PROPERTY DIVISION IN DIVORCE - COMMUNITY PROPERTY
A trial court is charged with dividing the community estate in a just and right
manner. Tex. Fam. Code Ann. § 7.001 (West 2006); see also Schlueter v. Schlueter, 975
S.W.2d 584, 589 (Tex. 1998) (Trial courts have wide latitude and discretion in dividing
community property.). The trial court‟s division of property will not be disturbed on
appeal unless there is a clear showing of abuse of discretion. Cockerham v. Cockerham,
527 S.W.2d 162, 173 (Tex. 1975); see Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).
Property possessed by either spouse on dissolution of marriage is presumed to be
community property. Tex. Fam. Code Ann. § 3.003 (West 2006); Tarver v. Tarver, 394
S.W.2d 780, 783 (Tex. 1965). Parties claiming certain property as their separate property
have the burden of rebutting the presumption of community property. McKinley v.
McKinley, 496 S.W.2d 540, 543 (Tex. 1973) (citing Tarver, 394 S.W.2d at 783); see also
Tex. Fam. Code Ann. § 3.003.
Property acquired before marriage is separate property. See Tex. Fam. Code Ann.
§ 3.001(1) (West 2006). Separate property will retain its character through a series of
exchanges so long as the party asserting separate ownership can overcome the
presumption of community property by tracing the assets on hand during the marriage
back to property that, because of its time and manner of acquisition, is separate in
character. Cockerham, 527 S.W.2d at 167. If the separate estates of both spouses acquired
the property, then the property would be held by the two as tenants in common. See id. at
A mischaracterization of a portion of property as community property does not
require reversal of the judgment unless the mischaracterization had more than a de
minimis effect on the division of property. See Vandiver v. Vandiver, 4 S.W.3d 300, 302
(Tex. App.—Corpus Christi 1999, pet. denied).
Property possessed by either spouse at the dissolution of the marriage is presumed to be community
property, and a party who contends that property existed prior to marriage must prove the separate
character of the property by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003 (Vernon 2006).
Clear and convincing evidence is defined as that “measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”
Tex. Fam. Code Ann. § 101.007 (Vernon 2002); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort
Worth 2004, no pet.). “Mere testimony that property was purchased with separate property funds, without
any tracing of the funds, is generally insufficient to rebut the presumption.” McElwee v. McElwee, 911 S.W.
2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, pet. denied).
After reviewing all the evidence, we conclude that the findings of fact are not so against the great
weight and preponderance of the evidence as to be manifestly unjust. See Ortiz, 917 S.W.2d at 772. At the
dissolution of the marriage, John and Lauri possessed several investment and retirement accounts, and
the presumption is these accounts are community property. See Tex. Fam. Code Ann. § 3.003. To rebut
the presumption of community property, John was required to prove the separate character of the
investment and retirement accounts by clear and convincing evidence. See id. Other than his testimony,
however, John did not present any evidence of the premarital existence of any of the investment or
retirement accounts with the exception of the amounts deposited by him prior to March 29, 1998 in the
Verizon Savings account. While John contends he proffered business records to rebut the presumption
that the investment and retirement accounts were community property, we previously held that the trial
court did not abuse its discretion in excluding these records. In addition, Lauri offered financial records
showing that the accounts were opened after the date of the marriage. Acting in her capacity as the fact
finder, the trial judge was the sole judge of the credibility and weight to be given to John’s testimony and
Lauri’s proffered evidence, and as a result, the trial judge was not required to accept John’s testimony as
dispositive of the issue. See In re Marriage of Royal, 107 S.W.3d 846, 851 (Tex. App.—Amarillo 2003, no
pet.). Without any tracing of the funds, we cannot conclude John’s mere testimony rebutted the
presumption that the investment and retirement accounts were community property. See McElwee, 911 S.
W.2d at 188. Accordingly, we conclude the trial court’s findings of fact are not against the great weight and
preponderance of the evidence. See Ortiz, 917 S.W.2d at 772. John’s second issue is overruled.
JOHN A. LYONS v. LAURI D. LYONS; from Bexar County;
4th district (04-08-00259-CV, ___ SW3d ___, 01-14-09, pet. denied Sep. 2009)
(divorce appeal, business records affidavit defective, findings of fact & conclusions of law, error
preservation for appellate review) as redrafted