Cohen v. Rami Bar

569 S.W.3d 764
CourtCourt of Appeals of Texas
DecidedDecember 18, 2018
DocketNO. 01-18-00082-CV
StatusPublished
Cited by9 cases

This text of 569 S.W.3d 764 (Cohen v. Rami Bar) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Rami Bar, 569 S.W.3d 764 (Tex. Ct. App. 2018).

Opinion

Evelyn V. Keyes, Justice

In this restricted appeal, appellant Gil Cohen challenges the trial court's award of a default divorce, division of the community estate, and confirmation of separate property rendered in favor of appellee Rami Bar. In three issues, Cohen argues that the trial court erred in rendering a default divorce decree because (1) it did not have personal jurisdiction over him as *768a nonresident defendant; (2) he did not receive service of process in violation of his due process rights; and (3) it abused its discretion in dividing the community estate and confirming certain property as Bar's separate property. Because we conclude that the evidence was insufficient to support the trial court's division of the community estate and confirmation of Bar's separate property, we reverse and remand.

Background

Bar filed the original petition for divorce on July 12, 2017, alleging that he and Cohen had been married on January 1, 2014, and had "ceased to live together as spouses on or about July 10, 2017." As grounds for divorce, Bar alleged insupportability.

Bar asserted that he had been "a domiciliary of Texas for the preceding six-month period and a resident of [Harris County] for the preceding ninety-day period." Bar further alleged that Cohen "is a nonresident of Texas" but that "Texas is the last state in which marital residence between [Bar] and [Cohen] occurred, and this suit is filed before the second anniversary of the date on which marital residence ended."

Finally, the petition for divorce alleged that Cohen had committed fraud on the estate and asked the trial court to "reconstitute the community estate to its full value prior to [Cohen's] depletion of the community estate[.]" Bar also alleged that he owned "certain separate property" and requested the trial court "to confirm that separate property as [his] separate property and estate."

The record reflects that Cohen was served with citation and the original petition at 12800 N.E. 5th Ave., Miami, FL 33161 (the 5th Avenue Property). The process server swore an affidavit, filed with the trial court as the return of service on September 7, 2017, averring that

on the 5th day of August, 2017 at 9:00 pm, I INDIVIDUALLY/PERSONALLY served Gil Cohen by delivering a true copy of the Original Petition for Divorce with Request for Discovery with the date and hour of service endorsed thereon by me, directly to Gil Cohen at the given address of: 12800 N.E. 5th Ave, Miami, FL 33161, and informed said person of the contents therein, in compliance with state statutes.

On October 11, 2017, Bar filed his verified "Inventory and Appraisement and Proposed Division of Property." The inventory listed as community property the 5th Avenue Property, which was described as "House at 12800 N.E. 5th Ave Miami Florida," and stated that it had a fair market value of $202,066 and a secured debt balance of $231,000. Bar's proposed division awarded the house to himself, creating a negative net value of $28,934. Bar also proposed that he receive a "Bank of America Checking Account" purportedly worth $9,000, clothing worth $2,000, and a "401 K Retirement" worth $2,000. The inventory also cited furniture ($5,000), TV ($2,000), a bicycle ($600), clothing ($200), and a "Bank of America Checking Account" purportedly worth $50,000, and Bar proposed that these items be assigned to Cohen. The inventory listed a "debt balance" of $1,500 for attorney's fees and "credit cards" debt of $50,000, which Bar proposed would be awarded to him. The inventory listed as Bar's separate property "265 N.E. 110th Street Miami Florida 33161[,] Rami Bar Locksmith INC." (the 110th Street Property and the Locksmith Business). The inventory did not contain account numbers, statements, or appraisals supporting any of Bar's representations.

The proposed property division thus resulted in Bar's seeking to be awarded from *769the community estate the 5th Avenue Property along with the secured debt balance for that Property, $50,000 in "credit card" debt, one of the "Bank of America" accounts, clothing, and a "401 K Retirement" account, resulting in a negative net value of $67,734. The proposed property division also left Bar his separate property-the 110th Street Property and the Locksmith Business. Bar recommended that Cohen be awarded the "Bank of America" account purportedly containing $50,000 and other personal property, resulting in a total of $59,600 being awarded to Cohen.

The record contained a certification of Cohen's last-known mailing address as being the 5th Avenue Property, described as "12800 N. E. 5th Avenue, Miami, Florida 33161." It also contained a filing regarding Bar's current financial status and a certification that Cohen was not retired from military service.

The trial court held a hearing on October 12, 2017. Bar appeared in person and was represented by an attorney. Cohen did not appear, but the trial court noted that Cohen "was served with the Original Petition for Divorce via citation on the 5th day of August, 2017, at 12800 Northeast Fifth Avenue, Miami, Florida," and that "the citation was returned having been executed on September 7, 2017." The trial court further noted, "After review of the Court's file the Court notes that no written response appears in the Court's file from the Respondent [Cohen]."

The trial court also stated on the record that it took judicial notice of the "Nonmilitary Affidavit, Certificate of Last Known Address and Revised Inventory and Appraisement filed on October 11th, 2017 [and] ... the proposed Default Final Decree of Divorce filed on October 11th, 2017." Bar then provided sworn testimony on the record that he and Cohen were married, that Bar no longer wished to be married, and that there was no reasonable expectation of reconciliation. Bar further testified that, at the time he filed the petition for divorce, he had lived in Texas for at least six months and had lived in Harris County for at least 90 days. Bar testified that there were no children born or adopted during the marriage.

Bar further testified that the "Inventory and Proposed Property Division" accounted for all of the property that either he or Cohen owned to the best of his knowledge, and he testified that, due to "relative values of the Florida property and the debt, [he] ultimately [had] actually more debt than property[.]" Bar testified that he believed the allocation was fair to both himself and Cohen and asked the trial court to approve the proposed decree and grant the divorce.

The trial court then noted that "there's a property located at 12800 Northeast Fifth Avenue, Miami" and asked if that was to be awarded to Bar, which Bar's lawyer confirmed. The trial court asked, "And there's a confirmation of separate property as well, correct?" Bar identified the property as "265 Northeast, 110th Street, Miami, Florida, 33161," testifying that the property and business at that location-named Rami Bar Locksmith, Incorporated-belonged to him as his separate property. The trial court stated, "Your decree states 2031 West Creek Lane, Houston." Bar testified that he had moved the locksmith business to Houston and the West Creek address was its current location. The trial court asked, "You're telling me that's your separate property by way of what means that that's your separate property?" Bar responded, "It's before I got married."

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Bluebook (online)
569 S.W.3d 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-rami-bar-texapp-2018.