Sergey Yakovlev v. Maria Yakovleva

Opinion issued August 11, 2026. In the Court of Appeals for the First District of Texas ———————————— NO. 01-24-00696-CV ——————————— SERGEY YAKOVLEV, Appellant v. 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. 1 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. 2 To protect the identity of the child, we refer to her by a fictitious name. See TEX. FAM. CODE § 109.002(d). 2  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 just- and-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 3 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 4 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 3 Unless an alteration is noted, the postnuptial agreement is transcribed as written without any changes to grammar, spelling, or punctuation. 5  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] . . . . 6 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, 4 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.” 5 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. 7 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.” 6 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.” 8 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 7 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 9 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. 8 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 10 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. 11 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] 9 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.” 12 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 13 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 14 $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-and- right 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 15 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, 16 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 17 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 two- pronged 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 18 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 19 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 20 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.” 21  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. 22  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