pjc-family-2024-lib

F RAUD —D ISSOLUTION OF M ARRIAGE

PJC 206.4

COMMENT Source. The instruction in PJC 206.4A is modeled on Mazique v. Mazique , 742 S.W.2d 805 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.), and Carnes v. Meador , 533 S.W.2d 365 (Tex. App.—Dallas 1975, writ ref’d n.r.e.). Question 2 is based on Tex. Fam. Code § 7.009(b)(1). Other constructive fraud theories. The foregoing submission reflects only one of many constructive fraud theories that might be presented in a case involving spouses. The variety of possible theories is too great to be comprehensively covered in this book, but the submission may be altered to present other theories. See, e.g., Cantu v. Cantu , 556 S.W.3d 420 (Tex. App.—Houston [14th Dist.] 2018, no pet.); In re M.G. , No. 05-15-00234-CV, 2016 WL 4120030 (Tex. App.—Dallas July 29, 2016, no pet.) (mem. op.); Wright v. Wright , 280 S.W.3d 901 (Tex. App.—Eastland 2009, no pet.); Loaiza v. Loaiza , 130 S.W.3d 894 (Tex. App.—Fort Worth 2004, no pet.). No independent cause of action for fraud against community estate. A spouse has no independent cause of action against the other spouse for constructive fraud on the community estate in a divorce proceeding, but the court may consider such fraud in arriving at a “just and right” division of the community estate. Schlueter v. Schlueter , 975 S.W.2d 584 (Tex. 1998). The court shall calculate the value of the reconstituted estate—the total value of the community estate that would exist if fraud on the com munity had not occurred—and divide the value of the reconstituted estate between the parties in a manner the court deems just and right by granting any necessary legal or equitable relief. Tex. Fam. Code § 7.009. Include this additional instruction. The instruction in PJC 206.1 (confidence and trust relationship between spouses) should be given with the foregoing instruction and questions. If transaction is disputed. The instruction as written assumes that there is no dis pute that the gift, transfer, or expenditure of community property was made. If the transaction is in dispute, the foregoing submission should be conditioned on a finding that the transaction occurred. If separate estate was defrauded. If constructive fraud by a spouse against the other spouse’s separate estate is in issue, Question 2 should be submitted as follows: What sum of money, if paid now in cash, would fairly and reason ably compensate the separate estate of SPOUSE B for the damages, if any, resulting from the transfer made by SPOUSE A to THIRD PARTY ? Answer in dollars. Answer: _______________

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