COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00276-CV

ALFONSO GARCIA APPELLANT

V.

CARMEN GARCIA APPELLEE

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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Introduction

Appellant Alfonso Garcia appeals the trial court’s finding of an informal 

marriage2between him and appellee Carmen Garcia and its division of the 

community property. We affirm.

 

1See Tex. R. App. P. 47.4.

2

“Informal marriage” is the statutory term for the colloquial term “commonlaw marriage.”
2

Factual Background

The Garcias divorced in 1989 but resumed living together in September 

1990. The couple continued living together until November 2008. Throughout 

this period, Alfonso visited Mexico every year. Around 2003, during one of his 

visits to Mexico, he met a woman named Maria Sanchez. Alfonso began a 

relationship with Sanchez but never told Carmen about her.

In February 2008, Alfonso finally confessed to Carmen that he had met 

someone in Mexico. Alfonso said that Sanchez was pregnant, and he wanted to 

marry her. Alfonso and Carmen continued to live together. In July 2008, Alfonso 

went back to Mexico and married Sanchez in a civil court.3 When he returned, 

Carmen tried to prevent him from returning to their home, but he told her that he 

had the legal right to do so. Alfonso continued living with Carmen until 

November 2008, when he left again for Mexico. Alfonso and Sanchez had a 

Catholic wedding ceremony on December 31, 2008, in Mexico. Alfonso returned 

alone to Texas in January 2009, but this time Carmen refused to let him in the 

house. She filed for divorce on February 26, 2009, on the grounds of adultery 

and conflict of personalities.

 

3Carmen testified that in Mexico, a couple must be married by a civil court 

before they can have a Catholic wedding.
3

The couple owned three Texas properties: (1) 3414 Strong Avenue; (2) 

1207 Minden Street;4and (3) 1006 East Cantey Street. According to testimony, 

from 1990 to 1996 they lived at the Strong Avenue property. In 1996, the couple 

purchased the property on Minden Street; after renovations, they moved into that 

home and resided there from 1999 until their separation in 2008. Alfonso used 

the house on East Cantey Street as rental property.5 Carmen testified that 

Alfonso retained the $500-a-month rental payments. At the time Carmen filed for 

divorce, Alfonso was living at the Strong Avenue property. Prior to the hearing, 

Alfonso transferred two of these properties that belonged to the community 

estate to his nephew, Mario Martinez, without Carmen’s permission.

During the trial, there was some dispute regarding property purchased by 

Alfonso in Mexico. Carmen testified that from 1994 through 1996 Alfonso 

purchased two lots in Mexico and that he was paying taxes on them. However, 

Alfonso testified that he had never purchased property in Mexico, but had 

inherited property from his father that belonged collectively to Alfonso and his 

siblings.

The trial court found that the Garcias were married on or about September 

1, 1990, and ceased living together on or about November 27, 2008. Further, the 

 

4

The Minden address is comprised of three separate lots (1201, 1213, and 

1217). The three lots are collectively referred to as 1207 and are approximately 

an acre and a half with a small two bedroom house located on it.

5No testimony was given as to when the East Cantey Street property was 

purchased.
4

trial court found that the couple had an informal marriage during the entirety of 

that time. The trial court found that Alfonso had committed adultery and granted 

the divorce. It also ordered the properties transferred back to Alfonso and 

Carmen jointly so that they may be divided at a later hearing.

At the final hearing for the division of the property, the trial court awarded 

Carmen all of the property associated with the Minden Street address and the 

property located on East Cantey Street. Alfonso was awarded the property on 

Strong Avenue. Because there was no proof of any property purchased by 

Alfonso in Mexico, the trial court found that Alfonso was entitled to any land 

inherited from his father; however, any land purchased by Alfonso would be 

awarded to Carmen. Alfonso filed a motion for a new trial arguing that the 

disproportionate division of property was an abuse of discretion, but he did not 

challenge the trial court’s finding that there was an informal marriage.6 Alfonso 

then filed this appeal.

Discussion

A. Common Law Marriage

In his first issue, Alfonso argues that the evidence is legally and factually 

insufficient to support the trial court’s finding that he and Carmen were informally 

married. However, in family law cases, the abuse of discretion standard of 

 

6

There is no order on Alfonso’s motion for new trial in the clerk’s record 

before us. However, the trial court orally denied the motion at a hearing on the 

motion on July 14, 2011.
5

review overlaps with the traditional sufficiency standard of review; thus, legal and 

factual insufficiency are not independent reversible grounds of error but are 

relevant factors in assessing whether the trial court abused its discretion. 

Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no 

pet.); Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.).

In a bench trial in which no findings of fact or conclusions of law are filed, 

the trial court’s judgment implies all findings of fact necessary to support it. 

Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996); In re Estate of 

Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no pet.). But when a 

reporter’s record is filed, these implied findings are not conclusive, and an 

appellant may challenge them by raising issues challenging the sufficiency of the 

evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.

2002); Estate of Rhea, 257 S.W.3d at 790.

Accordingly, to determine whether there has been an abuse of discretion 

because the evidence is legally or factually insufficient to support the trial court’s 

decision, we determine first whether the trial court had sufficient evidence upon 

which to exercise its discretion, and then whether the trial court erred in its

application of that discretion. Boyd, 131 S.W.3d at 611. The applicable 

sufficiency review comes into play with regard to the first question. Id. We then 

proceed to determine whether, based on the elicited evidence, the trial court 

made a reasonable decision. Id.; see also Downer v. Aquamarine Operators, 

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) (stating that, to determine whether a 
6

trial court abused its discretion, we must decide whether the trial court acted 

without reference to any guiding rules or principles; in other words, whether the 

act was arbitrary or unreasonable), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 

(1986).

1. Legal and Factual Sufficiency of the Evidence

Evidence is legally insufficient only when (1) the record discloses a 

complete absence of evidence of a vital fact; (2) the court is barred by rules of 

law or of evidence from giving weight to the only evidence offered to prove a vital 

fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; 

or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal 

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 

526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and “Insufficient 

Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In determining 

whether there is legally sufficient evidence to support the finding under review, 

we must consider evidence favorable to the finding if a reasonable fact finder 

could and disregard evidence contrary to the finding unless a reasonable fact 

finder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 

(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 

all of the evidence in the record pertinent to that finding, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 
7

overwhelming weight of all the evidence, that the answer should be set aside and 

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) 

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 

395 S.W.2d 821, 823 (Tex. 1965). When conducting a factual sufficiency review, 

a court of appeals must not merely substitute its judgment for that of the trier of 

fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). 

The trier of fact is the sole judge of the credibility of witnesses and the weight to 

be given to their testimony. Id.

Under section 2.401 of the family code, an informal marriage is established 

when (1) there is an agreement to be married; (2) the couple is living together as 

husband and wife; and (3) they are representing to others that they are married. 

Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006). An informal marriage does not 

exist until all three elements occur. Flores v. Flores, 847 S.W.2d 648, 650 (Tex. 

App.—Waco 1993, writ denied) (holding that all three elements can come about 

at different times, but until all three occur, there is no informal marriage).

2. Agreement to be Married and Living Together as Husband and Wife

To establish an agreement to be married, “the evidence must show the 

parties intended to have a present, immediate, and permanent marital 

relationship and that they did in fact agree to be husband and wife.” Small v. 

McMaster, 352 S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied) (citing Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st 

Dist.] 1991, writ denied)). The agreement to be married may be established by 
8

direct or circumstantial evidence, and the testimony of one of the parties to the 

marriage constitutes direct evidence that the parties agreed to be married. See 

Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.] 2001, pet. 

denied) (citing Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978)). Evidence of 

an agreement may be inferred from cohabitation and representations by the 

parties. Id.

Alfonso argues that Carmen unilaterally intended to be informally married 

to him once they resumed living together in 1990. He claims that he and Carmen 

were divorced on January 11, 1989, and prior to the current divorce proceeding, 

they were living together, but not as husband and wife. At trial, Alfonso 

repeatedly stated that he was not married to Carmen, that they were already 

divorced, and that their current relationship was not a marriage. When he was 

asked if he was married to Carmen, he responded, “No. Legally, I’ll say no.” 

However, when asked if he and Carmen slept together in the same room and 

were living together as husband and wife, Alfonso answered, “Yes.”

Carmen testified that she was married to Alfonso beginning in September 

1990 when they resumed living together. She provided evidence that they had 

cohabitated for eighteen years and that they represented to third parties that they 

were married by filing joint tax returns and signing mineral leases as husband 

and wife. An inference to Carmen and Alfonso’s agreement to marry can be 

evidenced by their living together and their representations to others from 1990 

until 2008. See Eris, 39 S.W.3d at 714. Carmen also testified that Alfonso told 
9

her grandchildren that he and Carmen were already married and did not need to 

be married again in the church. Carmen’s testimony is direct evidence that the 

couple agreed to be married and lived together as husband and wife. See id. 

Alfonso corroborated her evidence when he answered affirmatively that they 

lived together as husband and wife. See Tex. Fam. Code Ann. § 2.401(a)(2). 

We therefore hold that there is evidence that the couple agreed to be married. 

See, e.g., In re Marriage of Hallgarth, No. 07-01-0013-CV, 2001 WL 574833, at 

*2 (Tex. App.—Amarillo May 29, 2001, no pet.) (mem. op., not designated for 

publication) (holding that testimony by wife that husband asked her to get 

married together with “the evidence concerning their 15 year period of 

cohabitation, their use of the same last name, their representations to third 

parties that they were married, and the statement to hospital officials by [the 

husband] that [the wife] was his wife to gain her admission into the hospital” was 

more than a scintilla of evidence that they had agreed to be married).

3. Representation to Others as a Married Couple

The statutory requirement of “represent[ing] to others” is synonymous with 

the old judicial requirement of “holding out to the public.” Winfield, 821 S.W.2d at 

648. “Holding out” may be established by the conduct and actions of the parties; 

spoken words are not necessary to establish representation as husband and 

wife. Id. Carmen argues that the evidence of their cohabitation and 

representation to others as husband and wife is proof that they held themselves 

out to the public as married. The couple lived together for approximately 
10

eighteen years, Alfonso assisted Carmen in adopting and raising her 

grandchildren, Alfonso and Carmen were registered as a family at their church, 

and the couple was listed as husband and wife at the children’s school.

The couple also maintained a joint checking account to which both parties 

had full access, and they both deposited and withdrew funds from the account. 

Although Carmen did not provide any documentary evidence of tax returns 

between 1990 and 2003, she did provide evidence of a 2003 and 2007 tax 

return, on which she and Alfonso were listed as married. She explained that their 

return was audited in 2003 and that she did not have all the returns before that. 

Carmen testified that they filed their taxes jointly the entire time they lived 

together, and Alfonso confirmed that they filed joint tax returns in 2007 and 2008. 

In 2008, the couple received a tax refund which was issued to them as husband 

and wife and was deposited in the joint checking account. Further, the couple 

signed a mineral lease for one of the properties and on it listed themselves as 

husband and wife.

Alfonso asserts that under Flores, his “statements” to the government that 

he was married were strictly for self-serving purposes. Flores states:

Occasional references to “my wife” or “my husband” do not prove a 

tacit agreement to be married without corroboration. If the statement 

is made in a self-serving context—such as a deponent’s reference to 

his marital situation in order to show a stable family relationship, an 

application to a lender by one seeking a loan, or by the person 

seeking to admit himself or herself to a hospital—it may not have 

great weight.

847 S.W.2d at 652.
11

Alfonso claims that he only filed jointly because he would have to pay less 

in taxes. Thus, under Flores, his statements to the government should not have 

much weight in determining whether he and Carmen were married. See Flores, 

847 S.W.2d at 652. But Flores also states that “a forthright assertion of marriage 

with the consequences of liability—such as . . . the filing of [a] joint income tax 

return—may be far more probative of such an agreement.” Id. Alfonso and 

Carmen filed joint tax returns and signed an oil, gas, and mineral lease as 

husband and wife. These assertions, with their consequences of liability, provide 

strong corroboration that Alfonso and Carmen were married. Flores is further 

distinguishable because in that case, the wife did not corroborate her claim of 

marriage with any evidence. Id. (“Occasional references to ‘my wife’ or ‘my 

husband’ do not prove a tacit agreement to be married without corroboration.”) 

(emphasis added). In this case, Carmen corroborated Alfonos’s representations 

with evidence such as the tax returns and the lease.

4. Legal Presumption of Validity of Most Recent Marriage

Alfonso claims that the strongest evidence that he did not consider himself 

married to Carmen was his marriage to Sanchez in Mexico on December 31, 

2008. The Texas Family Code provides that the most recent marriage is 

presumed valid against each prior marriage until the person who asserts the 

validity of the prior marriage proves that validity. Tex. Fam. Code Ann. § 1.102 

(West 2006). When one party celebrates a ceremonial marriage with another 

person, without obtaining a divorce, that marriage tends to discredit the first 
12

relationship and its validity. Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 

(Tex. 1981). Still, the “circumstances of each case must be determined based 

upon its own facts,” and the presumption is not conclusive, but can be rebutted 

by evidence that negates dissolution of the previous marriage. See id. at 166;

Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App.—Dallas 2003, pet. 

denied). Informal marriage, like any other marriage, may be terminated only by 

death or a court decree; once the marriage exists, a spouse’s subsequent 

denials of the marriage do not undo the marriage. See Claveria, 615 S.W.2d at 

167. Once evidence is presented that negates the previous marriage’s 

dissolution, the fact finder must determine whether the presumption of validity 

has been overcome. Bailey-Mason, 122 S.W.3d at 898.

Carmen produced evidence that she and Alfonso filed taxes together, 

signed mineral leases as husband and wife, and had a joint bank account. 

Carmen also testified that Alfonso lived with her after he had been married to 

Sanchez by a civil court in July 2008 and that he tried to come back to live with 

her in January 2009, six weeks after he had ceremonially married Sanchez. 

Further, Alfonso testified that he never planned on living with Sanchez in Mexico, 

did not tell Carmen about Sanchez for several years until Sanchez became 

pregnant in 2008, and was leading a “double life” because he did not agree with 

Carmen allowing her son to make decisions about Carmen’s finances. When 

testifying about his marriage in Mexico to Sanchez, he was asked,

Q. Do you think that what you did is okay?
13

A. I know it is not.

Q. Why?

A. I have my reasons.

He testified that he transferred title of the properties to his nephew because he 

was afraid that if Carmen divorced him again, she would leave him with nothing.7

More than a scintilla of evidence exists that Alfonso and Carmen had 

entered into an informal marriage. See Uniroyal, 977 S.W.2d at 334. And 

viewing all of the evidence, we cannot say that the evidence supporting the 

finding is so weak, or the weight of the contrary evidence so overwhelming, that 

the trial court’s ruling should be set aside. See Pool, 715 S.W.2d at 635. 

Because Carmen demonstrated that she and Alfonso had an informal marriage 

and that the marriage had not been terminated when Alfonso married Sanchez, 

 

7Despite denying that this trial was a divorce proceeding, he stated twice 

that he did not want Carmen taking the property in a divorce. He was asked,

Q. Tell me again why you transferred the title on the East 

Cantey property to your nephew, Mario Martinez.

A. Because in 1989, when she got divorced, she left me 

without anything; without a car, without nothing.

And later, he was asked again,

Q. My understanding, and correct me if I’m wrong, that you 

transferred the property to [your nephew] because you were afraid 

that Mrs. Garcia would leave you with nothing if she got a divorce; is 

that correct?

A. It is correct, because she did once.
14

the trial court was free to find that Carmen had overcome the presumption of 

validity of Alfonso’s ceremonial marriage to Sanchez. See Bailey-Mason, 122 

S.W.3d at 898. The evidence that Alfonso knew his marriage to Sanchez was 

not right, that he never intended to live with her, and that he returned to Carmen 

even after marrying Sanchez in a church is both legally and factually sufficient to 

support the trial court’s finding that the presumption of validity of the ceremonial 

marriage was overcome. The evidence is also legally and factually sufficient to 

support the trial court’s finding that the Garcias were informally married. Thus, 

the trial court did not abuse its discretion by finding an informal marriage between 

Alfonso and Carmen beginning in September 1990. See Boyd, 131 S.W.3d at 

611. We overrule Appellant’s first issue.

B. Property Division

In his second issue, Alfonso claims that the trial court abused its discretion 

by dividing the property in the manner that it did because: (1) there was 

insufficient evidence to show whether the nature of the property was community 

or separate; and (2) the 72% to 28% division of the marital estate division was 

not justified by any guiding principle.

A trial court has broad discretion in making its “just and right” division of 

the marital estate. Tex. Fam. Code Ann. § 7.001 (West 2006); Murff v. Murff, 

615 S.W.2d 696, 698–99 (Tex. 1981). Absent a clear abuse of discretion, we will 

not disturb that division. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974); Boyd v. 

Boyd, 67 S.W.3d 398, 406 (Tex. App.—Fort Worth 2002, no pet.).
15

1. Community Property vs. Separate Property

Under sections 3.001 and 3.002 of the family code, community property is 

the property, other than any separate property, acquired by either spouse during 

the marriage; separate property consists of property owned or claimed by the 

spouse prior to marriage. Tex. Fam. Code Ann. §§ 3.001(1), 3.002 (West 2006). 

Texas Family Code section 3.003 states that there is a presumption that property 

acquired by either spouse during marriage is community property, and the 

degree of proof necessary to establish that property is separate property is clear 

and convincing evidence. Id. § 3.003 (West 2006). When the character of the 

property is in doubt, Texas courts have held in favor of the community estate. 

Ellebracht v. Ellebracht, 735 S.W.2d 658, 659 (Tex. App.—Austin 1987, no writ).

Alfonso argues that there was no evidence of when the properties were 

purchased; thus, the trial court abused its discretion in finding that the properties 

were community property subject to division. However, Alfonso testified that as a 

result of his first divorce from Carmen, he was left without anything. He also did 

not present any evidence to rebut Carmen’s testimony about the purchase of the 

properties during their marriage. To discharge the burden imposed by section 

3.003 of the family code, Alfonso must have traced and clearly indentified the 

property that he claimed was separate. See Tarver v. Tarver, 394 S.W.2d 780, 

783 (Tex. 1965) (holding that the statute imposes the burden on one asserting 

property is not community to prove the contrary by satisfactory evidence). 

Alfonso did not present any evidence that the properties were not community 
16

property, nor did he plead that he owned separate property. Alfonso failed to 

discharge his burden under the statute and thus did not overcome the 

presumption of community property. See Tex. Fam. Code Ann. § 3.003.

2. Marital Estate Division

Under section 7.001 of the family code, the trial court must divide the 

marital estate in a manner the trial court deems just and right while considering 

the rights of both parties. Id. § 7.001. In making an equitable division, the court 

should consider all of the surrounding circumstances, and the division need not 

be equal as long as it is not so disproportionate as to be inequitable, and the 

circumstances justify awarding more than one-half to one spouse. Naguib v. 

Naguib, 137 S.W.3d 367, 378 (Tex. App.—Dallas 2004, pet. denied). Some of 

the factors the trial court can consider in dividing the marital estate include the 

spouses’ ages, earning power, capacities, and abilities; fault—such as adultery 

or cruelty—in the breakup of the marriage; relative financial condition and 

obligations; fraud on the community and wasting of community assets; and the 

nature of the property. See Neyland v. Raymond, 324 S.W.3d 646, 651 (Tex. 

App.—Fort Worth 2010, no pet.); Schaban-Maurer v. Maurer-Schaban, 238 

S.W.3d 815, 820–21 (Tex. App.—Fort Worth 2007, no pet.), disapproved of on 

other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011).

In the divorce decree, the trial court awarded Alfonso the Strong Avenue 

property and his car and truck. The trial court awarded Carmen the Minden and 

East Cantey properties, her car, and
17

[a]ny and all community property in Mexico, save and except all 

separate property inherited by [Alfonso] from his father, except for 

that property in [Alfonso’s] father’s name that may have been 

wrongfully transferred to [Alfonso’s] father by [Alfonso] with intent to 

defraud [Carmen] and deprive her of such community property.

The Strong Avenue property was estimated to be worth $27,800. The 

Minden property was estimated to be worth about $38,000. The East Cantey 

property was estimated to be worth $20,600. There was no testimony regarding 

the value of the cars; however, both parties acknowledged that the truck was not 

in working condition.8

Carmen requested a disproportionate share of the property because 

Alfonso committed adultery and transferred properties belonging to the 

community estate to a relative to prevent Carmen from claiming them in the 

divorce. Carmen’s other grounds in her divorce petition were Alfonso’s conduct 

that led to the breakup of the marriage; age of the spouses; earning power, 

business opportunities, capacities and abilities of the spouses; need for support; 

and attorney’s fees to be paid.

Alfonso testified that he had a relationship with Sanchez since 2003, and 

he did not tell Carmen about his relationship until February 2008 when he found 

out Sanchez was pregnant. Alfonso married Sanchez in December 2008 before 

he was separated from Carmen, which led to the breakup of the marriage. 

 

8

There was also no testimony regarding attorney’s fees, but in the divorce 

decree, the trial court ordered that Carmen and Alfonso be responsible for their 

respective attorney’s fees.
18

Further, there was testimony that Alfonso committed fraud on the community 

estate when he transferred the property on Strong Avenue and East Cantey 

Street to his nephew so Carmen could not claim them. Alfonso was ordered to 

have the properties transferred back prior to the subsequent hearing dividing the 

property. According to Carmen’s testimony, Alfonso also received approximately 

$5,000 from rental of the East Cantey property that he did not deposit in the joint 

account. Carmen has two granddaughters that she is raising, and prior to their 

divorce, Alfonso assisted in their care. There was also testimony regarding the 

jobs that Carmen and Alfonso held and the wages that they earned. Carmen 

testified that her job was the main source of income for the family and that she 

had worked consistently for two and a half years at the same job, earning about 

$21,000 a year. She testified that Alfonso never kept a job for very long and 

would frequently quit positions or get laid off. Alfonso testified that he made ten 

dollars an hour at his last job, which he held for three weeks. Before that, he 

earned twelve dollars an hour. He once held a job for three months working for 

fourteen dollars an hour, but he never held a job for longer than three months.

Alfonso claims that the division of community property was 72% to Carmen 

and 28% to him. To arrive at those percentages, Alfonso necessarily had to 

include the value of any property in Mexico that he had purchased. However, 

Alfonso repeatedly denied the existence of any property in Mexico.9 The division 

 

9As the trial court noted, if there is no purchased property in Mexico, it 

does not harm Alfonso to have it awarded to Carmen.
19

of the Texas properties, without including the value of the automobiles and other 

personal property, is closer to 68% to Carmen, and 32% percent to Alfonso.

The trial court had sufficient evidence to exercise its discretion in dividing 

the couple’s property. See Neyland, 324 S.W.3d at 649. Carmen testified that 

her job was the couple’s major source of income, despite the fact that Alfonso, 

had he maintained consistent employment, had a greater earning capacity, and 

Alfonso did not dispute that he changed jobs, at minimum, every three months. 

See Hailey v. Hailey, 176 S.W.3d 374, 382 (Tex. App.—Houston [1st Dist.] 2004, 

no pet.) (holding that 60/40 division of property was not inequitable when, among 

other things, wife earned more income than husband during their marriage). 

Carmen testified that she had no separate property, and Alfonso testified that he 

had inherited, along with his siblings, land from his father in Mexico. See 

Abernathy v. Fehlis, 911 S.W.2d 845, 848 (Tex. App.—Austin 1995, no writ)

(noting husband’s relative financial condition, including inheritances, in upholding 

an unequal division of property in favor of wife). Further, Alfonso admitted that 

he transferred title of community property to his nephew to prevent Carmen from 

getting at the properties in a divorce action. See In re Marriage of Notash, 118 

S.W.3d 868, 872 (Tex. App.—Texarkana 2003, no pet.) (“Because a spouse has 

an adequate remedy through disproportionate division of the community estate, 

fraud on the community is properly considered when dividing a community 

estate.”).
20

Based on the evidence presented at trial, the trial court did not abuse its 

discretion by dividing the community property as it did. See Naguib, 137 S.W.3d 

at 378; Neyland, 324 S.W.3d at 651. We overrule Alfonso’s second issue.

Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s 

judgment.

LEE GABRIEL

JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: August 2, 2012