Chief Justice                                                                                                             Clerk
James T. Worthen                                                                                                          Cathy S.Lusk

                                           Twelfth Court of Appeals
Justices                                                                                                                  Chief Staff Attorney
Sam Griffith




            Friday, June 30, 2006


            Mr. James M. Baker                                               Mr. Donald F. Killingsworth
            Castro & Baker, LLP                                              P. O. Box 208
            7433 Singing Tree                                                Tyler, TX 75710
            Las Vegas, NV 89123

            RE:       Case Number:                         12-04-00309-CV
                      Trial Court Case Number:            2002-09-0666

            Style: Melody Anne Obeso Verhage
                     v.

                     John Verhage

            Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
            numbered cause. Also enclosed is a copy of the court's judgment.

            Very truly yours,

            CATHY S. LUSK, CLERK


            By   .D cxrvii              <b\orxX^r
                  Darcy Starched,
                             Ae5 Deputy Clerk


           CC:             Hon. John Ovard
                           Judge Daniel B. Childs
                           Ms. Marlys Sue Mason




                     1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Trinity, Upshur,
                                                         Van Zandt and Wood Counties
                                                         www.12thcoa.courts.state.tx.us
                                  NO. 12-04-00309-CV


                        IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


                                     TYLER, TEXAS

MELODY ANNE OBESO VERHAGE,                        §    APPEAL FROM THE
APPELLANT


V.                                                §    COUNTY COURT AT LAW OF

JOHN VERHAGE,
APPELLEE                                          §    CHEROKEE COUNTY, TEXAS

                                   MEMORANDUM OPINION

        Melody Anne Obeso Verhage appeals the decree of annulment ordered by the trial court.
On appeal, Melody presents five issues. We reverse and remand in part and affirm in part.

                                          Background

        Melody and John Verhage were married on March 28,1998. Melody was originally from
the Philippines, and the couple became a cquainted t hrough a p en p al m agazine. T hey b egan
corresponding and, in October 1997, John went to the Philippines to interview Melodyand several
other women. John and Melody met and, eventually, John proposed marriage and applied for a
fiance visa to the United States. At the time of their marriage, Melody was eighteen years old and
John was sixty-eight.

        On July 31, 2002, Melody left John. On September 18, 2002, John filed for divorce,
accusing Melody of cruel treatment and adultery. John requested a disproportionate share of the
parties' estate for severalreasons, including fault in the breakup of the marriage. In his amended
petition for divorce, J ohn a lleged t hat M elody c ommitted a ctual fraud a nd c onversion o f h is
separate property (specifically cash in the amount of $60,000). He also alleged that Melody had
breached her duty not to transmit a sexual disease to him. In her original and amended answers,
Melody asked that she be awarded a disproportionate share ofthe parties' estate, alleging that John
breached his duty not to transmit a sexual disease to her and committed fraud by converting her
share of a 2000 Ford Mustang automobile.
       At pretrial hearings and a nonjury trial, Melody and John testified regarding their courtship,
as well as their marriage and its eventual disintegration. John testified that he wanted to find a good
wife who would stand beside him for the rest of his life. He accused Melody of adultery and cruel
treatment. Melody stated that she agreed to marry John because he was nice to her, God fearing,
impressive, and made promises to her. Melody admitted that she did not love John when she came
to the United States, but cared for him. Both admitted that John spent money on Melody and her
family in the Philippines. John testified that Melody stole money from him and that approximately
$60,000 was missing from a safe in his house. Both John and Melody had genital herpes, and each
accused the other of transmitting it. Additional accusations were made by both parties during the
trial regarding credit cards, bank accounts, and cruel treatment during their marriage. At the
conclusion of the trial, the trial court found, in part, that the 2000 Ford Mustang was a gift to
Melody and her separate property, that John failed to meet his burden to trace the $60,000 cash he
alleged Melody converted, that the medical evidence was insufficient to prove transmittal of the
sexual disease, that Melody admitted 1ove was not the basis of the relationship, and that the
inception of the marriage was a fraudulent relationship intended for the purpose of finding and
procuring resident status and obtaining funds to benefit Melody and her family.
       On August 3, 2004, the trial court ordered an annulment. In the decree of annulment, the
trial court also found that Melody abandoned the 2000 Ford Mustang, that John sold the Mustang
due to her abandonment and retained the funds from the sale, and that any value ofthe Mustang was
offset by Melody's fraud in diverting John's separate property funds for her and her family's
benefit. After proper requests, the trial court filed findings of fact and conclusions of law and
additional findings of fact. This appeal followed.


                                      Standard of Review

       A trial court's findings offact are reviewed for legal and factual sufficiency ofthe evidence
under the same legal standards applied to reviewjury verdicts for legal and factual sufficiency of
the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); M.D. Anderson v. City ofSeven
Points, 806 S.W.2d 791,794 (Tex. 1991). In considering whether the evidence is legally sufficient,
we consider only the evidence and inferences tending to support the trial court's findings and
disregard all evidence to the contrary. M.D. Anderson, 806 S.W.2d at 794-95. We must consider
evidence in the light most favorable to the trial court's findings and indulge every reasonable
inference that would support them. See City ofKeller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
In our review, we must credit favorable evidence if a reasonable trier of fact could and disregard
contrary evidence unless a reasonable trier of fact could not. See id. at 827. However, we must not
substitute our judgment for that of the trial court as long as the evidence falls within the zone of
reasonable disagreement. See id. at 822.
       In reviewing factual sufficiency, we must weigh all ofthe evidence in the record. Ortiz, 917
S.W.2d at 772. Findings may be overturned only if they are so against the great weight and
preponderance ofthe evidence as to be clearly wrong and unjust. Id. However, when the appellate
record contains a reporter's record, findings of fact are not conclusive on appeal if the contrary is
established as a matter of law or if there is no evidence to support the finding. Material P'ships,
Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).
       We review the trial court's conclusions of law de novo. Id. The standard of review for

conclusions of law is whether they are correct. Id. We will uphold conclusions of law on appeal
if the judgment can be sustained on any legal theory the evidence supports. Id. Thus, incorrect
conclusions of law do not require reversal if the controlling findings of fact support the judgment
under a correct legal theory. Id.


                                           Annulment

       In her first issue, Melody argues that the trial court erred in ordering an annulment because
neither party requested an annulment and neither the pleadings or the evidence support an
annulment. The judgment ofa trial court shall conform to the pleadings ofthe parties. Tex.R. Civ.
P. 301; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983). Further, ajudgment
must be supported by the pleadings and, if not, it is erroneous. Cunningham, 660 S.W.2d at 813.
A partymaynot obtain ajudgment based upon a theory not pleaded. Affiliated Capital Corp. v.
Musemeche, 804 S.W.2d 216, 219 (Tex. App.-Houston [14th Dist.] 1991, writ denied). Thus, a
party may not be granted reliefin the absence ofpleadings to support that relief. Cunningham, 660
S.W.2d at 813; Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex. App.-Austin 2000, no pet.). Both
Melody and John pleaded for a divorce, not an annulment. However, the trial court ordered that
their marriage be annulled, contrary to the pleadings ofboth parties. Because ajudgment must be
supported by the pleadings and neither party pleaded for an annulment, the trial court's decree of
annulment is erroneous. See Cunningham, 660 S.W.2d at 812-13; Holmstrom, 26 S.W.3d at 532.
         However, in its initial findings offact and conclusions oflaw, the trial court determined that
Melody's fraud to induce John to marry was tried by implied consent pursuant to Rule 67 of the
Texas Rules of Civil Procedure. To support this ground for annulment, the trial court found that
John did not learn of Melody's fraud until after their separation and, thereafter, the parties had not
cohabited.1 In its additional findings of fact, the trial court found that Melody induced John to
marry her by material false representations "that she loved him, [that] she intended to engage in and
remain in a traditional perpetual marriage, and [that] she intended to care for him in his advancing
years and declining health." The trial court found that Melody intended for John to rely upon such
false representations and that he relied upon them in his decision to marry her. Further, the trial
court found that Melody engaged in a plan of"intended deceit" to marry John for the "sole purpose"
of obtaining legal status in the United States and of obtaining as much of John's liquid assets as
possible. The record shows that Melody and John both pleaded for a disproportionate share of the
parties' estate based, in part, upon fault in the breakup of the marriage. John argues that the issue
supporting an annulment, fraudulent inducement to marry, was tried by consent. Melody disagrees.
         Rule 67 ofthe Texas Rules ofCivil Procedure allows issues not raised by the pleadings that
are tried by express or implied consent to be treated in all respects as if they had been raised in the
pleadings. T EX. R. Civ. P. 67. However, the doctrine of trial by consent is limited to those
exceptional cases where the parties clearly tried an unpleaded issue by consent. In re Walters, 39
S.W.3d 280,289 (Tex. App.-Texarkana 2001, no pet.). This doctrine should be applied cautiously,


           A trial court may grant an annulment of a marriage to a party to the marriage if (1) the other party used
fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily
cohabited with the other party since learning of the fraud or since being released from the duress or force. Tex. Fam.
Code Ann. § 6.107 (Vernon 1998).
not in doubtful situations, and only where it appears from the record that the issue was actually
tried, although not pleaded. Id. When evidence relevant to both a pleaded and an unpleaded issue
has been admitted without objection, the doctrine of trial by consent should not be applied unless
clearly warranted. Id. To determine whether an issue was tried by consent, we must examine the
record for evidence of trial of the matter, rather than evidence of the issue. Id.

        A trial court has wide discretion in dividing the estate ofthe parties; thus, many factors may
be considered in making a just and right division of the property. See Murffv. Murff 615 S.W.2d
696, 698-99 (Tex. 1981). Both John and Melody sought a disproportionate share of the marital
estate. At trial, Melody and John testified regarding the origins oftheir relationship, their marriage,
and its subsequent deterioration. Testimony regarding the origins of the marriage, including
Melody's love or lack thereof for John, her reasons for marrying John, and the subsequent breakup
of the marriage is relevant to the division of property, an issue pleaded by both parties. See In re
Walters, 39 S.W.2d at 289. Moreover, John specifically alleged actual fraud as a reason he should
receive a disproportionate share of the estate. Therefore, the issue of fraud was supported by the
pleadings insofar as it related to the issue of property division. However, neither party sought an
annulment. Because evidence relevant to a pleaded issue, division of property, was admitted
without objection, we cannot apply the doctrine of trial by consent to the issue of the unpleaded
issue, annulment, unless clearly warranted. See id. Both John and Melody requested a divorce in
their pleadings and at trial during closing arguments. Neither mentioned an annulment. As such,
we can surmise that neither party contemplated that the trial court would order an annulment instead
of a divorce. Therefore, because there is no evidence in the record that the issue of annulment was

actually tried before the court, we cannot apply the doctrine of trial by consent to the issue. See id.
Accordingly, Melody's first issue is sustained.


                                 Divestiture of the Mustang

        In her second issue, Melody contends that the trial court erred as a matter oflaw by divesting
her of her separate property, the 2000 Ford Mustang. John disagrees, arguing that the trial court
imposed a charge against Melody's separate estate that could be validly paid through forced sale
or foreclosure.
Applicable Law
        All property, both real and personal, owned or claimed by a spouse before marriage, and that
acquired afterward by gift, devise, or descent, shall be the separate property of that spouse. Tex.
Const, art. XVI, § 15. If one spouse makes a gift of property to the other, that gift is presumed to
include all the income or property which might arise from that gift ofproperty. Id. The constitution
contains the exclusive definition of separate property, and the legislature cannot alter or enlarge
upon it. Cameron v. Cameron, 641 S.W.2d 210, 213 (Tex. 1982). Thus, the Texas Family Code
defines a spouse's separate property as that property acquired by the spouse during marriage by gift,
devise, or descent. Tex. Fam. Code Ann. § 3.001(2) (Vernon 1998). Anyjudicial divestiture of
separate property would essentially disregard the constitutionally mandated distinction between the
separate and community property of spouses. Cameron, 641 S.W.2dat213. Moreover, allowing
a trial court to divest separate property from one spouse and award it to the other spouse as part of
the latter's separate estate would impermissibly enlarge the exclusive constitutional definition of
separate property. Id.

        In a decree of divorce or annulment, the 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 ofeach party
and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (Vernon 1998). The phrase
"estate of the parties" refers only to community property. Cameron, 641 S.W.2dat214. Section
7.001 ofthe Texas Family Code authorizes a "division ofthe estate ofthe parties," but provides no
authority for a court to "divest" a divorcing spouse's separate property. See id. at 215. Subject to
certain exceptions not applicable here, the power of a trial court is limited to a disposition of the
community property and does not include the power to dispose of separate property. Id. at 216.
Analysis

        In the decree of annulment, the trial court found that the 2000 Ford Mustang was a gift from
John to Melody and that the value of the Mustang was "more than set off by Melody's fraud in
diverting John's separate property funds for her and her family's benefit. In its findings of fact and
conclusions of law, the trial court found that the Mustang was her separate property, and that the
value of the Mustang was less than the amount of John's separate property funds taken by Melody
by and through her fraud in the inducement to marry. John admitted selling the Mustang in August
2002 and, therefore, the trial court found that the Mustang was unavailable for division and/or
distribution in kind.

       According to the trial court, the Texas Constitution, and the Texas Family Code, the 2000
Ford Mustang was Melody's separate property by gift. See Tex. Const, art. XVI, § 15; Tex. Fam.
Code Ann. § 7.001. Neither party disputed the trial court's finding. Because the Mustang was
Melody's separate property, the trial court had no authority to divest her ofthat property. Cameron,
641 S.W.2d at 215. Therefore, we conclude that trial court erred as a matter of law by divesting
Melody of the Mustang. Accordingly, Melody's second issue is sustained.


                                  Abandonment of Mustang

        In her third issue, Melody contends that there was insufficient evidence to support the trial
court's finding that she intended to abandon the 2000 Ford Mustang. John disagrees. In its decree
of annulment, the trial court found that Melody abandoned the Mustang. Additionally, the trial
court found that Melody intended to abandon the Mustang.             "Abandon" means to give up
absolutely, to forsake entirely, to renounce utterly, to relinquish all connection with or concern in,
and to desert. R.R. Comm'n of Texas v. Waste Mgmt. of Texas, Inc., 880 S.W.2d 835, 843 (Tex.
App.-Austin 1994, no writ). When applied to personal property, the term also includes an intent
by the owner to leave the property free to be appropriated by any other person. Id.
       Melody testified that, when she left John on July 31, 2002, she was unable to take the
Mustang with her. Melody stated that she was not a very experienced driver and what experience
she had was in town. According to Melody, she did not have enough confidence to drive to
California. Thus, Melody left the Mustang in the Sam's Club parking lot in Tyler, Texas. She
telephoned John's daughter, Nanette Elaine Verhage, told Nanette that she was leaving John, and
asked Nanette to pick up the Mustang. Melody denied abandoning the Mustang. Nanette testified
that Melody called, stating the Mustang was in the Sam's Club parking lot and that it needed to be
picked up. John's son, Daniel Verhage, testified that he, his wife, and his wife's friend picked up
theMustang from the Sam's Club parking lot. According to Daniel, thekeys were in theMustang,
but he did not believe that the Mustang was locked. John testified that Melody told Nanetteto have
him take his keys to open the Mustang.
        The evidence tending to support the trial court's findings includes Melody's leaving the
Mustang i n t he p arking 1ot o f S am's C lub i n T yler, i nstead o f d riving i 11o C alifornia. T he
automobile was left with the keys inside and may have been unlocked. However, we cannot
disregard contrary evidence unless a reasonable trier of fact could not.      See City of Keller, 168
S.W.3d at 827. Contrary to the findings, Melody requested that Nanette pick up the Mustang or
arrange for its retrieval. Moreover, the great weight and preponderance of the evidence does not
support the findings that Melody abandoned and intended to abandon the Mustang because she
never renounced or relinquished her ownership of the vehicle and she arranged for its retrieval by
Nanette or someone ofher choosing. See Ortiz, 917 S.W.2d at 772. Because the evidence does not
tend to support these findings and they are against the great weight and preponderance of the
evidence, the evidence is both legally and factually insufficient to support the trial court's findings
that Melody abandoned and intended to abandon the 2000 Ford Mustang. Accordingly, Melody's
third issue is sustained.

                                    Acquisition of Property

        In her fourth issue, Melody argues that there was insufficient evidence to support the trial
court's finding that she obtained a large amount ofJohn's separate property liquid assets, primarily
cash from his safe, without his knowledge or consent. John disagrees.
        According to John, he had approximately $60,000 cash in a new keyed safe after he and
Melody were married. After buying the safe, John did not see the safe again until three years later.
After Melody left, he found a spare key, opened the safe, and found that the money was gone.
However, the safe contained a piece of paper with a notation of "54,545.95" written in Melody's
handwriting. John admitted that he had not looked in the safe in over two years nor had his
children. John offered no other documentation to support his testimony that he had $60,000 in the
safe at the time of his marriage or any other documentary evidence showing the amounts ofmoney
entering or leaving the safe. Moreover, none of John's children who testified recalled seeing the
safe or the amount of funds in the safe that John alleged.
       As far as other separate property liquid assets allegedly taken by Melody, John admitted that
he spent large sums of money on Melody's family in the Philippines, sendingthem approximately
$15,000to $20,000per year,buyingthem a multicab, andpaying forMelody's sister's medicalbills


                                                   8
and funeral. Further, John admitted making transfers of money to the Philippines and knew that
Melody sent money he gave her to her ill sister. John offered no documentary evidence to prove
that Melody diverted funds from his accounts or cash holdings to send to her family without his
permission.
        Even ifwe consider only the evidence tending to support the trial court's finding, we cannot
disregard evidence contrary to the trial court's finding. See City of Keller, 168 S.W.3d at 827.
Moreover, without documentary evidence, the trial court's findings are so against the great weight
and preponderance ofthe evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772.
Because the evidence does not tend to support this finding and it is against the great weight and
preponderance ofthe evidence, the evidence is legally and factually insufficient to support the trial
court's finding that Melody obtained a large amount of John's separate property liquid assets
(primarily cash from his safe) without his knowledge or consent. Accordingly, Melody's fourth
issue is sustained.

                                Sexually transmitted Disease

        In her fifth issue, Melody contends that the trial court's finding that there was insufficient
evidence regarding the cause of the parties' sexually transmitted disease was against the great
weight and preponderance of the evidence. John disagrees.
        The evidence shows that Melody began showing signs of genital herpes, a sexually
transmitted disease, at the beginning of August 2001. She denied having sexual relations with
anyone other than John during their marriage. Melody testified that, prior to her outbreak, John had
reddish spots on his penis. However, John was not tested for genital herpes at that time. Melody
stated that she was diagnosed with genital herpes in February 2002. John testified that Melody had
extramarital affairs and that they rarely had sex. Although John testified at one point that none of
his former wives had a sexually transmitted disease, he later admitted that his third wife informed
him that she had a sexuallytransmitted diseaseprior to meetinghim. John alleged in his pleading
that Melody transmitted a sexual disease to him, but, at trial, denied having a sexually transmitted
disease, ever having an outbreak, or ever being told that he had a sexually transmitted disease.
However, John admitted that, in October 2002, he was treated for internal pain in his urinary tract
and anulcerative lesion onhisgenitals. John admitted thatmedical records show hetested positive
for herpes simplex virus one and two in November 2003. According to John, Melody did not
contract genital herpes from him.
         The record shows and the trial court noted that no medical expert testified during trial
regarding the incubation period, rates oftransmission, or how transmission occurs in genital herpes.
The cause of Melody's and John's genital herpes must be shown by competent evidence.            See
Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
Lay testimony will suffice when general experience and common sense will enable a lay person
fairly to determine the causal nexus. Id. However, whether Melody or John caused the other to
contract genital herpes is not a question that can be answered by general experience and common
sense. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996); Praytor, 97 S.W.3d at 241. As
such, expert testimony is required. Praytor, 97 S.W.3d at 241. When expert testimony is required,
lay evidence supporting causation is legally insufficient. See City ofKeller, 168 S.W.3d at 812.
         Because both Melody and John failed to support their claims regarding the cause of their
sexually transmitted disease with expert medical testimony, the trial court's finding that there was
insufficient evidence regarding the cause of the parties' sexually transmitted disease was not so
against the great weight and preponderance ofthe evidence as to be clearly wrong and unjust. See
Ortiz, 917 S.W.2d at 772. Accordingly, Melody's fifth issue is overruled.


                                                    Conclusion

         Having sustained Melody's first, second, third, and fourth issues, we reverse the decree of
annulment and remand to the trial court for the entry of a divorce decree consistent with this
opinion. In all other respects, the trial court's judgment is affirmed.


                                                                  JAMES T. WORTHEN
                                                                          Chief Justice
Opinion delivered June 30, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.




                                                    (PUBLISH)


                                                        10
                              COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                        JUDGMENT


                                            JUNE 30, 2006



                                     NO. 12-04-00309-CV


                            MELODY ANNE OBESO VERHAGE,
                                               Appellant
                                                    V.

                                         JOHN VERHAGE,
                                                Appellee
                             Appeal from the County Court at Law
                      of Cherokee County, Texas (Tr.Ct.No.2002-09-0666)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being inspected, it is the opinion of the Court that there was error in the
judgment as entered by the trial court, and that the same should be Reversed and Remanded
in Part, and Affirmed in part.
                       It is therefore ORDERED, ADJUDGED and DECREED that that portion
of the trial court's judgment regarding the decree of annulment be        REVERSED and the cause
Remanded to the trial court for an entry of a divorce decree consistent with this opinion. In all
other respects, the trial court's judgment is Affirmed. All costs of this appeal be, and the same
are, adjudged against the parties incurring same, for which let execution issue; and that this
decision be certified to the court below for observance.

                       James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J. and Griffith, J.
