Elmer Goode v. Geraldine Vargas Garcia

Opinion issued December 21, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00143-CV
———————————
ELMER LAWRENCE GOODE, Appellant
V.
GERALDINE VARGAS GARCIA, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2017-25271
MEMORANDUM OPINION
This is an appeal from a division of property in a final divorce decree
following a bench trial. In two issues, appellant Elmer Lawrence Goode argues that
the trial court erred by awarding cash from a bank account and two parcels of real
property to appellee Geraldine Vargas Garcia. In both issues, Goode contends that
the properties awarded to Garcia were his separate property, but even if they were
community property, awarding them to Garcia was not a just and right division of
the marital estate. We affirm.
Background
The parties met in 1999 when Goode was fifty-five and Garcia was eighteen
years old. They began living together in August 2000 and married in May 2003.
They have three biological children. The oldest child was eighteen years old at the
time of trial. The younger two children are twins who were six years old at trial.
In April 2017, the parties separated and Goode filed for divorce. In his original
petition for divorce, the live pleading on file at the time of trial, Goode stated that
the parties married in May 2003 and are the parents of three children. 1 Goode
requested that the trial court appoint the parties as joint managing conservators of
the children and grant Goode the right to designate the children’s primary residence.
Regarding marital property, Goode’s petition succinctly stated, “There is no
community property for division.”
1
At trial, Goode disputed that he and Garcia were ever married and that he was the
father of the oldest child, even though he alleged in his divorce petition that he was
married to Garcia and that the oldest child was the parties’ child. Goode also
testified that he received social security benefits for the oldest child because he
claimed her as his child when applying for the benefits. The final divorce decree
found that the parties were married and that they are the parents of all three children.
Goode does not challenge these findings on appeal.
2
Garcia filed an answer to Goode’s petition with a general denial and a request
for costs and attorney’s fees. She also filed a counterpetition, agreeing with Goode
on the date of the parties’ marriage and their children and alleging cruel treatment
as grounds for divorce. She sought either sole managing conservatorship of the
children or joint managing conservatorship with the right to determine the children’s
primary residence. She asked the court to divide the community estate if the parties
could not agree to a division, and she requested a disproportionate share of the
community estate as well as her own separate property and reimbursement of
community funds that Goode allegedly used to benefit his separate estate.
At a bench trial, Goode testified that his income during the parties’ marriage
consisted of $3,500 per month in social security benefits and income from leasing
houses on twelve real properties he owned.2 Goode testified that he owned nine of
the properties prior to marriage and he bought three properties during the marriage.
He further testified that he earned $10,000 per month on the rental properties until
an unspecified time when most of the houses flooded and became uninhabitable.
Goode did not repair the houses, and his rental income was diminished to $2,200 per
month. Goode estimated the value for most of the properties but did not produce any
2
Goode claimed all twelve properties as his separate property and offered into
evidence ten deeds, including the deeds for the properties disputed in this appeal.
Goode acknowledged he could not find the deeds to two of the properties.
3
documentary evidence establishing the value of any property. For the three
properties purchased during the parties’ marriage—properties on Lear Street,
Redondo Drive, and Barbil Lane—Goode acknowledged that he purchased the
houses with his funds. Regarding the Redondo Drive property specifically, Goode
testified he bought that property with “funds [he] already had” that he “had
accumulated over the years.”
Goode’s funds apparently referred to his checking account that he had
maintained prior to and after meeting Garcia and which he used for all his dealings.
He estimated that the account had “[p]robably about $380,000” in it before the
parties married and “over $60,000” at the time of trial. He also testified that he
deposited the rental income and social security benefits in the account, and he
acknowledged that he commingled the funds in his account. Goode did not offer any
documentary evidence supporting his testimony about the balances in the account or
showing what funds were used to purchase the three properties acquired during the
marriage.
Goode testified that Garcia did not work during the parties’ marriage. He
testified that he supported her and the children after the parties separated, but he
acknowledged that he did not repair any of his rental properties for Garcia to live in
with the children nor did he offer to do so.
4
Garcia testified that she did not work during the marriage. When the parties
separated, Garcia and the children moved into a women’s shelter for three months
because Goode abused her and did not provide financial support for her until after
the parties attended mediation during pretrial proceedings. Garcia later moved into
a one-bedroom apartment with the children. At the time of trial, Garcia worked
twelve hours per week cleaning houses and had earned a GED. She asked the court
to grant her primary custody of the young twins.
Garcia also asked the court to award her two of the three real properties
purchased during the marriage so that she could repair and live in one house and
repair and sell the other house. The trial court admitted into evidence Garcia’s
inventory and appraisement of the three parcels of real property purchased during
the marriage. The inventory and appraisement showed values for each of the three
properties and for other personal property that she asked the court to award her.
Goode did not file an inventory or appraisement of any property.
Garcia further asked the court to award her at least half of the most recent
balance in Goode’s checking account. The only documentary evidence of the
account was admitted by Garcia and showed a list of transactions posted in the
account between January 1, 2011, and May 14, 2018, more than a year before trial
5
in August 2019.3 The most recent balance of the account in May 2018 was $209,624.
In March 2017, the month before the parties separated, the balance was nearly
$375,000.
At the end of trial, the court orally granted the parties’ divorce and took the
remaining issues under advisement. The final divorce decree dissolved the marriage
and appointed the parties as joint managing conservators of the children. Neither
party challenges the trial court’s appointment of conservators.
The final divorce decree also divided the parties’ community property. Garcia
was awarded $104,812 in cash and two real properties—Redondo Drive and Barbil
Lane—that were purchased during the marriage. The decree also awarded each party
various property in their possession, including cash, vehicles, furniture, clothing, and
jewelry. The decree did not include findings of the value of the community estate as
a whole or the values for any of the various properties awarded to the parties, other
than the amount of cash awarded to Garcia. Neither party filed a request for findings
of fact and conclusions of law from the trial court. See TEX. FAM. CODE § 6.711
(requiring trial court in divorce suit, on party’s request, to file written findings of
fact and conclusions of law regarding characterization and value of marital estate on
which disputed evidence was presented).
3
The record on appeal indicates that this was the only documentary evidence of the
account that Goode produced during pretrial discovery.
6
Goode filed a motion for new trial arguing that the trial court impermissibly
divested him of his separate property and did not divide the community estate in a
just and right manner. See id. § 7.001 (requiring trial court to divide community
property in “just and right” manner). The motion for new trial was overruled by
operation of law. See TEX. R. CIV. P. 329b(c). This appeal timely followed.4
4
Goode filed the notice of appeal after the deadline to perfect the appeal but within
fifteen days of this deadline, but he did not file a motion to extend time within this
time period. See TEX. R. APP. P. 26.1(a)(1), 26.3. Under this circumstance, a motion
to extend time is necessarily implied so long as Goode acted in good faith in late
filing the notice. See Doe v. Brazoria Cty. Child Protective Servs., 226 S.W.3d 563,
570–71 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997). To imply a motion to extend time, the
appellant must provide a reasonable explanation for late filing the notice of appeal.
Doe, 226 S.W.3d at 571; TEX. R. APP. P. 10.5(b)(2)(A) (requiring motion to extend
time to file notice of appeal to state facts relied on to reasonably explain need for
extension). Upon this Court’s request to provide a reasonable explanation, Goode
filed a motion to extend time to file the notice of appeal, stating that the hearing on
his motion for new trial was reset several times in the trial court, and he filed the
notice of appeal the day after the trial court denied his motion for new trial. See Doe,
226 S.W.3d at 571 (stating that “reasonable explanation” is “any plausible statement
of circumstances indicating that failure to file within the [specified] period was not
deliberate or intentional, but was the result of inadvertence, mistake or mischance”).
Ten days have passed without a response from Garcia. See TEX. R. APP. P. 10.3(a).
Although neither party challenges our jurisdiction over this appeal, we may review
it sua sponte. Malone v. PLH Grp., Inc., 570 S.W.3d 292, 296 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (“Appellate courts are required to consider their
jurisdiction sua sponte.”). We conclude that Goode reasonably explained that he
acted in good faith in late filing the notice of appeal, which necessarily implies a
motion to extend time to file his notice of appeal. The Court grants Goode’s motion
to extend time and concludes that the notice of appeal was timely filed.
7
Classification and Division of Property
Goode organizes his issues based on the type of property awarded to Garcia
in the final divorce decree. In his first issue, Goode challenges the monetary award.
In his second issue, Goode challenges the award of real property. In both issues,
Goode similarly argues that the trial court divested him of his separate property and
that, to the extent the property was community property, the trial court’s disposition
of it was not “just and right.”
A. Standard of Review
In a divorce proceeding, we review a trial court’s classification and division
of property for an abuse of discretion. Lynch v. Lynch, 540 S.W.3d 107, 127 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied); In re Marriage of Stegall, 519 S.W.3d
668, 675 (Tex. App.—Amarillo 2017, no pet.) (reviewing trial court’s finding that
certain cattle were husband’s separate property for abuse of discretion). The trial
court has broad discretion to divide the marital estate, and appellate courts must
indulge every reasonable presumption in favor of the trial court’s proper exercise of
its discretion. Lynch, 540 S.W.3d at 127 (citing Murff v. Murff, 315 S.W.2d 696, 698
(Tex. 1981)). A trial court has no discretion, however, to award either spouse’s
separate property to the other spouse. Eggemeyer v. Eggemeyer, 554 S.W.2d 137,
142 (Tex. 1977) (“Trial courts have a broad latitude in the division of the marital
8
community property, but that discretion does not extend to a taking of the fee to the
separate property of the one and its donation to the other.”).
The party challenging a trial court’s division of property must show that the
court “clearly abused its discretion by a division or an order that is manifestly unjust
or unfair.” Lynch, 540 S.W.3d at 127 (quoting Barras v. Barras, 396 S.W.3d 154,
164 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)). A trial court abuses its
discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules
and principles. Id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).
In family law cases, legal and factual sufficiency challenges are not
independent grounds for asserting error, but they are relevant factors in determining
whether the trial court abused its discretion. Id. In determining whether the trial court
abused its discretion because the evidence is legally or factually insufficient to
support its decision, we consider whether the trial court (1) had sufficient evidence
upon which to exercise its discretion and (2) erred in its application of that discretion.
Id. We conduct the applicable sufficiency review when considering the first prong
of the test. Id. We then determine whether, based on the evidence, the trial court
made a reasonable decision. Id.In a legal sufficiency review, appellate courts consider all the evidence in a
light favorable to the finding, crediting favorable evidence if a reasonable factfinder
could do so and disregarding contrary evidence unless a reasonable factfinder could
9
not do so. Cohen v. Bar, 569 S.W.3d 764, 773–74 (Tex. App.—Houston [1st Dist.]
2018, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005),
and Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007,
no pet.)). In a factual sufficiency review, we consider all the evidence for and against
the challenged finding and set the finding aside only if the evidence is so weak as to
make the finding clearly wrong and manifestly unjust. Id. at 774 (citing Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986)). If the division of marital property lacks sufficient
evidence in the record to support it, then the trial court’s division is an abuse of
discretion. Lynch, 540 S.W.3d at 127. If, however, some evidence of a substantive
and probative character exists to support the trial court’s decision, there is no abuse
of discretion. Cohen, 569 S.W.3d at 774.
B. Governing Law
1. Classification of Property
The Family Code defines a spouse’s separate property as property “owned or
claimed by the spouse before marriage” or “acquired by the spouse during marriage
by gift, devise, or descent,” and any “recovery for personal injuries” sustained during
the marriage, with limitations not relevant here. TEX. FAM. CODE § 3.001; see TEX.
CONST. art. XVI, § 15 (“All property, both real and personal, of a spouse owned or
claimed before marriage, and that acquired afterward by gift, devise or descent, shall
be the separate property of that spouse[.]”). Community property, on the other hand,
10
is “property, other than separate property, acquired by either spouse during
marriage.” TEX. FAM. CODE § 3.002; see Brown v. Wokocha, 526 S.W.3d 504, 508
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (“Community property is all property
that was acquired by either spouse during the marriage that is not separate
property.”). There is a statutory presumption that all property “possessed by either
spouse during or on dissolution of marriage is . . . community property.” TEX. FAM.
CODE § 3.003(a); see Brown, 526 S.W.3d at 508–09.
To overcome the community-property presumption, the spouse claiming
separate property must establish that fact through “clear and convincing evidence.”
TEX. FAM. CODE § 3.003(b); see Brown, 526 S.W.3d at 509. “Clear and convincing”
evidence means the 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. Vallalpando v. Vallalpando, 480 S.W.3d 801, 806 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).
The classification of property as either separate or community property is
determined by its character at the inception of title. Id.; see In re Marriage of Stegall,
519 S.W.3d at 674 (“The character of the property as community or separate is
established by the inception-of-title doctrine.”) (citing John Hancock Mut. Life Ins.
Co. v. Bennett, 128 S.W.2d 791, 795 (Tex. 1939)). “Inception of title occurs when a
party first has a right of claim to the property by virtue of which title is finally
11
vested.” Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied). To prove that property was separate at inception of title,
the spouse must trace and clearly identify the property claimed to be separate.
Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) (citing
McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973)); Robles v. Robles, 965
S.W.2d 605, 614 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Tracing
separate property requires establishing the separate origin of the property through
evidence showing the time and means by which said property was acquired. In re
Marriage of Stegall, 519 S.W.3d at 674.
If the evidence shows that separate property has become so commingled with
community property as to defy segregation and identification, the statutory
presumption prevails and the property is considered part of the community estate.
Id. (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)).
Furthermore, mere testimony that the property was purchased with separate funds,
without any tracing of the funds, generally does not suffice to rebut the presumption.
Robles, 965 S.W.2d at 614. If a spouse fails to rebut the Family Code’s presumption
of community property, the trial court’s classification of that property as community
property does not divest the spouse of separate property but is rather “a necessary
classification of property as set by the community presumption.” Pearson, 332
S.W.3d at 364. If the spouse with the burden to establish that property is separate
12
does not present adequate evidence to meet that burden, the trial court does not err
in characterizing separate property as community property. Brown, 526 S.W.3d at
509.
2. Division of Community Property
The Family Code requires the trial court to divide community property in a
“just and right” manner “having due regard for the rights of each party and any
children of the marriage.” TEX. FAM. CODE §7.001. Mathematical precision in
dividing property in a divorce is usually not possible, but the division must be
equitable. Murff, 615 S.W.2d at 700; Lynch, 540 S.W.3d at 128; see Robles, 965
S.W.2d at 621 (stating that trial court “may order an unequal division of the
community property where a reasonable basis exists for doing so”). When, as here,
the trial court did not file findings of fact, we presume the court made all the
necessary findings to support its judgment. Brown, 526 S.W.3d at 507.
For an appellate court to determine whether the trial court divided the
community estate in a “just and right” manner, we must have the trial court’s
findings on the value of those divided assets. In re Marriage of Harrison, 557
S.W.3d 99, 141 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); Brown, 526
S.W.3d at 507. On a party’s request in a divorce case, trial courts must file written
findings of fact, “including the characterization and value of all assets, liabilities,
claims, and offsets on which disputed evidence has been presented.” TEX. FAM.
13
CODE § 6.711(a). Without such findings, appellate courts cannot know the basis for
the trial court’s division of property, the values assigned to the community assets, or
the percentage of the marital estate that each party received. In re Marriage of
Harrison, 557 S.W.3d at 141; Brown, 526 S.W.3d at 507; see Robles, 965 S.W.2d
at 621 (stating that role of appellate court is only to determine whether trial court
abused its discretion in disposing of community property, and appellate court does
not have authority to render judgment dividing marital property).
Furthermore, in the absence of findings of fact, appellate courts cannot know
whether the trial court intended the property division to be equal or disproportionate
among the parties, and if disproportionate, “what factors the trial court found to
warrant an unequal distribution if one was intended.” See Brown, 526 S.W.3d at507–08 (stating that party who does not request findings of fact from trial court
cannot establish whether court intended property division to be equal or
disproportionate or what facts trial court found to warrant unequal distribution if one
was intended). The parties’ property inventories filed in the trial court cannot
substitute for a trial court’s findings of fact. Id. at 507.
C. Monetary Award
In his first issue, Goode challenges both the trial court’s classification of the
funds in the bank account as community property and the amount of money the trial
court awarded to Garcia. Goode contends that he and Garcia were the only two
14
witnesses who testified at trial and that they “provided very little specific
information upon which the trial court could make a reasoned decision,” but the trial
court awarded Garcia a specific dollar amount. Goode contends that the trial court
abused its discretion in making a monetary award to Garcia because the award had
little support in the parties’ testimony.
Garcia responds that Goode did not meet his burden to establish by clear and
convincing evidence that the money in his checking account was separate property
because he did not trace and identify his separate property. Garcia further argues that
the list of transactions for the checking account was admitted into evidence and that
Goode did not produce any other evidence concerning the account in discovery or
to rebut her evidence at trial.
Goode testified that he maintained a single bank account in his name at the
time of trial and that he had maintained the account prior to his marriage to Garcia.
He also testified that he had about $380,000 in the account before he married Garcia
and had “over $60,000” in the account at the time of trial. Goode acknowledged that
his income during the parties’ marriage consisted of social security benefits and
rental income from his twelve real properties and that this income was deposited into
the bank account. Garcia introduced and the trial court admitted into evidence the
most recent account balance for the account—and the only one that Goode had
produced in discovery—showing the most recent balance in May 2018, more than a
15
year before trial, of $209,624. Goode did not offer any documentary evidence. The
final divorce decree awarded Garcia $104,812, exactly half of the most recent
account balance. Goode did not request findings of fact or conclusions of law from
the trial court.
1. Classification of Checking Account Funds
Because Goode possessed the cash in the bank account during and on
dissolution of his marriage to Garcia, the cash is presumptively community property.
See TEX. FAM. CODE § 3.003(a); Brown, 526 S.W.3d at 508. As the party claiming
the cash as his separate property, Goode had the burden to establish the separate
character of the cash by clear and convincing evidence. See TEX. FAM. CODE §
3.003(b); Brown, 526 S.W.3d at 508–09. To meet his burden, Goode was required
to trace and clearly identify the cash to show that it was his separate property at
inception of title. See Pearson, 332 S.W.3d at 363; In re Marriage of Stegall, 519
S.W.3d at 674; Vallalpando, 480 S.W.3d at 806; and Robles, 965 S.W.2d at 614.
Goode offers very little argument on appeal as to why the funds in his account
were his separate property. See TEX. R. APP. P. 38.1(i) (requiring brief to contain
“clear and concise argument for the contentions made”). And other than his brief
trial testimony that the funds were his, Goode offered no evidence tracing and
identifying the funds to show they were his separate property. See Robles, 965
S.W.2d at 614 (stating that mere testimony that funds are separate property without
16
tracing does not rebut presumption of community property). The trial court, as
factfinder, could choose to disbelieve Goode’s unsupported testimony about the
nature of the funds in the account. See Vallalpando, 480 S.W.3d at 806 (stating that
trial court alone, as factfinder, determines witness credibility, weight to give witness
testimony, and whether to accept or reject all or any part of that testimony). And
even if the trial court believed Goode’s testimony, mere testimony that the funds are
his separate property without tracing and identifying them is insufficient to rebut the
community property presumption. See Robles, 965 S.W.2d at 614.
Goode also testified that he deposited income from his rental properties into
the account. Rental income is community property even if the income is produced
from a spouse’s separate property. See id.; see also Penick v. Penick, 783 S.W.2d
194, 195–96 (Tex. 1988) (“Under our law, the income during marriage from the
estate of either the husband or the wife is community.”) (quoting Colden v.
Alexander, 171 S.W.2d 328, 334 (Tex. 1943)); Alsenz v. Alsenz, 101 S.W.3d 648,
653 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“In general, income
produced from separate property is considered community property.”). Goode
testified that he earned $10,000 per month in rental income during the marriage until
the houses flooded and became uninhabitable and his rental income was reduced to
$2,200 per month. Goode did not say when the houses flooded or when his rental
income was reduced. During the marriage, Goode deposited a significant amount of
17
rental income—community property—into the account. Goode admitted at trial that
he commingled funds in the account, which apparently precluded their segregation
and identification as Goode did not introduce any evidence tracing and identifying
the funds in the account. See In re Marriage of Stegall, 519 S.W.3d at 674.
Thus, we conclude that Goode did not satisfy his burden to prove by clear and
convincing evidence what funds, if any, in his checking account were his separate
property. See TEX. FAM. CODE § 3.003(b); Brown, 526 S.W.3d at 509. Because
Goode did not present sufficient evidence to meet his burden, the trial court did not
err in characterizing the cash in the account as community property, and it did not
divest Goode of his separate property when it divided those funds. See Brown, 526
S.W.3d at 509. Rather, the trial court’s classification of the funds as community
property constituted “a necessary classification of property as set by the community
presumption.” See Pearson, 332 S.W.3d at 364; TEX. FAM. CODE § 7.001 (requiring
court to divide community estate in divorce decree).
2. Division of Checking Account Funds
Goode next argues that, if the cash in the account was community property as
we have concluded it was, the trial court lacked sufficient evidence in the parties’
sparse testimony to support the monetary award to Garcia.
Goode testified that the balance in the account was “over $60,000” at the time
of trial. As factfinder, the trial court was the sole judge of Goode’s testimony and
18
could choose to disbelieve it, particularly considering it was not supported by any
documentary evidence. See Vallalpando, 480 S.W.3d at 806 (stating that trial court
alone, as factfinder, determines witness credibility, weight to give witness testimony,
and whether to accept or reject all or any part of that testimony). Moreover, Goode
is an interested party, and his uncorroborated testimony does not conclusively
establish any fact even when uncontradicted. See Robles, 965 S.W.2d at 616. “Each
spouse has the burden to present sufficient evidence of the value of the community
estate to enable the trial court to make a just and right division.” Fuentes v. Zaragoza,
555 S.W.3d 141, 162 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (“Each spouse
has the burden to present sufficient evidence of the value of the community estate to
enable the trial court to make a just and right division.”). When a spouse does not
provide evidence of values of property subject to division, the spouse “may not
complain on appeal that the trial court lacked sufficient information to properly
divide the property.” Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex. App.—Dallas
2003, no pet.).
Goode also did not request findings of fact from the trial court, and thus he
cannot demonstrate that any error in dividing the property materially affected the
division of the marital estate. See In re Marriage of Harrison, 557 S.W.3d at 141–
42; Brown, 526 S.W.3d at 509–10. Without findings, we cannot know the basis for
the trial court’s division of the community estate, the values assigned to the
19
community assets, or the percentage of the marital estate awarded to each party. See
TEX. FAM. CODE § 6.711(a); In re Marriage of Harrison, 557 S.W.3d at 141–42; see
also Robles, 965 S.W.2d at 621 (stating appellate court lacks authority to render
judgment dividing marital estate but may determine only whether trial court abused
its discretion in disposing of marital estate). Similarly, to the extent Goode argues
that the trial court disproportionately divided the marital estate, the absence of
findings precludes Goode from establishing whether the trial court intended the
division of property to be equal or disproportionate, what factors the trial court found
to warrant an unequal distribution if one was intended, or whether the division was
actually disproportionate. See Brown, 526 S.W.3d at 507–08; In re Marriage of
Harrison, 557 S.W.3d at 141.
We note that the trial court awarded both parties property other than the
property at issue in this appeal. Except for the monetary award, the final divorce
decree does not assign values to any property awarded to the parties or to the
community estate as a whole. See In re Marriage of Harrison, 557 S.W.3d at 141;
Brown, 526 S.W.3d at 507. Nor are there any findings regarding whether the trial
court disproportionately awarded assets to Garcia as she requested in her
counterpetition. See Murff, 615 S.W.2d at 698–99 (recognizing that “community
property need not be equally divided”); Fuentes, 555 S.W.3d at 162 (“The division
of a community estate need not be equal; there must only be a reasonable basis for
20
the division. A trial court may decree an unequal division of an estate as long as a
reasonable basis for doing so exists.”).
Nevertheless, the evidence at trial included the most recent balance of funds
in the bank account, exactly half of which the trial court awarded to Garcia. The list
of account balances is some evidence of a substantive and probative character
supporting the trial court’s monetary award to Garcia. See Lynch, 540 S.W.3d at 127(stating that, in in determining whether trial court abused its discretion because
evidence was legally or factually insufficient to support decision, we consider
whether trial court (1) had sufficient evidence upon which to exercise discretion and
(2) erred in application of discretion). Accordingly, we hold that the trial court did
not abuse its discretion in awarding a portion of the funds in the checking account
to Garcia. We overrule Goode’s first issue.
D. Real Property Award
In his second issue, Goode argues that the trial court abused its discretion in
awarding Garcia real property because this award divested Goode of his separate
property and was not a just and right division of the marital estate. Goode contends
that the “record is clear the real property in question was purchased to a great extent
if not exclusively from [Goode’s] separate funds” and that the record is “woefully
inadequate for the [trial court] to evaluate and assess the nature and extent of the
community estate.” Goode further contends that Garcia came into the marriage with
21
“very little and yet is leaving with more than the remaining separate estate of
[Goode] and 100 percent of the community estate,” which Goode argues is not “just
and right by any stretch.”
Garcia responds that the trial court awarded her two of the three real properties
purchased during the marriage and, according to her property inventory and
appraisement, those two properties were less valuable than the third property
purchased during the marriage that the trial court did not award to her. Garcia argues
that Goode did not file a competing inventory that contained valuations of the
properties or a proposed property division, and he did not produce any evidence
tracing the funds used to purchase the properties.
At trial, Goode testified that he owned twelve parcels of real property, three
of which he purchased during the marriage. The trial court admitted into evidence
deeds for the three properties acquired during the marriage. Goode estimated the
value of the Redondo Drive house at $70,000, but he did not place a value on the
Barbil Lane house. Goode estimated the value of the Lear Street house—which was
bought during the parties’ marriage but not awarded to Garcia—at approximately
$60,000. Goode testified that all three properties were uninhabitable.
Garcia asked the court to award her two of the three houses purchased during
the marriage. She wanted to live in the house on Redondo Drive with her children
and fix up and sell the second house to support her and her children. She introduced
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into evidence an inventory and appraisement of property and a proposed property
division stating the value of the three properties acquired during the parties’
marriage. She valued the Redondo Drive house at $79,214, the Barbil Lane house at
$20,925, and the Lear Street house at $111,563.
1. Classification of Disputed Real Property
We disagree with Goode that the “record is clear” that the three parcels of real
property at issue in this appeal were “purchased to a great extent if not exclusively
from [Goode’s] separate funds.” The only evidence concerning the purchase of the
three properties during the parties’ marriage was Goode’s testimony that he bought
the properties with his funds and that he bought the house on Redondo Drive with
“funds [he] already had” and “had accumulated over the years” from his “retirement
account.”
To the extent Goode argues that he purchased any of the three disputed real
properties with funds from his checking account, we have already concluded that
Goode failed to rebut the community presumption and therefore those funds were
community property. Goode offered no evidence at trial tracing and identifying any
of the funds used to purchase the three real properties, whether those funds came
from the bank account or elsewhere. See Robles, 965 S.W.2d at 614; see also Bush
v. Bush, 336 S.W.3d 722, 743 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
(stating well-established rule that, in order to show property purchased during
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marriage is separate property, it is not enough to simply state that funds used to
purchase property were separate funds; “instead there typically must be some sort of
documentary tracing to show that the funds used were separate property”). Thus,
Goode did not meet his burden to prove by clear and convincing evidence that the
three parcels of real property purchased during the parties’ marriage were his
separate property. See TEX. FAM. CODE § 3.003(b); Brown, 526 S.W.3d at 509;
Robles, 965 S.W.2d at 614. As a result, the trial court’s classification of the real
property as community property did not divest Goode of his separate property but
rather constituted “a necessary classification of property as set by the community
presumption.” See Pearson, 332 S.W.3d at 364; TEX. FAM. CODE § 7.001 (requiring
court to divide community estate in divorce decree).
2. Division of Disputed Real Property
As discussed above, Goode did not request findings of fact from the trial court
and therefore we cannot know the basis for the trial court’s division of the
community estate, including the real property at issue; the value the trial court
assigned to the various community assets; the percentage of the marital estate
awarded to each party; or whether the trial court intended an equal or
disproportionate division of the marital estate. See TEX. FAM. CODE §7.001; In re
Marriage of Harrison, 557 S.W.3d at 141; Brown, 526 S.W.3d at 507–08. Because
there are no findings from the trial court, Goode cannot establish that Garcia was
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awarded “more than the remaining estate of [Goode] and 100 percent of the
community estate” as he argues on appeal. The final decree also awarded other
property to each party, including cash, vehicles, furniture, clothing, and jewelry, and
Garcia was awarded custody of the children. Moreover, the trial court did not award
Garcia the third property purchased during the parties’ marriage.5 See Brown, 526
S.W.3d at 507 (stating that when trial court does not file findings of fact, we presume
court made all findings necessary to support judgment).
Goode also acknowledged that Garcia did not work and had little education.
He further acknowledged that, after the parties separated, Garcia and the two young
twins lived in a women’s shelter. He did not offer to fix up one of his numerous
rental properties for Garcia and the children to live in. See Lynch, 540 S.W.3d at 128(listing several relevant, non-exclusive factors that trial court may consider in
dividing marital estate under section 7.001, including disparity in the parties’ ages,
disparity of incomes or earning capacities, relative financial condition and
obligations, education, size of any separate estates, and probable need for future
support) (citing Murff, 615 S.W.2d at 699).
5
As part of his argument that Garcia “is leaving with more than the remaining
separate estate of [Goode] and 100 percent of the community estate,” Goode also
argues that the trial court did not “set the property aside” that he bought prior to the
marriage. However, the final divorce decree did not award Garcia any real property
that Goode acquired prior to the marriage.
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Furthermore, both parties agreed that the three parcels of real property were
purchased during the marriage. Goode testified that the Redondo Drive property,
which was awarded to Garcia, was valued at approximately the same amount as the
Lear Street property, which was not awarded to Garcia. Goode did not place a value
on the Barbil Lane property, which was awarded to Garcia. Garcia’s inventory and
appraisement listed the combined values of the Redondo Drive and Barbil Lane
properties as approximately the same amount as the Lear Street house. At least some
evidence of a substantive and probative character supports the trial court’s real
property award to Garcia. See Cohen, 569 S.W.3d at 774; Lynch, 540 S.W.3d at 127.
Therefore, we hold that the trial court did not abuse its discretion in dividing the
marital estate and awarding two parcels of real property to Garcia. We overrule
Goode’s second issue.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Justices Kelly, Guerra, and Farris.
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