AFFIRMED and Opinion Filed August 31, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00133-CV 

IN THE INTEREST OF M.H. AND T.H., CHILDREN 

On Appeal from the 256th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF-16-26862 

MEMORANDUM OPINION 

Before Chief Justice Burns, Pedersen, and Evans 

Opinion by Chief Justice Burns1

Cristian Hinojosa appeals the trial court’s property division in the final decree 

of divorce between Cristian and Sara Hinojosa. In three issues, Cristian argues he 

was entitled to confirmation of his separate real property and $20,000 in his 

Interactive Brokers Account, he was entitled to reimbursement to his separate 

property for the payment of a community debt, and the trial court abused its 

discretion in awarding a disproportionate value of the community estate. We affirm 

the trial court’s judgment. 

 

1 The Honorable David Bridges, Justice, participated in the submission of this case; however, he did not 

participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Burns has 

reviewed the record and the briefs in this cause. 
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Cristian and Sara were married in January 2013. During the marriage, they 

had two children, M.H. and T.H. In December 2016, Cristian filed his original 

petition for divorce. Cristian’s second amended petition for divorce, the live 

pleading, alleged the marriage had become insupportable because of discord or 

conflict of personalities that destroyed the legitimate ends of the marriage 

relationship. Without specifying the property at issue, Cristian stated he owned 

“certain separate property that is not part of the community estate” and requested 

that the trial court confirm that property as separate property. Cristian also requested 

reimbursement of his separate estate for funds or assets expended by his separate 

estate for the benefit of the community estate. Again, Cristian did not specify the 

amount of funds expended or the purpose of their expenditure. Among other things, 

Cristian requested he be awarded exclusive use and possession of the residence on 

Southwestern Boulevard and “bank accounts held exclusively” in his name. 

Sara’s second amended counterpetition for divorce, filed in May 2018, alleged 

the marriage had become insupportable but further alleged Cristian was “guilty of 

cruel treatment toward” Sara and had “committed adultery.” Sara requested that she 

be appointed sole managing conservator of the children and that Cristian be 

“required to monitor his sobriety through the use of Soberlink and ordered to submit 

to alcohol testing at a set time before, during, and immediately following his 

possession periods of the children and all breathalyzer tests should be immediately 

forwarded to” Sara. 
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The counterpetition anticipated that the parties would enter into a written 

agreement for the division of the community property marital estate. However, 

absent such an agreement, Sara requested a disproportionate share of the parties’ 

estate for the following reasons: the fault of Cristian in the breakup of the marriage, 

including the cruel treatment of Sara; adultery; the benefits Sara may have derived 

from the continuation of the marriage; anticipation that Sara would be appointed the 

conservator with the exclusive right to designate the primary residence of the 

children; the tax and other business consequences of the property division; 

reimbursement; actual and constructive fraud committed by Cristian; and attorney’s 

fees to be paid. The counterpetition separately addressed Cristian’s alleged fraud on 

the community and requested that the court reconstitute the community estate to its 

full value prior to Cristian’s “depletion of the community estate by his fraudulent 

acts and divide the reconstituted community estate” including awarding Sara “an 

appropriate share of the community estate, a money judgment, or both.” 

At trial in May 2018, Cristian testified that the value of his pension plan when 

he married Sara was $28,679. Before the marriage, Cristian owned a condominium 

on Holland Avenue and a house on Lake Gardens. When Sara and Cristian found a 

home on Moss Farms that they wanted to buy, they had money for a down payment 

on the home but did not have money to remodel the home until they sold the Lake 

Gardens property. Cristian testified that, when Lake Gardens sold, the money was 

his separate property. Cristian testified that, “At that point the equity was 
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$171,708”as shown on petitioner’s exhibit 12, a 2013 “Substitute Form 1098” also 

labeled as a “Mortgage Interest Statement.” Cristian testified petitioner’s exhibit 19 

showed “the net proceeds of Lake Gardens was deposited into [his] account.” 

Petitioner’s exhibit 19 is a Bank of America account summary in the name of 

Cristian Hinojosa and Sara Hinojosa and covers the period March 11, 2016 to April 

8, 2016. The exhibit showed a beginning balance of $7,654.83, deposits and other 

additions of $192,593.52, withdrawals and other subtractions of “-46,053.29,” 

checks of “-57,155.50,” and an ending balance of $97,037.06. Cristian testified he 

used some of the money to pay off a loan from his father and some to “pay off the 

interest,” and he invested $55,000 of the money in Moss Farms. Cristian also 

introduced an exhibit (4) listing items he asked the court to confirm as his separate 

property. 

On cross examination, Cristian testified he was “seeking a $131,000.00 

reimbursement claim on the house.” When asked what documents he had to show 

the value of the house immediately before he started making improvements, Cristian 

testified he had “the 1098 statement from 2013 at the year of the marriage.” Cristian 

testified he started making improvements on the Moss Farm residence “From day 

one” when “We purchased Moss Farm in the fall of 2015.” When asked if he had 

any “documents that reflect the value of these improvements contributed to the 

house, to the value of the house,” Cristian testified he had “Three different 

appraisals, price the improvements gave a fair market value of the property post 
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improvement.” When asked if there was “nothing that differentiates any value that 

the improvements added, if any, versus the value of simply market appreciation,” 

Cristian answered, “the appraised value was based on market and the improvements 

is based on the condition, desirability, and utility rating.” When asked again if he 

had “anything to differentiate between the value contributed by the improvement 

and the value attributable to market forces,” Cristian answered, “They’re in Sara’s 

possession.” Cristian testified he was asking the court to adopt his parenting plan 

and his property division and confirm his separate property. 

Sara testified that, in May 2016, she was two days away from a C-section 

scheduled to deliver her second child when Cristian went out and she did not hear 

from him by 11:30 p.m. Sara “knew he was probably out drinking.” Sara testified 

Cristian responded to her texts “about 2:00 in the morning, something like, I’m sorry 

my phone was off. I’ve been drinking. I’m not coming home.” Cristian “came back 

late the next day.” The birth of Sara’s second child was “fine,” but afterwards in the 

delivery room Cristian started “picking a fight” and “verbally abusing” Sara, and he 

told Sara “he wanted a divorce.” After the baby came home, Cristian “went into a 

several week spiral” of drinking, “becoming more and more depressed,” and “crying 

a lot.” Cristian told Sara “over and over again” that he had “demons inside” him and 

“a devil in” him and asked her to call a priest. Sara testified Cristian “was afraid he 

was going to hurt himself and he wanted [Sara] to get the guns out of the house.” 
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Sara took Cristian to “detox” at Presbyterian Hospital where he stayed 

approximately four days before telling Sara over the phone that she was “trying to 

lock him up.” Sara went to the hospital to visit Cristian who was there with “two of 

his AA friends” and “had already checked himself out of detox against medical 

advice.” Sara did not want Cristian to come home, and she was “really worried 

about his state of mind.” 

Nevertheless, Cristian came home and “was upset that [Sara] wasn’t happy 

for him to be home.” Sara’s sister was playing with Sara’s oldest child at the 

neighbor’s house, and Sara was nursing the baby when Cristian tried to “pick a fight” 

and argue about the marriage. Sara went into another room and, when Cristian 

followed, Sara tried to go out the front door. Cristian blocked the front door, told 

Sara she could not leave, and “started yelling” profanities and grabbed Sara’s phone. 

Sara got out the back door, but “the whole time Cristian [was] right there in [Sara’s] 

face, yelling at [her].” Two days later, Cristian’s father drove him to a treatment 

center, La Hacienda, where Cristian stayed for twenty-two days. 

In June, Sara and her sister and the children drove six hours to La Hacienda 

so Cristian could see his children for Father’s Day. Cristian was “upset” Sara was 

not “more affectionate with him,” “mad” that Sara was thirty minutes late, and “upset 

that [Sara] didn’t bring the father’s day card.” When Sara and Cristian discussed 

where Cristian was going to stay when he got out of La Hacienda, Sara said she 

“needed some time” and Cristian could “stay at his dad’s house a couple of days and 
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then come to our house.” When Cristian got out of La Hacienda, he “came to the 

house and he said, I’m coming to the house. You can’t stop me.” Cristian “ended 

up staying at his father’s but the next day [Sara] had to have his therapist intervene.” 

After Cristian spent two days at his father’s house, for the next month “it was good.” 

Cristian was “going to meetings all the time” and “talking to his [AA] sponsor.” 

However, things “started to deteriorate after a few weeks” when Cristian stopped 

going to meetings, meeting with his sponsor, and seeing his counselor. Sara testified 

this series of events lasted into August, and she and Cristian separated at the end of 

October. 

In November, Cristian again went to “detox at Presby” and then to treatment 

at another facility. In “email discussions and phone calls,” Cristian “was begging 

[Sara] not to get a divorce.” Sara testified she still wanted to stay married, and she 

thought that the marriage could be repaired if Cristian was getting “treatment for the 

alcoholism,” depression, and PTSD. Five days after getting out of treatment, 

Cristian filed for divorce. 

Cristian’s father, Santiago Hinojosa, testified he was aware Cristian “has had 

a problem with alcoholism.” Santiago testified that, while the Lake Gardens 

property was for sale and “they were doing some remodeling at the new house on 

Moss Farm,” Cristian asked Santiago “if we would help them out with a bridge loan 

and when the Lake Gardens house sold he would pay us back.” Santiago identified 

petitioner’s exhibit 23 as a copy of a promissory note for $55,000 and petitioner’s 
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exhibit 19 which contained a copy of a March 2016 check Cristian used to pay back 

$55,340. 

Cynthia Hinojosa, Cristian’s mother, testified she received a text from him on 

November 5, 2016 saying “I’m having an affair. I need a little space.” During that 

week, Cynthia received a call from a phone number she did not recognize, and the 

caller was Cristian, who said he was “in trouble” and “needed to talk.” When 

Cynthia later called the number back, Kathleen Griffith answered the phone, and 

Cynthia began a series of text messages and phone calls with Griffith asking how 

Cristian was doing. Cynthia became “more and more concerned” about Cristian’s 

condition, but she thought Cristian “was safe staying at Ms. Griffith’s household.” 

On Friday of that week, Griffith gave her address to Cynthia, and Cynthia went to 

get Cristian and take him to detox at “Presby.” On Sunday, Cynthia met with Griffith 

to tell her “to stay away from the hospital as Sara was going to the hospital and we 

didn’t want to traumatize Sara from what was happening.” While Cristian was at a 

treatment facility, he gave Cynthia’s husband keys and sent Cynthia a list of items 

Cristian wanted from his apartment. Cynthia used the keys to unlock Cristian’s 

locked private journal, Cynthia took pictures of “things that were in the journal,” and 

Cynthia “locked it back so [Cristian] would not know [she] had violated his privacy.” 

Four months later, Cynthia told Sara that Cristian was having an affair with Griffith 

and disclosed Cristian’s “most personal writings” to Sara. 
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At the conclusion of trial, the trial court found the testimony supported the 

relief requested and granted divorce to the parties. The trial court further stated there 

might be “additional rulings by virtue of emails or fax depending on what the Court 

does.” 

On September 12, 2018, the trial court issued a memorandum ruling 

containing, among other things, the following “Property findings”: 

The Court will deny reimbursement to the husband for $130,000 in 

alleged improvements. The Court will find $13,823.72 to wife as 

separate property for emotional distress damages. The Court does find 

$38,702 in Interactive Brokers to be Husband’s separate. 

On November 6, 2018, the trial court entered a final decree of divorce awarding, as 

relevant here, the Interactive Brokers individual trading account to Cristian, after 

payment of $9000 to Sara as recovery on a waste claim against Cristian, and the 

Moss Farm property to Sara. The decree denied Cristian’s claim of $130,000 for 

alleged improvements to the marital residence awarded to Sara. The decree 

confirmed $38,702 on deposit in the Interactive Brokers individual trading account 

as Cristian’s separate property. 

 Cristian filed a motion for new trial complaining of the trial court’s denial of 

his separate property claims of (1) $105,000 in the Interactive Brokers account 

“because the funds originated from Husband’s separate property house, and (2) 

$130,000 for the down payment on the marital residence, the Moss Farm property, 

“because the funds originated from Husband’s separate property house and a gift 
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from Husband’s father.” Attached to the motion were settlement statements from 

the sale of Cristian’s “SP home” and the purchase of the Moss Farm property 

purportedly showing “the down payment using the sale proceeds.”

 Sara filed a response to the motion for new trial in which she argued the record 

supported denying Cristian’s separate property claim of $105,000 in the Interactive 

Brokers account because Cristian failed to meet his burden tracing any separate 

property claim to the Interactive Brokers account by clear and convincing evidence. 

The response argued Cristian attached no proof or evidence to support his claim and 

merely made a conclusory statement that it was his separate property. As for 

Cristian’s separate property claim of $130,000, the response argued Cristian failed 

to meet his burden tracing any separate property claim for the $130,000. The 

response argued the evidence Cristian attached to his motion disproved his claim. 

On the settlement statement which Cristian claimed reflected the sale of his separate 

property house, both Cristian and Sara were listed as sellers. The response argued 

further that Cristian’s claim that he made a $130,000 separate property down 

payment on the purchase of the Moss Farm property was directly controverted by 

the settlement statement associated with the sale. The response argued Cristian 

presented no evidence as to the source of any funds or tracing of funds and failed “to 

meet his clear and convincing evidence burden to prove his separate property.” In 

addition, the response asserted, the settlement statement listed both Sara and Cristian 
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as the purchasers of the Moss Farms property and reflected a down payment of 

$75,965, not $130,000. 

 In January 2019, the trial court entered findings of fact and conclusions of 

law. The court found, among other things, that Cristian is “an alcoholic who has 

relapsed multiple times during the parties [sic] marriage,” Cristian “committed 

adultery during the marriage,” and Cristian’s “testimony was not credible.” In 

finding that, as part of a just and right divisions of the parties’ estate, Sara should be 

awarded a disproportionate share of the community estate, the trial court listed the 

following reasons to support its finding: 

fault in the breakup of the marriage by Cristian Hinojosa; adultery 

committed by Cristian Hinojosa; Cristian Hinojosa’s alcoholism; waste 

committed by Cristian Hinojosa; Sara Hinojosa having primary custody 

of the children; size of the parties’ respective separate estates; benefits 

Sara Hinojosa would have received if the marriage continued; the 

nature of the property involved; the attorney fees and costs involved in 

litigating the divorce; fraud on the community estate by Cristian 

Hinojosa; tax consequences of the property division. 

The trial court found the value of the Moss Farms home was $156,845.19 and 

awarded the home to Sara. The trial court found the value of the community property 

portion of the Interactive Broker individual trading account was $85,622 and 

awarded the entire amount to Cristian. 

 The trial court denied Cristian’s request for $130,000 in reimbursement for 

“alleged improvements” made to the Moss Farm home and found (1) Cristian failed 

to prove by clear and convincing evidence the underlying funds were his separate 
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property; (2) Cristian failed to “prove the enhanced value attributable to any alleged 

improvements”; and (3) assuming Cristian “had proven the above,” the court found 

it would not have been equitable to award Cristian “this claim.” The trial court found 

the value of the separate property portion of the Interactive Broker individual trading 

account was $38,702 and awarded the entire amount to Cristian. This appeal 

followed. 

 In his first issue, Cristian argues he was entitled to confirmation of his separate 

real property and $20,000 in his Interactive Brokers account. Specifically, Cristian 

argues “the trial court abused its discretion in failing to confirm [his] separate 

property Moss Farm home.” In his second issue, Cristian argues he was “entitled to 

reimbursement to his separate property for the payment of a community debt.” The 

alleged separate property referred to in Cristian’s second issue is actually the 

“$20,000 in his Interactive Brokers account” referenced in his first issue. Because 

of the interrelated nature of these two issues, we address them together. 

 Trial courts must “order a division of the parties' estate in a manner that the 

court deems just and right, having due regard for the rights of each party and any 

children of the marriage.” TEX. FAM. CODE ANN. § 7.001. Numerous factors are 

considered in making the division, including the disparity of incomes or earning 

capacities of the parties, “benefits which the party not at fault would have derived 

from continuation of the marriage, business opportunities, education, relative 

physical conditions, relative financial condition and obligations, disparity of ages, 
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size of separate estates, and the nature of the property.” Murff v. Murff, 615 S.W.2d 

696, 699 (Tex. 1981). Broad discretion governs division of the community estate, 

and all reasonable presumptions are indulged in favor of such discretion. Schlueter 

v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Murff, 615 S.W.2d at 698–99 

(appellate court presumes trial court properly exercised discretion in dividing marital 

estate). The party complaining about the property division must demonstrate from 

the evidence that “the division was so unjust and unfair as to constitute an abuse of 

discretion.” In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 384 (Tex. App.—

Dallas 2013, no pet.). 

 A trial court does not abuse its discretion if there is some evidence of a 

substantive and probative character to support the decision. Hinton v. Burns, 433 

S.W.3d 189, 193 (Tex. App.—Dallas 2014, no pet.) (citing Moroch v. Collins, 174 

S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied)). In family law cases, the 

abuse of discretion standard of review overlaps with the traditional sufficiency 

standards of review; as a result, legal and factual sufficiency are not independent 

grounds of reversible error, but instead constitute factors relevant to our assessment 

of whether the trial court abused its discretion. Hinton, 433 S.W.3d at 193; Moroch, 

174 S.W.3d at 857; see also In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 

2009, no pet.) (discussing standard). To determine whether the trial court abused its 

discretion, we consider whether the trial court (1) had sufficient evidence upon 

which to exercise its discretion and (2) erred in its exercise of that discretion. Hinton, 
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433 S.W.3d at 193–94; In re A.B.P., 291 S.W.3d at 95. The applicable sufficiency 

review comes into play with regard to the first question. Hinton, 433 S.W.3d at 194; 

Moroch, 174 S.W.3d at 857. We then proceed to determine whether, based on the 

elicited evidence, the trial court made a reasonable decision. Hinton, 433 S.W.3d at 

194; Moroch, 174 S.W.3d at 857. 

Further, when the burden of proof at trial is by clear and convincing evidence, 

as it is for a party seeking to rebut the presumption that a specified item of property 

is community property, we apply a higher standard of legal and factual sufficiency 

review. Hinton, 433 S.W.3d at 194; Moroch, 174 S.W.3d at 857. 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 (West 2014). 

This intermediate standard falls between the preponderance standard of civil 

proceedings and the reasonable doubt standard of criminal proceedings. Hinton, 433 

S.W.3d at 194; Moroch, 174 S.W.3d at 857. The proof must weigh more heavily 

than the greater weight of the credible evidence, but the evidence need not be 

undisputed. Hinton, 433 S.W.3d at 194; Moroch, 174 S.W.3d at 857–58. 

In reviewing the evidence for legal sufficiency, we look at all the evidence in 

the light most favorable to the judgment to determine if the trier of fact could 

reasonably have formed a firm belief or conviction that its finding was true. Hinton, 

433 S.W.3d at 194; Moroch, 174 S.W.3d at 858. We must assume that the fact finder 
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resolved disputed facts in favor of its finding if a reasonable fact finder could do so. 

Hinton, 433 S.W.3d at 194; Moroch, 174 S.W.3d at 858. In reviewing the evidence 

for factual sufficiency, we must give due consideration to evidence that the fact 

finder could reasonably have found to be clear and convincing and then determine 

whether, based on the entire record, a fact finder could reasonably form a firm 

conviction or belief that the allegations in the petition were proven. Hinton, 433 

S.W.3d at 194; Moroch, 174 S.W.3d at 858. 

 All property possessed by either spouse at the time of the dissolution of the 

marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a). 

A party claiming property as his separate property has the burden to rebut the 

presumption of community property. Pearson v. Fillingim, 332 S.W.3d 361, 363 

(Tex. 2011) (per curiam). To do so, the party must trace and clearly identify the 

property in question as separate by clear and convincing evidence. Id.; see also TEX.

FAM. CODE ANN. § 3.003(b). 

A spouse is competent to testify concerning the characterization of property 

without producing independent documentation such as bank records. Pace v. Pace, 

160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied); see Vannerson v. 

Vannerson, 857 S.W.2d 659, 668 (Tex. App.—Houston [1st Dist.] 1993, writ

denied). The testimony of a spouse seeking to overcome the community property 

presumption need not be corroborated to meet the clear and convincing standard. 

Pace, 160 S.W.3d at 714; Holloway v. Holloway, 671 S.W.2d 51, 56 (Tex. App.—
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Dallas 1983, writ dism’d); Newland v. Newland, 529 S.W.2d 105, 107–08 (Tex. Civ. 

App.—Fort Worth 1975, no writ); but see Boyd v. Boyd, 131 S.W.3d 605, 614–17 

(Tex. App.—Fort Worth 2004, no pet. h.). However, a party’s unsupported and 

contradicted testimony may not meet the clear and convincing standard. Pace, 160 

S.W.3d at 714; see Johnson v. Johnson, 804 S.W.2d 296, 300–01 (Tex. App.—

Houston [1st Dist] 1991, no writ). Stated another way, mere testimony that property 

was purchased with separate property funds, without tracing the funds, is generally 

insufficient to rebut the community property presumption. Sink v. Sink, 364 S.W.3d 

340, 345 (Tex. App.—Dallas 2012, no pet.); Chavez v. Chavez, 269 S.W.3d 763, 

767 (Tex. App.—Dallas 2008, no pet.); Boyd, 131 S.W.3d at 612. Any doubt as to 

the character of property should be resolved in favor of the community estate. Sink, 

364 at 345; Chavez, 269 S.W.3d at 767; Moroch, 174 S.W.3d at 856. 

Cristian argues he proved with clear and convincing evidence that the Holland 

Avenue and Lake Gardens properties were his separate property. Next, Cristian 

argues he proved “he sold Holland in 2015 and used the proceeds to purchase Moss 

Farms during the marriage. In making this argument, Cristian relies on “a HUD 

Settlement Statement, Bank of America statement for account ending in 0522 in 

which the funds were deposited, and a Bank of America statement for account 

ending in 0522 in which the funds were removed.” 

The HUD settlement statement, petitioner’s exhibit 18, does show the 

property’s location is on Holland Avenue and cash paid to seller in the amount of 
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$75,084.14. The box on the statement that identifies “Name & Address of Seller” 

lists both Cristian and Sara at the Lake Gardens address, and the statement is signed 

by both Cristian and Sara. The Bank of America statement showing a deposit of 

$75,084.14, petitioner’s exhibit 13, pertains to a joint bank account in both Cristian’s 

and Sara’s names and lists the Lake Gardens address. The statement also reflects a 

beginning balance of $13,878.55 on August 11, 2015 and deposits in excess of $5500 

from Sara’s employer. The Bank of America statement showing the removal of a 

check for $74,033.93 and $1923, petitioner’s exhibit 14, also shows it is a joint 

account in the names of both Cristian and Sara and reflects deposits from Sara’s 

employer in excess of $5000. Copies of the checks, petitioner’s exhibit 15, show 

they are cashier’s checks that identify Cristian as “Remitter (Purchased by” and are 

payable to “CAPITAL TITLE.” The HUD settlement statement for the purchase of 

the Moss Farm property, petitioner’s exhibit 16, shows $75,956.93 cash from 

borrower and identifies borrower as Cristian and Sara. Cristian argues that, in light 

of this evidence, the trial court erred in mischaracterizing the Moss Farm property 

as community property. We disagree. 

 The record is clear the Moss Farm home was purchased during Cristian and 

Sara’s marriage. Cristian’s first amended inventory and appraisement identified the 

Moss Farm home as community property. Cristian’s proposed property division 

spreadsheet, petitioner’s exhibit 4, showed the Moss Farm home going to Sara. 

Cristian’s testimony at trial was that he sought a “$131,000 reimbursement claim on 
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the house,” and Cristian did not argue that the Moss Farm home should be 

characterized as his separate property. To the extent Cristian detailed the deposit of 

funds from the sale of the Lake Gardens property and the purchase of the Moss Farm 

home using funds from the parties’ joint checking account, the record shows that 

Sara was listed as seller on the documents relating to the sale of the Lake Gardens 

property and listed as borrower on the Moss Farm purchase documents. Further, 

Sara’s name is on the joint checking account, and the records show her salary was 

direct-deposited into the account. 

When separate and community property are commingled in a single bank 

account, we presume the community funds are drawn out first, before separate funds 

are withdrawn. Hinton, 433 S.W.3d at 197 (citing Zagorski v. Zagorski, 116 S.W.3d 

309, 319–20 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)). Cristian ignores 

the fact that the Bank of America records show, among other things, Sara’s salary 

direct-deposits and a $20,560 tax refund. Under these circumstances, the trial court 

did not abuse its discretion in determining Cristian failed to prove by clear and 

convincing evidence the underlying funds were his separate property. See Hinton, 

433 S.W.3d at 193; Moroch, 174 S.W.3d at 857; Sink, 364 at 345. 

Apparently in an effort to reach the total of $130,000 for the reimbursement 

claim raised at trial, in addition to his claim regarding the $75,956.93 paid for the 

Moss Farm home, Cristian complains that a $55,000 bridge loan from his father was 

paid off with Cristian’s separate property. The $55,000 promissory note is dated 
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January 3, 2016 and identifies the “Borrower” as “Cristian and Sara Hinojosa” and 

the “Lender” as “Santiago and Cecilia Hinojosa.” The note anticipated the Lake 

Gardens property would be relisted on or around January 21, 2016, and repayment 

of the note would occur upon closing. If closing was delayed beyond May 31, 2016, 

lender had the “right to call for repayment from borrower using sources other than 

equity from home sale.” Finally, the note provided that “Borrower will be 

responsible for all costs of financing, including interest accrued on $55,000 line of 

credit usage during period of credit utilization with note.” The check used to repay 

the note was drawn on Cristian and Sara’s joint bank account. Thus, the bridge loan 

was made during the marriage in support of the purchase of the marital residence; 

Sara was obligated to repay the note along with Cristian, whether or not the Lake 

Gardens property sale closed; and the note was repaid out of Sara and Cristian’s joint 

bank account. Again, we cannot conclude the trial court abused its discretion in 

determining Cristian failed to prove by clear and convincing evidence the underlying 

funds were his separate property. See Hinton, 433 S.W.3d at 193; Moroch, 174 

S.W.3d at 857; Sink, 364 at 345. 

As to Cristian’s claim that he was entitled to confirmation of $20,000 in his 

Interactive Brokers account as separate property, Cristian argues, without more, that 

he “transferred from the Bank of America account containing the Lake Gardens sales 

proceeds into his Interactive Brokers Account in the amount of $20,000.” The bank 

statement Cristian relies on in making this argument, petitioner’s exhibit 19, shows 
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a $150,423.23 deposit from the sale of the Lake Gardens property. However, the 

statement also shows a $20,560 tax refund and more than $10,000 from Sara’s 

employer commingled with the Lake Gardens sale money, and a closing balance of 

$192,593.52. See Hinton, 433 S.W.3d at 197. Cristian does not explain how, under 

these circumstances, merely withdrawing $20,000 entitled him to confirmation of 

that amount as his separate property. See id. Further, the trial court found the value 

of the separate property portion of the Interactive Broker individual trading account 

was $38,702 and awarded the entire amount to Cristian, in addition to all of the 

community interest in the Interactive Brokers account after the $9000 payment to 

Sara. We overrule Cristian’s first and second issues. 

In his third issue, Cristian complains the trial court abused its discretion in 

awarding a disproportionate value of the community estate to Sara. Cristian claims 

the trial court awarded Sara sixty-two percent and awarded Cristian thirty-eight 

percent. The evidence in this case established, and the trial court found, that Cristian 

committed adultery. Adultery does not have to occur pre-separation for it to be a 

ground for granting a divorce, and the trial court’s finding of adultery can support 

the disproportionate division of the community property. In re Marriage of C.A.S. 

& D.P.S., 405 S.W.3d at 392. In addition, the trial court based its award to Sara of 

a disproportionate share of the community estate on Cristian’s alcoholism, waste 

committed by Cristian, Sara having primary custody of the children, the nature of 

the property involved, and the attorney fees and costs involved in litigating the 
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divorce. The evidence showed the negative consequences of Cristian’s alcoholism 

on the marriage and its role in the dissolution of the marriage. The court’s other 

findings were similarly supported by the record. Under these circumstances, we 

conclude the trial court did not abuse its discretion in awarding Sara a 

disproportionate share of the community estate. See Murff, 615 S.W.2d at 698–99. 

We overrule Cristian’s third issue. 

We affirm the trial court’s judgment.

190133F.P05 

 

/Robert D. Burns, III/ 

ROBERT D. BURNS, III 

CHIEF JUSTICE 
 –22– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF M.H. AND 

T.H., CHILDREN 

No. 05-19-00133-CV 

 On Appeal from the 256th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DF-16-26862. 

Opinion delivered by Chief Justice 

Burns. Justices Pedersen, III and 

Evans participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee Sara Hinojosa recover her costs of this appeal 

from appellant Cristian Hinojosa. 

Judgment entered August 31, 2020.