Sergey Yakovlev v. Maria Yakovleva

majority opinion

Opinion issued August 11, 2026.

In the

Court of Appeals

for the

First District of Texas

NO. 01-24-00696-CV

SERGEY YAKOVLEV, Appellant

MARIA YAKOVLEVA, Appellee

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Case No. 2023-25853

MEMORANDUM OPINION

This appeal arises from a contested divorce between appellant Sergey

Yakovlev and appellee Maria Yakovleva.1 Sergey and Maria were married in 2002.

Due to the similarity in the parties’ surnames, we refer to each party by his or her

first name.

They later had a child, who is still a minor, and two decades after their marriage, in

August 2022, the couple entered a “postnuptial agreement.” Less than a year later,

Maria petitioned for divorce. Following a trial, the trial court rendered a final decree

of divorce, and Sergey appealed. In two issues, Sergey contends that the trial court

abused its discretion by (1) divesting Sergey of his separate property and awarding

Maria a money judgment against him and (2) requiring that Sergey execute a

$400,000 bond as a measure designed to protect the couple’s child, Taylor,2 from

the risk of abduction by Sergey.

Because the trial court failed to apply the parties’ agreement and abused its

discretion by awarding Maria a money judgment, we sustain Sergey’s first issue,

reverse the portion of the final decree of divorce that divides the community estate,

vacate the money judgment in favor of Maria, and remand to the trial court for a new

just-and-right division. As to Sergey’s second issue, we conclude that the trial court

did not abuse its discretion by imposing abduction-prevention measures because the

trial court’s findings in support of those measures are supported by sufficient

evidence.

To protect the identity of the child, we refer to her by a fictitious name. See TEX.

FAM. CODE § 109.002(d).

Division of Property

In his first issue, Sergey contends that the trial court (1) improperly included

Sergey’s separate property as community property, (2) divided one of the couple’s

joint brokerage accounts unequally in contravention of the parties’ marital property

agreement, and (3) improperly awarded Maria a money judgment against Sergey.

Sergey argues that the parties’ “postnuptial agreement,” executed in August 2022,

informs each of these issues. Maria responds that the agreement applies only to

property acquired after August 1, 2022, and, therefore, the trial court did not err in

treating certain property as community property if acquired prior to that date and

dividing it among the parties. She further argues that the trial court, in making a justand-right division, had the discretion to award her a money judgment.

A. Standard of Review

In a decree of divorce, the trial court “shall order a division of the estate of the

parties in a manner that the court deems just and right, having due regard for the

rights of each party and any children of the marriage.” TEX. FAM. CODE § 7.001. We

will not reverse a trial court’s division of the community estate absent a clear abuse

of discretion. Fischer-Stoker v. Stoker, 174 S.W.3d 272, 277 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied). To establish a clear abuse of discretion, a party must

show that the trial court acted arbitrarily or unreasonably or without reference to any

guiding principles. McCartney v. McCartney, 720 S.W.3d 789, 797 (Tex. App.—

Houston [14th Dist.] 2025, no pet.).

However, a trial court’s discretion to divide the “estate of the parties” extends

only to community property: a trial court has no discretion to take the separate

property of one spouse and award it to the other spouse. Hale v. Hale, 712 S.W.3d

670, 677 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (citing TEX. CONST. art

XVI, § 15; Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977)); Cottone v.

Cottone, 122 S.W.3d 211, 213 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

“Property possessed by either spouse during or on dissolution of marriage is

presumed to be community property,” unless a spouse proves by clear and

convincing evidence that the property is separate. TEX. FAM. CODE § 3.003. Spouses

may agree, in writing, to partition or exchange all or any part of their community

property between themselves. Id. § 4.102; see id. § 4.104 (requiring agreement to be

in writing and signed by both parties). The effect of such an agreement is that the

property transferred “becomes that spouse’s separate property.” Id. § 4.102.

The construction of an unambiguous contract, including an exchange or

partition agreement between spouses, is a question of law we review de novo.

McCartney, 720 S.W.3d at 797. An agreement is unambiguous if it “is so worded

that it can be given a certain or definite legal meaning or interpretation.” Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983). We construe such agreements in

accordance with the parties’ true intentions as expressed in the instrument, but we

construe them narrowly in favor of the community estate. Fischer-Stoker, 174

S.W.3d at 278-79.

B. Sergey’s Separate Property

In August 2022, two decades into the parties’ marriage, Sergey and Maria

executed a “postnuptial agreement.” See TEX. FAM. CODE § 4.102 (permitting

agreements to partition or exchange community property between spouses). No

party disputes the enforceability of that agreement, and the trial court found that it

“is a valid and enforceable agreement” that “was signed voluntarily without

unconscionability.” Relevant here, the postnuptial agreement includes the following

provisions:3

1. EARNINGS DURING THE MARRIAGE. All earning[s], salaries,

commissions, income, pension, stock, stock options, or other employee

benefits resulting from personal services, skills, and efforts of either

party shall be and remain the sole and separate property of the acquiring

party. Each party voluntarily relinquishes all of his or her interest in all

such property of the other. Each of the parties understands that except

for this Agreement, such earnings and accumulations of the other

throughout the marriage would be joint property, and that by this

Agreement such earnings and accumulations during the marriage are

made the separate property of the person to whom the earnings and

accumulations are attributable. . . .

5. DISSOLUTION OF MARRIAGE. . . . Without in any way

anticipating a dissolution or planning for a dissolution, but recognizing

the realities of the world, it is the express intention of Sergey Yakovlev

Unless an alteration is noted, the postnuptial agreement is transcribed as written

without any changes to grammar, spelling, or punctuation.

and Maria Yakovleva that the following provisions shall prevail in the

event of a dissolution: . . .

• Retirement accounts and 401k will fully remain with party

contributed to the account.

• All earning[s], salaries, commissions, income, pension, stock, stock

options, or other employee benefits realized after August 1st 2022

year shall be and remain the sole and separate property of the

acquiring party. . . .

The trial court construed the agreement such that any post-marriage “earning[s],

salaries, commissions, income, pension, stock, stock options, or other-employee

benefits” realized on or before August 1, 2022, are community property. Applying

that construction, the trial court awarded to Maria, among other things:

60% of all individual retirement accounts, specifically the funds on

deposit, for simplified employee pensions, annuities, and variable

annuity life insurance benefits in [Sergey’s] name, accumulated or

realized on or before August 1, 2022, including but not limited to:

a. Charles Schwab IRA Rollover x6276 [the 6276 Account]; and

b. Charles Schwab Roth IRA x523 [the 523 Account]. . . .

60% of all sums, whether matured or unmatured, accrued or unaccrued,

vested or otherwise, together with all increases thereof, the proceeds

therefrom, and any other rights related to any profit-sharing plan,

retirement plan, Keogh plan, pension plan, employee stock option plan,

401(k) plan, employee savings plan, accrued unpaid bonuses, disability

plan, or other benefits existing by reason of [Sergey’s] past, present, or

future employment in the name of [Sergey] accumulated or realized on

or before August 1, 2022, including but not limited to:

a. ExxonMobil 401(k) [the 401(k) Account] . . . .

By the divorce decree’s language awarding Maria “60% of all sums . . . related to

any . . . pension plan,” Maria was also awarded 60% of Sergey’s ExxonMobil

pension plan (the Pension Plan) “accumulated or realized on or before August 1,

2022.”

Sergey contends that the assets in the 6276, 523, and 401(k) Accounts and the

Pension Plan—portions of which were awarded to Maria—are his separate property4

under the postnuptial agreement without limitation to any August 1, 2022 partition

date. Maria does not dispute that the assets in the Accounts and Pension Plan fall

within the scope of the postnuptial agreement or that the assets within each would

be Sergey’s separate property in full but for the August 1, 2022 partition date.5

However, she contends that the agreement’s provisions conflict: paragraph 1

(“Earnings During the Marriage”) contains no partition date whereas the fifth bullet

of paragraph 5 (“Dissolution of Marriage”) sets the date of partition as August 1,

Although Sergey’s argument is framed in terms of the accounts being his separate

property, his argument extends to the assets in the accounts. See McMordie as Tr.

of Hobart B. McMordie, II Asset Mgmt. Tr. v. Sanchez, No. 07-20-00353-CV, 2021

WL 5127552, at *4 n.4 (Tex. App.—Amarillo Nov. 4, 2021, pet. denied) (mem. op.)

(distinguishing account from assets held in account). In the instant case, the

distinction is immaterial and, for simplicity, any reference to the “Accounts” or “the

Pension Plan” is shorthand for “the assets in the Accounts” or “the assets in the

Pension Plan.”

At trial, Maria acknowledged that each of the Accounts is “Sergey’s.” We construe

her testimony not as an admission that each Account is Sergey’s separate property,

but as a recognition that Sergey contributes to and manages the Accounts. Regarding

the Pension Plan, there is no testimony from Maria, but Sergey’s uncontested

testimony is that the Pension Plan is a benefit he receives through his employer.

2022. The trial court, Maria argues, resolved this conflict by concluding that the

categories of property identified in the postnuptial agreement are community

property if “accumulated or realized on or before August 1, 2022.”6

As mentioned, the construction of an unambiguous contract—including a

postnuptial agreement partitioning community property—is a question of law we

review de novo. McCartney, 720 S.W.3d at 797. An ambiguity does not exist simply

because Sergey and Maria disagree over the agreement’s meaning. Hallsted v.

McGinnis, 483 S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2015, no pet.). To be

ambiguous, the contract language must be “susceptible to two or more reasonable

interpretations.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154,

157 (Tex. 2003)). If a contract is “so worded that it can be given a definite or certain

legal meaning when so considered and as applied to the matter in dispute, then it is

not ambiguous.” URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 765 (Tex. 2018) (citing

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589

(Tex. 1996)). Neither party contends that the postnuptial agreement is ambiguous.

The postnuptial agreement is not a model of perfect draftsmanship. However,

our task is to determine only the agreement’s application to “the matter in dispute.”

With respect to “individual retirement accounts . . . in [Maria’s] name,” the trial

court did not apply a partition date or otherwise divide any of those assets between

Maria and Sergey. Rather, the trial court awarded those accounts and their assets to

Maria as “her sole and separate property.”

Id. The matter in dispute is whether the assets in each of the Accounts and the

Pension Plan are Sergey’s separate property under the agreement. Both parties

appear to agree that paragraph 1 (“Earnings During the Marriage”), on its own,

converts the assets in the Accounts and the Pension Plan from community property

to Sergey’s separate property. Under paragraph 1, each spouse’s “earning[s],

salaries, commissions, income, pension, stock, stock options, or other employee

benefits resulting from [his or her] personal services, skills, and efforts” is separate

property.7 The Pension Plan is a “pension . . . resulting from [Sergey’s] personal

Paragraph 1 states that “earning[s] . . . income . . . or other employee benefits . . .

shall be . . . separate property.” Although neither party raises the issue, we note that

the use of “shall be” could create a potential ambiguity regarding whether paragraph

1 was intended to apply only to past earnings or only to future earnings, or both. See

Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993) (“A

court may conclude that a contract is ambiguous even in the absence of such a

pleading by either party.”). “Shall” can mean (1) has a duty to, (2) should, (3) may,

(4) will (as a future-tense verb), or (5) is entitled to. Shall, BLACK’S LAW

DICTIONARY (12th ed. 2024). Although only the fourth meaning is a reasonable

interpretation here (i.e., earnings will be separate property), that does not resolve the

issue. The provision of the Texas constitution that permits postnuptial agreements

previously used the term “shall be” to refer only to already acquired property:

“[H]usband and wife . . . may from time to time by written instrument . . . partition

between themselves in severalty or into equal undivided interests all or any part of

their existing community property . . . whereupon the portion or interest set aside to

each spouse shall be [i.e., will be] and constitute a part of the separate property of

such spouse.” Franzina v. Est. of Franzina, 618 S.W.2d 570, 571 (Tex. App.—

Corpus Christi 1981, writ ref’d n.r.e.) (quoting TEX. CONST. art. 16, § 15 (amended

1987, 1999)) (noting that, under then-effective version of constitution, postnuptial

agreement could not apply to after-acquired property). The current version of the

Texas constitution still uses the phrase “shall be” but now permits postnuptial

agreements to apply to already acquired and after-acquired property: “[S]pouses

also may from time to time, by written instrument, agree between themselves that

the income or property from all or part of the separate property then owned or which

thereafter might be acquired by only one of them, shall be [i.e., will be] the separate

services, skills, and efforts” through his employment. Similarly, the 401(k) Account

falls within the scope of “other employee benefits” resulting from Sergey’s

employment. As for the 6276 and 523 Accounts, each is an individual retirement

account funded by Sergey with contributions from his salary. Because Sergey used

his employment income—which is his separate property under paragraph 1—to fund

the individual retirement accounts,8 the assets held in the 6276 and 523 Accounts are

property of that spouse . . . .” TEX. CONST. art. 16, § 15. In the amended provision,

“shall be,” despite meaning “will be,” clearly reaches back to include already

acquired property. In the context of paragraph 1 as a whole, the phrase “shall be”

unambiguously applies to past and future earnings. Each spouse “voluntarily

relinquishes all of his or her interest in all such property of the other,” which

indicates that each spouse presently has a right to such property that he or she agrees

to abandon. Additionally, each spouse agrees that “such earnings and accumulations

during the marriage are made the separate property of the person to whom the

earning and accumulations are attributable.” (Emphasis added.) The phrases “during

the marriage” and “are made” reinforce a construction of paragraph 1 that applies

to past and future earnings.

The trial court found that the assets accumulated in the Accounts before August 1,

2022, are community property and did not divide any assets accumulated in those

accounts after August 1, 2022. Furthermore, the trial court found that “separate

property confirmed as belonging to [Sergey] in the parties’ premarital [sic]

agreement” is Sergey’s separate property. Taken together, these findings imply that

the trial court found that the assets accumulated in the 6276 and 523 Accounts after

August 1, 2022, are Sergey’s separate property. Otherwise, the trial court would not

have applied the August 1, 2022 partition date to these Accounts; if Sergey had not

funded the Accounts with “earning[s] . . . resulting from [his] personal services,

skills, and efforts,” then the assets in the Accounts would be community property.

See TEX. R. CIV. P. 299 (“[W]hen one or more elements thereof have been found by

the trial court, omitted unrequested elements, when supported by evidence, will be

supplied by presumption in support of the judgment.”). Maria does not challenge

the trial court’s implied finding on appeal. Furthermore, although “income produced

from separate property is considered community property,” Alsenz v. Alsenz, 101

S.W.3d 648, 653 (Tex. App.—Houston [1st Dist.] 2003, pet. denied), nothing in the

record suggests that the Accounts or Pension Plan produced income. The only

Account for which a statement exists in the record is the 523 Account. That

his separate property under paragraph 1 of the postnuptial agreement. See Lewis v.

Lewis, 944 S.W.2d 630, 631 (Tex. 1997) (holding that land purchased with spouse’s

separate property was itself separate property).

Nonetheless, Maria argues that paragraph 1 conflicts with a later provision

that appears in paragraph 5: “All earning[s], salaries, commissions, income, pension,

stock, stock options, or other employee benefits realized after August 1st 2022 year

shall be and remain the sole and separate property of the acquiring party . . . .” She

argues that, because of the August 1, 2022 partition date in this provision,

“earning[s], salaries, commissions, income, pension, stock, stock options, or other

employee benefits” realized on or before August 1, 2022, are community property.

The construction that Maria advances—that the partition only takes effect as

of August 1, 2022—rather than resolving an inconsistency, creates one. Paragraph 1

of the agreement includes no partition date, but Maria would have us import one.

Furthermore, paragraph 5 does not state that income realized before August 1, 2022,

is community property. The relevant provision of paragraph 5 states that income

realized “after” August 1, 2022, “shall be and remain the sole and separate property

statement, for the period May 1 through May 31, 2023, reports “Dividends and

Interest” income as $0. Even though the assets in the 523 Account have appreciated

in value since being purchased, those assets are nonetheless separate property.

Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex. 1984). Because Maria does not

complain that the Accounts or Pension Plan produced income, we do not address

whether such income would be community property or is converted to separate

property under the postnuptial agreement.

of the acquiring party.” There is no inconsistency between paragraphs 1 and 5.

Although the construction that Sergey advances arguably creates some redundancy,

his interpretation does not render the separate provisions inconsistent and any

redundancy makes sense in context: the provision clarifies that certain income and

employee benefits realized by each spouse after August 1, 2022—a date close in

time to the date of execution of the agreement—would be and remain each party’s

separate property. See Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 477

(Tex. 2016) (“Though we strive to construe contracts in a manner that avoids

rendering any language superfluous, redundancies may be used for clarity, emphasis,

or both.” (citation modified)).

Read together, paragraphs 1 and 5 do not create or imply a partition date of

August 1, 2022. “[E]arning[s], salaries, commissions, income, pension, stock, stock

options, or other employee benefits resulting from personal services, skills, and

efforts”9 are the separate property of the acquiring spouse regardless of when

acquired or earned. There is no dispute that the assets in the 6276, 523, and 401(k)

Accounts and the Pension Plan are “earning[s], salaries, commissions, income,

pension, stock, stock options, or other employee benefits resulting from [Sergey’s]

The qualifier “resulting from personal services, skills, and efforts” appears in

paragraph 1 but not in paragraph 5. That omission does not affect our analysis of

this issue: Maria does not argue that the assets at issue do not result from Sergey’s

“personal services, skills, and efforts.”

personal services, skills, and efforts.” Accordingly, the assets in the 6276, 523, and

401(k) Accounts and the Pension Plan are Sergey’s separate property, and the trial

court had no discretion to divest Sergey of his separate property and award a portion

of it to Maria. Cottone, 122 S.W.3d at 213.

C. Joint Brokerage Account

The trial court also awarded to Maria a “60% interest in all stocks, bonds, and

securities, together with all dividends, splits, and other rights and privileges in

connection with them in the name of [Sergey] accumulated or realized on or before

August 1, 2022, including but not limited to . . . Charles Schwab x080” (the 080

Account). Sergey contends that the trial court should have divided the assets of the

080 Account equally under the postnuptial agreement. In her appellee’s brief, Maria

does not respond to this contention.

Under the postnuptial agreement, the parties agreed that: “Joint brokerage

account will be equally divided between Sergey Yakovlev and Maria Yakovleva.”

“Joint brokerage account” is not preceded by a definite or indefinite article; however,

the record is clear that there is only one brokerage account that Sergey and Maria

shared: the 080 Account. The parties’ agreement requires that the joint brokerage

account, i.e. the 080 Account, be “equally divided,” granting each spouse a one-half

interest in the 080 Account and its assets as his or her separate property. See TEX.

FAM. CODE 4.102 (“Property or a property interest transferred to a spouse by a

partition or exchange agreement becomes that spouse’s separate property.”). By

awarding Maria 60 percent of the 080 Account, the trial court divested Sergey of

one-fifth of his one-half interest. A trial court has no discretion to divest a spouse of

his separate property. Cottone, 122 S.W.3d at 213; see McCartney, 720 S.W.3d at

797-98 (noting that trial court “must apply as written” any martial property

agreement). Because the trial court lacked discretion to depart from the parties’

agreement and divest Sergey of his separate property interest in the 080 Account,

the trial court erred by awarding Maria 60 percent of the assets of the 080 Account.

D. Summary

The trial court erred in divesting Sergey of his separate property and awarding

portions of it to Maria. Sergey’s separate property includes the 6276, 523, and 401(k)

Accounts, the Pension Plan, and the assets held within each. His separate property

also includes a one-half interest in the 080 Account and its assets. When we find

reversible error that “materially affects the trial court’s ‘just and right’ division of

the property,” we must remand the entire community estate for a new division.

Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985); Kite v. Kite, No. 01-08-00643-CV, 2010 WL 1053014, at *4 (Tex. App.—Houston [1st Dist.] Mar. 11, 2010, no

pet.) (mem. op.) (reversing and remanding for new division of community estate

after holding that trial court erred by divesting spouse of separate property).

Combined, the value of the assets in the Accounts and the Pension Plan exceeds

$500,000, a sizable amount relative to the net value of Sergey’s and Maria’s separate

and community estates, whose cumulative net value totals roughly $1.8 million.

Because the trial court’s division of the marital estate erroneously awarded Sergey’s

separate property to Maria, and that error materially affects the trial court’s just-andright division, we reverse the portion of the final decree of divorce that divides the

marital estate and remand the case for a new division.

Maria’s Waste Claim

During the divorce proceedings, Maria alleged that Sergey had wasted

community assets by withdrawing community funds from the couple’s joint bank

account and using those funds to benefit his separate estate. To reimburse Maria’s

“separate estate,” the trial court awarded Maria a money judgment in the amount of

$141,732, the same amount of community funds that it found Sergey had wasted.

As part of his first issue, Sergey contends that the trial court erred by awarding

a money judgment to Maria for her “waste claim.” Sergey argues that waste is not

an independent cause of action that one spouse may bring against another and, on

that basis, the money judgment should be reversed and the case should be remanded

to the trial court for a new division of the community estate. Additionally, Sergey

argues that there is no evidence to support certain fact findings by the trial court that

Sergey depleted the community estate as a result of any fraud on the estate. Maria

does not respond to Sergey’s contention that “waste” or “reimbursement” is not an

independent cause of action justifying an award of damages to one spouse against

another. However, she claims that sufficient evidence supports the trial court’s

finding that Sergey depleted the value of the community estate by at least $141,732.

A. Applicable Law and Standard of Review

Although Texas law does not recognize an “independent cause of action . . .

to recover separate damages” for fraud on the community estate, a trial court may

consider a spouse’s waste of community assets when making a just-and-right

division of the community estate. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.

1998). In 2011, the legislature adopted a procedure by which trial courts may

consider a spouse’s waste or fraud and codified existing remedies. See Act of June

17, 2011, 82nd Leg., R.S., ch. 487, § 1, 2011 Tex. Gen. Laws 1242, 1243 (codified

at TEX. FAM. CODE § 7.009); Clarke v. Clarke, No. 08-23-00016-CV, 2024 WL

347938, at *9 (Tex. App.—El Paso Jan. 30, 2024, no pet.) (mem. op.) (noting that

section 7.009 “codified the courts’ ability to grant money judgments, alone or with

any other legal or equitable relief, for fraud on the community” (citation modified)).

Under section 7.009(b) of the Family Code, a trial court may consider actual or

constructive fraud. A presumption of constructive fraud, or waste, arises when one

spouse disposes of the other spouse’s interest in community property without that

spouse’s knowledge or consent. Wadhwa v. Wadhwa, 720 S.W.3d 169, 186 (Tex.

App.—Houston [14th Dist.] 2025, no pet.) (citing cases); see Puntarelli v. Peterson,

405 S.W.3d 131, 137-38 (Tex. App.—Houston [1st Dist.] 2013, no pet.)

(recognizing common-law presumption). The disposing spouse bears the burden of

rebutting the presumption by showing that the disposal was fair. Wadhwa, 720

S.W.3d at 186.

If the factfinder “determines that a spouse has committed actual or

constructive fraud on the community, the court shall . . . calculate the value by which

the community estate was depleted as a result of the fraud on the community and

calculate the amount of the reconstituted estate” and make a just-and-right division

of the value of the reconstituted estate. TEX. FAM. CODE § 7.009(b). The

“reconstituted estate” is “the total value of the community estate that would exist if

an actual or constructive fraud on the community had not occurred.” Id. § 7.009(a).

In making a just-and-right division of the reconstituted estate, a trial court has the

discretion to award “to the wronged spouse both a money judgment and an

appropriate share of the community estate.” Id. § 7.009(c)(3).

We review a trial court’s division of the community estate, including when

made under section 7.009, for abuse of discretion. Wadhwa, 720 S.W.3d at 186.

Under the abuse-of-discretion standard, “legal and factual sufficiency of the

evidence are not independent grounds for asserting error, but they are relevant

factors in assessing whether the trial court abused its discretion.” Day v. Day, 452

S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (quoting Dunn

v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)).

When, as here, an appellant challenges the legal and factual sufficiency of the

evidence to support a decision reviewed for abuse of discretion, we engage in a twopronged analysis: (1) whether the trial court had sufficient information upon which

to exercise its discretion and (2) whether the trial court erred in its application of that

discretion. Day, 452 S.W.3d at 433; Wadhwa, 720 S.W.3d at 186. Under the first

prong, we apply our traditional standards for legal and factual sufficiency. Wadhwa,

720 S.W.3d at 187; see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)

(stating legal-sufficiency standard); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001) (per curiam) (stating factual-sufficiency standard). Under the second

prong, we consider whether the trial court made a reasonable decision based on the

admitted evidence. Wadhwa, 720 S.W.3d at 187 (citing Key v. Key, 712 S.W.3d 697,

702 (Tex. App.—Houston [14th Dist.] 2025, no pet.)). A trial court does not abuse

its discretion if there is some evidence of a substantive and probative nature to

support its division. Brown v. Wokocha, 526 S.W.3d 504, 507 (Tex. App.—Houston

[1st Dist.] 2017, no pet.).

B. Waste Findings

Because Sergey’s sufficiency challenges to the trial court’s waste findings are

relevant to the issue of whether the trial court abused its discretion in dividing the

community estate, we consider those sufficiency challenges first. The trial court

found that Sergey “removed $141,732.00 of community property funds without

notice to Maria” and valued the reconstituted estate at $141,732, the same amount

that the trial court found Sergey had wasted. In its findings of fact, the trial court

itemized Sergey’s waste as follows:

• “$30,000.00 that Sergey Yakovlev removed from the joint account to

travel to Russia”;

• “$47,500.00 Sergey Yakovlev used as a down payment” for his separate

home;

• “$55,232.00 cash withdrawals by Sergey Yakovlev”;

• “$5,000 removed by Sergey Yakovlev in violation of court’s injunction”;

and

• “$4,000.00 in rental income.”

These amounts total $141,732. Except as to the $30,000 withdrawn for his travel to

Russia, Sergey challenges each of these findings, and we address each in turn.

Down payment. The trial court found that Sergey wasted $47,500 in

community funds as a down payment on his separate home. Sergey argues on appeal

that there is no evidence he paid any down payment with community funds.

However, at trial, Sergey testified that he withdrew $30,000 from the couple’s joint

bank account to put toward the purchase of a new home. The funds in the joint bank

account are presumptively community property, and Sergey does not argue

otherwise. See Zagorski v. Zagorski, 116 S.W.3d 309, 319-20 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (“[W]hen separate and community property are

commingled in a single bank account, we presume the community funds are drawn

out first, before separate funds are withdrawn.”). There is no evidence that Sergey

withdrew these funds with Maria’s consent or knowledge and, therefore, the

withdrawal is presumptively a fraud on the community. Wadhwa, 720 S.W.3d at

186; see Key, 712 S.W.3d at 705 (noting that presumption of fraud also arises when

“community funds are unaccounted for by the spouse in control of those funds”).

Our analysis does not end there. Maria testified that Sergey returned $25,000 of the

$30,000, leaving a balance of $5,000. Sergey did not rebut the presumption of fraud

as to the remaining $5,000. Although there is not sufficient evidence that Sergey

withdrew $47,500 for the down payment on a new home, sufficient evidence

supports a finding that Sergey wasted at least $5,000 in community funds.

Maria urges us to further conclude that sufficient evidence supports a finding

that Sergey wasted more than $100,000 purchasing the home. Maria directs us to

Sergey’s testimony that he purchased his separate home for more than $100,000.

However, there is no evidence that Sergey made the purchase using community

funds. Rather, Sergey testified that he purchased the home using funds from his

“personal account,” funded by his employment income, which is his separate

property under the parties’ postnuptial agreement. While the trial court was free to

disbelieve Sergey’s testimony that he purchased the home with his own income,

Puntarelli, 405 S.W.3d at 135, there is no contrary evidence that supports a

presumption of fraud. Neither at trial nor on appeal has Maria made any showing

that Sergey purchased his separate home using $100,000 of community funds. As

previously explained, we find sufficient evidence that Sergey wasted, at most,

$5,000 of community funds to purchase a separate home.

Cash withdrawals. During trial, Sergey testified to multiple withdrawals from

the couple’s joint bank account to pay for repairs to the couple’s rental property.

These withdrawals include: (1) $9,000 on April 10, 2023; (2) $9,000 on April 13,

2023; (3) $9,500 on May 2, 2023; and (4) $20,000 on May 3, 2023. Although Sergey

and Maria both benefitted from the rental property’s income, the parties agreed that

Sergey would be awarded the rental home in the event of divorce. Vallone v. Vallone,

644 S.W.2d 455, 459 (Tex. 1982) (“A right of reimbursement arises when the funds

or assets of one estate are used to benefit and enhance another estate without itself

receiving some benefit.”). Additionally, Sergey testified that he withdrew the

following amounts from the couple’s joint bank account and deposited the funds in

his personal checking account: (1) $9,000 on February 1, 2023; and (2) $20,000 on

April 24, 2023. Maria testified that she did not have knowledge of Sergey’s cash

withdrawals, which gives rise to the presumption that these withdrawals were a fraud

on the community estate. Wadhwa, 720 S.W.3d at 186. Sergey failed to rebut that

presumption. In the aggregate, these withdrawals total $76,500 and support the trial

court’s finding of “$55,232.00 cash withdrawals by Sergey Yakovlev.”

Withdrawal in violation of injunction. The trial court found that Sergey

withdrew $5,000 of community funds “in violation of [the] court’s injunction.”

Relevant to that finding, on October 20, 2023, Maria filed a written motion alleging

that Sergey withdrew $30,000 on October 2, 2023, from the couple’s joint bank

account, and she requested that the trial court order the return of the funds. The trial

court granted Maria’s motion and ordered Sergey to “return the balance of the

$30,000 in funds withdrawn” from the joint bank account. At trial, Maria testified

that Sergey returned $25,000 of the $30,000, leaving a balance of $5,000. We

previously addressed the $5,000 in unreturned funds and concluded that sufficient

evidence supported a finding that Sergey did not return the remaining $5,000.

However, we cannot count these funds twice. The $30,000 withdrawal occurred on

October 2, 2023. There is evidence of only one withdrawal in that amount on that

date. A reasonable factfinder could not disregard the evidence that there was only

one such transaction. See Horgan v. Horgan, 727 S.W.3d 262, 274 (Tex. App.—

Houston [14th Dist.] 2025, no pet.) (holding that reasonable factfinder could not

have disregarded evidence that two transactions included in waste findings were

duplicates). Accordingly, although we find sufficient evidence that Sergey failed to

account for, and wasted, $5,000, this finding counts the same transaction twice and

does not otherwise impact our review of the trial court’s waste calculation.

Rental income. Lastly, the trial court found that Sergey wasted “$4,000.00 in

rental income” that Sergey and Maria received from their rental property. We find

no evidence in the record that supports this finding. Indeed, we find only contrary

evidence. Maria testified that Sergey had withheld $4,584 in rental income.

However, Maria also testified that she, in fact, received checks totaling that amount

from the company that managed the rental property and deposited those checks into

her personal checking account. There are no other instances in the record of Sergey’s

allegedly withholding rental income. There is no evidence to support the trial court’s

finding that Sergey withheld these funds, or any rental income, from Maria.

In sum, there is sufficient evidence to support a finding that Sergey wasted

$111,500, but this amount falls well short of the trial court’s finding of $141,732 in

wasted community assets. Taking into account that there is insufficient evidence to

support the trial court’s finding of $141,732 of waste, we next consider whether the

trial court abused its discretion in awarding Maria a money judgment against Sergey

for that amount when making a just-and-right division of the community estate.

C. Money Judgment

The trial court found that the reconstituted estate—i.e., the total value of the

community estate that would exist if an actual or constructive fraud on the

community had not occurred—was valued at $141,732, the same amount that the

trial court found that Sergey wasted. The trial court then entered a money judgment

against Sergey for $141,732. Although a trial court has discretion in certain

circumstances to award a money judgment to one spouse against another when

making a just-and-right division,10 the trial court’s money judgment against Sergey

for $141,732—the same amount as the value of the reconstituted estate—has the

effect of awarding the entire value of the community estate to Maria.11 And because

When declaring it “well settled” that “a trial court may award a money judgment to

one spouse against the other in order to achieve an equitable division of the

community estate,” the Texas Supreme Court further noted that a “money judgment

can only be used as a means for the wronged spouse to recoup the value of his or

her share of the community estate lost through the wrongdoer spouse’s actions.”

Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (citing Murff v. Murff, 615

S.W.2d 696, 699 (Tex. 1981)) (emphasis added). For example, a trial court may

award a money judgment when one spouse’s fraud or waste has so depleted the

community estate that there is insufficient community property remaining to award

the wronged spouse her just-and-right share. See Murff, 615 S.W.3d at 699

(allowing money judgment of $7,500 in favor of wife, who had “only $300 in funds

on hand,” against husband, who “had substantial sums in savings before the

separation that had disappeared by the time of trial”). A money judgment may also

be appropriate to accomplish a just-and-right division where there are insufficient

liquid assets and liquidating or partitioning other property is not feasible or practical.

See Hanson v. Hanson, 672 S.W.2d 274, 278 (Tex. App.—Houston [14th Dist.]

1984, writ dism’d) (noting principle that “if an estate can be divided equitably by

partitioning the assets in kind, this method should be used instead of a money

judgment”); Murff v. Murff, 601 S.W.2d 116, 121 (Tex. App.—Dallas 1980) (noting

that “a money judgment is a permissible device to be used to avoid fractionating

items in the estate to be divided”), rev’d on other grounds, 615 S.W.2d 696 (Tex.

1981).

Besides the waste found by the trial court, the only other community property is

personal property, such as two cars and miscellaneous household items. The trial

court did not include these items in its valuation of the reconstituted estate; however,

according to the property inventories submitted by Sergey and Maria to the trial

court, these assets would make up a fraction of the reconstituted estate’s value. In

light of our conclusion that there is insufficient evidence to support a finding that

Sergey wasted $141,732, it is likely that the reconstituted estate’s value is, at most,

the value of the money judgment. However, we express no further opinion on the

the trial court’s finding of $141,732 in waste is not supported by sufficient evidence,

it may be that the trial court has awarded to Maria more than the value of the entire

community estate. The record suggests that the trial court did not intend, and did not

believe, that it was awarding Maria the entirety of the community estate,12 and we

doubt that the circumstances would justify such a disproportionate division. See

Boothe v. Boothe, 681 S.W.3d 916, 926 (Tex. App.—Houston [14th Dist.] 2023, no

pet.) (holding trial court’s division was inequitable where trial court awarded

$71,400 in wasted funds to disposing spouse and remainder of estate, valued at over

$430,000, to wronged spouse in absence of other factors, such as cruelty or abuse).

Because there is insufficient evidence to support the trial court’s waste findings, and

because we have already remanded to the trial court for a new division in light of

our earlier findings of error, we vacate the money judgment to Maria against Sergey.

On remand, the trial court retains its discretion to award a money judgment under

section 7.009 of the Family Code to the extent consistent with this opinion and as

necessary to make a just-and-right division. See In re Marriage of Howlett, No. 07-reconstituted estate’s value, which the trial court should determine on remand as

part of the new division.

For example, the trial court awarded Maria 60 percent of all assets in certain bank,

brokerage, and retirement accounts. We reversed those portions of the divorce

decree, but they are suggestive of the trial court’s intended division. Although we

do not decide that a 60/40 division is equitable or that the trial court should make a

60/40 division on remand, had the trial court intended a 60/40 division of the

reconstituted estate, the award in favor of Maria would have been $85,039.20.

23-00177-CV, 2026 WL 1141322, at *6 (Tex. App.—Amarillo Apr. 27, 2026, no

pet.) (mem. op.) (reversing money-judgment awards and remanding for new division

but acknowledging that money judgments are permissible on remand if consistent

with opinion and statute).

Abduction Prevention Measures

In his second issue, Sergey contends that the trial court abused its discretion

by requiring, among other things, that Sergey execute a $400,000 bond as a measure

to protect the couple’s child from any international abduction by Sergey. Sergey

argues that the trial court’s abduction-risk findings are unsupported by the evidence.

Maria argues that evidence introduced at trial supports multiple abduction-risk

factors, on which the trial court permissibly relied in exercising its discretion to

impose a $400,000 bond and other abduction-prevention measures.

A. Applicable Law and Standard of Review

The Family Code sets forth a statutory framework for assessing the risk of an

international child abduction by a parent and authorizes certain prevention measures

based on that risk. See TEX. FAM. CODE §§ 153.501-.503. Under that framework, the

trial court should (1) determine whether there is credible evidence of a risk of

abduction and, (2) if so, evaluate the risk. Id. § 153.502.

Section 153.502(a) provides that, to determine “whether there is a risk of the

international abduction of a child by a parent of the child,” the trial court “shall

consider evidence that the parent”:

(1) has taken, enticed away, kept, withheld, or concealed a child in

violation of another person’s right of possession of or access to the

child, unless the parent presents evidence that the parent believed in

good faith that the parent’s conduct was necessary to avoid imminent

harm to the child or the parent;

(2) has previously threatened to take, entice away, keep, withhold, or

conceal a child in violation of another person’s right of possession of

or access to the child;

(3) lacks financial reason to stay in the United States, including

evidence that the parent is financially independent, is able to work

outside of the United States, or is unemployed;

(4) has recently engaged in planning activities that could facilitate the

removal of the child from the United States by the parent, including:

(A) quitting a job;

(B) selling a primary residence;

(D) closing bank accounts;

(E) liquidating other assets;

(F) hiding or destroying documents;

(G) applying for a passport or visa or obtaining other travel

documents for the parent or the child; or

(H) applying to obtain the child’s birth certificate or school or

medical records;

(5) has a history of domestic violence that the court is required to

consider under Section 153.004; or

(6) has a criminal history or a history of violating court orders.

Id. § 153.502(a). The court does not have to find that all six of these “subsection (a)

factors” exist; an affirmative finding of only one is enough to proceed to the second

step of the analysis. C.L.W. v. R.V.W., No. 01-21-00283-CV, 2023 WL 5109878, at

*14 (Tex. App.—Houston [1st Dist.] Aug. 10, 2023, no pet.) (mem. op.); Arredondo

v. Betancourt, 383 S.W.3d 730, 742 (Tex. App.—Houston [14th Dist.] 2012, no

pet.).

If the trial court finds that there is credible evidence of a risk that the child

will be abducted by a parent, the trial court then must evaluate the extent of the risk.

TEX. FAM. CODE § 153.502(b), (c). In evaluating the risk of international abduction,

the trial court must consider:

(1) whether the parent has strong familial, emotional, or cultural ties to

another country, particularly a country that is not a signatory to or

compliant with the Hague Convention on the Civil Aspects of

International Child Abduction; and

(2) whether the parent lacks strong ties to the United States, regardless

of whether the parent is a citizen or permanent resident of the United

States.

Id. § 153.502(b). There are also four discretionary factors the trial court may

consider in section 153.502(c), which overlap with subsection (b). See id.

§ 153.502(c)(1)-(4).

Once the trial court has determined that a risk of international abduction exists

under subsection (a) and evaluated the extent of that risk using the subsection (b)

and (c) factors, the trial court may order certain measures to prevent the child’s

abduction by a parent to a foreign country. Id. § 153.503. Relevant here, the trial

court may require the parent to execute a bond or deposit security to offset the cost

of recovering the child from the foreign country. Id. § 153.503(6). In deciding

whether to take any of these measures, the trial court must consider:

(1) the public policies of this state described by Section 153.001(a)

and the consideration of the best interest of the child under Section

153.002;

(2) the risk of international abduction of the child by a parent of the

child based on the court’s evaluation of the risk factors described

by Section 153.502;

(3) any obstacles to locating, recovering, and returning the child if the

child is abducted to a foreign country; and

(4) the potential physical or psychological harm to the child if the

child is abducted to a foreign country.

Id. § 153.501(b)(1)-(4).

We review a trial court’s decision to impose international abduction

prevention measures for an abuse of discretion. C.L.W., 2023 WL 5109878, at *15;

In re Sigmar, 270 S.W.3d 289, 297-98 (Tex. App.—Waco 2008, orig. proceeding);

Karenev v. Kareneva, No. 2-06-269-CV, 2008 WL 755285, at *1 n.5 (Tex. App.—

Fort Worth Mar. 20, 2008, no pet.) (per curiam) (mem. op.).

B. Abduction Risk Factors and Protective Measures

In the divorce decree, the trial made the following findings:

The Court finds that the United States is the country of habitual

residence of [TAYLOR].

The Court finds that credible evidence has been presented that there is

a potential risk of the international abduction of [TAYLOR] by

SERGEY YAKOVLEV. The Court further finds that:

SERGEY YAKOVLEV has previously threatened to take, entice away,

keep, withhold, or conceal the child in violation of MARIA

YAKOVLEVA’s right of possession of or access to the child.

SERGEY YAKOVLEV has recently engaged in planning activities that

could facilitate the removal of the child from the United States by

SERGEY YAKOVLEV, including: liquidating assets and applying for

a passport or visa or obtaining other travel documents for SERGEY

YAKOVLEV and/or the child.

SERGEY YAKOVLEV has strong familial, emotional, or cultural ties

to another country, Russia, which is not a signatory to or compliant with

the Hague Convention on the Civil Aspects of International Child

Abduction.

See Gonzalez v. Razi, 338 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.] 2011,

pet. denied) (noting that “findings of fact recited in an order or judgment will be

accorded probative value so long as they are not in conflict with findings recited in

a separate document” (citation modified)).

The trial court’s written findings correspond to two risk factors under section

153.502(a): (1) Sergey has “threatened to take, entice away, keep, withhold, or

conceal a child in violation of another person’s right of possession of or access to

the child”; and (2) Sergey has “engaged in planning activities,” including

“liquidating . . . assets” and “applying for a passport or visa or obtaining other travel

documents for the parent or the child.” TEX. FAM. CODE § 153.502(a)(2), (4).

Relevant to these findings, Maria testified that, prior to her filing for divorce,

Sergey had threatened to move the family to Russia:

And, well, during one of our arguments, he said that — he said to me,

pack your stuff and we go to Russia. And I said, no, I’m not going to

Russia, and especially, I don’t want [Taylor] to go to Russia. So that

was kind of a last straw, and I decided that I have to file for divorce. . . .

I was scared first because I didn’t know — he told me also that he had

more money than I do, and so that he could do it. . . . But I was very

scared that — that he could actually do it. And especially that he could

take her because she had passport, and he could just go with her and I

will never see her again.

In his opening statement to the jury, Sergey, proceeding pro se, stated:

So I have done everything possible to correct [my relationship with

Maria]. I plead, I explained, I told the truth, I lied, I even threatened her

once. I told her I’m going to just go and move to Russia. But, of course,

that’s a lie. She knew that’s a lie. I can’t move to Russia. And I guess

I’ll give you explanation why it is. I cannot move there by myself. I

cannot move there with a daughter. It’s just impossible.

Although Sergey did not explicitly admit to threatening to move the child to Russia,

and testified that he did not mean the threat in that manner, the trial court could have

disbelieved Sergey’s explanations. See Est. of Ewers, 695 S.W.3d 603, 619 (Tex.

App.—Houston [1st Dist.] 2024, no pet.) (“The factfinder is the sole judge of the

credibility of the witnesses and the weight to give their testimony, and it may choose

to believe one witness and disbelieve another.”). Furthermore, Sergey admitted that

he attempted to renew his Russian passport and that he withdrew $30,000 to travel

to Russia.

The evidence is sufficient to support the trial court’s abduction-risk findings.

As mentioned, an affirmative finding of only one abduction-risk factor is sufficient

for the trial court to proceed to the second step of the analysis, i.e., determining the

extent of the risk. See C.L.W., 2023 WL 5109878, at *14. As to those factors, the

trial court found that Sergey has ties to Russia and that:

a. Russia presents obstacles to the recovery and return of a child who

is abducted to the country from the United States;

b. Russia has local laws or practices that would restrict MARIA

YAKOVLEVA from freely traveling to or exiting from the country

because of MARIA YAKOVLEVA’S gender, nationality, or

religion and restrict the child’s ability to legally leave the country

after the child reaches the age of majority because of the child’s

gender, nationality, or religion;

c. Russia is engaged in active military action or war;

d. Russia is not a party to and compliant with the Hague Convention

on the Civil Aspects of International Child Abduction according to

the most recent report on compliance issued by the United States

Department of State;

e. Russia does not provide for the extradition of a parental abductor

and the return of the child to the United States; and

f. Russia poses a risk that the child’s physical health or safety would

be endangered in Russia because of specific circumstances relating

to the child.

Maria testified that Sergey has relatives in Russia. Sergey confirmed that his parents

live in Russia and that he would like Taylor to visit his parents. Sergey admitted that

he took two extended trips to Russia—the first of which lasted 59 days—while the

divorce proceedings were pending. Although Sergey testified that he had no plans

to move to Russia, the trial court could have disbelieved this testimony. See Ewers,

695 S.W.3d at 619 (“The factfinder is the sole judge of the credibility of the

witnesses and the weight to give their testimony, and it may choose to believe one

witness and disbelieve another.”). Sergey made clear that he wanted to visit Russia

with Taylor, which evidences an intent to travel to Russia. This evidence supports

the trial court’s findings that Sergey has strong ties to Russia, one of the factors that

a trial court must consider when evaluating the risk of international abduction.

Based on its abduction-risk findings, the trial court ordered that Sergey,

among other things, execute a $400,000 bond and be prohibited from removing

Taylor from Texas or the United States. These protective measures are explicitly

permitted under the Family Code. TEX. FAM. CODE § 153.503(4), (6). Sergey argues

that these restrictions should be lifted because there is no credible evidence of a risk

of international abduction. We disagree. Sufficient evidence supported the trial

court’s findings that Sergey threatened to take the child to Russia, that Sergey

withdrew $30,000 to travel to Russia, that Sergey attempted to renew his Russian

passport, and that Sergey has strong ties to Russia. Credible evidence supports the

trial court’s finding of a potential risk of the international abduction of Taylor by

Sergey. Because Sergey does not raise any other challenges to the protective

measures imposed by the trial court,13 we overrule his second issue.

Conclusion

We reverse the portion of the final decree of divorce that divides the

community estate, vacate the money judgment in favor of Maria for $141,732, and

remand to the trial court for a new just-and-right division consistent with this

opinion. We affirm the remainder of the trial court’s judgment.

Amparo “Amy” Guerra

Justice

Panel consists of Justices Guerra, Gunn, and Morgan.

In passing, Sergey suggests that the $400,000 bond is exceptional. When the

prerequisite factors are met, the Family Code authorizes the trial court to require a

parent “to execute a bond or deposit security in an amount sufficient to offset the

cost of recovering the child if the child is abducted by the parent to a foreign

country.” TEX. FAM. CODE § 153.503(6) (emphasis added). Sergey does not argue,

or direct us to any evidence, that $400,000 is an unreasonable amount under the

statute. See Martinez Jardon v. Pfister, 593 S.W.3d 810, 829-30 (Tex. App.—El

Paso 2019, no pet.) (rejecting mother’s challenge that $400,000 bond was abuse of

discretion where father testified he had “already spent $200,000 trying to obtain his

son’s return” and had “not yet been successful”); Kogel v. Robertson, No. 03-04-00246-CV, 2005 WL 3234627, at *7 (Tex. App.—Austin Dec. 2, 2005, no pet.)

(mem. op.) (noting that parent “claims to have spent hundreds of thousands of

dollars” to recover child from foreign country and affirming order requiring

execution of $100,000 bond).

Sergey Yakovlev v. Maria Yakovleva

Authorities cited

Opinion · public domain