## Facts

- John “Jack” DeVine and Antoinette “Rita” DeVine were married for decades and accumulated a community estate.
- During the marriage, the DeVines invested community funds in real-estate developments associated with Jack Count.
- Rita had an extramarital affair with Count, but she did not disclose that relationship to Jack.
- Even though the DeVines did not receive profits from the investments, Rita encouraged and persuaded Jack to continue putting community money into Count’s developments.
- The DeVines ultimately lost more than $100,000 in connection with those investments.
- After Jack learned of the affair, he filed for divorce.
- The divorce was tried to a jury. The jury found, among other things, that Rita committed adultery and that her conduct constituted actual fraud on the community estate (and related breach-of-duty findings tied to her handling of community assets).
- The trial court granted the divorce and, based on the fraud finding, attributed $100,000 of the investment loss to Rita’s fraud and charged that loss against her share of the community property as part of a disproportionate division.
- Rita appealed, challenging (among other matters) the evidentiary support for fraud and the trial court’s remedial authority and overall division.

## Issues

1. Whether the evidence was legally and factually sufficient to support the jury’s finding that Rita committed actual fraud on the community estate by concealing her affair with Count while inducing continued community investments with him.
2. Whether the evidence supported the trial court’s attribution of $100,000 in community losses to Rita’s fraudulent conduct.
3. Whether, after a finding of actual fraud on the community, the trial court acted within its discretion in compensating Jack by charging the $100,000 loss to Rita’s share and awarding a disproportionate share of the community estate (and related monetary relief) as part of a “just and right” division.

## Decision

- The court of appeals affirmed the judgment (writ denied).
- The evidence was sufficient to support a finding of actual fraud on the community estate where a spouse concealed a material fact (the affair) and induced the other spouse to keep investing community funds to the community’s detriment.
- The trial court could treat the loss tied to the fraudulent conduct as a depletion of the community estate and account for it in the property division by charging it to the offending spouse’s share.
- The overall division, including the disproportionate award to Jack in light of adultery and fraud affecting community assets, was within the trial court’s broad discretion to make a “just and right” division.

## Legal Principles

- Spouses stand in a confidential and fiduciary relationship in matters involving management of community property; wrongful conduct in that context can support liability for fraud on the community estate.
- Actual fraud on the community involves dishonesty of purpose or intent to deceive in dealings that affect the community estate, including inducing expenditures or transfers of community funds while concealing material information.
- When fraud on the community is found, the trial court may account for the depletion by reconstituting or adjusting the community estate and may award the wronged spouse a disproportionate share as an equitable remedy.
- A trial court’s property division must be “just and right,” not necessarily equal, and may consider marital fault and wrongful conduct affecting the community estate.
- Appellate review of a community-property division is for abuse of discretion, with legal and factual sufficiency review informing whether the court had an adequate basis for the challenged findings.

## Conclusion

In *DeVine v. DeVine*, the Amarillo Court of Appeals upheld the divorce judgment and property division where the wife concealed an affair with the developer receiving the couple’s investments and persuaded her husband to continue investing community funds, resulting in over $100,000 in losses; the court affirmed the finding of actual fraud on the community and approved charging the $100,000 loss to the wife’s share as part of a “just and right” division.


DeVine v. DeVine, 869 S.W.2d 415 (1993)