### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00868
- CV

Ryan Goyal , Appellant

v. Henna Hora , Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 18
- 006215 , THE HONORABLE JAN SOIFER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Ryan Goyal appeals from a f inal decree of divorce from He nna Hora rendered after a be nch trial

. In two is s ues, Goyal co mplains of the distr ict court ’ s child

- support order and characteriz ation of the mar ital estate

. We will affirm th e di strict court ’ s final decree of divorce

.

B ACKGROUND Goyal and Hora were married o n October 2 3, 2016

. They have one child , born November 1, 2017, who was one - an d

- a - half years old at th e time of trial

. Goyal is a licens ed certified public account ant a n d w as employed during the marriage as an auditor for Novogradac making over $11,000 monthly. Hora was not employed outside the home during the ma rriage

. In April 2017 , Goyal and Hora bought the house where they lived an d rais ed the ir ch ild until2 th eir s e paration in Octob er 2018

. Hora filed for divorce in a Travis County district court later that month. Before trial, t he parties r eached an a greement as to possession and access of the child

. The primary disputes during trial concern ed the amount of ch ild support that Goy al sh ould
pay , Goyal’s s e p a r a t e - p r o p e r t y c l a i m s , and his claim for reimbursement

. B oth parties presented testimony from certified public accountants about the proper methodology for determining such claims. Afte r th e trial concl ude d o n June 11, 2019 , the d istric t court gr anted the divorce subject
to the division of the marital property in the final decree

. On Augu st 29, 2019 , the district court signed a final decree of divorce dividing the marital estat e and order ing G oyal to pa y guid eline child suppor t on the first $8,550 of Goyal’s monthly net resources plus an additional am ount for the chil d ’ s daycare, after

- school care, extra curricular activi ties , and camp , the total amount of which was capped at $1,000

. T he district court f iled find in gs of f act and conclusions of law , i ncluding that “Goyal failed to carry his burden of proof regarding any separate property claim

. ” G oyal filed objec tion s to th ose findi ngs and conclusions and request ed additional or amended fin dings. As
to i ts ov eral l divi sion of the marital property , the district court found that Goyal had greater earning capac ity than Hora , that Hora would have benefited fi nancially from the continuation of the marr iage, that Goyal had business and trading opportunities not avai lable to Hora, that Goyal had a more extensive educational backg round than Hora, that Goyal was at fault for the b reakup of the marriage, and that Goyal had caused the expenditure of excessive atto rneys ’ fees

. This appeal followed.3 DISCU SSION Goyal co mp lains of the district cour t ’ s chi ld

- support order and its characteriz ation of the marital estate

. We review both these challeng es to the final decree under an abuse

- of

discretion standard. See Rodriguez v. Rodriguez , 860 S.W.2d 414, 415 (Tex. 1993) ( addr essing child support ); Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981) ( addressing property division)

. A trial court abuses its discr etion onl y if it acts arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting ev idenc e. Gonzales v. Maggio , 500 S.W.3d 65 6, 667 n.36 (Tex. App.

— Austin 2016 , no pet. ) ; Coburn v. Moreland , 433 S.W.3d 809, 823 (Tex. App.

— Aus tin 20 14, no pe t.)

. Here, as in other family law cases, t he abuse

- of

- discretion standard and traditional suffici ency standards of review overlap

. S ee S ink v. Sink , 36 4 S.W.3d 340, 344 (Tex. App.

— Dallas 2012, no pet.)

. In these cases, l egal and factual ins u fficie ncy are n ot independent grounds of error but are relevant factors in assessing whether the trial court a bused its discretion. See
C

oburn , 433 S.W.3d at 823 ; Zeifm an v. Michels , 212 S.W.3d 582, 587 (Tex. App.

— Austin 2006, pet. denied)

. Thus, i n determin ing wh ether the trial court abuse d its discretion , we consider

w hether the court had sufficient evidence u pon w hich to exercise it s discretion, and if so, whether it erred in the application of that discretion. Coburn , 433 S.W.3d at 823 ; Zeifman , 212
S.W. 3d at 58 8

. Evidence is legally sufficient if it would enable reasonable and fair

- minded people to reach the v erdict under review. Exxon Corp. v. Emerald Oil & Gas Co ., 348 S .W.3d 194, 215 (Tex. 2011)

. Evidence is legally insuffi cient when : (1) there is a complete absence of a

v ital fact; (2) rules of law or evidence preclude giving weight to the only evide nce o ffered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or4 (4) the evid ence conclusively establishes the opposite of t he vital fact. City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005) ; Steele v. Ste ele , No. 03

- 07

- 00011

- CV, 2009 Tex. App. LEXIS
6519 , at * 8

- 9 (Tex. App.

— Aus tin Aug. 19, 2009, no pet.) (mem. op.)

. When de ter mi ning wh ether the evidence is legally sufficient to support the trial court’s exercise of d iscretion, we consider the evidence in the light most favorable to the trial court’s findings if a reasonable factfinder cou ld , and disregard evidence to the con t rar y unless a reasonable factfinder could not. Id

. at 827 ; Steele , 2009 Tex. App. LEXIS 6519 , at * 9

. W he n determ ining whether t he e vi dence is factual ly suf ficien t to supp ort t he tria l court’s exercise of discretion, we consider and weigh all the evidence presented and set aside the trial court’s findings on ly if they are so contrary to the overwhelming weight o f the evidence such that t hey are clearly w rong and unjust. Ci ty of Keller , 168 S.W.3d at 826

. We review a trial court ’ s findings of fact for legal and fa ctu al sufficiency unde r the se same standards

. Rob bins v. Robbins , 550 S. W.3d 846, 854 (Tex. App.

— For t Worth
2018 , no pet

. )

. When th e record contains some evidence of a substantive and probative character support ing the trial court’s decision, there is no ab use of discretion. Tran v. Nguyen , 480 S.W.3d
11 9, 128 ( Tex. App.

— San Antonio 2015 , no pet. ) ; Echol s v. Olivarez , 85 S.W .3 d 475, 477 (Tex. App.

— Austin 2002, no pet.)

.

Child Support In his first issue, Goyal complains of the district court ’ s order of c hild support

“ for a total of $2710.00, which incl udes gui deline ch ild support of $1710.00 and ‘ up to an additional $10 00. 00 ’ more for daycare, after school ca re, extra

- curricular activities and camp

. ”
S ection 154.126 of the Family Code states that when an obligor ’ s net mont hly re sources exceed5 $8,550 1 a tri al court may order additional amounts of child supp ort to the pre s um pt ive

- gui deline
amount : (a) If t he oblig or’s net resources exceed the amount provided by Section 154.125(a) [ $8 ,550 ], the court shall p resumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that a mou nt

. With out further reference to the pe r centage r ecommended by these guidelines, the court may order additional amounts of child suppo rt as appropriate, depending on the income of the pa rties an d the proven needs of the child. (b) The pr oper calculati on of a chil d support order that exceeds th e presumpti ve amount established for the portion of the obligor’s net resources provided by Sec tion 154.125(a) req uires that the entire amount of t he presu mptive award be subtracted from the proven t otal needs of the c hild. After the presumptive award is s ubtracted, the court shall allocate between the parties the responsibility to meet the additio nal needs of the ch ild according to the circumstance s of the parties. However, in no event may the oblig or be required to p ay more child support than the greater of the pres umptive amount or the amount equal to 100 percent of the proven needs of the child.

Tex. Fam. Code § 154.1 26

. A child

- support award exceedin g the presumptive award must be based only o n the child ’ s unm et needs

. Rodriguez , 860 S.W. 2d at 417

- 18

. A child ’ s needs are not limited to “ the bare necessities of lif e. ” Id. at 41 7 n.3

. Rath er, the trial co urt must de termine, in its discretion, what the child ’s needs a re on a case - b y - cas e b asis by following the “ paramount guidi ng principle: the best interest of the child

. ” Id. (emphasis in original) ; see Iliff v. Iliff , 339 S.W.3d 74, 81 ( Tex. 2011) ( quo ti ng Rodriguez , 860 S.W. 2 d at 41 7 n.3 )

. A tr ial court sitting as the trier of f act i s th e s ole judge of the c redibility of the witnesses and the weight assigned their

1 Under the guidelines effectiv e Septemb er 1, 2013, th e amou nt of the net

- resources cap appliable here i s $8,550. See 38 Tex. R eg. 4647, 464 7 (July 1 9 , 201 3 ) (Of fic e of the Att ’ y Gen

. , Announ cement of Adjustment Required by Texas Family Code § 154.12 5 ) ; see also Tex. Fam. Code § 154. 125 ( note stating tha t “ The Texas Attorney General’ s Off ice adjusted the net

resources cap in su bsection (a) and ref e rre d to in subs ection (a

- 1) to $8,550.00, per the Office of the Att or ney General 2013 Revised Tax Charts, effective September 1, 2013. ” )

. The net

resources cap increased to $9,200 effective Sept ember 1, 201 9. See 44 Tex. Reg . 3559 , 3 559 (July 12 , 2019).6 testimony , and the court may accept or reject all or any part of the test imony of each witne s s
. In re Marriage of Skarda , 34 5 S.W.3d 665, 672 (Tex. App.

— Amarillo 2011 , no p et. )

. Here, t he child

- s upport order in the final divorce decree s tates that Goyal’s net resources per month “are in excess of $8,550,” that Hora ’s net res ources are $0, and t hat the percentage applied to t he first $8,550 of Goyal’s net resources for chil d s uppo rt is 20 percent.
See Tex. Fam. Code § § 154. 125 (b) ( providing chart of child

- support guidelines setting support f or one child at twenty percent of o bligor ’ s net resour c es ) ;
. 126( a ) ( directing trial c ourt to

“ p resumptively app ly the percentage guide l in es t o the portion of t h e obligor’s net resources that does not exceed that amount ” ) ; .130 ( governing findings in chil d support ord er)

. Thus, the district court co rrectly determined that the presumptive guideline amount

— tw e nty percent of Goyal’s $8 ,550 n et mon th l y income

— is $1 , 7 10. Additionally, t he decre e ordered Goyal to pay, up to a maximum of $1,000 per month, the co st of the chi ld ’ s daycare, after

- school care, camp, and/or other extracurricular activities. Goyal cont e nds that the district co urt a b u sed it s discretion by or dering child support exceedi ng the presumptive guideline amount because there was legally or fa ctually ins ufficient evidence of net resources and the proven needs of the child to support that award. A party who challenges th e leg a l suffi ciency of an adver se finding on an issue on which it did not have the burden of proof must demonstrate that there is no evidence to support the adverse finding

. Exxon , 348 S .W.3d at 215

. “A party who challenges the factual sufficiency of an adver s e findi ng on an issue on which he did not have the burden of proof must demons trate that the finding is so contrary to th e overwhelming weight of the evidence as to be clearly wrong and manifestly unjust

. ” Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 198 6)

. I t was u nd isputed during
t rial that Goyal’s net monthl y income exceeds $8,550

. Goyal testified that he makes about7 $1 1,000 per month, a nd his proposed sup port decision filed wit h the district court s pecified that his “gross m o ney earned per month” is $11, 6 6 6.68. A dditionally, Goy al agreed during trial that he is “at cap child support.”
Hora testi fied about the needs of the child , including $1 ,200 per month for daycare and approximately $125 per month for expenses of perio d ic activit ies such as go ing t o indoor playground s , the zoo, outdoor parks, theme p ark s , and play date s with other children

. Hora also testified th at she was not ma king any money and that she needed a bout $ 5 , 7 0 0 per month for both her and the child ’ s expe n ses combined , as reflect ed in h er ite mized “ F irst
A mende d P roposed S upport D ecisi on , ” which was admitted into evidence without object ion.
See Y arb rough v. Yarbrough , 151 S.W.3d 687, 693 (Tex. App

. — Waco 2004 , no pet. ) (concluding that trial c ourt had suff i cient information , based on m ot her ’ s testimony and list of monthly expenses , from which it could make fair determination of pertinent expenses just ifying child

- support order ) ; Scott v. Younts , 926 S.W.2d 415, 421 (Tex. App.

— Corpus Christi 1996 ,

w rit denie d ) ( “ T he child ’ s mother i s in th e best position, as manag ing conservator , to expla in the needs of the child. ” ). Further, Hora stated that Goyal exe rcise d only about half of his visits before the te mporary - o rders hearing, an d onl y about two percent of his a llotted possession time afte r t h at h e aring.
As to da ycare, Goyal te stified that it was in the ch ild ’ s best interest to stay at the d ay care that he was attend ing . And when asked on cross - examination whether h e should have to pay for half, all , or none of the child ’ s dayc are i n a dd it ion to child support, Goy al responded , “ At this point, because we were never able to settle, I ’ m leaving al l

— anything related to property to the judge

. ”8 In addition to the child

- support findings in its decree, t h e district court ’ s findin gs of fa ct ex pr essly state that Goyal’s net income exceeded $8,550 per month and that “ [ t ] he proven needs of the child inc lude the need for daycare, after

- sc hool care, camp and/or other extracurricular activities

. ” The district cour t ’ s findings of fact al so s tate that G oyal “ histo rically did no t ex ercise all of his period s of possession ” and “ is likely to not exercise all hi s period s of possession in the futu re, thus increasin g the need for support. ” These factors

— the n eeds of the child, the abili ty of th e parent s to co ntribu te to the support o f th e child, the amount of time of possession of and ac cess to a child , and child

- care ex penses incurred by either party in order to main tain gai nful employment

— are set forth in t h e Family Code as relevant co nsiderat ions w he n
a t ri al cou rt is determining w heth er the amount of child support set forth by the guidelines should be increased or decreased

. See Tex. Fam. Code § 154.123( b)(1), (2 ), (4) , (6 ) ; see also In re Gonzalez , 993 S.W.2d 147, 155 (Tex. App.

— San Antonio 1999 , n o pet

. ) ( concluding that court ’ s findings sufficient ly inform ed father where to direct his evidentiary challenges and that reasons stated by trial cour t were adequate to satisf y section 154.1 30 ); Zajac v. Penkava , 924 S.W.2 d 405, 410 (Tex. App.

— San Antonio 1996 , no pet. ) ( holding that su bstantial compliance with statutory predecessor to section 154.130 was suffici ent ); cf. In re K.F ., No. 02

- 18

- 0018 7

- CV,
2018 Tex. App. LEXIS 10 853, at *13 (Tex. App.

— Fort W orth Dec. 27, 2018 , pet . denied ) (mem. op.) (noting that mo ther ’ s claim of $9,150 fo r “ necessary current monthly living expenses for the Children , ” without further explanation for those expenses , was actually t ied to mother ’ s lifestyle ch ange ass ociated wi th new marriage and upgraded housi ng, which were ins uffic ie nt to permit ch ild

- suppor t award above statutory guid elines )

. Moreover, th is list of statutory facto rs is
not exhaustive , and the trial court must consider all relevant f actors. See Sanchez v. Sanchez , 915 S.W.2d 99, 10 3 (Tex. App.

— San Antonio 1996, no w rit ) ; see also Tex. Fam. Code9 § 154.123(b)( 17 ) (providing that trial co urt “ shall consider , ” in addition to other listed factors,

“ any other r e ason cons istent with the bes t intere st of the child , taking into consideration t he ci rcumsta nces of the parents ” )

. We conclude from th is record that t he d istrict court ha d legally and factually sufficient evidence on which to exercise its discretion when making its child

- support order and that it did n ot err in the application of that discretion. See C oburn , 4 33 S .W.3d at 823 ; Zeifman , 212 S.W.3d at 588

. Because t he evide nce in this record is legally and factually sufficient to support the district court’s judgment , w e overrule Goyal ’ s f irst issue.

C ha racterization of Marita l Es tate In his second i ssue, Go ya l co mplains of the distri ct court ’ s character ization of the

ma rital e state as consisting only of community property

. Goyal c ontends that the district cou rt should have recognized his s eparate

- p ro perty interests i n a Charles Schwab “ Schwab One ” b r okerage a ccount x8922 , three Vangu ard r etirement a ccou nts (consisting o f a ro l lover IRA brokerage and two Roth IRA brokerage accounts ) , three Novo gradac & Company LL P

r etirement a ccounts ( consisting of 4 01(k), employer

- pro fit

- sharing, and Roth 401(k) deferral

acc o u nts ) , a C harles Schwab “ H igh Yield Investor Checking ” account x115 0 , an d a K B S

“ St rategic Opportunity REIT ” (real estate investment trust) account

. Goyal also contends t hat the distri ct cou rt should hav e allowed his claim for reimbursement of a down pay m e nt on the

ma rital home. To place Goyal ’ s second issu e in proper conte xt, we summariz e some genera l principles concerning awards of marital property during divorce

. In a divor ce decree, a trial
court m ust di vid e the communi ty estate in a manner that th e court deems “ just and r ig ht , ” with10 due regard for each part y ’ s rights

. Tex. F a m . C ode § 7.001 ; Pears on v. Fillingim , 332 S.W.3d 361, 363 (Tex. 2011) ( clarifying that t rial courts can divide only communi ty property ). Community property is the property, o th er t han separate property , a cquired by either spouse durin g marriage. Tex. F am. Code § 3.00 2

. S epa rate property is th e property owned or claime d by the spouse before marriage, as well as pro perty that the s p ouse acquired during marriage by gift, devis e , or descent

. Tex. Const. art . XVI, § 15 ; Tex. Fam. Co de § 3.001

. P roperty possessed by eith er sp ouse during or on dissolution of marriag e is presumed to be community property. Tex. Fam. Code § 3.00 3(a)

. W h e t h e r t h e property i s separate or c ommunit y p roperty is determined by the facts that, according to rules of law, gi ve char acte r to the property. Raymond v. Raymond , 190 S.W.3d 77, 80 (Tex. App.

— Houston [1 st Dist.] 2005 , no pet. )

. Separate proper ty can retain its character t hrough a series of exc h an ges if the party assertin g separate ownership overcom e s the community

- propert y pr esumption by tracin g the assets on hand durin g the marriage bac k to property that, becaus e of its time and manner of acqu isition, is sep arate in character. Sink , 364 S.W.3 d a t 345

.

“ Parties claimin g certain property as their sepa rate property have the burden of rebutting the presumpt ion of community property. ” Pearson , 332 S.W.3d at 363

. Meeting this burden requires tra cing and clearly identify ing the property in quest i o n as separate b y clear and convincing evidenc e. Id

. ; s ee Tex. Fam. Code § 3.003(b) ( “ The degree of proof necessary to estab lish that prop erty is separate property is clear and convincing evidence. ” )

. “ ‘ Clear and convincing evidence ’ means the measure o r de gr ee of proof that w ill p roduce in the mind of the
tr ier of fact a firm belief or convic tion a s to truth of the allegation s sought to be established. ”
T ex. Fam. Code § 101.007 ; Ganesan v. Vallabhaneni , 96 S.W.3d 345, 354 (Tex. App.

— Austin
2002 , pet. d e n ied )

.11 Wh en , as here, the b urden of proof at trial is by clear and convincing eviden ce, we apply hi gher standard s of review for l egal and factual sufficiency

. In re J.F.C. , 96 S.W.3d 256 , 265

- 66 (Tex. 20 02) ; Za gorski v. Zagorski , 116 S.W.3d 30 9, 314 (Te x . A pp.

— Houston [14th Dist.] 2003 , pet. denied )

. When reviewing the legal sufficiency of the evidenc e under this higher standard , w e consider the evi dence in the light most favorable to th e finding to dete rmine

w hether a reasonable fac t finder c ould have f orm ed a firm belief or convi ction that its finding
was true. In re J.F.C. , 96 S.W.3d at 265

- 66 ; Zag orski , 116 S.W.3d at 314

. We must assume that the fact finder resolved disputed facts i n favor of its fi nding i f a reasonable fact find er could do

so. In re J.F.C. , 96 S.W.3d at 266

. When reviewin g the factual suffic iency of the evid ence under this high er standard , we consider wheth er all of the evidence is such that a fact fin der could re asonably form a f irm bel ief or conviction that t he assert ion of sep a rat e property was
proven
. S ee In re J.F.C. , 96 S.W.3d at 26 6 ; In re C.H. , 89 S.W.3d 17, 25

- 26 (Tex. 2002) ; Stavinoha v. Stavinoha , 126 S.W.3d 604, 609 (Tex. App.

— Houston [14th Dist.] 2004 , no pet. )

. We c onsider whether disputed eviden ce is suc h that a r e ason able fact finder could no t have resolved that disputed evidence in favor of its finding. See In re J.F.C. , 96 S.W.3d at 26 6 ; In re
C.H. , 89 S.W.3d at 25 ; Stavinoha , 126 S.W.3d at 6 09

. Even under t his hei ghtened standard of revi ew, a fac t ual suffi c ienc y i ssue requires us to consi der all the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unj ust. Zagorski , 1 16 S.W. 3d at 314

. An asset ma y be prop erly deeme d com mun ity property when a spous e fail s to rebut the Family Code ’ s community

- proper ty presumption

. See Pearson , 332 S.W.3d at 36 4

. When this occurs, it “ is not a divestiture of separate property, but a n ecessar y classification of
prop erty as s et by the c ommun ity presumption

. ” Id

. “ M er e testimony that property was12 purchased with separ ate funds, withou t tracing of the funds, is gen erally insufficient to rebut the [community p roperty] pres umption.” McElwe e v. Mc Elwee , 911 S.W.2d 182, 1 88 (Tex. App.

— Houst o n [1s t D ist.] 1995, writ d enied ) ; see Ganesan , 96 S.W.3d at 354 ( concluding that hu sband had failed to o vercome community

- property presumption as to certain retirement and brokerage
accounts b e cause neither hi s testi mony nor his exhibits pr ovide d “ s tateme n ts of ac counts, dates of trans fer s, amounts transferred in or out, sources of funds, or any semblance o f asset tracing ” )

. S imilar ly, wh en the evidence shows that separate and community proper ty have been so

c ommingl ed as to defy rese gregat ion and i dentif i cation , t he community

- property pre sumption prevails

. See M cKinley v. McKinley , 496 S.W.2d 5 40, 543 (Tex. 197 3) ; Rivera v. Hernand ez , 441 S.W.3d 413, 423 (Tex. App.

— El Paso 2014, pet. denied) (not ing th at party ma y plead that brokerage account is separa te proper ty, “but income earned and d ividends paid

— if not clearly traced

— will result in charact erization of the account as community property due to commingling”). We resolve any doubt as to the cha racter of propert y in fa vor of community
status

. S ee S ink , 3 64 S. W.3 d at 345 ; Willett v. Rodr iguez , No. 03

- 16

- 00084

- CV, 2017 Tex. App. LEXIS 5096, *4 (Tex. App.

— Austin June 2, 2017, pet. de nied) (mem. op.)

. T o support his separate

- prop erty claims in th is case , Goyal prese nted te stimony from Michael S co tt Turn e r , a c ert ified public accountant w ith approximately twenty years of experience and certified in financia l forensics, who is also a real estate broker

. Arguing that there were problems with Tur ner’s m ethodology , Hora presented tes timony from Steve D. Pe ñ a ,

a ce r tif ied public accountant w it h approximat ely forty

- five yea rs of experience who has specializ ed in fo rensic a ccounting for ov er thirty years

. Turner and Peña provided the district
court with rep orts summ arizing their testimo ny
.13 B efore discussing h i s se p ara te

- property claims in thi s appeal , Goyal faults Pe ñ a for “ not r ebut [ting] the e vidence

. ” H o wever, as we have no ted, Goya l bore the burden of proof at trial on th e separate

- property c haracter ization i ss ue , not Hora

. See Pe arson , 332 S.W.3d at 36 3

. Th u s , as Hora cor r ectly states , Peña was not responsible for trac ing a separate

- propert y interest

. Fu r ther, Hora notes that Tu rner ’ s opinions were fundamen tally problematic

. For ins tance , h e test ified that h is op inions about Goyal ’ s separate property w ere b ase d on a “ more likely than not ” standard , rather than the proper cl ear - and

- convincing standard :
Q. Mr. Goya l has the b ur den t o prove his separate pro perty. I s that your under standing?
A. Y es. Q. And the burden for tha t is what? A. The origin

— t he or igi n of the funds and the ch ange or any type of

— what ’ s the word?

— change in character. Q. Well, when you traced and you ga ve opin ions about separate prop erty, wha t opinion did

— wha t burden of pro of did you attribute to coming up with your opinion of w h at wa s M r. Goyal ’ s separate prope rty? A. Based on if there was any community property tha t was put in that was comm ingled. Q. A nd di d you do this by a p repo nderance of the evidence; in other words, more likely than not that

— A. Yes. Q. And that ’ s the s tanda rd that you use, correct ?
A . Yes. Uh

- huh.

. . . . Q. Did you use

. . . the standard that it ’ s more likely than not whe n you c ame up with the opin ion that this is Mr. Goyal ’ s separate propert y?14 A. I used what I considered to be accurate.

Add i t i onall y, T urner prefaced opinions i n his report about tracing the various accounts by incorrectly referr ing to “ tracing communit y prope rty funds

. ” H i s report state s, “ In some cases, once a financial institution account is established as Separate Property , the r esp onsibility for tracing Com munity Property funds becomes the responsibility of the opposing party. Community Property i s no lo nger assumed as the char acter of the funds. ” Cf. Sink , 364 S.W.3 d
at 344 ( noting that concept of t racing involves estab l i shing se parate o r i g i n o f p r o p e r t y )

. O n

cross - examination , Turner stood by th is portion of his report , which he said represente d “ what [his] under stan ding was from some of [his] courses. ”
Because d isputes about tracing methodo logy are the primary foc u s of G oya l ’ s

seco nd issue, w e consi der the evidence as to the characterization of these ac counts before add ressing the reimburse me nt cl ai m
. 1. Charles Schwab “Schwab One” brokerage account x8922
Tu rner stated that this account was part of the separate p r opert y b rokerage

accou nt “ with the banking and margin

- trading features ” that Goyal had ope ned before marriag e.

“ Margin trading u se s borro wed money to invest with and has ‘ lon g been perceived to have
spe cial risks, ’ including the risk of losing more fund s than hav e been deposited in the ma rgin
account. ” Song v. Sung Uh Kang , No. 02

- 18

- 00375

- CV, 2020 Tex. App. LEXIS 3008, at *2 n.2 (T ex. App

. — Fort Worth Apr. 9, 2020 , pet. denied ) (mem. op.) ( quoting 2 Bro mb erg & Lowenfels on Securities Fraud § 5:286 (2d e d .) )

. Goy al testified that t h e bala nce in the x8922
account was 100 % his separate property . He acknow ledged havin g been a n a c tiv e trader at times and testified that the account was “ self

- ma n a ge d, ” meaning that he directed the account ’ s15 investments, r athe r than hav ing a br oker invest for hi m. Prob lems with tracing this account included the lack of information abou t t he stock in the account when the parties married and when they divorced and a th ree - mo nth gap in the mont hly activity statements

. The re was a lso a di s pute about the margin loan , s ummarized in this exchange during Turner ’ s cross - e xamination :
Q. So if I ’ m going t o boil down kind of overall our differenc es, on 8922 our difference is t he margin loan: Is it c ommunity or is it separate; and e very t hing k ind of falls from there. Fai r?
A. Correct.
a. Stock in account at marriage and at divorce
A n initi al proble m with tracing this asset was that Turn er could not identify what stock existed in the account at the time of the div orce :
Q. N ow, b a ck to

— did you review all the

— just t alking broadly before we go into more detail, did you review the

— all the state ments for 8922, the Charles Schwab 8922 account?
A. Is that the

— that was the bro kerage account. Q. Right.
A. Yes. Okay. Your questio n aga i n? I ’ m s orry. Q. Did you review t hose? A. Yes, I did. Q. Now, as you sit here right now, what stocks were

— are in that a ccount right now?
A. I can ’ t tell you what ’ s in there right now.16 Addi tionally, Turner was un able to identify whether the stoc k th a t exis t ed in the x8922 brokerage ac count when Goyal and Hora marri ed was still in that account:
Q. Now, under your deal, i f I take

— if I have a thousand dollars in community inco m e and I purchase stock with it and that stock goes through the roof, tha t ’ s

— in creas e i n value is community, corr ect? A. That ’ s correct. Uh

- huh. Q. And so, for example, in this case

— well, on the brok erage account

— the 8922 brokerage account, it ’ s c omposed of stock, correc t? A. Yes, uh

- huh. Q. It ’ s not a cash account. There ’ s ac tu al st ock s in there, correct?
A. C orrect, uh

- huh. Q. So when you talk about Mr. Goyal owning a brokerage account, he actu ally owns stock within that brokerage account, correct? A. Well, yes. That ’ s

— tha t ’ s correct. Uh

- huh. Q. And you can ’ t tell u s wh ic h sto ck

— all the stock that is in h is brokerage account is purchased during the marriage, correct?
A. No. He had stock th at was in the account before the marriage. Q. And does that stock still exist?
A. I ’ d have to go look through every single sto ck t ra nsact ion , but I don ’ t know.

Turn er ’ s analysis, which l ack s that specific information, does not trace the origin of the s tock in the x8922 brokerage account at the time of divorce

. B ecause the stock in x8922 at the time of the parties ’ divorce was not ow ned b y G oyal before the marriage, it was Goyal ’ s burden to show through tracing that the stock in existence at the time of the divorce was acquired in exchange for separate property. See Sink , 364 S.W.3d at 34 4

- 45 ( noting that s eparate property can reta in its17 cha racter t hrough series of e xchanges if party asserting separate ownership overcome s community

- propert y pr esumpt ion by tracin g assets on hand durin g marriage bac k to property that, becaus e of its time and manner of acquisition, is sep ar ate in chara cter ); Rid gell v. Ridgell , 960 S.W.2 d 144, 148 ( Tex. App.

— Corpus Christi 1997, no pet.) (“Property acquired in excha nge for separate property becomes the separate property of the spouse wh o exchanged the property.”) ; s ee also Gaides v. Gaides , No. 14

- 99

- 00 172

- CV, 20 01 Tex. App. LEXIS 2930, a t

* 18

- 19 (Tex

. A pp.

— Houston [14 th D ist.] May 3, 2001, pet. denied) (not designat ed for
publication) ( concluding that spouse , who c laimed that c erta in shares of stock in “ actively traded ” Dean Witter ‘ 508 brokerage accoun t were her separate property , failed to meet he r burden of tracing various mutations within that commin gled acc ount ). Goyal did not trace that stock , an d without doing so , there is n ot clear and convincing evidence of Goyal ’s separate
pro perty claim to x8 922 acc oun t assets

.
b. G ap in mont hly activity account statements Moreover, Turner acknowledged th at the x8922 brokerage accoun t , which had millions of dollars of transactions i n just a matter of months , had a three

- month gap in docum entation du ring t he time of its greatest gain , meanin g that Tur ner was unable to see the monthly activity for those two or thre e months :
Q. Now, in this 8922 account, you ’ ll agree with me

— you ’ ve loo ked through all the statements, correct? A. Uh

- huh, yes. Q. And yo u ’ ll a gree wi th m e there was a lot of t rad ing that goes on in th at account, correct? A. Yes, uh

- huh.18 Q. It ’ s

— Mr. G oyal actively trades. Is that fair to say? A. Well, do you want to def ine a time period? Q. Sure. Starting in around June of 2017, the a ccount really pi c ks up on activity and has active trading in it, co rrect? A. That ’ s correct. There wasn ’ t ha rdly a ny to start with. Q. And we ’ re talking about millions of dollars in tra nsactions over

— in

— in months

— just a few months, correct? A. Yes, uh

- h uh.

. . . . Q . Did you notice, by the w ay, that there ’ s a big leap between January 2018 and April of 2018 f rom ju st north of 375 to

— I ’ m sorry, just south of 375 to just south of 750? D id you notice that huge leap between Januar y and April?
A. Y es, I se e that

. Uh

- huh

. Q. And did you notice t hat Mr. Goyal produced monthly statements for the entire account but skips those months? A. Yes, I was aware of that. Q. When were you aware of t hat? A. Well, months ago.

. . . . Q. Can you

— so maybe a better qu estion is: C an you show me anywhere in he re that there ’ s a gap where we have zero information for an account other t han this gap between January 2018 and April 2018 when the account almost doubles in value? A. I d on ’ t beli eve there ’ s a ny other gap.

G aps in ac count sta tements can make tracing e vidence less than “ clear and convincing. ” See In
re Everse , 440 S.W .3d 749 , 752 (Te x. App.

— Amarillo 2013 , no pet. ) (noti ng th at tracing19 evidence i nclud ed gap between account statements for November 199 9 and Septemb er 201 0 and

con cluding that trial court d id not err by finding husband ’ s tracing evidence “ t o be less than t he cle ar and convincing evidence required ” ). We conclude that this th ree - mont h gap in monthly
account statements , particularly during the period of the b rokera ge account ’ s extraordinary
gr owth, renders the evidence of Goyal ’ s separate property claim to th e x892 2 account assets less than clear and convincing

. See id. c. Margin lo an The rest of the x8922 account statements show that the mi llions of dol lars i n
t rades in this “ self

- manage d ” account were traded on margin debt that was incurred during the marriage. G oyal testified that his use of the marg in was neither a “ loan ” nor a “ de bt , ” but that is
contr ary to the testim ony of his own e xpert, wh o ackn owledg ed tha t the margin balance re flected
on statement s in evidence was for mo ney that Goyal bo rrowed during the marriage. Additionally, Turner testified on cross

- e xamination that th e trad ing in the accou nt that led to an increase of almos t $400,00 0 in t hree m ont hs was done on the margin :
Q. If you look at the margin loan balance, the margin loan balanc e in May of 2017 was zero, corre ct ? A. Yes, correct. Q. And this is right before the t ime that you and I just talked about that Mr. Goyal started active ly tra din g, correct?
A. Correct. Q. And then if you go to the next month, which is June of 2017, if you look on Page 4 of that month ’ s s tatement, the margin loan balance goes up to 200,000 , correct? A. Yeah, approximately.20 Q. And that ’ s money tha t Mr. Goyal bor rowed during the marriage, correct?
A. Correct. Q. And that $200,000 that Mr. Goyal borrowe d during the mar riage was used to fund th e trading that took place in that account in Ju ne of 2017, correct?
A. Correct. Q . And starting in June 20 17, th a t ’ s whe n we start seeing active t rading in the account, correct? A. That ’ s correct. Q. By the way, June of 201 7 is when you start se eing Mr. Goyal purchase the stock called Nutanix, corr ect?
A. Correct. Q. That he used

— that he purchase d all thes e tran sacti ons being funded by the margi n loan that was taken out during the marriage, corre ct?
A. Correct.

Tu rner acknow ledge d that he was unable to identify what trading was funded by margin loan during the marriage and what was funded by st ock that G oyal o wned bef ore the marriage :
Q. And, again, that ’ s stock performance. That ’ s not Mr. Goyal dumping inc ome into it. It ’ s ce rtainly not divi dends and interest, correct?
A. Correct. Q. And that ’ s stock performan ce funded by the margin loan balance, correct?
A. Tha t ’ s co rrect. Q. And you s ee

— A. Well, it

— excuse me. Let me clarify. It ’ s margin and the orig inal stock equity, because you can only go up to 50 percent.21 Q. And you don ’ t know

— but you don ’ t know, as far as

— you can ’ t differentiate between

— f or us wha t wa s fund ed by the margin loa n balance and what was funded by stock that Mr. Goyal owned, c orrect?
A. No. That ’ s co rrect. It ’ s

— it ’ s tota lly immersed. Q. Commingled. A. Yeah, commingled

. Uh

- huh.

Aft er reviewing Turner ’ s methodology, Peña testif ied t hat what T urner had done for the x8922
account was not a “ trace ” at all:
Q. For the 8922, what Mr. T urner did on that acco unt is not a tr ace and not a methodology that ’ s accepted.
A. That is my opinion. Yes, sir.

. . . . Q And to the extent, even if i t w as a me thodology, this mar gin loan is community, and that ’ s what funded all the trading in there. Is that your op inion ?
A. It

— it fun ded

— it funded had a great deal of training

— trading. Q. But we don ’ t hav e to get to that step because there ’ s no m ethod olo gy to b egin with; fair?
A . There was no trace made. Q. For 8922, right?
A. Correct.

Turner testified that the ma rgin loan account

— from which Goyal borrowed during the marriage

— was separate because it w as opened before the marriage. But Turn er ackn owl edge d
t hat if h e was incor rect in h is conclusion that the margin loan was separate , then his “trace” of the x8922 account is ineffe ctive :22 Q. And just to be clear, I think

— to make sure you and I are on t he same page, so to kind of narrow and simpli fy th e i ssues, if the margin loan b alance

— if the margin loan is separate, your trace

— you say your trace works, correct? A . Correct. Yes. Q. If the margin loan is community, then it doesn ’ t work, correct?
A. That ’ s correct.

. . . . Q. Well, if an accou nt i s

— if an ac count is so commingle d to where it cannot be traced, the case law is that the account is all presumed to be community, corre ct? A. My understanding is that it ’ s

— if it ’ s the community property and the separate property are commingled. Q. Rig ht.
A. But my contention is that t he margin was

— remained separate because of the original date of inception of the agree ment for

— open the account

.

Turner ’ s op i nion that the margin “ remained separate ” based on the date that the
account was opened is con tra r y t o Texas law on the characte rization of property

. U nles s a credi tor agrees to look only to separate property f or rep ayment, anythi ng acquired by either spouse on credit during marriage is characterized as community property , and the c ritical time
pe rio d fo r chara cterization purposes is when the loan is secured :
[T] he status of the propert y is to be determined at the time when the lo an is secured. It will not do to say, because perchance the separate pr operty of the husband, or the wife, as the case ma y be , which has been used as se curity, may have to be resorted to fo r the purpose of payin g the debt in whole or in p art, that therefo re the money secured by the loan, and the merchandise purchased with it, constitutes a portion of the separate property of the marita l partner whose prop erty had been used as security.23 H

eid enheimer Bros. v. McKe en , 63 Tex. 229, 230 ( Te x. 1885) ; see Jam es W. Paulsen, Acquiring Separate Property o n Credit: A Review a nd Propo sed Revision o f Texas Marital Property
Doctrine , 3 7 St . Mary ’ s L. J. 675, 676 (20 06) ( stating “ apparent black letter rule ” that “ anything acqui red by either spouse o n credit during mar riage is community property, unless the creditor agrees at the outset to look only to separate property for r epayment , ” or put differ ently, “ all property acquired on credit during marriage is commu nity property, unless that property is
acq uired by a separa te

- property

- secured non

- recourse loan ” )

. Similarly, t he c ourt in Jones v. Jones stated :

It is well established that d ebts co ntracted d uri ng marriage ar e pre sumed to be on the credit of th e community and thus are joint community obligations, unless it is shown that the creditor agreed to look solely to the se parate esta te of the contracting spouse. Likewise, property pur chas ed on credit duri ng a marriage is c ommunity prope rty unless there exists an express agreement on the part of the lender to look solely to the separate estate of the purchasing spouse for s atisfaction of the indebtedness.
890 S.W.2d 471, 475 (Tex. App

. — Co rpu s Ch risti 1994, writ denied ) (internal ci tations omitted) ;

see Tedder v. Gardner Aldrich, LLP , 421 S.W.3d 651, 655 (Tex. 2013 ) (clarify ing that

“ community debt ” means only “ that some community prop erty is liable for its satisfaction ” )

. Th e ev ide nce in this record is unlike that in Carter v. Ca rter , where a husband

me t his clear

- and

- convincing burden of proof by well

- documente d trac ing of separate property through various in vestment mutati on s
. Cf. 736 S.W.2d 775, 77 7

- 78 ( Tex. App.

— Houston [14 th
D ist. ] 1 987, no writ) ( concluding t hat assets from sale of shares of Stouffer stock were husband ’ s separate proper ty because the y were traced back to gift of MPI stock that husband received from his f ather ; evidence showed that husband had received 159 shar es o f M PI stock as gift , MPI stock had converted to 4,645 shares of Stauffer stock when MPI was bought by Stauffe r , Stauffer24 stock had two

- for

- one split doub ling his shares to 9,290 , and husband had opened margi n
account th r ough which he “bought and sold s tock on credit ” using some 6,134 s hares of his remaining Stauffer stock as collater al for debt created within acco unt ) . This case is also d istinct from Holloway v. Holloway , wher e the husband established th at a bank agreed to look solely to his s eparate p rope rty for repayment of loan made to him and that the hus band p urchased stock in
a p ipeline with the proceeds of this loan. Cf. 671 S.W.2d 51, 57 (Tex. App.

— Dallas 1983 , writ dism ’ d ) ( noting that evidence included : (1) promissor y note and security agreem en t fro m hus band to bank, signed “ Pat S. Holloway, Separate Property ” ; (2) bank form, also signed, “ Pat
S. Ho lloway, Separate Property, ” recit ing that purpose of loan was “ e quity in pipeline venture ” ; and (3) h usband ’ s affidavit s tat ing that securities lis te d as collateral in security agre ement were acquired before his m arriage and that husband intended bank to r ely on his affidavit in “ making the loan for his separate account to be secured by the securities listed and in order to induce the bank to make a lo an to him for which the co mmunit y estate shall not be liable ” ). This case is similar to M errell v. Merrell , in which the c ourt determined that a husband had failed to trace his separate property bac k to an inher itance of s tocks from his mother

. S ee 5 27 S.W .2d 25 0 , 255 (Tex. Civ. App.

— T yler 1975, writ ref’d n.r.e.) (affirming trial court’s finding of commun ity property). In Merrell , the h usband testi fied that he had sold some of his i nherited stocks worth about $100,000 and that he had used those funds t o f ina nce the purchase of duplexe s. Id.
Ho wever, the evidence also showed th at the h usba nd had “ many stock and bond transactions during the marriage , ” he had “ bough t and sold many shares of st ock and some were bou g ht short

or on margin , ” “ b onds were also bo ugh t on margin , ” and at times “ he would owe his brokerage firm several thou sand dollars, an d at other times he would have a credit with them

. ” I d. Given that evi dence , t he court held that it w as “ unable to conc lude that su ch funds were prop erl y traced25 as [h usband] ’ s separate property and not commingled with [wi fe] ’ s separate pr operty or the

co mmunity p roperty. ” Id.
He re, w e conclude that i n the abse nce of c le ar and convincing evidence from Goyal establ ishin g the separa te

- prop erty interest in the S chw ab One x8922 , the statutory

co mmunity

- property presumption p revails. See P earson , 332 S.W. 3d at 364 ; see Tex. Fam. Code § 3.003(b)

. Th us, the record supports t he district court ’ s fin ding that Goyal failed to carry his burd en of proof as to this s epara te

- pro perty claim.

2 . Retiremen t accounts The next assets we consider are Goyal ’ s m ultiple retirem ent acco unts

. Retirement plans are commonly classified as defined

- contribution plan s or define d

- benefit pl an s
. See Reiss

v. Reiss , 118 S.W.3d 439, 440 n

. 1 (Te x. 2003) (citing Shank s v. Treadway , 110 S.W.3d 444, 445 (Tex. 2003) ). A “ d efined contribution” plan is one in which the employee’s benefits depend on the amount that an employer contribute s to each pa rtic ipant ’s individual account

. Schloegel v.
B o swe ll , 994 F.2d 266, 268 n.1 (5th Cir. 1993) ; see 29 U.S.C. § 1002(34) ; Shank s , 110 S.W.3d at 444 n.1

. By contrast, a “defined benefit” plan is one in which an employee is entitled to a fixed
per iodic paym en t up on re tirement

. Schloegel , 994 F.2 d at 268 n .1 ; se e 29 U.S.C. § 1002(3 5) ; Sha nks , 110 S.W.3d at 444 n.1

. T he IRA , 401 ( k ) , and profit

- sharing plan s here , as Goyal notes,

are “ defined

- contribution ” plans. See Schloegel , 994 F.2d a t 268 n.1 ; see 29 U. S. C. § 100 2 (35)

.

“ [C] ontributions with earned inc ome to 401(k) s and retire ment plans during marriage are community property

. ” Leax v. Leax , 305 S.W.3d 22, 33 (Tex. App.

— Houston [1st Dist.] 2009 , no pet. )

. S ubsection 7.00 1(c) of th e Texas F a mily Code sp ecif ies that “ [ t] he separate property inter est o f a sp ouse in a defined cont ribut ion plan may be traced usin g the tracing and characterization principles that apply to a nonretirement asset. ” Tex. Fam. C ode26 § 7.001(c)

. By enacting t his stat u te , the Le gis latu re reject ed earlier cases relying on the acc oun t b alance as of the date of ma rriage to determin e a se parate

- property int erest :

S ub section (c) [of Family Code section 3.007] allows for internal tracing within defined contribution plans. G iven the o ver whel ming preference for such retirement plans, of ten se lf

- directed by the em ploye e, it is only logica l that internal tracing be allowed. This subsection is a legislative overturning of the “opening balanc e” theory cases holding that the separ ate proper ty inte rest is the account balance on the day of mar ria ge and the community int erest is everything else. See, e.g. Pelzig v. B erkebile , 931 S.W.2d 398 (Tex. App.

— Corpus Christi 1996, no writ) ; Hatteberg v. H atteberg , 933 S.W.2d 522 (Tex . App.

— Ho uston [1st Di st.] 1994, no writ ). This does not mean that int ern al tracing will always b e eas y as often the funds ar e in mutual funds or similar investments making it more difficult to differentiate between the market appreciation of assets and g rowth fro m dividend s a nd i nterest.
John J. Sampson, et al., Sampson , Tin dal l , & Englan d ’ s Texas Famil y Code Annotated § 3.007
cmt. ( 20 20 )

.

a . V anguard retirement accounts
T urner characterized all the Vanguard retire men t accounts

—Vanguard IRA
Ro llover B rokerag e xx 147 1 , Vanguard Roth IRA Brokerage xx7312, and Vanguard Rot h IR A
B rokerage xx809 5

— as “ separa te property account [s] created prior to the marriage

. ” Turner did
not perform the tracing set f orth in subsection 7. 001(c) to determine th e separ ate

- pro p erty in terest in these accounts , although h e acknowledged that it was pos sib le to perform line

- item
tr acing and that it is routine to do s o with tracing sheets in forensic accounting

. I nstead, Turne r did a “ very easy ” calculation for each of the Vanguar d accoun ts , tak ing the difference between the balance in each account as o f S eptember 30, 2 016 ( a date before the parties ’ marriage on Octo ber 23, 2016 ), and the ba lance in the account as of March 3 1,
2019 , and then sub t ract ing the dividen ds and int erest t h at Turn er said ea ch account had earned27 during the marriage . Turner s tate d t hat his calcul ation would leav e only the account ’ s

“ appreciati on, ” whic h “ remains separate property or whatever character it is at the start of the time period you ’ re looki ng at. ” 2 But a s Hora poi nts out, that methodology i gnores the reinvestment o ccur rin g in the accou nt. See In re Marriage of Born , No. 06

- 08

- 00066

- CV, 2009 Tex. App. LEXIS 2569, at *3 , *7 (Tex. App.

— Texarkana Apr. 16, 200 9 , no pet. ) (mem. op.) ( concluding that spouse who offered c ertain documenta ry evidence about two mutual fund

ac coun ts and c ertificate of deposit

— showing that he had owned them before marriage but not detail ing all possible transactio ns or all income earne d o n, and reinvested in, those accounts during mar riage

— fail ed to trace, by clear and convincing evidence, his s epar ate prop erty into balances in accounts at time of divor ce ) ; S mith v. Lanier , 998 S.W.2d 324, 332 n. 7 (Tex. App.

— A ustin 1999 , pet. denied ) (noting that b ecause cash dividends on separately he ld stock a re

commun ity property , fact iss ue as to characteriza tion of securities existed to ext ent that cash dividend s from stock held by one spouse before marriage were reinveste d )

. On cross

- examination, Turner acknowledged that he did not p erform an analy sis
to det ermine what c ommunity income was invested , even a s to th e Vanguard xx1471 accou nt that he said had earned over $6,000 in div idends and inter est :
Q. Well, the Vanguard Roll over IRA brokerage had $6,000 in dividends and interest, co rrect?
A. Yes. Q. An d y ou can ’ t tell us what those dividends and i nteres t we re invested in, corr ect? C or rect?

2 T urner testi fied that he knew the Vanguard x x1471 retirement acc ou nt had earned $6,177.77 in dividends and interest “from looking at all the institution docum ent s and year

- end documents which gave the totaling of the dividends and t he i nterest.” W h en th e d istrict cou rt asked if that information was “on one of these page s here,” Turner acknowledged that it was not.28 A. Not specific s, no, huh

- uh. Q . Because you didn ’ t

— you didn ’ t do the line item tr acing of month to month to month seeing if the stock purcha ses during each month wer e made with the sale of stock that was befo re mar riag e o r the stock purch ases we re made with interest or dividends, corre ct? That ’ s correct, isn ’ t it? A. That ’ s correct. Q. Okay. Instead, you just did the “ Well ”

— I mean, the onl y credit yo u ’ re giving th e community is just the interest and the di vidend s, c orr ect?
A. Corre ct.
By hi s own admission, Turner did not perfor m the tracin g set forth in section
7 .00 1 (c) of the Family Code to determine the separate

- property interest in any of the Vang uard

ac cou nts. T h ose a ccounts generated dividend and inter est inc ome that was rein vested int o each of the accounts , but Turner ’ s m ethodology provided no information about whe ther stock purchases were made using the sale of stock that was in the a ccount be fore ma rri age or whether stock purchases were made us ing th e in ter est or dividends that th ose accounts earned

. Goyal contends that the tracing methodology in sub section 7 .00 1 (c) is not the only way to determine a separate

- property interest in a d efined

- con tribution plan an d that “ Turner applied the pro rata metho dolo gy ” w hen an alyzing the Vanguar d accounts, but Turner denied doing so:
Q. By the way, you could have used the pro rata method for the Vanguard accounts, correct?
A. Ye s. Q. And you didn ’ t, ri ght?
A. No. It was

— it seemed de minimis

.29 Additionally , as Tur n er ackn owledged, the prope r burden of proof is not mere ly showing that the majority of an asset is separate propert y:
Q. Is it correct that tha t ’ s not a burden; that we can just sa y gener a lly , “ Well, a majority of it ’ s separate property; so, theref ore, it ’ s separa te property ? ” Th at ’ s not the burden, is it?
A. No. That ’ s correct.

Without c lear and convincing evidence from Goyal establ ishing the separate

- prop erty in terest , the st atutory com munity

- property presumption prevails. See Pearson , 332 S .W.3 d a t 364 ; se e also Tex. Fam. Code § 3.003(b)

. Thus, the record supports the district court’s finding that Goyal failed to carry his burden of proof as to this separate

- property claim.

b . Nov ogradac & Com pany LLP retirement accounts
Ne xt, Turner cha ract er i zed all the Novogradac ret irement accounts

— consisting o f

a 401(k ) account , an employe r pro fit

- sharing plan , and a Roth 401(k) deferral

— as “separate property acc ount[s] existing before the m arriage.” Turner tes tified that he analyzed these thre e

acc ount s c ollecti vely, us ing a pro r ata method :
Q. You did a

— the pro rat a method using percent ag es betw een the two estates, correct?
A. Correct.

. . . . Q. And what yo u did on Novogradac is you di d

— you just picked a p ercentage of doing

— part of the percenta ge o f t he incre ase on investment gains and the original balance, in pa r t, on salary contribu ti ons, correct?
A. Correct. And added the percentage gain to e ach of thos e.30 Hora ’ s counsel then illu strated the distinct result s of applying th at pro

- rata metho dolo gy , rather than line

- item tra cing, for th ese types of accounts:
Q

. And the problem with t hat is

— because you don ’ t do the line item tracing of seeing wh ere money a ctually just went, if I ’ ve go t $5,000 in community property

— let ’ s say income that gets in vest ed

— and I ’ v e got $5,000 in sep arate

— that ’ s from stock that I owned b efore marriage

— and it b oth goe s to purchase stock. Are you following so far?
A. Yes

.

. . . . Q. So $5,000 in community pr operty gets invested

— $5,000 in separate property gets invest ed. Ar e you f ollowing?
A. Yes. Q. And then the $5,000 in community g oes into, let ’ s just sa y Apple stock, an d then $5,000 goes to Enron stock. And then two years l ater the Apple stock

— let ’ s sa y it goes nuts and it increases to $20,000; and Enron tanks and goe s to ze ro dollars. Are yo u following that?
A. Yes. Q. And so I ’ ve got an account t ha t ’ s got $20,000 in it, right?
A. Correct. Q. And under the p ro rata

— bec ause $5,000 came from communi ty, 5,000 came from s eparate, under the pro rata method, thi s $2 0,0 00 is o ne half separate an d one half community, corre ct?
A. Co r rect. Q. That ’ s pro ra ta. If I do line item tracing, it ’ s 100 percent community and zero perce nt separate, correct? Is tha t correct? A. Well, unless you add the dividends and intere st. Q. I ’ m jus t talking about th is simple example right here.
A. Wel l , yes. On that examp le , correct.31 Q. And you don ’ t know if that happened in this acco unt becaus e you didn ’ t do line item tra cing, correct?
A. No , I didn ’ t have to. Q. Well, you could ’ ve, ri ght? Be cause you had all t he statements, right ?

A. Yes, I cou l d ha ve. I chose not to

. Q. I t ’ s fair to say that line item tracing is the most accurat e way to trace, correct? I mean, we wo uldn ’ t be having thi s conversation if you ’ d done line item t rac ing , correct ?
A. No. Q. Well , is that correct? A. That ’ s correc t , yes.

Fu rther, w hen presented with another example, Turner acknowledged that “ small figures can result in big diff er ences ” under the pro rat a methodology :
Q. Let ’ s say there ’ s $180 ,00 0 i n separate property in the account at the start of marriage and there ’ s $6,000 in com mun ity. And you see I have

— let ’ s say 180,000 gets invested in Enron; Enron tanks down to 130; and Apple stock goes from 6

- t o $30,000. That ’ s certainly something t hat ’ s possible could have happene d in that account, correct? A. Yeah

. It ’ s widely possibl e, yeah. Q. And on the pro rata method, y ou just take the percentages. You say, “ Hey, 96.77 percent of this account started out separate. 33.33 percent started ou t a s c ommunity. So you just take those percentages to the current ba l ance, and then that ’ s yo ur ”

— “ that ’ s your separate versus community. ” That ’ s the pro rata method, right? A. That ’ s correct. Q. And then that wou ld give you 154,000 of separate and 5,00 0 t hou sand of community, correct?32 A. Correct. Q. But the re ality is if you used line item tr acing in this very simple analogy, it ’ d be 130

— in separate and 30,000 in community, correct?
A. Yes. Q. So small figures can result in big differences; fair?
A . T hey can, yes.

Pe ñ a testifi ed that he had never seen anythin g s up porting use of the p ro rata methodology for a ret irement or brokerage account and that doing so was inappropriate

. He further testified about the diff iculty applying that m etho d becaus e o f t he fluctuating value s o f

su ch accounts:
Q. And so what type of v ariety of problems c an that methodology cause if you use the pro rata method for a retirement ac count? A. Well, I think certa inly you

— you end up with a

— with an incorrect conclusion as to t he character of funds in ther e. And the reason why that is

— it is , just to provide some cl arity, is brokerage accounts

— retirement accounts, they ’ re all at value. You have a value here and a va lue here, and those values go up and down all over the time

. Wel l, how in the world are you going to

— you can ’ t use a pro rata m et hod of the values go ing up and down. Pro rata method has nothing to do with values. It has

— has to do with single cash item t ransactions. Q. Cas h, right? A. Cash transactions. That ’ s w hat it deals with.

Similar ly, Texas family la w commentators ha ve noted that t he pro rat a method i s used when separate and community funds are held in an account and the party can prove the

c haracter of the acco unt ’ s original balance , but not the cha rac ter of later transactions. Se e, e.g. , Joan Foote Jenkins & Randall B. Wilhit e, O ’ Connor ’ s Texas Fa mil y Law Han dbook c h. 2

- A33 § 5 .2.2(5) (2021 )

. Under those cir cumstances, th e pro rata method is applied to apportion transacti ons between the separate and co mmu nity estates based on the r atio of separate property to community property in the original balan ce. I d. By contrast here, the character of subsequent
trans actions for the Novogradac account s was provab le, as Turner a ckno w ledged , because he had all the ac count statements, bu t he “ c h ose not to ” do so

. Turner could not rule out any distortion of the sep arate

- property interest through use of the pro rata methodo lo gy instead o f line

- item tracing

. G iving due regard to the district court ’ s role as the fi nde r o f fact, as we must, we

conc lude that Goyal has not demonstrated t hat the evide nce was legally or factually insufficient to suppo rt the district court ’ s conclusion that he failed to properly t race the transac tions to show the separate nature of this p rop ert y . See Sink , 364 S.W.3d at 344

- 45 ( noti n g that t racing involves

“ establishing the separate o rigin of the property throug h evidence showing the ti me and means by which the spouse originally o btained possession of the pr operty ” and that s eparate prope rty

re tains its charact er through series of exchanges “ so long as the p arty asserting separate ownershi p can overcome the presumpt ion of community prope rty by tracing the assets on hand during the marriage back to property that, because of its time and man ner of acquisition, is separate i n character ” )

. 3 . Charles Schwab “Hig h Yield Investor Checking” account x1 150
Turner stated t hat this account was p art of the separate property brokerage

accou nt “ with the banking and margin

- trading features ” (the Sch wab On e x 8922 account) that Goyal op e ned before marriag e. For this accou nt, Turner used the same method that he applied to the thr ee Vanguard retirement ac counts, crediting the interest and dividend s as the only community proper ty in the account rather than per for m ing line

- item tracing to d etermine th e separate

- pro p erty intere st

. Turne r calculat ed the difference between the $ 114 , 194 .66 balance in34 account x1 150 as of September 30, 2016 , and the $ 2,41 0.43 ba lance in the account as of April 8,
2019 , and then su b t r act ed the $175. 0 4 of dividen ds and int erest t h at Turner said each a ccount had earned during the marriage , not accounting for the di vidend s and inter est that w ere reinvested into the account

. S ee In re Ma rriage of Born , 2009 Tex. App. LEXIS 2569, at *3 , *7 ( c oncluding that spo use who d id not detail all possible transactio ns o r all income earned on, and reinvested in, mutual fund accounts and certi fi cate of deposit account during ma rriage had fai led
to t rac e, by clear and convincing evidence, his separate

- pr ope rty interest) ; Lanier , 998 S.W.2d at 332 n.7 ( concluding that fa ct issue as to characte rization of securities existed to extent that cash dividends from stock held by one spouse before marri age w ere reinveste d )

. On ce again,
Turner ’ s methodology prov ide d n o informa tion about whe ther stock purchases were made using the sale of stock that was in the a ccount before marriage or whether stock purc has es were made

us ing the interest or dividends tha t th ose accounts earned

. Further , Turner ’ s methodol ogy d id not consider Goyal ’ s acknowled gement that during the marriage th is account “ dipped all the way down to , you know, a thou sand dollars at
some p oin t ” and that it “dipped to zero because of all th e living expenses

. ” Texa s cases state that th e party attemp tin g t o prove t hat property is se parate must present evidence show ing the account balance when the separate property is dep osited , the amount and ch aracter of withdrawals and deposits , and whether the balan ce during marri age ever fell below the value of th e s epa rate

- p rop erty interest

. Sn ider v. Snider , 613 S.W.2d 8, 10 (Tex . App.

— Dallas 1981, no writ) ( concluding that saving s account balance was h usb and ’s separate property after determining that i nterest earned, deposits, and withdrawals had never reduced acc oun t balance to or below husba nd ’ s identifiable separate interest) ; see Fischer v. Fischer , No. 05

- 93

- 00292

- CV,
1994 Tex. Ap p. LEXIS 3798, at *7

- 8 (T ex. App.

— Dallas Apr. 21, 1994 , writ denied ) (not35 designated f or publication ) ( concluding that although s po u se showed that accounts were f unded with her inhe ritance and gifts , she did not present evidence of amount and character of all deposits and withdrawals made and failed to establi sh that balance s in th ose accounts never fell b elow value of her inheritan ce and gifts ; thus, balances in t hose accounts were presumed community property )

. Finally, Turner ’ s op inion does not account for the transactions that occurred between this x1150 ac cou n t and the “Schwab One” broker age account x8 922

. In the abse nce of c le ar and convincing evidence from G oyal establ ishing t he separate

- prop erty interest , the statutory commun ity

- property presumption prevails. See Pearson , 332 S.W. 3d at 364 ; see also Tex. Fa m. Code § 3.003(b)

. Thus, the record supp orts the dist rict court’s f ind ing that Goyal failed to carry his burden of proof as to this separate

- property claim.

4 . K BS REIT account x 7353 Goyal testified that he wan ted the return of his $10,000 investment that was used
to open the KBS REIT account before his m arriage to Hor a
. Go yal noted that, according t o Hora ’ s eviden ce, the account was wo rth $15,234.84

. It is und isputed that Goyal did not trace the separate

- property fun ds for this acco unt

. Moreover , Turner provided no opinion abou t thi s

accou nt in his rep o rt and d enied ha vin g any opinion abou t the cha racter of this acco unt:
Q. Looking at yo ur report

— the final report that you did on the tracing of the accounts, you did not trace or provide any opinion for a KBS

— KBS Strategic Opportunity Retire ment Account Number 7353, c orr ect ? A. That ’ s

— that ’ s correct

. Q. An d just for the record, that ’ s Ac cou nt

— and I guess just to be clear, you don ’ t

— and you don ’ t have an opinion one way or the other with regards to the character ization of

— and I ’ m showing yo u Petitioner ’ s Exhibit 8.
A. No.36 Q.

— KBS

— Let me just finis h.
A. Su re. Q.

— K BS Account Number 7353

. You don ’ t have an opinion about the character of tha t, correct?
A. No. I didn ’ t see it on your list, so I didn ’ t address it.

T estimony from Goyal , without trac ing , is insuff ici ent to meet the clear

- a n d

conv in cing ev idence n ec essary to support his sep arate

- property claim. See McElwee , 911 S.W.2d at 188 ( “ M ere testimony th at property was purchased with separ ate funds, wit hou t tracing of the funds, is generally in sufficient to reb ut the [community p roperty] pr esumption .” ) ;

see a lso McKinley , 496 S.W.2d at 543, 544 ( rejecting separate

- property claim where com ing to any conclu sion abou t separate

- property status would require “surmise and speculation ”) ; G aides , 2001 T ex. App. LEXIS 29 30, at *16 ( concluding that sp ouse ’ s testimon y t hat she first purchased stock with funds from proceeds of car that she ow ned before marriage and “ gifting money ” fro m her mother and grandmother wa s insufficient to rebut statuto ry presumptio n that shares we r e

c ommunity property )

. B eca us e th ere was no tra cing for this account, the re is no evidence

— much less clear

- and

- convincin g evidence

— of the claimed separate

- p roperty interest and , thus, the communit y - property presumption prevai ls. See Pear son , 332 S.W.3 d a t 3 6 4 ; see also Tex.
Fa m. Co de § 3.003(b)

. Thus, the record supports the district court’s finding that Goyal failed to carry his burden of proof as to this separate

- property claim.
In su mma ry, a lthough Goyal co mplains that the district court determin ed his

accou nts “ did not cont ain any separate property , ” what the district court actuall y stated was that he had “ f ailed to c arry his burden of proof regarding any separate p roperty claim

. ” Havin g

r e viewed this record, w e con clu de that the district court rea son ably cou l d have found that Goyal37 did not present clear and con vincing evidence s howing that he properly traced his interest in the
assets that he claimed as his separate p roperty. See Sink , 364 S.W.3d at 346 (concluding th at h usband failed t o m eet h is bur den of establishing separ at e nature of property by clear and

c onvinc ing evidence where he referred generally to trial exhibits consisting of statements from various broker age accounts, individual retirement accounts, and 40 1 ( k ) accounts, tax re tur ns for
fi ve years, and summaries of various inves tment accounts but trial court was left to speculate, based on h usband ’ s testimony alone, as to what was s eparate property and what w as community property )

. The e vidence prese nted at t rial , considered in the l i gh t m ost favor a b le to the distri ct
court ’ s ruling, sho ws that the district court reasonabl y could have formed a firm belief or conviction that Goyal did not present clear and convincing evidence proving his separate

property inter est in the acc ounts

. And al l t he ev idence , considered in a neutral light, shows that a reasonable fact fi nder could have formed a firm belief or conviction that Goyal’s assertion of a separate

- property in terest in the s e accounts was not proven

. Fu rther, t he distric t cou rt ’ s dete rmi nat io n a s to Goyal ’ s s eparate

- property claim is not so agai nst the great weigh t and preponderance of the evidence as to be manifestly unjust. Thus, the e vidence is both factual ly and legally sufficient to support the district court ’ s d ete rmination that t h e c om mun ity

- property presumpti on as to the se accounts was n ot rebutted

. See T ex. Fam. Code § 3.003(b) ; Pears on , 332 S.W.3d at 36 3

- 64 ; Ganesan , 96 S.W.3d at 354

.
5 . Reimbursem ent c laim Goyal complains that the dis trict court did not re cognize his cl aim fo r rei mbursement. His live pleading made this reimbursem ent claim :

Count er petitioner ’ s separate e state has expended funds or a ssets for payment of the community estate givin g rise t o a claim for reimbursement in f av or of38 Counterpetitio ner ’ s separate es tat e and against the community es tate. Those e xpendit ures resulted in a d i rec t benefit to the community e state. Counterpetitioner ’ s separate e state has not been adequa tely com pen sated for or benefitted from the expe nditure of those funds or assets , an d a fai l ure by the Court to allo w reimbursement to Counterpet i ti oner ’ s separate e state will result in an unjust enrichment of the community estate at the exp ense of Counterpetition er ’ s separate estate.
During opening s tat ement, Goy al ’ s counsel sa id that Goya l “ want [ ed ] a reimbursement ” f or $115,0 00 that he put down on a house that Goyal and Hora bought du ring the marriage. During trial , T urne r opined that there was a “ reimburseme nt claim ” for th e down payment on the ho use but he denied that th ere was any sep ara te

- property interest in the house

. Hora ’ s counsel poin ted out to the court that Goyal ’ s $115,000 “ reimbursement ” claim on his prop osed disposition of issues 3 was not a r eim bursable claim under the Family Code

. T he party claiming a righ t t o reimbu rsem ent has the burden of pleading and
prov ing that the expend itures and imp r ovements were made and that they are r eimbursable

. Vallone v . Vallone , 644 S.W.2d 455, 459 (Tex. 19 82 ) ; Willett , 2017 Tex. App. LEXIS 509 6, at *7 ( “ A right to reimbursement ma y a rise wh en the resources of one est ate are utilized to benefit another est ate without receiving any shared benefit or enjoyment in return.” ). Trial courts “ ma y not recognize ” a cla im for reimbursement for “ the living exp enses of a spouse or t he child of a
spou se
. ” T ex . F am
. C ode § 3.4 09 (2 ) ; see Norris v. Vaughan , 260 S.W.2d 676, 6 83 ( Tex. 1953) ( concluding that s eparate funds spent for community l iving “ should be deeme d a gift to t he community for its well

- being and use ” ) ; Elmakiss v. Elmakiss , No. 12

- 06

- 0 0 405

- CV , 2008 Tex. App. LEXIS 4195 , at * 8 (Tex. App.

— Tyle r June 11, 2008 , no pet. ) (mem. op.) ( concluding that

3 Goyal ’ s proposed prop erty division , which i s R espondent ’ s Exhibit 2, shows the marital home as awarded to him and s ta tes “ $115,000 se parate p r operty to H , ” which is expressly classified as “ R eimbursement for d own paym ent on house

. ”39 evidence on sp ouse ’ s reimbursement clai m failed to show that exp en ditures were not for “ the living expenses of eit h er spouse or the child ” ). Althoug h t he Fam ily Code addresses
pr oportional ownership of property owned by the ma rital estates, see Tex. Fam. Code § 3.006 , Goyal did not plead that claim , Turner disavowe d t hat claim during trial , and it was not include d
in Goyal ’ s pretrial proposed property d i vision and disposi tion of i ssues as required by the Travis County Local Rul es , s ee Travis County (Tex.) Dist. Ct. Loc. R. 23. 3 (3). Under Rule 23 .8(3) of th ose local ru les , “ A ll issues not stated in pre

- trial forms as r equired by these procedures will [ b e ] dee med waived except upon a showing of good cause for failure to comply with th ese rules.” As to Goyal ’ s ple aded reimbursement claim, w e conclude that sub section 3.409( 2) of the
Fam il y Code precluded his recovery for the d own payment on the ho use that he and Hora
pur chased after t heir marriage and in which he lived with his wife and son
. See Tex. Fam. Code § 3.409(2)

. Based on the foregoing discu ssion , w e conclude tha t t he distric t court had legally and factually s uffici ent evidence on which to exer c is e it s discretion when deter mi ning Goyal ’ s
sep arate

- property claim s , and that it did not err in the application of that discretion when characterizin g the marital estate

. Se e Coburn , 433 S .W.3d at 823 ; Zeifman , 212 S.W .3d at 588

. W e overrule Goyal ’ s sec ond issue.

CONCLUSI ON We aff irm the dis tri ct court ’ s August 29, 2019 Final Decree of Divor ce
.

__________________________________ ________ G i sela D. Triana , Justice40 Before Just ices Goodwi n, Triana, a n d Smith Affirmed
Fil ed: May 2 7 , 2021