In re Moncur

640 S.W.3d 309

In the MATTER OF the MARRIAGE OF Leticia G. MONCUR and Ross S. Moncur

NO. 14-20-00008-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed January 6, 2022

Andrew Piekalkiewicz, John Charles Lagrappe, Houston, for Appellant.

Robert S. Hoffman, Houston, for Appellee.

Panel consists of Justices Jewell, Bourliot, and Wilson.

Frances Bourliot, Justice

Leticia G. Moncur appeals from a final decree of divorce that purported to dissolve her marriage to appellee Ross S. Moncur. The decree incorporated a mediated settlement agreement (MSA) signed by the parties. Leticia alleges, however, that Ross fraudulently induced her into signing the MSA by purposefully failing to disclose community property assets prior to or during mediation. In two issues on appeal, Leticia contends that the trial court abused its discretion in (1) denying her motion to rescind or set aside the MSA and (2) denying her motion for continuance and failing to rule on her motion to compel in a timely manner. We affirm.

Background

Leticia and Ross were married in July 2002 and have one child together, a daughter born in 2004. Divorce proceedings were first initiated by Ross in Dubai, United Arab Emirates, where the family lived for a time.¹ These proceedings resulted in a decree of divorce issued in 2016, which both sides appealed. Meanwhile, Ross also filed a partition suit in Florida regarding real property that the couple owned in that state. And, in 2017, Leticia filed several pleadings in Harris County, Texas, including a petition to modify the Dubai court's orders regarding the child and an original petition for divorce. Leticia propounded discovery to Ross in the modification proceeding, and Ross responded with some answers and objections. Of particular note, in response to Leticia's request for production no. 8, which asked for all statements for financial accounts since the date of marriage held in Ross's name or jointly with another person, Ross made various objections and responded with information from one account, a JP Morgan Chase account that he held with his daughter.

The proceedings in Harris County were all consolidated into the cause currently before us in this appeal.

In April 2018, the parties attended mediation and signed the MSA with the aim of ending all litigation between them except as to issues concerning the child. Among other terms, the MSA provided that Leticia was to receive half of a retirement account in Ross's name, $94,000 in cash from Ross, and any other real and personal property and accounts in her name or possession. Ross also received half of the retirement account, as well as the real property in Florida and any other real and personal property and accounts in his name or possession. The MSA also provided that all discovery obligations between the parties "shall immediately cease," except in regard to issues related to the child. The lawyer for each party also signed the MSA, but Leticia's lawyer handwrote "[i]nstructed by client to sign" beside her signature.²

After signing the MSA, Leticia changed lawyers and alleged that Ross had failed to disclose a number of community property financial accounts in his name prior to or during mediation. She asserted Ross previously had disclosed some accounts but had kept others hidden. She purportedly received a check from Ross at some point post-mediation that was drawn on a Chase bank account that he had not disclosed. Leticia filed a motion to rescind or set aside the MSA on the ground that it had been procured by fraud, specifically alleging Ross had concealed assets "throughout the marriage, during the divorce proceedings in Dubai and Texas and at the time she signed the MSA." Leticia also requested additional time to conduct discovery so that she could support her allegation of fraud. Leticia then sent subpoenas duces tecum to several financial institutions where she believed Ross had accounts. Meanwhile, Ross filed a motion to enforce the MSA as well as a motion for protection. Of the financial institutions that received subpoenas from Leticia, only Chase responded by producing records for an account owned by Ross. The trial court denied Leticia's motion for continuance and her motion for reconsideration of the motion for continuance.

The trial court then held an evidentiary hearing on Leticia's motion to rescind and Ross's motion to enforce. At the beginning of the hearing, Leticia's attorney urged the court to consider Leticia's motion to compel and Ross's motion for protection before proceeding on the merits of the motions to rescind and enforce, but the trial court declined this request and considered the motions to rescind and enforce first.

The only two people to testify during the hearing were Ross and Leticia. Both parties spoke somewhat inconsistently regarding what information Ross provided and Leticia was aware of regarding their financial accounts.

In his testimony, Ross stated that at the time of the mediation, he and Leticia were not on speaking terms, they had no communication or exchange of financial information at the mediation, and he did not make any representations about assets or any statements causing her to enter the MSA. He noted that he had not filed a sworn inventory in the Harris County cases but asserted there had been an "exchange of financial assets" in the Dubai proceedings and she saw his bank account records and received "hundreds of pages" from his personal accounts. Ross acknowledged that he did not personally turn records over to Leticia but said that she shared a text with him that she had received from the Dubai court showing the records she had received. Ross also averred that Leticia had sent him emails validating she had received all of his bank records. He further said that Leticia was "aware of all of [his] bank accounts."

Ross confirmed that the only account he disclosed in response to Leticia's requests for production in the modification suit was the Chase account he opened with his daughter and that he had not provided any other bank records in the six months since responding to that discovery. Ross said that in the Dubai proceedings, his lawyers turned over HSBC financial records from one or two accounts but not records from Chase. Ross also said that at the time Leticia filed her first petition in Harris County, he believed they were already divorced in Dubai.

Leticia acknowledged in her testimony that her original filings in Harris County indicated the couple had already been divorced in Dubai, but she subsequently concluded that the Dubai divorce had not been finalized. She further acknowledged that there was no interaction between the sides at mediation, she was not forced to sign the MSA, and she signed it because she wanted to simplify matters and receive the $94,000 that she was entitled to under the MSA. She also recognized that prior to signing the MSA, she had obtained some financial documents in Dubai, including bank statements. At no point did she disclose any financial information or provide a sworn inventory to Ross. Leticia said that at mediation, she brought up the Merrill Lynch retirement account that she knew about prior to mediation and out of which she was to receive half the funds under the MSA terms.

Further regarding the Dubai proceedings, Leticia testified that she had learned the day before the hearing that the Dubai divorce had been finalized. She said that there had been no disclosure of financial information in the Dubai proceedings prior to the divorce being granted because under Sharia law, she had no right to Ross's assets. After the Dubai divorce was granted and while appeals were pending, Ross disclosed one year of information from a joint account at HSBC and information regarding one of his personal accounts.

Leticia asserted that before she received the subpoenaed records from Chase, she had had no idea that Ross held another Chase account beyond the one he owned with their daughter that he disclosed in response to discovery in the modification suit. Based on the Chase records that were admitted into evidence, Leticia testified that Ross opened the previously undisclosed account during the marriage, the records show deposits from other accounts of which she was unaware, and a total of around $1.5 million in deposits went into the account over a five-year period. Leticia insisted that she would not have signed the MSA had she known about the undisclosed Chase account. She acknowledged, however, that she did not disclose how much money had flowed through her own accounts as that information was not requested.

Leticia also testified that two accounts were disclosed to her in the Dubai proceedings: one account that was in both of their names and a personal account that Ross had in Dubai. She said that receiving the check from Ross drawn on a Chase bank account "shocked" her because during the marriage, they only banked at Bank of America and HSBC. She acknowledged, however, that she knew about the account Ross held with their daughter at Chase.

When asked by her own attorney why she had signed the MSA when there had not been a disclosure of records, she responded that the information had been requested but not provided. She also said that she would not have signed the MSA or agreed to waive further discovery had she known there were additional, undisclosed funds.

Two affidavits by Leticia were admitted into evidence. In one, she stated that after mediation, she contacted Merrill Lynch to verify the balance in the retirement account and was informed that there was "more than one" account. She also stated that she had learned about previously undisclosed accounts that Ross had with Chase in Florida and HSBC in the United Arab Emirates. In the second affidavit, Leticia averred that prior to divorce proceedings, Ross had told her about one retirement account and five joint accounts, three with HSBC and two with Bank of America. She did not explain the context in which he told...