### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00753- CV

Donald E dm und Dyer , Appellan t

v. Estela Trevino Dyer , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -F M- 14- 0059 09, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Following an ag ree ment betwee n the par ties to bifurcate t he case be tween jur y and bench trial, the trial court signe d a divorce decr ee dividing the community estate o f ap p el l ant Donald Edmund Dy er and appellee Estela Trevino Dy er, g iving Estela a majority of the community estate and order ing Donald to reimburse the community estate for cer tain expenditures. On appea l, 1 Donald arg ues that the evidenc e does not support the disproportionate division of the estate or some of the g rounds for reimb u rsement. We reve rse the portions of the decr ee dividing the estate and

rema nd the ca se to the trial cour t to make a ne w division of property pursuant to this opinion.

For the sake of cla

rity , we will re fer

to the parties by

their first name s. 1Stand ard of Review A t rial court must “orde r a division of t he est at e o f the parties in a manner t hat t he court deems just and rig ht,” Tex. Fam. Code § 7.001, and has broad discretion i n m ak i n g t h at division, Penick v. Penick , 783 S.W .2d 194, 198 (Tex. 1988); O’Carolan v. Hopper , 71 S.W .3d 529, 5 3 2 (Tex. App.—Austin 2002, no pet.). The trial court does not have to divide the commun i t y proper ty equally , but t h e d i vision must be equitable and the rec ord must ref lect a rea sonable basis for an u n eq u al division of the proper ty

. O’Carolan , 71 S.W .3d at 532. “To constitute an ab u s e of discretion, the proper ty division must be manifestly unfair.” Id. (citing Mann v. Ma n n , 607 S.W .2d 243, 245 (Tex. 1980)).

I n ex er ci s i n g i ts discretion, the court may consider fac tors such as the parties’ “ea rning capa cities, educa

tion, business opportunities, phy sical condition, financ ial condition, ag e, siz e of separ ate estates, nature of the proper ty , and the benef

its that the spouse who did not cause the brea kup of the mar

riag e would have enjoy ed had the marria g e continued.” Id . The trial c ourt has the opportunity to observe the parties and other witnesses, deter mine cre dibilit y , and evalua te the p ar t ies’ needs and potentials. Murff v. Murff , 615 S.W .2d 696, 700 (Tex. 1981). “Mathe matical prec ision in dividing proper ty in a divorce is usually not possible. Wide latitude and discretion rests in these trial courts an d t hat discretion should only be disturbed in the case of clea r abuse.” Id. Although challeng es to the leg al and fac tual sufficie ncy of the evidenc e are not independe nt g rounds of err or, they are rele vant fac tors when deter mini n g wh et h er t he trial court abused its discretion. O’Carolan , 71 S.W .3d at 532.

2We als o revie w a trial court’s deter mination of a claim for reimburse ment for an abuse of discretion. Penick

, 783 S.W .2d at 198. We beg in our review by presuming that the t rial court exercised its “wide latitude and discretion” proper ly

. See Vallone v. Vallone , 644 S.W .2d 455, 459-60 (Tex. 1982). Reimbursement claims are g overne d by equitable principles, Tex. Fam. Code § 7.007, and the trial court may not order reimburse ment from a spouse’s sepa rate proper

ty solely to secur e a just and right di vision of the c ommunity estate, Hegge n v. Pe melton , 836 S.W .2d 145, 146 (Tex. 1992). The party seeking reimburse ment has the burde n of establishing the community estate’ s rig ht to it. Jense n v. Jense n , 665 S.W .2d 107, 110 (Tex. 1984). Howeve r, the “pay ment by

one marital estate of the debt of an o t h er cr eates a prima fac ie rig ht of reimburse ment,” which is considere d in lig ht of offse tting benef its to the contributing estate. Penick , 783 S.W .2d at 196-98. “[I ]t is well settled that a tria l court may awa rd a money judgme nt to one spouse ag ainst the ot her in order t o ac h i ev e an equit able division of the community estate,” but only “as a means for the wronge d spouse to rec oup the value of his or her share of the community estate lost throug h the wrong doer spouse ’s ac tions.” Schlueter v . Schlueter , 975 S.W .2d 584, 588 (Tex. 1998).

F actual Summ ary 2 Estela and Donald started dating in Aug ust 2007, marrie d in J une 2010, and separ ated in September 2014. Estela filed for divorce in October 2014. At the time the parties started dating ,

The parties are familiar with the testimony and evidenc e prese nted to the jury and the trial 2 court over the course of the eig ht-day trial. We thus only summarize the fac ts as nece ssary to explain our re asoning and will not pr ovide a detailed rec itation of the evidenc e. See Tex. R. App. P. 47.1. 3Donald had alre ady built sever al succe ssful companies and was wea lthy

. Estela was a single mother 3 of three sons, was working two jobs, owned a house, and had a small r etireme nt acc ount. Her sons

wer e attending a private high school, rely ing on financ ial aid and rela tives to pay the tuition. Donald and his first wife d i v o rc ed in 2008, and they share d custody of their y oung est son, J .D., who was about nine. Donald boug ht E stela a car in 2008, e ncoura g ed her to quit her job, a

nd started g iving her about $4,000 per month. Donald testified that he did so beca use he wanted her to be able to spend more time helping her ag ing pare nts and so that he and Estela could spend more time toge ther. Estela testified that he wanted her to quit her job so that she could trave l with him, spend more time with him and J .D., and he lp enterta in his business clients and their wives.

After the parties marrie d, Donald initially g ave Estela some cre dit car ds but about a y ear later “dec ided that was not g oing to work,” and started g iving her a $10,000 monthly allowanc e. Estela testified that “the longe r we wer e marrie d, the more controlling he beca me” and that midway into the m arr iag e, “it almost seeme d like he wo u ld g ive m e money depending on my behavior

. I f I was g ood and beha

ved, he w ould give me money . I f not, if I displeased him, he wouldn’ t.” Estela’s sons lost their financ ial aid when Estela and Donald marrie d, and althoug h Donald paid “some tuition” for her son s ’ private school, he did not pay for all of it, and Estela testified that Donald g ot ang ry when s h e used her allowanc e to pay for her sons’ school tuition. I nstead, Estela testified that with Donald’s encour ag ement, she cashe d in her retire ment acc ount and sold her house, a lthough not for a lar g e sum, and used those funds to pay her sons’ tuition. Estela

Estela introduced into evidenc e Donald’s sworn inventory , in which he stated that one of 3 the community ’s liabiliti es was a pledg e he had made to a g roup called Texans First, that his pledg e was for $298,500, and that the pledg e re prese nted “0.1% of net wor th.” 4testified that her ex-husband paid some of the boy s’ educational expenses but not all t h at he had

ag ree d to pay ; she explained that her ex-husband, the fathe r of her three sons, ha d sever al ailments and was not re liable. She also testified that one of her sons rec eived a

scholarship for some of his expenses and took out a student loan for the rest. Another son took a y ear off from school to work and save money

“so as not to cr eate any

more stre ss betwee n” Dona ld and Estela’ s ex-husband. Do n ald testified that he and Estela’s ex-husband orig inally ag ree d that they would

eac h pay half of the boy s’ educa tional e x penses but that the e x -husband did not f ollow thr oug h on his obliga tions, meaning that Donald had to pay for all of Estela’s y oung est son’s high s ch ool education. He testified that he ag ree d to pay for a state-sc hool co l l ege education but that Estela wanted her sons to g o to private universities. Donald said he ref used to p ay m o re for their educations than he had for his own children and told them he would “not pay a penny m o re t h an whateve r i t say s y ou can ge t an education at” the University of T ex as. Donald agr eed that he had ref used to allow Estela to use her allowanc e to pay for her sons’ tuition but testified that during the marria g e, he pa id approxim ately $300,000 toward Este la’s sons’ e ducations. Estela testi fied that in late 2013, afte r m any fig hts in which Donald “kept say ing it

was his money and say ing [she] marrie d him for his money ,” she took a part-time job to help pay for her sons’ tuition, and that she quit when Donald threa tened to divorce her, telling her by text that she

was locked out of their bedroom and that she should sleep in another room that night. Donald stated that he was upset when she took the job only beca use it disrupted the family ’s holiday vacation plans and that he would have been fine with her working otherwise. Estela also testified that Donald once

5g ot ang ry at her while t hey wer e in Colorado and locked her out of the house , leaving her to slee p

in the cold on the fr ont porch; Dona ld denied that the incide nt had taken pla ce.

Donald testified that he c o n tr o ll e d the bank acc ounts and cre dit car ds and never added Estela to the acc ounts or opened any joint acc ounts. Both Estela and Donald called cer tified public

acc ountants to te stify

. Estela’s e x pert, Willi am B radle y , explained that Donald’s compa nies wer e “f l o w- t hroug h entities, meaning they don’t pay any income taxes. They g o on to the ind i v i d u al share holder or partne rs’ tax returns, and so the tax liability is paid at the individual leve l. So these entities don’t pay taxes; th e i n d i v i d u al does.” Companies with this tax structure are called “S corpor ations.” See 26 U.S.C. § 1361 (“S corporation defined”)

. As explained by a fe dera l tax court, “An S corpor ation is not subject to Fe dera l inco m e t ax at the entity level. I nstead, an S corpor ation’s items of income, g ain, loss, deduction, and cre dit—whether or not distributed—flow throug h to the share holders, who mus t re p o rt t heir pro rata share s of such items on their in dividual income tax returns for the share holder taxable y ear within which the S corpor ation’s taxab l e y ea r en d s .” Kumar v. Commissioner of Internal Rev enue , 106 T.C.M. (CCH) 109, at *2, 2 0 1 3 W L 4 080998 (U.S.T.C. 2013). Thus, the tax liability of such a company is a liability of a marrie d share holder’s community estate, reg ardle ss of whet h er the company ’s ear nings are distributed to the shareholde r or r etained in the c ompany —ref err ed to as “ reta ined ea

rning s.” Do nald testified that he ear ned approximately $21 milli on pre- tax, about $1 3

. 5 milli on afte r tax, during his marria g e to Estela. Howeve r, he said that althoug h he paid taxes on the full amount, not all of that money went “into my persona l chec king account,” and that the $21 milli on was “income that was from my tax estate. That was not income I actua lly rec eived.” Donald

6testified that he decide d how much to distribute to the community estate and how much to reta in in

the company and ag ree d when asked whether he had “starte d leaving more and more money in” his separ ate businesses since Estela filed for divorce

. Although Donald did not provide any detail about how m uch he had increase d his reta ined earning s afte r Est ela filed for divorce, he introduced i nto evidenc e an expert repor

t prepa red by his CPA witness, Steve Pena. I n that repor t, Pena stated that from 2011 throug h 2013, Donald’s adjusted g ross income rang ed from about $3 m i l l i on to $3.4 milli on, his “non-distributed income” rang ed from about $112,000 to $184,000, and his taxes rang ed from about $1 milli on to $1.3 milli on, resulting in almost $2 milli on in cash eac h y ear coming into the community estate. I n 2014, Donald’s adjusted g ross income was more than $3.5 milli on, the “non-distributed income” was more than $1.7 milli on, and the taxes wer e al m o s t $ 1.4 milli on, resulting in about $479,000 in cash to the c ommunity estate. Estela testified that she had no control over or input into the couple’ s financ es; that she never saw their full tax returns, only the signa ture pag e that Donald would g ive her to sign; and that she thought he ear

ned “proba

bly a couple of milli on” a y ear . Estela also testified that throug hout their marria g e, she and Donald had conflicts over his political contributions, particula rly in light of him “ g iving me such a hard issue on what I use my allowanc e for, more specific ally my children’ s education.” She knew he act i v el y contributed to a number of pol itical cause s but “did not rea liz e the extent of the amount” donated during t h ei r m ar ri age. Estela produce d evidenc e showing that from Aug ust 2011 throug h Dec ember 2015, Donald contributed $7 7 6 , 7 2 9 t o various political campa igns and ca

uses and that a

bout forty perc ent of that, $305,200, was donated in the y ear afte r

7Estela filed for di vorce . Donald testi fied that his pol itical contributions benef itted his businesses, which, he a sserted, in turn be nefitted the c ommunity estate. Donald testified about an investment he made in Motion I nsight during the marria g e, explaining that it was a technolog y company he helped start to develop equipment to trac k worke rs’ movements and that he had invested about $150,000 in the company from communit y funds after he and Estela marrie d. He said that the company had a patent and was still working on making fu n ctioning equipment but that it was “basic ally worthless at this point.” He also ag reed t h at t h e $150,000 loan was something that “the community company owes ba ck to [Donald and Estela] as individuals.” Estela testified that she had not been able “to obtain any information conce rning that investment” other than Donald’s tes t i m o n y . She was asked whether she trusted Donald “that it might ac tually

have some value a t some point,” and she a nswere d, “No, I

do not trust Don.” I n Question 1, the jury was asked how much of the community estate was expended t o b enef it Donald’s separ ate proper ty , and with respe ct to income taxes paid by the communit y rela ting to Donald’s four separ ate companies, it answe red $841,108. I n Questions 2 and 3, it

answe red that Donald’s political contributions wer e unfair to the community estate and depleted the community estate in the amount of $305,200. I n the divorce decr ee, the trial court s t at ed t h at a 4

m o n ey j udg ment in favor of Estela was “nec essar y to reimburse the community estate for the amounts that the community estate be nefitted the listed prope rty of [Donald’s] sepa

rate estate a

nd for the amount of waste of the community estate by [Donald] and to make a just and rig ht partition

The jury was asked whether cer tain other expenditures by Don al d wer e unfair to the 4 community

estate, but those items ar e not re levant to the appe al. 8of the rec onstitut ed community estate” and awa rded her a $2,200,000 judgme nt. Donald reque sted 5 finding s of fac t and conclusions of law, as well as additional finding s and conclusions afte r the trial court’s first filing. The trial court filed amende d finding s and conclusions, in which it found that the community estate was valued at $3,129,066 , t hat the community paid $123,362 in insurance premiums for Donald’s separ ate life insurance policies, and that the loans rec eivable fo r Motion I nsight should be valued at $150,000. The court did not make finding s of fac t or conclusions of law rela ted to income taxes or char itable contributions. The trial court conclude d that the community ’s p aym ent of the insurance premiums was a reimbursa ble expense and that Estela was entitled t o a disproportionate perc entag e of the community estate beca use of Donald’s fault in the parties’ breakup, his superior resour ces and ear ning capa city , her loss of ong oing financ ial benef its that she would have rec eived had the m arr iag e continued, the fact that Donald’s separa te estate wa s s i gnificantly larg er than the community estate and Estela’s separ ate estate, an d Donald’s favor ing his separ ate businesses over the community estate throug hout the marria g e. I n its Charac terization & Valuation

o f P ro p er t y , t he court left blank a value for Motion I nsight but valued the Motion I nsight loans

rec eivable at $150,000. I n the section labeled “Equitable Claims—reimbursement, wasting , brea ch of fiduciar

y duty , fra

ud, rec onstitut ed,” the trial court included $841,108 for income taxes pa id f or Donald’s se para te companie s.

The divorce decr ee rec ites that the parties ag ree d “t o bifurcate the prese ntation issues 5 betwee n the jury and” the trial court, that “some questions of fac t w ere submitt ed to the jury ,” that t h e p ar t i es “w aived a jury on all questions of fac t not prese nted to the jury , and all rema ining questions of fac t and of lawwer e submitted to the [t rial cour t] for de termination.” 9Incom e Taxes Estela alleg ed in her p et i t ion that Donald had arr ang ed for his companies to reta in

some of the pay he should have rec eived from his separ ate companies and soug ht reimburse ment for those undistributed funds and for income taxes paid by the community on the income of Donald’s separ ate companies, st ating that, “to t he ex tent the S chedule E income on which these t ax es we re paid was undistributed, Estela Dy er reque sts reimburse ment to the community estate for inadequa te compensa tion for Don al d Dy er’ s time, toil, talent, and eff ort by these business entities under the control and direc tion of Donald Dy er.” Br adley , Estela’s ex pert, calc ulated that the community estate had paid $1,000,742 in taxes for Donald’s companies and asser ted that the community estate

was entitled to reimburse ment for that amount. Pena, Donald’s expert, said h e d i d n o t ag ree that Estela was asser

ting a “re cog nized reimburse ment claim” in seeking reimburse ment f o r th e ta x es due fr om and paid by the community

. Even if the claim was a cog nizable one, Pena further dispute d Br adley ’s ca lculations, testify ing:

I found the corr ect number to be $841,108

. . . . The premise for this, if y ou reme mber Mr. Br adley ’s testimony wa s t h at there was an amount of income that while the community had to pick it up, it stay ed within those corpor ations. I t didn’t benef it his separate corpor ation by building up the value. Obviously , if y ou take it out, y ou have a lower value. So it stay ed in there , but t h e co m munity had to pay taxes on it. That’s fine. But what Mr. Br adley ’s repor t failed to calc ulate was t he fac t tha t dur ing this pe riod of time the re w as a numbe r of distributions made out of those companies that he did not pick up on his repor t. And those distributions , when y ou reduc e the amount of so-ca lled income left in the corpor ation and rec alculate the tax, t he tax is 841,000, not $1,000,742.

10The jury was asked how much of the community estate was expended to benef it Donald’s separ ate proper ty , and in the portion of the question asking about “[i] ncome t ax es paid by the community

es t at e” for Donald’s four separ ate companies, it answe red $841,108. I n its char acte rization an d valuation of proper

ty , the trial court included that $841,108 in its valuation of the rec onstitut ed community estate under the heading of “Equitable Claims—reimbursement, wasti n g, brea ch of fiduciar y duty , fra ud, rec onstitut ed.” Donald arg ues t h at there was no evidenc e that the tax pay ments benef

itted his separ ate estate beca

use: Donald’s separ ate entities do not have corpor ate tax burdens; the tax burden instead passes throug h to Donald as an individual and, during the marria g e, to the community estate; any conseque nces of a failure to pay taxes lies with Donald and, during the marria g e, the community estate; and, there fore , the use of community fu n d s t o pay the taxes provided no benef it to the companies the mselves.

I t is true that the tax burden in this case was proper ly the community estate’ s burden, reg ardle ss of whether Donald opted to r etain or disburse the companies’ ear nings. Thus, the only

6 q u es t i on is whether the trial court could proper ly have deter mined that the separ ate estate was

Donald admitted that toward the end of the marria g e, he reta ined more ear nings rathe r than 6 distributing the funds to the community estate. Although the tax liability assoc i at ed wi t h those reta ined ear

nings was owed and paid by the community , the reta ined ear nings rema ined the proper ty of the entities that are Donald’s separ ate prop er t y . See Thomas v. Thomas , 738 S.W .2d 342, 344 (Tex. App.—Houston [1st Dist.] 1987, writ denied) (“Subcha pter S status does not deter mine who owns the corpor ation’s ear nings. I t mere ly provides an alterna te m et h o d t o t ax the corpor ation’s income. A S ubchapte r S corp o ration m ay distribute its income, but, like any other corpora tion, it is not require d to do so. . . . [W ]hi le the corpor ation reta ined some ear nings as ‘pr ev i o u s l y t ax ed income’ of the share holders, the ear nings rema ined the corpor ation’s exclusive proper ty and never belong ed to the appe llant or the marital e state.”)

. 11enric hed by the community estate so as to permit reimburse ment. I n g ener al, wher e the community

funds ar e used to pay a community debt, no rig ht to reimburse ment can be asser ted. See In re Marriage of Gill , 41 S.W .3d 255, 258-59 (Tex. App.—Waco 2001, no pet.) (re imbursement awa rd improper where “community funds were u sed t o pay a communit y obliga tion”); see also Vallone , 644 S.W .2d at 459 (“A rig ht to reimburse ment arises when the funds or assets of one estate are used to benef it or enhanc e another estate without itself rec eiving some benef i t

. ”) ; Cocke rham

v. Cocke rham , 527 S.W .2d 162, 171 (Tex. 1975) (“de bts contra cted during marria g e are presumed to be on the credit of t he communit y and thus are joint community obliga tions, unless it i s s h o wn the cre ditor ag ree d to look solely to the separ ate estate of the contra cting spouse for satisfac tion”). I t is undisputed t h at t he tax liability in question was a community debt. Cf. Thomas v. Thomas , 738 S.W .2d 342, 344 (Tex. App.—Houston [1st Dist. 1987, writ denied) (dec lining to adopt wife’ s arg ument that S corpor ation’s retained earning s should be trea ted as community proper

ty beca use community

estate pa id income tax on earning s). The family code provides for a reimburse ment claim for “inade quate compensa tion for the time, toil, talent, and e ffor t of a spouse by

a business entity

under the control and direction of t hat s pouse,” Te x . Fam. Code § 3.402(a) (2), and Estela refer red to such a claim i n her petition. Howeve r, the jury char g e asked onl y wh et h er the “income taxes” benef itted Donald’s separ ate pro p e rty , with no question or instruction perta ining to reta ined ear nings or inadequa te compensa tion. Courts have deter

mined that the mislabeling of an awa rd, for instance as reimburse ment instead of economic cont ri b u t i on, does not require reve rsal if the pleading s, evidenc e, and implied finding s support the proper awa

rd. See Sikes v. Sikes , No. 11-08-00296- CV, 2010 WL 2112809, at *4 (Tex.

12App.—Eastland May 27, 2010, no pet.) (mem. op.); Garcia v. Garcia , 170 S.W .3d 644, 652 (Tex.

App.—El Paso 2005, no pet.). Howeve r, in this case , the trial court included the jury ’s exact finding in its valuation of the reconstituted community estate under the heading of “I ncome tax es paid on [Donald’s] S ch E income 2010-2014—jury VERDI CT.” We there fore can only conclude that the trial court based its $841,108 reimburse ment awa rd on the community ’s income tax pay ments, not on any wrong fully

reta ined ea

rning s or inadequate compensa tion. This c ase prese nts a difficult question, one that a ppear s not to have bee n addre ssed befor e. Howeve r, the law g uides us to the conclusion that a claim for reimburse ment cannot be made when the debt paid by commu n i t y funds was a community debt, see In re Marriage of Gill , 41 S.W .3d at 258- 5 9 , i n t h i s ca s e, income taxes owed by the communi ty

. The trial court erre d in order ing the community estate reimburse d for the community ’s pay ment of income taxes it rig htfully owed. See Thomas , 738 S.W .2d at 344-45 (obser ving “that the marital community benef its from the S u b ch ap t er S elec tion” beca use “the community avoids having dividends taxed twice, first as corpor ate income, and then, upon rec eipt, as persona l income,” “the corpor ation has more money to distribute a s dividends,” corpor ate tax cr edits and losses re duce community ’s taxable inc ome, and share holders ar e prote cted f rom persona l liabilit y

).

P olitical Contribution s We next consider whether the court proper ly order ed the community reimburse d for the political co n t ributions Donald made during 2015. The jury found that Donald’s political contributions w ere not “ fair to the community estate” afte r being instructed that it should consider the rela tionship betwee n Don al d an d the rec ipients, any specia l circ umstances justify ing the

13donati o n s , and whether the amounts of t he donations wer e reasonable in proportion t o the overall

community estate. The jury found that the community estate was unfairly depleted by $305,200 as

a re sult of those contributions.

“A fiduciar

y duty exis ts betwee n a husband and a wife as to the community proper ty controlled by eac h spouse.” Zieba v. Martin , 928 S .W.2d 782, 789 (Tex. App.—Houston [14t h Dist.] 1996, no pet.). As long as he does not work a fra ud on the rig hts of the other spouse, a spouse has the rig ht to control and dispose of community proper ty subject to h i s s o le manag ement. Massey v. Massey , 807 S.W .2d 391, 401 (Tex. App.—Houston [1st Dist.] 1991), writ denied , 867 S.W .2d 766 (Tex. 1993). A spouse’s dispositi on of the community proper ty must be fair to the other spouse, and “[t] he manag ing spouse has the burden to show that his dispositi on of the proper ty was f ai r. ” Id. at 402; see Jean v. Tyson-Je an , 118 S.W .3d 1, 9 (Tex. App.—Houston [14t h Dist.] 2003, pet. d en i ed ). “A presumption of ‘construc tive fra ud,’ i.e., waste, arises when one spouse disposes of the other spouse’s interest in comm u n i t y proper ty without the other’s knowledg e or consent.” Puntarelli v. Peterson , 405 S.W .3d 131, 137-38 (Tex. A pp.—Houston [1st Dist.] 2013,

no pet.). “The presumption may arise even when the other spouse has knowledg e of the dispositi on,

so long as she did not also consent to t h e d i s position.” Eve ritt v. Eve ritt , No. 01-11-00031- CV, 2012 WL 3776343, at *3 (Tex. App.—Houston [1st Dist.] Aug

. 31, 2012, no pet.) (mem. op.). Once the presumption arises, the disposing spouse must prove that hi s d i s p osition of the community proper ty was not unfair. Puntarelli , 405 S.W .3d at 138. A claim of constructive fra ud is evalua ted b y looking to sever al fac tors, “including the siz e of the g ift in rela tion to the total s i z e o f t h e community estate; the adequa cy of the estate rema ining to support the wife, the g ift notwithstanding;

14the rela tionship of the donor to the donee; and whether specia l c ircumstance s exis ted to justify the

g ift.” Barnett v. Barnett , 67 S.W .3d 107, 126 (Tex. 2001); see Ev eritt , 2012 WL 3776343, at *3.

Donald arg ues that political contributions are a form o f ci v i c engag ement and the exercise of his first amendment rig hts, that his businesses profited by his contributions, and that the $305,200 was re asonable in lig ht of the overa ll $3 milli on community estate. He further contends that beca use he made political contributions throug hout the marria g e and Estela was involved with

some aspec ts of his political activities, his contributions wer e simply a co n t i n u ation of his “esta blished political involvement” and “embr ace d political org anizations in which both Estela and [Donald] participa

ted.” Thus, he asser

ts, the jury could not rea sonably have found that those contributions were unfair to the c ommunity estate. Howeve r, Estela testified that throug hout the marria g e, she and Donald foug ht about his political donations, say ing, “I could not fathom how he could g ive—I knew he was g iving a lot of money and—but then he would g ive me such a hard time about using my allowanc e to pay for my boy s’ tuition, educa

tion. And we’ d have fig hts about that, that his political connec tions and political org anizations a

re more important than his love for me or than his wife .” She also said she did not know how much Donald had contributed to political cause s and was “appa l l ed ” wh en during the divorce she lea

rned of the extent of his donations. Donald arg ues that beca

use his political contributions led to l egislation and other political action favor able to his companies, those contributions ben ef i t t ed the community estate. Howeve r, this does not take into ac count that the jury only found fa ult with his donations made in 2015, afte r Estela f

iled for divorce. Thus, assuming that the record supports a conclusion that the

15donations led to political action benef itting Donald’s companies, the jury could have deter mined that his incre ased post-divorce -filing donations made from the community estate would primarily have benef itted his separ ate estate. Giving g rea t defe renc e to the jury ’s role in deter mining the cre dibilit y of the witnesses and the weig ht to g ive their testimony and in resolving evidentiary conflicts, the

rec ord ref lects that there was suff

icient evidenc e to support the jury ’s deter mination that Donald’s most rec ent $302,500 in political donations wer e unfair to the community estate. See Haining

v. Haining , No. 01-08-00 0 9 1 -C V, 2010 WL 1240752, at *13 (Tex. App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.) (trial court as fac t fi n d er chose to cre dit wife’ s testimony rela ted to reimburse ment).

Alterna tively , Donald contends that even if some of his cont ri b u t i ons could be considere d waste, it was improper for the jury to find that all of his contributions made afte r Estela filed for divorce wer e waste. I nstead, he insists , the m ost the j ury could have fo und as waste was $186,818: $305,200 less $118,382, which was th e av er age of the annual sums donated in the prec eding four y ear s. He asser ts that althoug h Estela may not have known the exact amount Donald

was g iving befor e the divorce proce eding beg an, her “knowledg e and actions nece ssarily constitute implicit consent to this level of g iving.” Howeve r, the evidenc e is undisputed that E stela had no control over any of the couple’ s financ es, and she testified to ong oing conflict rela ted to the political spending

. The jury could have d et er m i n ed that Estela did not implicitl y consent to Donald’s pre- divorce spending

.

I n our revie w of the leg al and fac tu al s u ff i ci en cy of the evidenc e, we must bear in mind that the jury

was the sole judg e of the cr edibility of the witnesse s and the we ight to be g iven

16their t es t imony , and we may not substitut e our judgme nt for the jury ’s, even if we might rea ch a

differ ent answe r on the evidenc e. See In r e P

. A.C. , 498 S.W .3d 210, 214 (Tex. App.—Houston [14t h Dist.] 2016, pet. deni ed ); Ha l l eman v. Halleman , 379 S.W .3d 443, 447 (Tex. App.—For t Worth 2012, no pet.). Under the applicable standards of revie w, the jury had sufficie nt evidenc e on which to base i t s d eter

mination. Fur

ther, Donald has not shown that the trial court abused its discretion in incorpor ating the jury ’s finding s relate d to Donald’s 2015 char itable contributions in its calc ulation of the community estate. See Penick , 783 S.W .2d at 197-98 (appe llate court should g ive g rea t latitude to trial court’s application of equitabl e p ri n cipl es to reimburse ment claims); In re Marriage of Donathan , No. 10-16-00014-CV, 2017 WL 3298943, at * 4 (Tex. App.—Waco Aug

. 2, 2017, no pet.) (mem. op.) (“When a reimburse ment awa rd does not appea

r to be unjust, there is no abuse of discretion.”) ; Nelson v. Nelson , 193 S.W .3d 624, 632 (Tex. App.—Eastland 2006, no pet.) (“The discretion to be exercised in evalua ting a claim for reimburse ment is equally as broad as th e d i scre tion exercised by a trial court in making a just and proper division of the community estate.” ); Raulston v. Raulston , 531 S.W .2d 683, 684-85 (Tex. Civ. App.—Texarkana 1975, no writ) (t ri al court has broad discretion to awa rd reimbursement for fra

ud); see also Fanning v. Fann i n g , 8 2 8 S

. W

. 2 d 1 35, 148 (Tex. App.—Waco 1992), rev’ d in part on other grounds , 847 S.W .2d 225 (Tex. 1993) (husband admitted that he donated $40,000 to char ity shortly befor e trial; court held that “trial court rig htfully could h av e consi dere d the circ umstances and timing of the char itable contributions in finding that such a dispositi on of community funds was unfair to the rig hts of” wife)

.

17Motion Insigh t Loan Donald testified that h e h el p ed start Motion I nsight, investing about $150,000. Although he testified that it was “basic ally worthless at this point,” the evidenc e was that t he company held a patent and was still working on the equipment, and Estela testified that she had not been able to g et information about Motion I nsight from Donald and did not trust his asser tion about the company ’s value. Ba sed on this scant evidenc e, which allows for the possibili ty that the company ’s eff

orts might y et be worth something i n the future, we cannot hold that the trial court abused its discretion in d etermining both that the community ’s interest in the company should be

awa rded to Dona ld and that the ac counts rec eivable should be valued a t $150,000.

Insu rance P rem iums Donald next complains that the trial court err ed in order ing the community estate reimburse d for $123,362 paid for insurance premiums owned by Donal d as s epar ate proper ty , arg uing that the evidenc e showed t h at t h e community was alre ady reimburse d for $75,325 in premiums paid on “ke y

man” pr emiums. We ag ree . 7 Donald testified, “I pay the premiums persona lly

. And then the company reimburse s

me afte r I pay the premium.” He was asked m o re s p ec i fi cally about evidenc e showing that the communi t y es t ate paid his key -man premiums, and he said, “The y wer e reimburse d for all t h ose—pre miums.” Donald’s business partne r echoe d that testimony , stating that it was t h e

“Ke y man” policies provide “prote ction to the company for the loss of a key man” and can 7 provide funds for t he purchase of a key man’s int ere st in a busi ness i n the event of hi s death. See Seym our v. American Engine & Grinding Co ., 956 S.W .2d 49, 53, 58 (Tex. A pp.—Houston [14t h Dist.] 1996, writ denied)

. 18companies’ “g ener al policy ” to reimburse for such premiums. Estela arg ues that the trial court could

have deter

mined that Donald was not cre dibl e and thus disreg arde d that testimony

. Howeve r, Donald’s testimony was unequivoca l, c lear , direc t, a nd positive, it was not opinion testimony , and there wer e “no circ umstances in evidenc e tending to discredit or impeach” Donald’s testimony

. McG alliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986). Be cause there was no evidenc e raising

a conflict on the issue, the trial court err ed in deter mining that the community estate was entitled to reimburse ment for the $75,325 in premiums paid for Donald’s key -man policies. I nstead, as Donald

conce des, the c ommunity was only entitled to reimburseme nt for $48,037 in pre miums. Disproportionate Division of the Com m uni ty Estate The trial cou rt awa

rded Estela $2,200,000—seventy perc ent of the $3,129,066 community estate. Do n ald arg ues that beca use Estela did not alleg e that Donald had phy sically abused her, conce aled assets, or committed o t h er egr egious acts, the trial court’s division of the community

estate w as an a

buse of discr etion. The law prov i d es t he trial court with broad discretion to deter mine a jus t and right division of the community estate. Halleman , 379 S.W .3d at 452; O’Carolan , 71 S.W .3d at 532. Howeve r, beca

use the err ors in the trial court’s rec onstitut ion calc ulations may have aff ecte d its just and rig ht division of the community estate, we will rema nd t h e m at t er to the trial court for new deter minations of how the estate should be divided. See Jacobs v. Jacobs , 687 S.W .2d 731, (Tex. 1985) (“a court of appea ls must rema nd the entire community estate for a new division when it finds

reve rsible err or which materia lly aff ects the trial court' s ‘just an d ri gh t’ division of the

19proper

ty ”); Delance

y v. Delance

y , No. 03-10-00240- CV, 2011 WL 677401 , at * 7 (Tex. App.—Austin Fe b. 24, 2011, no pet.) (me m. op.) (same ).

Conclusion The trial court err ed in including the jury ’s finding as to income tax pay ments made by the community in its valuation of the rec onstitut ed community estate and in its ca l cu l ati on of reimburse ment due to the community estate for its pay ment of Donald’s separ ate insurance policies. We there fore reve rse the portions of the divorce decr ee rela ted to the division of proper ty ; we aff irm the rema ining uncontested portions of the decr ee. We rema nd the cause to the trial court for a new deter mination and division of the community estate.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Field, a nd Bour land Affir med in Part; Reverse d and Remande d in Part Filed: June 15, 2018

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