NO. 07-05-0183-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B APRIL 26, 2006

______________________________ IN THE MATTER OF THE MARRIAG E OF DEBBIE TARDY ROHLING AND FRED A. ROHLING

_________________________________ FROM THE 72 ND DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-528,058; HONORABLE D AVID GLEASON, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION Appellant, Debbie Tardy Rohling, appeals the trial court’s classificat ion of property and the award of reimbursement to appellee, F red A. Rohling . We reverse and remand to the trial court for further proceedingsconsistent w ith this opi nion. Background
Debbie and Fred were mar ried on June 28, 2003. Prior to the weddi ng date, the partie s signed a pr

emarital agr

eement that identified certain proper ty as the par

ti es ’ separate property, and set out prov isions for the divisi on of community pr operty upon t he dissolution of the marriage . At or nea r the weddi ng date , Fred purcha sed four items: a2

1972 Chevrol et Che velle, a Clark forkl ift, a 1991 Toyota C elica, and a 1982 Chevrolet Blazer. During this same time per iod, Fred al so sold his home and shop buildi ng, a nd maintained the cas h proceeds in a n account as separ ate property

. Duri ng the course of the mar riage, the parties purc hased community proper t y includin g a home and home furnishing s. Additional ly, the co uple purchased a new shop for which F red paid approx imately $10,0 00 as a down p ayment. After approxi mately fifteen months of marriage, Debbie filed for d ivorce i n October 2004 and the parties were divor ced on February

3, 2005.
On appeal, Debbie raises thr ee issues. D ebbi e co ntends that during the divorce procee dings the trial court erred in (1) allowing two documents into evidence because the documents were hearsay; ( 2) awar ding Fred t he four i tems pu rchas ed at or near t he time of the wedding because there w as no evidenc e to support the character izatio n of the property as Fred’s separate proper ty or, i n the alternati ve, such c ha racteriz ation was contrary to the over

whelming weight

of the evidenc e; and (3) aw arding $15,000 to Fred as economic contribution and reimbursement of hi s separate pro perty for enhanc ement of the community

estate because s uch an awar d was contraryto the over whelming weight

of the evidence.
Admission of Evidence Evidentiaryrulingsadmitting or excluding evidence ar

e committed to the trial court's sound discret ion. See Texas Dep’t of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsv ille v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its3

discretion when it ac

ts without

r egard for

any gui ding rules

or princi ples. Alvarado , 897 S.W.2d at 754. An appellate court must uphold the trial court's evidentiary ruling if there is any leg itimate basisfor the ruling

. Owens-Cornin g Fibergla s Corp. v . Malone , 972 S.W.2d 3 5, 43 (Tex . 1998). A cas e will not be rever sed because of an err oneous evidentiaryrulin g unle ss th e erro r wa s harmful, that is, unless it pr obably cause d the rendition of an improper jud gment. See T EX . R. A PP . P. 44.1(a); see also Able , 35 S.W.3d at 617 ; Malone , 972 S.W .2d at 4 3. A succe ssful ch allenge to an evidentiary ruling usually requiresthe complaining party toshow that the judgment turns on the pa rticular evidence excluded or

admitted. See Able , 35 S.W.3d at 617; Alvarado , 897 S.W.2d at 753-54.
Debbie properly

objected to the admission of tw o receipts r

elated to the purchase of the 1972 Chev rolet Chev elle and forkli ft as hearsay. See T EX . R. E VID . 103(a); T EX . R. A PP . P. 33.1. Fred di d not raise beforethe trial cour t an excepti on to the hearsay rule, and
we find no applicabl e hearsay exception. See T EX . R. E VID . 803-804. Therefore, the trial court failed to follow

guiding rules and principles in overrul ing Debbie’ s hearsay objection. Without the receipts, Fred had no other writte n evidence s upporting hi s contention that the Chevelle and the forklift w ere his separ

ate property

. Thus, the admissi on of the receipts
was harmful and probably caused the rendi tion of an improper judgment, as w

e will further elaborate in th e next secti on. Characteri zation of Proper ty Property possessed by

either spouse on disso lution o f marri age is presumed to be community

property and, to overco me th is presumption , a party mus t establish by clear1 Further r eference to secti ons of the Texas Fami ly Code w ill be by reference to “§ ___.” 4 and convinci ng evidence that the dispute d property is sep arat e pro pert y. See T EX . F AM . C ODE A NN . § 3.003 (Vernon 199 8). 1 Clear and conv incing ev idence is defined as that “measure or degree of proof which will produce in the mind of the tr ier of fact a firm belief
or convicti on as to the truth of the al legations s ought to be established.” § 101.007 . Mere testimony

that property

was purc hased with separate proper ty funds, without

a tracing of the funds, is generally insufficient to rebut the community pre s umption. Zagor ski v. Zagorski , 116 S.W.3d 309, 316 (Tex.App.–Hous ton [14 th Dist.] 2003, pet. denied).
Debbie contends that the f our disputed items were purc has ed after marriag e and are, thus, community

property. In contrast, Fred testifie d thatthe vehicles and forklift were purchased prior to marriage and are, thus, separate property. Considering that the only written evidence concerning t he chararcter ization of thi s property were the t

wo recei pts that
we have determi ned were erroneously admitted, the only

remaining e vidence of the property’s characterization was the testimony of the parties. W e conclude that Fred’s mere testimony

that the proper

ty was purchased w ith s epar ate property funds, without

tracing of the funds, was insufficient to r ebut the community

presumption. Zagorski , 116 S.W.3d at 316. Therefore, Fred failed to overcome the com munity presumption as to each of the four items found by

the trial court to have been Fred’s s eparate propert y. Since Fred failed to present any

tracing evidence to overcome the community pres umption, t he tr ial court could not have formed a firm belie f or convic tion that the items were F red’s separa te prop erty. Therefore, we conclude tha t the trial court erred in characteri zing t he forklift,2 The use of separate proper ty in the acquisitio n of property during marr iage giv es the c on tributing spouse equit able title to the extent the contribution is not a gi ft. Contrib ut ing separate funds as a down payment on real estatedoes not consti tute an economic contribution under s ection 3.401 of the Texas F amily Code. See Garc ia v. Garcia , 170 S.W.3d 644, 650 (Tex.A pp.–El Paso 2005, nopet.) (ci ting In the Matter of the Marriag e of Royal , 107 S.W .3d 846, 851-52 (Te x.App.–Amarillo 2003, no pe t.)).
5 Che ve lle, Celica, and Blazer asFred’s sepa rate property because the tri al court acte d without r eference to any g uiding rul es or princ iples. See Alvarado , 897 S.W.2d at 754.

Reimbursement of economic contribution claim
Reimbursement

is an equi table doctrin e and a court of equity is bound to look at all the facts and circumstances to determine what is fair, just and equi table. Penick v. Penick , 783 S.W.2d 194, 197 (Tex. 1988). 2 When separate property is used to enhanc e the value of the community estate, includin g the reductio n of comm unity debt, the spouse whose separate property

was used ha s an equitabl e right of r eimbursement. Boyd v. Boyd , 131 S.W.3d 605, 612-13 (Tex .App.–Fort Worth 2004, no pet.). However, the part y claiming a right to reimbursement

has the burden of tr

acing and id entifying the separate nature of the funds expended to r

educe the community

debt. Id . at 614-15. W hen a trial court must surmise or speculate, based solely on a party’ s testimony , that a party’sseparate proper ty was expended to benefit the community, the communi ty pre sumption wi ll prev ail. See generally id . at 616-17.
Fred testified that he used his separ ate funds as a dow n payment on the new shop and that he renov ated the shop usin g his separ ate funds and, thus, w as entitled to reimbursement. Howev er, n o documenta ry ev idence wassubmitted to the t rial court to3 Further in dication that Texas case l aw wei ghs in favor of community pro perty isthe rule thatwhen separ

ate property

is used to acquire j ointly ti tled property during mar riage, one half of the sepa rate property is pre sumed to have been gifted to the oth er spouse unless rebutted by evi dence. See In re Marr iage of Roy al , 107 S.W.3d at 851. 6 trace or identify the source of the funds used as a down pay ment on the shop. See id . at 615. 3 We conclude thatFred failed to prove his right to reimbursement by fa iling to trace and iden tif y the separ ate nature of the funds; henc e, the trial court erred in awardi ng $15,000 to Fred as r

eimbursement for any

payment on the pur

chase of the new shop. See id . at 616. Harm Analysis Having concluded that t he trial court erred in the chara cteri zati on of the four items purchased near the w edding date as Fred’ s separate pro perty, as well as concluding that the trial cour

t erred in award ing reimbur sement to Fred for monies paid as a dow n payment on a new shop, we now review those error

s for harm. In r

eviewi ng an alleg ed characteriz ation error, we must determine not only whether the trial court’s findings are supported by clear

and convinc ing evi dence, butalso whether the characterization error, if established, constitutes more than a de minimis effect

. See id . at 617. Mer e mischaracter ization of

community pr

operty as s eparate property does not require reversal. See id

. If the mischaract erizati on has more than a de minimis effect on the just and right divisi on of

the community estate, then we must remand the entire case to the trial court for
a just and right div is ion based upon the correct char acterizat ion of the property

. See id

. Addi tion ally, an erroneous r eimbursem e nt of economic con tribution may also affe ct the just and right di vision of pr

operty. Id . at 618.4 For calcul ation purposes, we netted thevalue of the co mmunity proper ty, incl uding the home and new shop, against the outstanding mortgageson those proper ties. The total estimated val ue of the community assets is bet ween $124,000 to $144,000. 7 Depending on the differing v alues assessed by

the parties, and t he values us ed by the court, the four i tems designated by the tri al court as Fred’s separate proper ty made up 10 to 25 percen t of

the total communit

y estate. 4 When we include the err oneous reimbursement

from the community estate to Fre d’s separate estat e with the mis charact erizati on of the four items purc hased at or near the wedding date, 20 to 30 percent of the total community estate val ue was affected by the trial court’s err

oneous rulings. Accor dingl y, we conclude that t he trial cour t’s rulin gs had more than a de minimis effect on the divi sion of the community estate, and as such, the div ision was so unj ust and unfairas to requi re us to remand t he entire case to the trial court for a jus t and right divisi on based upon a corr

ect character ization of the property. See id

.

Conclusion
For the foregoing reasons, we reverse and remand this case to the trial court for a just and rig ht divis ion of the community estate.

Mackey K. Hancock Justice