s app ealed and argues in three issues that the tr ial court abused its
di scretion by denying her new

- trial m otion and that the evidence is insufficient to

s uppo rt the tr ial court ’ s informal

- mar ri age and fraud find ings. We address each of
th e se issues in turn.
II. Sharma ’ s New

- Trial Motion In her first issue, Sh arma argues that the trial cour t abused its discret ion by denying her new

- trial m otion b ecause (1) sh e es tablish ed that Jani had rel ied o n

“ fr audulent evide nce ” at trial to p rove that he was divorced fr om Trupti and (2) when
confr onted with that evidence at the hearin g on Sharma ’ s new

- trial mo tion , Jani
cl aimed for the first time that he had never been marr ie d to Tr up ti. Sharma contends
tha t her trial counsel was “ diligent in attempting to obtain , a uthenticate , and verify the12 information in the alleged decree of di vorce that [Jani] relied on as proo f he was
d ivorced from T rupti . . . a nd thus legally ca pabl e of marrying [Sh arm a].”
A. Ev idenc e r eg arding Jani and Trupti ’ s divorce According to S harma, t hroughout the case, Jani had “ alluded to the e xistence
of a document establishing his divorce ” from T r upti. O n the third day of trial

— Oct obe r 15 , 202 1— Jani finally produced to Sharma a copy o f a d o cume nt tha t purported to be his and T r upti ’ s div orce decree from India

. Because the document
was in an Indian dialect that Sharm a did not understand , h er cou nsel exp lained to th e

tr ial court that addit ional time was needed to au thenticate and translate th e doc ument. On the fourth day of trial

— July 19, 2022 —Sharma attempted to call an ex pert witnes s from India (Krunal Me h ta) to testify that the docum ent that Jani had pr ovid ed to her as proof o f his divorce from T rupti “ ha [d] nothing to do with any divorce ” a nd
d id not invol ve Jani and Trupti as parties

. Jani objected to the ex pert’ s testifying , and
the trial

- cou rt judge took “ the matter under adviseme nt ,” stat ing , “I will make the
deter mination as we get started in the hearing whether or not I will allow tha t wit ness to testify. ” Th e trial court never ruled o n whether Sharma’ s expert witness w ould be
allowed to testif y th at day

. 13 And Sharma never attempted to call he r expert to testify
on the fifth and final day of trial.

13 In h er brief , Sharma st ates Jani testified on the fourt h day of trial that the docu ment he had provided to her as evi dence of his divorce from Trupti was “ an offic ial copy of his divorce doc u ment fro m T ru pti .” Although J ani w as quest ioned about whet her s everal docume nts perta ined to his divorce from Tr upti , it is13 At the hearing on her new

- trial motio n , Sh arma a ttempted to present evidence
from J ani and Me ht a, a lawyer pra cticing in Ind ia, regardin g Jani and Trup ti ’s divorce

. Jani objected , arguing that Sharm a was attempting to introduce evidence that she
k new about a t the time of tr ial but did not off er. Th e trial court sustain ed Jani ’ s objections and allo wed S harma to make offer s of proof

. When Jani was asked wheth er he believed that he was divorced from T rupti , Jani responded, “ Actually , I never married with her. ” Sharma o bjec ted to his answer

as non r es po nsive, and the trial cour t sustaine d that objection. Jani then testified that
he b eliev ed that E xhibit B

— which was not included in the off er of proof and is thus
not in the re cord

— was a copy of h is divorce decree fr om I nd ia. 14
M ehta be gan his investi ga t io n into Jani ’ s In dian divorce a t least as early as November 2, 202 1, when he request ed documents from a court in India. He testified
that Exhibit B was not properl y sig ned, was improperly stamp ed, a nd did no t mention Jan i or his a nd T rupti ’ s c hildren . Sha rma, however, testified that E xhibit I , whi ch was admitted into evidence, was a certified English translation of E xhibit B. Exhibit I is an

impossible for us t o d etermine wh at documen ts he wa s te stif yi ng about because t hose documents were not admitted into evidence.

14 Bas ed on the part ies ’ testimony at the hearing on the new

- trial moti on and the new-t rial moti on i tself, it appears that the Exhibit B referenced during the hearing is the same document that was attac hed to the new

- trial m otion as Exhibit B. According to the n ew

- trial motio n, Jani “ fraudulent ly claimed ” that Exhib it B

— a document that is no t written in English —“w as his divorce decree rendered in India several years prior .”14 En glish tr anslation of a n August 20 01 di vo rce decree invol ving Jani a nd T rupti. The
trial court denied Sharma ’ s new

- tria l motion.
B. Standar d of r eview
We review a trial court ’s orde r denying a motion for new trial for an abus e of
discretion

. Se e In re Marriag e of San doval , 619 S .W.3d 71 6, 721 (Tex. 2021)

. A tr ial court
abu ses its discre t ion if it acts without r e ferenc e to any guiding rules or principles

— that is, if its act is ar bitra ry or unreasonable. Low v. Henry , 221 S .W.3d 609, 614 (Tex.
200 7); Cire v. Cummings , 1 34 S.W.3d 835, 83 8–3 9 (Tex. 2004)

. An appell ate court

can not conclude t hat a trial court abused its dis c reti on merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours
& Co. v. Robinson , 923 S. W.2d 549, 558 (Te x. 1 995) ; see also Lo w , 221 S.W. 3d at 620.
C. Discussion
A trial court may grant a new tria l for good cause on a p arty ’ s motion or on t h e

court ’ s own motion

. Tex. R. Civ. P. 320. A trial court may grant a new trial b ased on newly discovered evidence. See Waffle House, Inc. v. Willia ms , 313 S.W.3 d 796 , 813 (Te x. 2010 ). Additionally, “ [f] raud prac t iced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circum stances.” In re Marria ge of Hutcher son , No. 12

- 18

- 00345

- CV, 2019 WL 4727843, at *2 (Tex. App.

— Tyler Sept. 27, 2019, no pet.) ( mem. o p.) ( quoting Pinkston v. Pinkston , 266 S.W.2d 515, 519 (Tex. App.

— Waco 1954, writ ref ’ d n.r.e.) ). “I n cases where a witness willfully
testifies fa lsely regardi ng a mat erial fact, a new trial may be grante d. ” In re E.S. ,15 No. 02

- 20

- 00407

- CV, 2021 WL 21 49627 , at *9 (Tex. App.

— Fort Worth May 27, 2021, pet. denied) (m em. op.) ( citing Marriage of Hutcherson , 2019 WL 4727843, at *3– 4). Here, S harma assert s that Jani r elie d on “ fraudulent evidence ” t o prove that he
was divorce d fr om Trupti and suggests that h e fal s ely testified during the trial that he
had been married to Trupti. But Shar ma ’ s offers of proof did not bear this out , espe cially E xhibit I— the cert ified Engl ish tra nsla tion of Ja ni and Trup ti ’ s 2001 Ind ian
divorce decre e. Moreover, Sharma failed to prove that the evidence i nclu ded in her
off ers of proof had been discovered since the trial and failed to provide any reason why she did n ot present t hat evidence a t tr ial

. Se e Waffle H ouse , 313 S .W.3d at
813 (stating that a p a rty seeking a new trial on n e wly d i scov ered evidence must
demonstrate , among other things, tha t it discovered the evidence after the trial and its
failure to discover the evidence sooner was no t du e t o la ck of dili gence). W e thus
conclude that th e trial c ourt did not abuse its discret ion by den ying Sharma ’ s ne w- trial
motion. We overrule Shar ma ’ s first issue.
III. Sufficiency of the Evidence Sharma’ s second an d third issues challenge the suffic ienc y o f th e e vidence supporting the trial co urt ’ s informal

- ma rr iage and f raud findings.
A. S tanda r d of re vi ew Here, neither party requested

— and the trial court did not file —fi ndings of fact
and conclusions of l aw. In a trial to the court in whic h no findings of fact or16 co nclu sions of law a re filed , the trial cou r t ’ s judgment implies all findings of fa c t

n e cessary to support it. S hield s Ltd. P ’ ship v. Bradberry , 526 S.W.3d 471, 480 (Tex. 2017). When a reporter ’ s re cord is filed, these implied find ings are not conclusi ve, an d an
appe llant may challenge them by rais i ng issues cha llenging the legal an d fac t ual sufficiency of the evide nce t o support the judgment

. Id. We apply th e sam e standard when reviewing the suffi ciency of the evidence to support i mplied findings that we

use to revie w the evi dentiary sufficiency of jury findings or a trial court ’ s e xpres s fi n dings of fact. Id. We mu st af firm the judgment if we can uphold it o n any legal theory support ed by the reco rd. Rosemond v. Al

- Lahiq , 331 S.W.3 d 764, 766

– 67 (Tex.
2 011)

. We m ay su stain a l egal

- sufficiency challe n ge

— that is, a no

- evidence challeng e

— onl y wh e n (1) the record bears n o evi dence of a vital fact, (2) the r ules of
law or of evidence bar the court from g iving weight to the only evidence o ffered to prove a vit al fac t, ( 3) th e evidenc e offered to prove a vi t al fact is no more than a mere
sci ntill a , o r (4) the evidence establ ishes conclusively the opposite of a vital f act. Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018)

. In determining whether legally sufficient

e videnc e su pport s the cha llenged finding, we mus t consider evi dence favorable to th e fin d ing if a reasonable factfind er co uld , and we must disregard contrary evi dence
unless a reasonable factfinder cou ld not. Cent. Ready Mix Concrete Co . v. Islas , 228 S.W.3 d 649, 651 (Tex . 2007 ); City o f Keller v. Wilso n , 168 S.W.3d 802, 827 (Tex. 2005). We i n dul g e “ every reasonable infe rence deducible from the evidence ” in17 suppor t of the challenged finding. Gunn , 554 S .W.3d at 658 (quoting Bustamante v.
Ponte , 529 S.W.3d 44 7, 456 (Te x. 20 17))

. Whe n reviewing an assertio n that the evi dence is factually in suffi c ien t to support a finding, w e set aside the finding only if, after consi derin g and weighing all the pertinent re cord evidence, we determine tha t th e credible evidence s upport ing the
f inding is so weak, or so contrar y to the overw helming weight of all the e vid e nce, that
the finding sh ould be set aside and a new trial ordered. Pool v. Ford Motor Co. , 715 S.W.2d 629, 6 35 (Tex. 1986) (o p. on reh ’ g); Cain v. Bain , 709 S.W.2d 175,
176 ( Tex. 1986); Ga rza v. Alviar , 395 S.W

. 2d 821, 823 (T ex. 1965). If reversi ng fo r fac tual insufficiency, we must detail the evidence relevant to the issue in consider ation and clearly state why the finding is factually insuffici ent

— that is, why the eviden ce
suppor ting the finding is so weak or is so against the great weight and p repon d eran ce of the evidence that the finding is manifestly unjust, shocks the conscience, or clearly
demonstrates bia s. Pool , 715 S.W.2d at 635.
When co nducting a f actual

- sufficie ncy revie w, we do not substitute our judgment for that of the factfinder

. Go lden E agle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003)

. The factf inder is the sole judge of the witnesse s ’ credibility an d the weight to be given to th eir testimony. Id

. B. In formal m arri ag e In her second issue, S harma argues that the eviden ce is insu fficient to support
the trial court ’ s finding that she and Jan i were infor ma lly married. S he contends that18 “[t] here was no reli able evidence tha t the parties met the elemen ts of an informal

mar riage ,” especially b ecause she had asserted throughou t the coup le ’ s relationship
that she was unmarried.
1. Applicable law In Texas, a n informal or “c ommon -l aw ” marr iage exists when the parties agr eed t o be married , a nd af ter t hat agreement , they lived together in Texas as

s pouses a nd r epresented to others in Te x as t hat they were married. Tex. Fam. Code
Ann. § 2.4 01(a)(2); Luna v. Gar ci

a , No. 02 -23- 00209

- CV, 2023 WL 74 00927 , at
*4 (Tex. App .— For t Worth N ov. 9, 2023, pet. den ied ) (mem. op.)

. The existence of

an informal marria ge is a fact ques tion, and the party s e ekin g to establis h the marriage’ s exist e nce bea rs the burden of proving t he elements by a preponderance of

t he evidence. Small v. McMa s ter , 352 S.W.3d 280, 28 2–8 3 (Tex . App.

— Houston [14th Dist.] 2011, pet. denied). An informal marr iage d oes not exist unti l the concurrence of all required elements. Id. at 283.
Be ca use Sharma challenges th e sufficiency of the evidence e stab lishing each element, we ad dress eac h element in turn.
2. Analysis
First , Jani was required to p rove that he and Sharma agreed to be ma rrie d. See
Tex. Fam. Code Ann. § 2.401(a)(2) . T o establish an agreement to b e marrie d, “the evidence must show the part ies inte nded to have a pres ent, imme diate, and permanent marital relationship and that they did in fact agree to be husband and wife. ” Ga rcia v.19 Garci a , No. 02

- 11

- 00276

- CV, 2012 WL 3115763 , at *3 (Tex. App.

— Fort Wor th Au g . 2, 2012, no pet. ) (mem. op.) ( quo ting Small , 352 S.W .3d at 283 ). An agreemen t to be
married may be established by direct or circumstantial evidence. Russell v. Russell , 8 65 S .W.2d 929 , 933 (Tex. 1993) ; Small , 352 S.W.3d at 283 . “ The testimony of one of

t he pa rties to the marriage constitu tes some direct evid ence that the parties ag reed to
be married. ” Small , 352 S.W.3d at 283 (citing Eris v. Phare s , 39 S.W.3d 708 , 714 (Te x . Ap p.

— Houston [1st Dist.] 2001, pet. denied )). E vidence of an agreeme nt may be
infe rred from cohabitation and the part ies ’ representations

. Eris , 39 S.W.3d at 714. Here, Sharma and Jani met through an Indian m atrimoni al website in late 2005.
Sharma test i fied that she was seeking marriage through the webs ite. The couple started living together in Ap ril 2006. Ac c ordi ng to Jani , in lat e Ap ril or early May 2006, the co uple agreed to get married , and they started prepar ing for the c eremony.
In July 2006, Shar m a an d Jani took part in a ceremony led by a Hindu pr iest in a Hindu temple in Houston . Jani test ified that i t was a marriage ceremo ny , and
Pancholi —a H indu priest

— testified th at the c eremony shown in the July
2006 photographs was a marri age ceremony. Both Jani and Pancholi explained that
the c eremony had the characteristics of a marri age c e remony

— a H indu priest ’ s
presence , the couple ’ s ex cha nging rings, the placing of vermi llion in the center part of
Sharma’ s hair , and Jani ’ s giving Sh arm a a mangalsutra . Th is e vidence

— along with the couple ’ s liv ing together and the notarized Affid avit of Marriage si gn ed by Sharma and Jani stating that the coup le was marri ed “ under H i ndu Marr iage20 Act/ Rights/Customs ” and had been living together as a married couple since July 8,
2 006

— is legally sufficient evidence of an agreement to be married.
Turn ing t o the contrary e vidence, Sha rma insisted that she a nd Jani never agreed to be marri ed, did not l ive togeth e r as hu sband and wife, and did not r epresent

to ot hers that they wer e mar ried. She explained that the July 2006 cer emony was not a marriage cere mony b ut was an engag ement cere mony meant to define the couple ’ s relationshi p and to leg i tim ize their living together. She also denied having signed the
Affidavit o f Marriage , desp i te c ontrary testimony from Jani, the n otary, and the handwriting expert

. Al thoug h th ere was conf licting evidence a bout whether the couple had agreed to be married , the tri al court was the sole judge of the witnesses ’ credibility and the weight to be given to t heir testimony

. Se e Golden Eagle Archery , 116 S.W.3d at 761

. We thus ho ld th at the c redible evidenc e supporting the tr ial court ’ s implie d finding o f a n agreeme nt to be married was not so weak that the finding
should b e set aside and a new trial ordere d

. S econd , Jani was required to prove that a ft er ag r ee ing to be married, the couple
lived togeth er in Texas as spouses. See Tex. Fa m. Code Ann

. § 2.401 (a)(2)

. Shar ma admits that she and Jani lived together in Texas “ during the relevant t ime period ”

—

over t e n ye ars from the July 2006 c eremony until they sepa rated when she filed her divorce petitio n in Decemb er 20 16

— but argues that the e vidence is i nsuffici ent to
suppo rt a finding that they live d together as sp ouses because there was a “ dist inct[]
lack of tes t imon y that t hey did so as husband and wife

. ” Although Sharma testifi ed21 tha t the couple ha d not lived together as h usband an d wife, she and Jani averred in
the May 2016 Affidavit of Marriage that they had li ve d together as husband and wi f e since Ju ly 8, 20 0 6. M oreover, b ecause Sharma conc edes that the couple cohabitated
dur ing the relevant time and because we have alre ady deter mined that t he evidence is legally an d factually sufficient to support the trial court ’ s agre ement

- to

- be -married finding , the evide n ce is legally and factually suff icient to support the trial court ’ s implied finding that Sharma and Jan i lived tog ether as h usband and wife. See Small , 352 S.W.3d at 284 ( hol ding evidence was sufficient to support the living

- together

- as

spouses element wh e re on e party conceded that the couple had lived together “ during
the relevant time ” and the court had a lready dete rmined th at the evide nce was sufficient to show an agreement to be married ).
Third , i n addition to living together as spou ses after agreeing to be married, Jani

was a lso r equired to establish that the couple r epresented to others in Texas that they

were m arried. S ee Tex. Fam. Code Ann. § 2.401(a)(2)

. This statutory requirement is
synonymous with the judicial requirement of “h olding out to the p ublic .” Garcia , 2012 WL 31157 63, a t *4 ; Small , 352 S.W.3d at 284

– 85 . “ Holding out ” ma y be
established b y the parties ’ condu ct and actio ns; “ spoken words are not necessary to establish representation as husband and wi fe. ” Garcia , 2012 WL 3115763, at *4 ( ci t ing
W infield v. Renfr o , 821 S .W.2d 640 , 648 (Tex. App.

— Houston [1st Dist.] 1991 , writ denied))

. Occ asio nal int roductions as husb and and wife are insufficient to est ablish the holding

- out element. Small , 352 S.W.3d at 285 (citing Lee v. L ee , 981 S.W.2d 903 ,22 90 7 (Te x. App.

— Houston [1s t Dist. ] 199 8, no pet.) ). “ The couple ’ s r eputation in the

commu nity as being married is a signif icant factor in determining the holding out
element. ” Danna v. Danna , No. 05

- 05

- 00472

- CV, 2006 WL 785621, at *1 (T ex. App.

— Dallas Ma r . 29, 2006, no pet.) (mem. op.) (c iting Er is , 39 S.W.3d at 7 15).
Sh arma argues that altho ugh the coupl e had coha bitated an d ha d a child
tog ether , their conduct was insufficient to s atisfy the holding

- out element because (1) the couple had se parate bank a c count s and were not involved in each o ther ’ s finances ; (2) Sharma ha d filed her income tax ret urns as “single” or “ head of
house hold ” from 200 6 through 2022 , thus representing to the federal government
that she was unmarried ; and (3) sin ce 20 06, she had ex ecute d property leases as a single per son, had purchased car insuran ce in her name only as a single per son and

co vering onl y h erself , and ha d purchased the Wi ndthorst and J asmine Springs homes in her name only

. She contends this case ’ s f acts are like thos e in Sm all , a case in whi ch

on e of our sister courts he ld that the following evidence was fa ctually insufficient to

s upport the h olding

- out element: ( 1) Murriah presented evidence, exclusively from her own witnesses, that she and Jack hel d out to some fami l y, fr iends, and acquaint ances that they were married; (2 ) Jack presented evidenc e, through his witnesses, that he ne ver held out to others that he was married to Murriah; (3) there was no evidence showing the couple had a reputation in t he broader communi t y as a married couple; a nd (4 ) the overwhelming weight o f the parties ’ other con duct and ac tions is contrary to Murr iah ’ s claim of an informal marriage.23 352 S.W.3d at 287. Spe c ificall y, the evidence showed that Murriah

— the party seeking

to est ablish the i n forma l marriage

— had filed he r fed eral income tax return as single, had applied for c ar ins urance and credit cards a s single, and at Ja ck ’ s request , n ever filled out any document as “ married

. ” Id

. at 286.
While some of the facts here ar e like those in Sm a l l , ot her facts lead to a diffe rent outcome. Here, Jani testified th at a f ter the J uly 2006 ceremony , Sharma
conti nued to wear the man g al su tra , which s ym bolized that she was a married woman , and that she wore it dur ing a housewarming ceremon y for the Jasmi n e Spri ngs home
aft er it was purchased in 2011. Photographs from that cere mony s how that it was
conducted by a pr iest with p eopl e o ther than Sharma and Jani in attendance. Although Sharma denied that the necklace she had received from Jani in July
2006 was a mang al su tra and d enied that the nec k lace she was wearing i n the phot ograph s from the 20 11 hou se warming ceremony was a mang al sut ra , the trial
court could have resolved the con flicting evidence against her

. The trial court could have reasonably concluded t h at by wear ing t he mang al sut ra , Sharma was holding out
that she was marri ed to Jani.
Additiona l ly, in May 2013, Sh arma and Jani signed the Affidavit of Marriage,
which was notar ize d and signed in front of two wi tnesses in Denton C ounty , Texas

. Although Sh a r m a de nied signi ng it, testimony from Jani, the no tary, and the
han dwriting expert sup ported t h e op posite con cl usi on . And t wo months aft er the
affidavit ’ s si gn ing , in July 2013, t he couple signed two con sent forms with the Dallas24 Fertility Clinic in space s labe l ed “ h u sban d ” and “ wife

. ” Sharm a claimed she did so bec ause th er e was no place on the for m s to explain the st atus of their relation ship and
that she told clinic representative s that the cou ple was unmarried

. But a c c ordi n g to Jani , the Dallas Fertilit y Clini c treated onl y married couples at that time

. Again , th e trial court resolved the con flic t ing evidence aga ins t Sharma and concluded that she
held out that she was married to Jani.
Wh en, as here, the evidence is confl icting about the existence of an i n f ormal marriage, the conflict must be resolved by the factfi nder. See In re Est

. of Walker , No. 2

- 08

- 371

- CV, 2 009 WL 1996301, at *4 (Tex. App.

— Fort Worth July 9, 2009, no pet.) (mem. op.)

. Applying the applicable sta ndar ds of review, we conclude that some

e viden ce support s the trial court ’ s implied finding that the couple represented to
oth ers that the y wer e married

. We likewise hold that the credible evidenc e supporting
the finding was not so weak that the finding should b e set aside and a new trial
order e d

. Hav ing conclud ed that the evidence suffice s to su pport th e trial c ourt ’ s impl ied findings on the required informal

- marriage elements, we conclude that the e viden ce
sup ported the trial court ’ s finding that Sha rma and Jani were informally married. We
thu s overr ule Sharma ’ s second issue

. 15

15 Within her seco nd issue, Sharma also argues that her pleadings claiming that she was marr ied to Ja ni we re not judicial admission s an d that the part ies had n ot e ntered into a putative marriage. G iven our holding th at the evidence i s sufficient to25 C
. Fraud on the community
In her t hird issue, Sharma claims that the evidence is legally and factually insufficient to support the trial court ’ s f raud

- on

- the

- c ommuni ty

- estate findings . She
contends that she “ proved that

— r e gard l ess of the source of the funds

— she spent
those funds o n communi ty expenses , reasonable li ving expenses during her unemployment , and her medical bills incurred during t he pend ency of the case

. ” She alternatively argues that ev en if sufficient evidenc e suppo rt s the trial court ’ s f raud

- on

the

- community f indings, “ the amount ordered by the trial court to restore or reconstitute the estate far exceeds the amount pur ported ly exp ended for fraudulent
purposes
. ” 16
1. Appli cable law
F r aud on the community is no t an in dependent tort “ but a means of redre ss for
a d eprivation of community a ss ets to be considered as part of a just and right division

o f the community estate. ” Miller v. Miller , No. 14

- 17

- 00293

- CV, 2018 WL 3151241, at *5 (Tex. App.

— Houston [14th Dist. ] J une 2 8, 2018, no pe t.) (mem. op.) ( citing support the trial court ’ s informal

- marriage fin ding, we need not address t hose arguments. See Tex. R. App. P . 47. 1.

16

Jani asserts that Sharma fa iled to p rese rve her third issue for appellate r eview because she did not move for a new trial on that issue or r equest findings of fac t and conclusions of law. In a bench trial, however, legal

- an d factual

- suf ficiency c ompla ints may be raised for the f irst time o n appeal. See T ex . R. App . P

. 33.1(d); Tex. R . Civ. P. 324 (a)

– (b). Sharma ’ s failing to request finding s and conclusions d oes not affect error preservation , but it does require us to impl y all fact findi ngs necess ary t o support the trial court ’ s judg me nt
. S ee Shield s Ltd. P ’ ship , 526 S.W.3d at 480

.26 Schlueter v. Schlue te r , 975 S.W.2d 584 , 589 (Tex. 1998 ) ). “ Judg ments for fraud on the community are part of [ the trial ] court ’ s property d ivision. ” Clarke v. Clark e , No. 08

- 23

- 00016

- CV, 2024 WL 347938 , at *9 (Te x. App.

— El Paso Jan. 30, 202 4, no pet. ) (me m. op.) . W e have pre vio us ly explain ed the concept of fraud on the community : A fiduciary duty exists between a husband and a wife regarding the community property controlled by each spouse. Although a spouse ha s the right to dispose o f community property under his c ontrol, he may not dispose of his spouse ’ s interest in community funds if actual or constructive fraud exists

. “Fraud on the community” is a judicially created concept based on the theory of constructive f r aud a nd is applied when there is a breac h of a leg al or equi table duty whic h violates the fi duciary relationship existing between spouses. Although not actually fraudulent, any such conduct in the marital relationship is termed fraud on the community beca u se it has all the consequences an d legal effects
o f actual f raud. Construc tive fraud does not require an intent to defraud but is instead the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relatio nship

. A pr esumption of constructive f raud ar ises when one spouse disposes of th e other spouse ’ s interest in community property without the other ’ s knowledge or consent. The disposing spouse then bears the burden of proof to show fairness in disposing of c ommun i ty as sets. Daile y v. Dailey , No . 02

- 12

- 00097

- CV, 2013 WL 1 05667, at *3 (T ex. App.

— Fort Worth Jan. 10, 2013, no pet.) ( mem. op.) (citations omitted)

. T he three primary factors for determining fairnes s are (1) the disposed property’ s size compared to t he co m munit y estate ’ s total size ; (2) the estate ’ s adequa cy

to s upport the other spo u se after the d isposition; and (3) the relationship of the parties invol ved in the transaction or, in the case of a gift, of the donor to the donee.
Puntarelli v. Peterson , 405 S .W.3d 131, 138 (Tex. App.

— Houston [1 st Dist.] 2013, no27 pet .). Upon d etermining that a spouse has committed fraud on the community, the
trial court mus t reconstitute the community estate

— before making its just

- and

- right
divisio n— by calculating “the va lue b y whic h the community est ate was de pleted as a

res ult of th e fraud on the comm u nity and

. . . the amount of the reconstituted estate,”
which is “the total value of the community estate that would exist if

. . . fraud on the community had not occurred. ” Tex

. Fam. Code Ann. § 7.009( a)

– (b) ; se e also id. § 7.009(c) . “ A claim for the impr oper depletion of the community estate may be resolved by the trial co urt with an unequal division of the community estate, or a money judgment in order to achieve an equi t able d ivisi on of the estate.” Puntarelli , 405 S.W.3d a t 138 ( citing Schlue te r , 975 S.W.2d at 588 ).
2. Applica t ion
Here , Sh arma does not d ispute that she disposed of community property
wi thout Jani ’ s knowledge and con sent. As noted, i n June 2 019 , the trial court made temporary orders provid ing that Jani cou ld li ve i n the Jasm ine Spr ings home if he
tim ely ma de the $ 1,694.58 mon thly mortgage p ayment on the property beginning J une
1 , 2019

. The court -ordered mortgage

- payment amount was based on Sharma ’ s representati on to t he trial court.
Star t ing i n Ju ne 2019 and through the l as t day of trial , Sh arma c ollected funds from Jani that

— unbeknownst to him

— were more than the actual mortgage payment on the Ja smine Spring home , and she retained the excess , which ranged from $ 233. 16 to $5 52. 33 per month

. And f or several mo nths, she di d not make t he28 mortgage payment at all and kept the funds that Jani had paid to her

. Because of those
miss ed payments , Sharma restructured the mortgage in September 2021 , causing th e principal bala nc e on the Jasmin e Springs mo rt ga ge to incr e ase by about $ 5,000. Both
Sharma’ s defaul ting on and restructuring the loan were without Jani’ s knowledge. Additionally, when Sharma ch anged jobs in December 2020 , she l iqui dated a $20 ,98 6.04 re tirement fund , dep os ited th e funds in her bank acco unt , and imm ediately started withdrawing them

. 17
Sharma m aintai ns, however, t hat the evidence is insufficient to prove
constructive fraud because the re tire ment fund s and the m o rtgage p ayments t hat she
retained w ere not wast ed or u naccounted for because she was using the funds to pay
for her m edical and living expenses . Sharma testified that while the case was pending , she had periods of unemp loyment , and s he was diagnose d with cancer in J uly
2021 and was thus on u npaid medic al leav e for about a year with on ly “ some ” short

17 During oral argument , Sharma admitted that her withdrawing and sp ending the ret irement

- account f unds without court per mission vi olated the st and ing order that applies in eve ry Denton County divorce sui t an d su it affecting t he parent

– child
r elationship

. Amo ng other t hings, this standing order prohibit ed the parties f rom “[

m] aking withdrawals from any account in any fina ncial institution for any purpose ” and “ [w] ithdrawing or borro win g in any manne r for a ny purpose fr om any retirement, profit

- sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account ,” except as specifical ly authorized by the s tandi ng o rde r or subsequen t court order. Th e standing order also prohibited the par ties from mortgaging or encumbering any party ’s real property, except as specifically authorized by the stand i ng order or subsequent court order. Sharma ’s actions in restruc t uring the mortgage argu ably viol ated this provision

.29 term disability for in come. When asked about “p ocketing ” the mortgage pay ments
sin ce June 2019 , she explai ned , “ I was not pock eting th em. I was

-- I had my s urge ry. I was going through hard ship. And I had to u se th at money, and I had to res tructure the loan .” She further explained , “ I had to use [the money] for my medical exp enses .”
This was the extent of Sharma ’ s a ttempt t o account for those funds. S he offered no
evidence of her medical expenses , and her cance r dia gno sis came two yea rs after Jani had started paying the Jasmine Springs mortgage
. Jani testified that Sharma had not provided h im with an account in g of how she spen t the ret irement f unds , and Sharma offered no testimony regarding the use of t hose fund s. We thus conclude that the evidence sufficed to create the constructive

- fraud presumption. Sharma does not argue on appea l that she re butted thi s pre sumption by showing f airnes s in disposing of the community property nor does she point to any

ev id ence sh owing fairness.
After co nsidering all the evidence, and deferring to the factfinder on credibility
issues , we conclude that a reasonable fac tfi nder cou ld have f ound that Sharma

c ommitted constructive fraud on the community and that she fa iled to rebut the
presu mption that s he com mitted constructive fraud. See Loaiza v. Loaiza , 130 S.W.3d 894, 902 (Tex. App.

— Fort Worth 2004, no pet.) (“By faili ng to show the fairness of the expendi tures, [husband] failed to rebut the presumption of constructi ve frau d that

ar ises when one spouse disposes of the other spouse ’ s one

- half interest in community property without [her] knowledge or consent.”). We thus hold that th e trial c ourt ’ s30 determinati on was not so weak and against the great weight and prepon derance of the

contr ary e vidence that it is clearly wrong and unjust. S ee Cain , 709 S.W.2d at 176. Accordingly, we overrule this portion of Sharm a’ s third issue

. 18
In the r emainder of her third issue , Sharma argues that the evidence is factual ly insufficient to suppor t the amo unt o f the fraud judgment in the decree. In the decree,
the trial court found th at Jani was entitled to a $42,362.55 jud gment against Sharma

. T he trial court arrived at t he judgment amount based on the following ca lculati on s recited in the decree :

• Sh arma c ollec ted sums from Jani “ as mortgage payments which were not applied to the mortgage for the Jasmine Springs hou se in the amount of $23 3.41 for 28 month s in the amount of $6 [,] 535.48 ”;

• Sh arma collected sums from Jani “as mortgage payments which we re not ap plied to the mortgage fo r the Jasmine Springs house in the amount of $1 [,] 694.58 for 12 months in the a mount of $2 0,334.06 ”;

• Sharma c ause d “t he princi pal balan ce on the Jasmine Springs house to be increased from $109,000 in November 2020 to $114,000 in Sep tembe r 2021 as a result of modifying the loan on the Jasmine Springs house in violation of Court orders and wi thout [ Jani ]’s agreemen t, causi ng the ba lance owe d on the Jasmine Springs house to be increased by $5 [,] 000.00 ” ; a nd

• Sharma wasted Jani ’s “ communi ty in terest of $10,493.0 2 in the [retirement ] acc ount under her control as a result of her liquidation of sai d account during the pe ndency o f this di vorce withou t cour t order or approval, and without [Jani] ’s agreement. ”

18 Because the evidence sufficed to support the trial court ’ s constructive

- fraud finding, we need not address the trial court ’ s actual fraud find ing s . S ee Te x. R. App. P. 47.1.31 S harma argues that the $31 ,869.53 t he tr ial court awarded t o Jani “ as compensation for the money [he ] paid to he r” f or th e Ja smine S prings mortgag e is too high 19 an d that th e trial cour t erre d by awarding him his community interest in the
retirement account because ther e w as no frau d. We dis agree with the latter co ntention because we have held that the evidence sufficed to support the trial court ’ s

constr uctive

- fr aud finding. We ag ree, however, that the trial court ’s ca lculation of the
mortgage amount s Jani had paid to Sharma that we re not ap plied to the mo rtgage wa s not supported by the evidence. 20 Based on the mortgage state ments admitted into evi dence an d Jani ’ s testimony , Jani ma de mortgage payment s to Sharma fr om June 2019 thro ugh July 2022

— 38 months

— not for 40 months as state d in the decr ee. D uring the 38

- month peri od,
the actual mon thly mortgage pa yment due r anged fr om $1,1 42.25 to $1,461

. 42

. Eac h
month that Sh arma paid the lender , she kept the difference between what Jani had paid her and the actual amount that she p aid to the l ender

. In addi tion to keeping the
excess fun ds, th ere were some months when Sharma made no payment t o the lender and pocketed the entire $1,694 .58 payment from Jani

. Because of those miss ed

19 The trial court awarded $ 3 1,869 .5 4 to Jani for his mortgage payments to Sharma and the principal increase —$6, 535.48 , plus $20,334.0 6 , plus $5,000

. Sharma’ s calculation is off by a penny
. It appears that the trial court ’ s total fraud j udgme nt award is off by a penny as we l l.

20 Sharma does not challen g e the $5,000 th e t rial court awarded Jani for the increased principal balance on the Jas mine Springs mortgage.32 payments , Sharma restructured the loan, causing the principa l bala nce o n th e Jas mine Springs mo rt ga ge to incr ease by about $ 5,000. At trial, Jani testified in response to leading questions by his attorney that
Shar ma made no mortgage payments for 12 months. Sharm a dis agr eed that she had
missed that many p ay ment s , and we agree wit h her

. The mortgage stat ements re flect
that Sharma missed five , rather than 12 , p ayments
. 21 In those five months, Shar ma collected from Jani $8,472.90 that was not app lied to the mortg age. Jani further testified that for 28 months, he had paid Shar ma $233.4 1 mor e than the act ual m ortgage payments. The mortgage state ments , however, ref lect that
d uring the 33 months in which Sh arma did pay the mortgage, the overpayment from Jani that Sha rma kept ranged from $233. 16 to $5 52. 33 per month , rather than th e $ 233 .4 1 per mo nth for 28 months to which Jani had testified and that is re flected in
the d ecree . Base d on the mortgage statements t hemsel ves, we have calculated that
dur in g th ose 33 mo nths, Sharma collected fro m Jani $ 10,531 .99 that was not applied
to th e mortgag e. Ov erall, Sharma recei ved from Jani ju st ov er $ 19,000 that she failed to apply to the Jasmine Spr ings mortgage , al most $7, 9 00 less than the $26, 869.54 that

21

Jani was forc ed to o btain Sharma ’ s mortgage and bank records by s u bpoena becau se she had refused to supplement her d iscovery r e spon ses . Ja ni received these fin ancial records the day before the final d ay of trial and thus arguably did not have time to stu dy them. A cursory review of the mortga ge statements lea ds one to conclu de that Sharma missed 12 pay ments b ecause she was late o n sev eral mortgage payments , and these pay ments were not reflected on mortgage statements until months after they were due

. A more in

- depth review of these records thus r eveals that after the lat e p ayment s were app lied, Sharma missed five payment s total

.33 the trial court a warde d for the unapplied overp ayments and missed mortgage
payments
. Afte r conside ring an d wei gh ing all th e record evide nce, we conclude that
evidence supp orting the amount of the trial court ’s fraud findings of $6, 535.48 and $20,334.06 for the sums Jani paid to Sharma that she did not apply to the mor t gage is

so we ak that the judgment must be set aside and a new trial orde red on the division of
the estate
. See Jacobs v. Jacobs , 687 S.W.2d 731, 733 (Tex. 1985) (“ [O]nce reversible error affecting the ‘just and right’ division of the community estate is found, the court

o f appeals must rem and t he enti re commun ity estate for a new division .”)

. We thus
sustain th is part of Sharma ’ s third issue.
IV . Conclusion
Ha ving sustained Sha rma ’ s third issue in part , w e reverse the trial court ’s fraud findings of $6, 535.48 and $20,334. 06 and re mand t he case for a n ew and co rrect di vision of the community estate . We affirm th e rest of the div orce decree.

/s/ Elizabeth Kerr E lizabeth Kerr Justic e De liver ed: May 9, 2024