Opinion filed March 17, 2015, Withdrawn; Appeal Affirmed and
Memorandum Opinion filed May 19, 2015.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-14-00024-CV

 IN THE MATTER OF THE MARRIAGE OF JAMILEH MERRIKH AND
                 DAVID HOSSIEN MERRIKH


                    On Appeal from the 245th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2010-54021

                 MEMORANDUM                      OPINION


       After a panel of this court issued its opinion in this case, appellant David
Merrikh and appellants Noorollah Merrikh and Zarine Motlagh filed two separate
motions for rehearing. We deny the motions for rehearing; however, we withdraw
our March 17, 2015 opinion and judgment and issue this opinion and judgment in
their stead.

       In this divorce case, we consider (1) whether the trial court abused its
discretion by calculating appellant David Merrikh’s child support obligation based
on his earning potential rather than his actual income after finding that he was
intentionally underemployed, and (2) whether the evidence is legally and factually
sufficient to support the trial courts findings of fact and conclusions of law
regarding ownership of a contested tract of real estate. We affirm.

                   1.     FACTS AND PROCEDURAL BACKGROUND.
        This case presents essentially two separate appeals: a challenge to the trial
court’s decision on child support and a challenge to the trial court’s decision
regarding the ownership of real property. We present only the basic background
and procedural facts here, reserving detailed presentation of the relevant facts and
evidence for our discussion of each appeal.

        David Merrikh and Jamileh Merrikh were informally married on August 2,
1999. Jamileh and David have two minor children, S.M. and K.S.M. Jamileh filed
for divorce on August 27, 2010. Jamileh joined Noorollah Merrikh, David’s father,
and Zarine Motlagh, David’s mother, to her divorce petition as co-respondents.

        The divorce was tried to the court. After the trial, the court granted Jamileh’s
petition for divorce and filed findings of fact and conclusions of law. The court
ordered that David pay $750 per month in child support. The trial court determined
that Jamileh owned a tract of real estate known familiarly as the “Mosley
Property.” The trial court characterized the Mosley Property as Jamileh’s separate
property and determined that Noorollah and Zarine have no interest in the Mosley
Property.

        David, Noorollah, and Zarine timely appealed. David appeals the trial
court’s decision regarding child support. Noorollah and Zarine appeal the trial
court’s decision regarding ownership of the Mosley Property.

                                2.     CHILD SUPPORT
        We begin with David’s appeal. David challenges the following findings of
fact:
                                            2
      20. The court finds that Respondent [David] is intentionally
      unemployed or underemployed.
      21. The Court finds that the amount of net resources that could be
      earned by Respondent is $3,000 per month.
      22. The percentage applied to Respondent’s monthly net resources of
      $3,000 for child support is 25% and, in accordance with the statutory
      child support guidelines, Respondent is obligated to pay to Petitioner
      [Jamileh] child support of $750.00 per month in periodic payments of
      $375.00 on the 1st and 15th of each month.
David challenges the following conclusion of law:

      7. Respondent, David Hossein Merrikh, should pay child support in
      amount of $750 per month.

      David contends that Jamileh did not meet her burden to demonstrate that he
was intentionally underemployed or unemployed. David further contends that the
record does not contain any evidence showing that he earns or is capable of
earning $3,000 per month. We conclude the trial court did not abuse its discretion
when, after finding that David was intentionally unemployed or underemployed, it
calculated David’s child support obligation based on his earning potential rather
than his actual reported income.

                             2.1.   Standard of Review
      We review the trial court’s determination of child support for an abuse of
discretion. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). The trial court abuses its
discretion when its decision is arbitrary, unreasonable, or without reference to
guiding rules or principles. Id. A trial court abuses its discretion by failing to
analyze or apply the law correctly. Id. Under this standard, issues relating to the
legal and factual sufficiency of the evidence are not independent grounds of error;
rather, they are relevant factors in assessing whether the trial court abused its
discretion. Trumbull v. Trumbull, 397 S.W.3d 317, 319 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). The trial court does not abuse its discretion if the record

                                           3
contains some evidence of substantive and probative character to support its
decision. Id. at 319–20. We must view the evidence in the light most favorable to
the trial court’s rulings and indulge every legal presumption in favor of the
judgment. Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.]
2004, no pet.).

                                   2.2.   Analysis
      The trial court can set child support based on the obligor’s earning capacity
when “the actual income of the obligor is significantly less than what the obligor
could earn because of intentional unemployment or underemployment.” Tex. Fam.
Code Ann. § 154.066 (West 2014). The trial court must find that the obligor is
intentionally unemployed or underemployed. Iliff, 339 S.W.3d at 80. “Intentionally
unemployed or underemployed” means the obligor “consciously chooses to remain
unemployed or underemployed.” Id. Here, the trial court did find that David, the
obligor, is intentionally unemployed or underemployed.

      Once the trial court makes this determination, it can apply the child-support
guidelines to the obligor’s earning potential. Id. at 81. A parent qualified to obtain
gainful employment cannot avoid his or her child-support obligations by
voluntarily remaining unemployed or underemployed. Id. The court must engage
in a case-by-case determination to decide whether child support should be set
based on earning potential as opposed to actual earnings. Id. at 82.

      The trial court’s analysis imposes shifting burdens of proof on the obligor
and the obligee. Initially, the obligor must offer proof of his or her current wages.
Id. Here, David met his burden to show his current wages by introducing his tax
returns and testifying about his annual income. David testified that he makes
$1,200 per month before taxes. Additionally, the trial court admitted David’s
individual tax returns for the 1999, 2004, 2005, 2006, 2007, 2008, 2009, 2010, and
2011 tax years. Based on these tax returns, David’s average adjusted gross income
                                          4
was $12,850 per year, and his average monthly income was $1,070.87.

      The obligee then bears the burden of showing that the obligor is
intentionally unemployed or underemployed. Id. The issue here is whether Jamileh
carried her burden to show that David consciously chose to remain un- or
underemployed. See Reddick v. Reddick, 450 S.W.3d 182, 189 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). The trial court was not required to accept as true
David’s testimony regarding his income and net resources. See Iliff, 339 S.W.3d at
83.

      The trial court expressly found that David’s company, Allstate Used Auto
Parts, Inc., was a “sham corporation.” Because David did not challenge this
finding, we are bound by it. In re S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas
2009, pet. denied); London v. London, 94 S.W.3d 139, 149 (Tex. App.—Houston
[14th Dist.] 2002, no pet.). The effect of the court’s finding is to dispense with the
corporate fiction and treat David and the corporation as one and the same. See
Castleberry v. Branscum, 721 S.W.2d 270, 271–72 (Tex. 1986). As a result, the
trial court reasonably could have considered Allstate’s annual income in
computing David’s net monthly income. See Tex. Fam. Code Ann. § 154.061
(West 2014) (annual gross income is starting point for computing net monthly
income). The trial court admitted three Wells Fargo Business Account applications
for Allstate: one dated September 15, 2009 and the other two dated March 31,
2011. On the September 2009 application, David stated that Allstate’s 2008 annual
gross sales were $500,000. On both of the March 2011 applications, David stated
that Allstate’s 2010 annual gross sales were $1 million. Based on the
representations in these account applications, the evidence indicates that David was
capable of earning between $41,000 and $83,000 per month.

      On this record, the trial court reasonably could have concluded that David
was capable of earning more than what his individual tax returns indicate and that
                                          5
he consciously chose to remain un- or underemployed when he established a sham
corporation and paid himself a meager salary. The evidence is sufficient to support
the trial court’s finding that David’s potential net monthly resources were $3,000.
We cannot say the trial court abused its discretion in finding that David (1) was
intentionally unemployed or underemployed; (2) had a potential earning capacity
of $3,000 per month; and (3) was obligated to pay $750 per month in child support.
See Tex. Fam. Code Ann. § 154.125(b) (West 2014).

      David’s sole issue on appeal is overruled.

                          3.     THE “MOSLEY PROPERTY”

                3.1.   Facts Relevant to the Real-Property Contest
      We turn now to Noorollah and Zarine’s appeal. Jamileh and Noorollah and
Zarine contest ownership of the Mosley Property.1 Title to the Mosley Property has
been transferred five times. Each transfer of ownership was by general warranty
deed. Each deed was recorded.

      First, on August 3, 1999, Noorollah and Zarine conveyed the Mosley
Property to David (the “August 1999 Deed”). None of the parties challenge the
validity of the August 1999 Deed.

      Second, on September 20, 1999, David conveyed the Mosley Property to
Jamileh (the “September 1999 Deed”). None of the parties challenge the validity of
the August 1999 Deed.

      Third, on October 18, 1999, Jamileh conveyed the Mosley Property to
Noorollah (the “October 1999 Deed”). The October 1999 Deed consists of three
pages. The first two pages contain the formal provisions of the deed. The third

      1
          The Mosley Property is described as: “Lot One Hundred Twenty-Six (126) of South
Houston Garden, Number Six (6), a subdivision in Harris County, Texas, according to the map
or plat thereof recorded in Volume 2, page 74 Map Records of Harris County, Texas.” David’s
auto parts business is located on the Mosley Property.
                                            6
page contains a line for noting the date of execution; the identity of the grantor,
including the grantor’s address; a signature line for the grantor; the notary’s
attestation clause; and a signature line for the notary. The October 1999 Deed
appears to have been signed by Jamileh and notarized by William Giron. Jamileh
challenged the validity of this deed in her live petition for divorce. Jamileh asked
the trial court to declare the October 1999 Deed void. Jamileh alleged that David
deceived her into conveying the Mosley Property to Noorollah.

      Fourth, on July 30, 2004, Noorollah conveyed the Mosley Property to David
and Jamileh’s daughter, S.M. (the “July 2004 Deed”). The July 2004 Deed appears
to have been signed by Noorollah and notarized by David. Noorollah and Zarine
noted in their answer to Jamileh’s petition that they were contesting the validity of
the July 2004 Deed in a separate suit. The basis of their challenge was fraud. At the
time the July 2004 Deed was signed, S.M. was four years old.

      Fifth and finally, on January 20, 2011, S.M., now ten years old, conveyed
the Mosley Property to Noorollah (the “January 2011 Deed”). The January 2011
Deed was signed by David purportedly on behalf of his minor daughter. William
Giron notarized the deed and attested that S.M. signed the deed. Jamileh
challenged the validity of this deed on behalf of S.M. The trial court assigned an
attorney ad litem to represent S.M.’s interest in the Mosley Property. David
testified that the purpose of the January 2011 Deed was to correct his mistake in
creating the July 2004 Deed. David acknowledged that he should not have
executed the July 2004 Deed without notifying Noorollah.

      Jamileh testified regarding the circumstances surrounding the signing of the
October 1999 Deed. Jamileh testified that David showed her only the third page of
the October 1999 Deed and demanded that she sign it. She did not see the contents
of the deed. She simply complied when David told her to “sign this paper.”
Jamileh did not know that, by signing the paper, she was conveying the Mosley
                                         7
Property to Noorollah. She testified that David prepared all of the deeds at issue in
the divorce case. She testified that David told her the October 1999 Deed would
transfer the property to him. Although the October 1999 Deed appears to have
been notarized, Jamileh stated that she did not sign in the presence of a notary.

      In his testimony, David acknowledged that the various transfers involving
the Mosley Property “were not meant to be real.” He explained that the transfers
were necessary for the “safety of the [auto parts] company”; to protect the
company from a “false charge.” David did not dispute Jamileh’s testimony
regarding her signing of the October 1999 Deed.

                                 3.2.   Arguments
      Noorollah and Zarine challenge the following findings of fact:

      24. The Court finds that subsequent to such gift and transfer [from
      David] to Petitioner [Jamileh], Respondent, David Hossein Merrikh,
      intentionally, knowingly, and fraudulently attempted to transfer the
      property from Petitioner to others, including [S.M.], David Hossein
      Merrikh and Noorollah Merrikh.
      25. The Court finds that such transfers, subsequent to the gift and
      transfer of the Mosley [P]roperty to Petitioner, were fraudulently
      made.
They challenge the following conclusions of law:

      8. The Court finds that Co-Respondents, Noorollah [sic] Merrikh and
      Zarine Motlagh [sic], have no interest in any property or claim in this
      case.
      14. The Court finds that the property known as the Mosley [P]roperty
      is the separate property of the Petitioner, Jamileh Merrikh.

      Noorollah and Zarine argue that the evidence is legally and factually
insufficient to support the trial court’s finding that the October 1999 Deed was
“fraudulently made.” Noorollah and Zarine further argue that the trial court’s
conclusions of law—that (1) Noorollah and Zarine have no interest in the Mosley
Property, and (2) the Mosley Property is Jamileh’s separate property—are
                                          8
erroneous. Noorollah and Zarine claim that the Mosley Property belongs to them.
Focusing on the fraud aspect of the case, Noorollah and Zarine argue first that the
evidence is insufficient to establish each element of fraud and second that, even if
the evidence was sufficient, Jamileh’s fraud claim was barred by limitations.

      In response, Jamileh contends that the evidence is sufficient to establish that
David committed fraud when he convinced Jamileh to sign the October 1999 Deed.
According to Jamileh, David’s fraud rendered the October 1999 Deed void. With
regard to Noorollah and Zarine’s statute of limitations argument, Jamileh first
contends that Noorollah and Zarine waived this argument because they did not
obtain an express finding on their limitations defense. In the alternative, Jamileh
contends that the discovery rule delayed accrual of her fraud claim until 2011.

      Despite Jamileh’s assertion to the contrary, a deed obtained by fraud is
voidable and subject to the four-year residual statute of limitations. See Tex. Civ.
Prac. & Rem. Code Ann. § 16.051 (West 2015); Ford v. Exxon Mobil Chem. Co.,
235 S.W.3d 615, 618 (Tex. 2007). Here, the alleged fraud was committed in 1999,
and Jamileh did not assert her fraud claim until 2010 when she filed her petition for
divorce. Normally, under these circumstances, Jamileh’s fraud claim would be
barred by limitations, unless the discovery rule delayed its accrual. However,
Jamileh did not plead the discovery rule in her live petition for divorce and
therefore waived its applicability. See Woods v. William M. Mercer, Inc., 769
S.W.2d 515, 518 (Tex. 1988). Furthermore, we disagree with Jamileh that
Noorollah and Zarine somehow waived their limitations defense when the trial
court declined to make express findings on their limitations defense. The trial court
implicitly found against Noorollah and Zarine when it concluded that the Mosley
Property belonged to Jamileh and that Noorollah and Zarine have no interest in the
Mosley Property.

      We agree with Jamileh, however, that her challenge to the validity of the
                                          9
deed is not barred by limitations. The issue in this case is not whether Jamileh’s
challenge to the validity of a voidable deed is barred by limitations. Rather, the
issue is whether the October 1999 Deed is void because Jamileh lacked the
requisite intent to convey the Mosley Property according to the terms of the
October 1999 Deed.

      In framing this issue, we recognize that the trial court did not expressly
conclude the October 1999 Deed was void. However, we are bound to assume the
validity of the trial court’s judgment. Leonard v. Eskew, 731 S.W.2d 124, 131
(Tex. App.—Austin 1987, writ ref’d n.r.e.); see Vickery v. Comm’n for Lawyer
Discipline, 5 S.W.3d 241, 251–52 (Tex. App.—Houston [14th Dist.] 1999, pet.
denied). We must construe the judgment and any attendant findings of fact and
conclusions of law in a way that sustains the judgment if we are able to do so
without doing violence to the language used. In re L.A.F., 270 S.W.3d 735, 739
(Tex. App.—Dallas 2008, pet. denied); Leonard, 731 S.W.2d at 132. Accordingly,
we must assume the trial court determined favorably to the judgment any omitted
findings of fact or conclusions of law necessary to the relief ordered. Leonard, 731
S.W.2d at 132; see Vickery, 5 S.W.3d at 252. We must uphold conclusions of law
if the judgment can be sustained on any legal theory supported by the evidence.
Greater Hous. German Shepherd Dog Rescue, Inc. v. Lira, 447 S.W.3d 365, 370
(Tex. App.—Houston [14th Dist.] 2014, pet. filed). Here, the divorce decree states
that all deeds subsequent to September 1999 Deed are void. The trial court’s
conclusions of law imply that Jamileh’s challenge to the validity of the October
1999 Deed was not barred by limitations. And the trial court did make findings of
fact relevant to Jamileh’s intent in signing the October 1999 Deed. Therefore, if the
judgment can be sustained on the theory that the October 1999 Deed is void, then
we must uphold the trial court’s conclusions of law and affirm. See id.; see e.g.,
Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 757 n.11 (Tex. App.—Dallas

                                         10
2012, no pet.) (concluding that evidence supported trial court’s judgment based on
defense of laches even though trial court did not make an express conclusion of
law regarding the defense of laches); Leonard, 731 S.W.2d at 132 (concluding that
trial court decided elements of fraud in appellees’ favor even though court’s
findings of fact expressly established only one essential element of fraud).

                             3.1.   Standards of Review

                       3.1.1. Legal and Factual Sufficiency
      Findings of fact entered in a case tried to the court have the same force and
dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991). The trial court’s findings are reviewed for factual
sufficiency of the evidence under the same legal standards as are applied to review
jury verdicts for factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex. 1996). The trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Barrientos v. Nava, 94
S.W.3d 270, 288 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Because there is
a complete reporter’s record in this case, the trial court’s findings will not be
disturbed if there is any evidence of probative force to support them. Id. We must
give effect to the intended findings of the trial court and affirm the judgment if it
can be upheld on any legal theory that finds support in the evidence. Black v.
Dallas Cnty. Welfare Unit, 835 S.W.2d 626, 630 n.10 (Tex. 1992). An omitted
finding, supported by the evidence, may be supplied by a presumption that it
supports the judgment. Id.

      A legal-sufficiency challenge will be sustained when the record discloses
one of the following situations: (a) a complete absence of a vital fact; (b) the court
is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no
more than a mere scintilla; (d) the evidence conclusively establishes the opposite
                                         11
of the vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620(Tex. 2014). In
conducting a legal sufficiency review, we consider the evidence in the light most
favorable to the judgment, crediting evidence that a reasonable fact finder could
have considered favorable and disregarding unfavorable evidence unless the
reasonable fact finder could not. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). We indulge every reasonable
inference that supports the trial court’s findings. Waste Mgmt., 434 S.W.3d at 156.
We cannot substitute our opinion on witness credibility for that of the jury. City of
Keller v. Wilson, 168 S.W.3d 802, 816–17 Tex. 2005). Nor can we disregard
conclusive evidence that is contrary to a verdict. Id. at 817. A legal-sufficiency
challenge fails if more than a scintilla of evidence supports the factual finding. See
Waste Mgmt., 434 S.W.3d at 156. More than a scintilla exists when the evidence as
a whole rises to a level enabling reasonable and fair-minded people to have
different conclusions. Id.

      A factual-sufficiency challenge will be sustained if evidence supporting the
finding is so weak or the evidence to the contrary is so overwhelming that the
finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965); Gooch v. Am. Sling Co., 902 S.W.2d 181, 184 (Tex. App.—
Fort Worth 1995, no writ). In conducting a factual sufficiency review, we must
consider all of the evidence in the record. Ortiz, 917 S.W.2d at 772. Because “[t]he
factfinder is the sole judge of the credibility of the witnesses and the weight of
their testimony[,]” Wash. DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723,
729 (Tex. App.—Houston [14th Dist.] 2013, pet. denied), we cannot substitute our
own judgment for that of the factfinder, even if we would reach a different answer
on the evidence. GTE Mobilnet of S. Tex.Ltd. P’ship v. Pascouet, 61 S.W.3d 599,
616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The amount of evidence
necessary to affirm the factfinder’s judgment is far less than that necessary to

                                         12
reverse its judgment. Id.

                             3.1.2. Conclusions of Law
      Conclusions of law are always reviewable. Jean v. Tyson-Jean, 118 S.W.3d
1, 4 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). They will be upheld on
appeal if the judgment can be sustained on any legal theory supported by the
evidence. Id. Conclusions of law will not be reversed unless they are erroneous as
a matter of law. Id. at 5.

      A trial court’s conclusions of law are reviewed de novo as legal questions,
and cannot be challenged on factual-sufficiency grounds. Id.; Texmarc Conveyor
Co. v. Arts, 857 S.W.2d 743, 744–45 (Tex. App.—Houston [14th Dist.] 1993, writ
denied). Under de novo review, the reviewing court exercises its own judgment
and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.
1998). We will uphold conclusions of law if the judgment can be sustained on any
legal theory supported by the evidence. Lira, 447 S.W.3d at 370. Incorrect
conclusions of law do not require reversal if the controlling findings of fact will
support a correct legal theory. Id.

                               3.2.   Applicable Law
      “A conveyance of an estate of inheritance, a freehold, or an estate for more
than one year, in land and tenements, must be in writing and must be subscribed
and delivered by the conveyor or by the conveyor’s agent authorized in writing.”
Tex. Prop. Code Ann. § 5.021 (West 2014). Delivery is an essential element of a
valid deed. See id. Delivery consists of two elements: (1) the deed must be
delivered into the grantee’s control, and (2) the grantor must intend the deed to
become operative as a conveyance to the grantee. Chambers v. Equity Bank, SSB,
319 S.W.3d 892, 900 (Tex. App.—Texarkana 2010, no pet.); see Hubbard v. Cox,
13 S.W. 170, 170 (Tex. 1890). If the intent element is lacking, then the deed is
void, and subsequent grantees cannot acquire title to the property the deed purports
                                         13
to convey. See Adams v. First Nat’l Bank, 154 S.W.3d 859, 870 (Tex. App.—
Dallas 2005, no pet.) (absent grantor’s intent, delivery does not pass title); Bellaire
Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 213 (Tex. App.—Fort Worth
1992, writ denied) (void instrument passes no title); Estes v. Reding, 398 S.W.2d
148, 150 (Tex. Civ. App.—El Paso 1965, writ ref’d n.r.e.) (deed delivered without
intent is “of no effect”). The question of delivery of a deed is controlled by the
intent of the grantor. Williams v. Anderson, 414 S.W.2d 731, 734 (Tex. App.—
Dallas 1967, no writ). The grantor’s intent is determined by examining all the facts
and circumstances preceding, attending, and following the execution of the
instrument. Stephens Cnty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 262 (Tex.
1974).

      Generally, title to transferred property vests upon execution and delivery of
the deed. Id. at 261. Proof that a deed has been recorded gives rise to a
presumption that the grantor delivered the deed with the intent to convey the
property according to the terms of the deed. Id. at 261–62. To overcome the
presumption that delivery was accompanied by the requisite intent, the party
challenging the deed’s validity must show: (1) the deed was delivered or recorded
for a different purpose, (2) fraud, accident, or mistake accompanied the delivery or
recording, or (3) the grantor had no intention of divesting herself of title. Id. at 262.

      Whether the deed has been delivered is a question of fact. Adams v. First
Nat’l Bank, 154 S.W.3d 859, 870 (Tex. App.—Dallas 2005, no pet.). What
constitutes delivery is a question of law. Id. If evidence tends to show a lack of
intent to convey the subject property according to the terms of the deed, then the
factfinder has extensive discretion to find that a recorded deed was not actually
delivered. Williams v. Anderson, 414 S.W.2d 731, 734 (Tex. App.—Dallas 1967,
no writ) (discussing Thornton v. Rains, 299 S.W.2d 287, 288 (Tex. 1957)).


                                           14
                                       3.4.   Analysis

                          3.4.1. Legal and Factual Sufficiency
       The October 1999 Deed was recorded. To rebut the resulting presumption of
delivery, Jamileh had to prove that she had no intent to convey the Mosley
Property according to the terms of the October 1999 Deed.

       The evidence pertinent to the October 1999 Deed was not disputed. Jamileh
testified that David presented her with only a blank signature page. The signature
page does not contain any of the deed’s formal provisions. David told Jamileh that
by signing she was transferring the Mosley Property to him. Jamileh believed
David’s statement and signed the signature page of the October 1999 Deed.
Jamileh did not sign in the presence of a notary. The deed was not recorded until
January 4, 2000.2 Later, Jamileh learned that the October 1999 Deed had actually
conveyed the Mosley Property to Noorollah.

       The trial court reasonably could have found from these facts that Jamileh’s
intent in signing the October 1999 Deed was to convey the Mosley Property to
David and that the deed was recorded for a different purpose—to convey the
property to Noorollah. As a result, the trial court could have found that the October
1999 Deed was not delivered. See Black, 835 S.W.2d at 630 n.10.

       After reviewing all the evidence pertinent to the October 1999 Deed, we
conclude the evidence is legally and factually sufficient to support the omitted
finding that Jamileh lacked the requisite intent to convey the Mosley Property
according to the terms of the October 1999 Deed. We overrule Noorollah’s
challenge to the trial court’s findings of fact.

       We turn now to Noorollah and Zarine’s challenge to the trial court’s

       2
         Although Noorollah and Zarine argue that Jamileh is charged with knowing the contents
of the document she signed, the record contains no evidence that the substantive portions of the
deed had been drafted at the time Jamileh signed the signature page.
                                              15
conclusions of law.

                            3.4.2. Conclusions of Law
              3.4.2.1.     Characterization of the Mosley Property
       We begin with the conclusion of law characterizing the Mosley Property as
Jamileh’s separate property. The trial court found that David gave the Mosley
Property to Jamileh. Because Noorollah and Zarine do not challenge this finding,
we are bound by it. See In re S.E.K., 294 S.W.3d at 930; London, 94 S.W.3d at
149.

       Property acquired by gift is the recipient spouse’s separate property. Tex.
Const. art. 16 sec. 15. Jamileh acquired the Mosley Property by gift. Therefore, the
Mosley Property is Jamileh’s separate property.

       Because the trial court’s conclusion of law is supported by a controlling
finding of fact, the trial court did not err when it characterized the Mosley Property
as Jamileh’s separate property.

            3.4.2.2.     Noorollah’s Interest in the Mosley Property
       We next address the conclusion of law that Noorollah and Zarine have no
interest in the Mosley Property. This conclusion is consistent with the trial court’s
conclusion that Jamileh owns the Mosley Property as her separate property. It is
also consistent with a conclusion that the October 1999 Deed is void.

       We have upheld the trial court’s omitted finding that the presumption of
valid delivery was rebutted because Jamileh did not intend to convey the Mosley
Property according to the terms of the October 1999 Deed. Therefore, the trial
court’s conclusions that Jamileh owns the Mosley Property and Noorollah and
Zarine have no interest in the Mosley Property—and that the October 1999 Deed is
void—is supported by a controlling finding of fact. The legal effect of the trial
court’s conclusion is to render the subsequent Mosley-Property deeds void. See
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Adams, 154 S.W.3d at 870. The trial court did not err in concluding that Noorollah
and Zarine have no interest in the Mosley Property.

      We overrule Noorollah and Zarine’s challenge to the trial court’s
conclusions of law.

                                4.   CONCLUSION
      Having overruled David’s and Noorollah and Zarine’s issues on appeal, we
affirm the trial court’s judgment.




                                      /s/    Marc W. Brown
                                             Justice


Panel consists of Justices McCally, Brown, and Wise.




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