NO. 07-02-0034-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D NOVEMBER 19, 2003

______________________________ W ILLIE F. HENRY, APPELLANT

v. SYLVIA J. H ENRY, APPE LLEE

_________________________________ FROM THE 159 TH DISTRIC T COURT O F ANGELI NA COUNTY; NO. 34,359-01- 06; HONORABLE PAUL E. WHITE, JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ.
MEMORA NDUM OPIN ION
W illie Frank

Henry appe a ls from a divorce decree foll owing a non-jury trial. On ap peal, he con tends the trial court erre d by (1) awarding property to Sylv ia Henry as separate property when there was not sufficient evidence to re but the presumption th e proper ty was community prop erty; (2) mischar acterizi ng community

property assets leading to an unequal di vision of the marital esta te ; and (3) di viding community pr operty in a disproporti onate manner absent fa ctors to support such a ruling . As the threeissues deal2

with whether the court was correctin its desi gnation and di vision of marital proper ty, they will b e addressed tog ether.
The parties were married on April 6, 1998 . They ceased to live together on or about May 3, 1999. There were no c hildren of the marriage. Appell ant was incarcerated when appellee filed for divorce on the ground of insupportabil ity on June 5, 2001. A final hear ing
was held September 27- 28, 2001. Appelleewas pres ent and testified at the hearing. Appellant, still i ncarcerated, p articipated a nd testified by conference call on September 28

. Neither part

y was represented by

counsel duri ng the divorce proceedi ngs. Appellee’s petition all eged that, to her knowledg e, there wasno community pr operty “of any sig nificant val ue” except personal effects that had been divided to the satisfacti on of the p art ies . At

tach ed toa mot ion he fi led w ith the trial court, appell ant submitted a numbered list of twenty items heclaimed to be community property of the marriage. During the hearing, the court and both parties referr ed to items on thelistby number. The court referred to the items of proper ty by nu mber in his l etter to the parties announc ing his r uling following the hearing, and again in his final decree of divorce . The court also a ttached a copy of the li st as an exh ibit to the final decree.
On the list of items appellant submitted, he had assig ned a value toeach item. The trial court allowed each party to testify reg arding the v alue of each item of property o n the listand whether items should be classif ied as community or separa te prop erty. The testimony

of the parties conflicted as to th e value of indi vidu al ite ms, w hen ite ms had been3

acquired and even whether items still, or ever had, existed. The only ev idence presented to the trial court was

the testimony

of appellant and appel lee.
The final decree aw

arded appellee al l property , with theexception of a toolbox and tools that both sidesagreed were the separateproperty of appellant. The assets awarded appellee included tw

o residences which w ere community

property, al on g with any indebtedness on the properties. One of th e residences was a mobile home purchased for $60,000 on lots purchased for about $30,000. According to t he testimony of appellee, the mobile home had been lost throug h foreclosure pr ior to the final hearing. She also testi fied thatforeclosure pr

oceedings w

ere about to be initiated on the other resi dence, valued at $14,000. Appellant

does not assert tha t he was di vested of any separate proper

ty by t he trial court’s judgment. H e contends, thoug h, that five i tems of community

property, a televis ion, living room furniture, bedroom furniture, a stove and a refrigerato r, valued on his list at a
com b ined value of $8,975, were misc haracteriz ed by the tr ial court as the separate property of appellee, and that the mischaracterizati on of those assets l ead to an unjustly unequal div ision of the communit y property

. At the outset, we n ote our disag reement wit h appellant’s contention that t h e inclusion of the list of items as an exhibit to the divorce decree indicates that the trial court found all the items on the list to be in existence or fou nd that any of the items had th e values listed. We view

the ex hibit

simpl y as the tr ial court’ s metho d of iden tifyi ng theitems4

by their number on the li st, in the same mann er as the items w

ere referred to by number during both p arties’ tes timony. Appellant’s first issue presumes that the trial courtfound the five disputed items to have been appellee’sseparate proper ty. Appell ee argues that the final decree al so can be construed simply as

awarding the disp uted items to her , thereafter to be h er separate prop erty. Although the l anguage of the final decree i s unclear, and appellee’s r eading of itis not unreas onable, for purposes of this opinion we wi ll assume that appellant is correct thatthe trial court determined t he five disputed items wer e appellee’s s eparate pro perty and not the community property of her marriag e to appellant.
Neither party r equested finding s of

facts and conclusionsof law follow ing the tri al court’s decision. I n a non-jury trial, w here no findings of fact or conclusionsof law

are filed
or requested, i t is implie d thatthe trial court ma de all th e neces sary find ings to support its judgment. Roberson v. Robinson , 768 S.W .2d 280, 281 (Tex. 1989 ). W hen, however, as here, a rep orte r’s re cord is pro vided , the suffici ency o f th e evi dence to s upport implied findin gs of fact may be chall enged. Id .; In re W ill iams , 998 S.W. 2d 724, 729 (Tex.App.–Amarill o 1999 , no pet.). A judgment based on implied findings that are supported by sufficient e vidence is to be affirmed on any

applicable th eor

y of law. See Point Lookout West, Inc. v. Whorton , 742 S.W . 2d 277, 278 (Tex. 1987). Community

property consists of all property, other than separate property, acquired by either spouse during the m arriage. Tex. Fam. Code Ann. § 3.002 (Vernon 1998). Property in the possession of eithe r spouse during or on dissolution of ma rriage is1 Some courts of appeals have applie d a more stri ngent standard of rev iew in cases involv ing fact ual suffi cie ncy of ev iden ce t o mee t the“cl ear and conv inc ing ” bu rden of pr oof. See , e.g. , In Interest of G.B.R. , 953 S.W. 2d 391 (Tex.App.–El Pas o 1997, no wr i t )

. We applythe traditio nal standard her e, following this court’ s opinion in Hill v. Hill , 971 S.W. 2d 153, 158 (Tex.App.–A marillo 1998, n o pet.). We would affirm the tri al court’s finding concerning the separate pr operty natur

e of the five disputed items, though, even under t he more stri ngent st andard of revi ew, being unable to say that the trial court could not reasonably have found it to be established by clear and convinci ng evidence. See G.B.R. , 953 S.W. 2d at 396. 5 presumed to be comm unit y prop erty. Tex. Fam. CodeAnn. § 3.003(a). Thispresumption maybe rebutted with cl ear a nd co nvinc ing evi den ce th e pro pert y is sep arat e pro pert y. Te x. Fam. Code Ann. § 3. 003(b).
We construe appellant’s first issue, in which he argues tha t appellee’s t esti mony alone was not sufficient to r ebut the presumpti on that the disputed items were communit y prop erty, as a challeng e to the factual suffici ency of the ev idenc e . Clear and convincing evidence is that deg ree of proof sufficient to produce in the min d of the factf inder a firm belief or convicti on as to the truth of the al legat ions s ought to be es tabli shed. Te x. F am. Code Ann. § 101.007 (Vernon 2002). In considering appellan t’s factual suff iciency challenge, we consi der all the ev idence, In re Will iams , 998 S.W. 2d at 729, and sustain his challenge if the trial court’s finding is so contrary to the overw helmin g weigh t of the evidence as to be clear ly w rong and unj us t. Id .; Hill v. Hill , 971 S.W. 2d 153, 158 (Tex.App.–Amarillo 1998, no pet.). 1
In support of his argument, ap pellant cites Tarver v. Tarver , 3 9 4 S

. W. 2d 78 0 (Te x. 1965), McElwee v. McElwee , 91 1 S.W. 2d 182 (Tex.App.–Houston [1 st Dist.] 1995, writ denied) and Mortenson v. Trammell , 604 S.W. 2d 269 (Tex.App.–Corpu s Christi 1980, writ6

ref’d n.r.e.) for t he proposition that some manner of tr acing of the or igin of the di sputed itemswas req uired. Appellant’s reliance on those case s is misplaced. Each of those cases involved ef forts t o ident ify the so urce offunds used f or the ac quisition of asse ts during a marriage. N o issue req uiring tr acing is presented in thi s case. Appellant

testified that eac h of the five disp uted items was acquir ed during the marriage. Appellee testi fied that she ow ned three of the fiv e disputed items (the tel evision and the bedroom and li ving r oom furniture) beforeher marriag e to ap pellan t. She also testified that appellant ha d s old the televi sion. Her testimony about the stove and refrigerato r

was more amb ival ent. Sh e state d that b oth it ems were her se para te pr ope rty, and in the contex

t o f th e trial cour

t’s questi oning of her, i t would not be unreasonable to construe the statement as onethat she ow ned the items before the marriage. At another point, she stated that t he stove and r efrigerator

were contained i n the m obile home that was repos sessed whi ch, since that mobile home was acquir ed during themarriage, may suggestthat the appliances were also

. Appellant als o testified that t he refriger ator was located in the mobile ho me, but stated that the stove he was describing was located in the other residence. H e asserted that bot h items should s till be on hand. Although the c lear and convinci ng evidence s tandard requi res proof we ighing heavier t han merely t he greater weight of the credibleevidence, t here is no r equirement that

the evidence be unequivocal
or undisputed. G.B.R. , 953 S.W.2d at 396, citing State v. Addington , 588 S.W.2d 569, 570 (Tex. 1979). It was the task of the tri al court to ev aluate the credi bility of the witness es and
reso lve conflicts in testimony. On this record, we are unwill ing to say a conc lusion that the five disputed items were owned by appellee befo re the marriage and were therefore her7

separate prop erty is so co ntra ry t o the overw helming weight of the ev idence as to be clearly wrong.
Even if the trial court was guilty of mischaracter izing the community or separate property character of one or more of the disputed items, the m ischaracteri zati on did not necessarilyhave a signif ican t effec t on t he di vision of t he pa rties ’ com mun ity pro pert y. Appellee’s testimony w as to the effect that

the five disp uted items had minimal value, and to the effect that three of the five items were no l onger ava ilable for divi sion b etwe en them, having been sold or reposses sed. The record s upports a concl usion, then, that the ef fect of any mischaracterization of those assets was de minimis

. McElwee v. M cElwee , 911 S.W.2d at 189. W e overrul e appellant’s first and second issues.
In a divorce decree, the trial court “shall order a divisi on of the estate of the par ties in a manner

that t he cour

t deemsjust and ri ght, having due regard for the rights of each party and any chi ldren of the marri age.” Tex. Fam. Code Ann. § 7. 001. A trial court has broad discretio n in maki ng th e divisi on of community pr operty, and i ts divis ion is to be affirmed unless the cour t has abused its

discretion

. Murff v. M

urff , 615 S.W.2d 696, 698 (Tex. 1981); see Schlueter v. Schlueter , 975 S.W.2d 584, 589 (Tex. 1998). “In exer cising its discretion the trial court may cons ider many factor s and itis presumed that the trial court exercis ed its discr

etion properl y.” Murff

, 615 S.W.2d at 698. The “just an d right”divisi on of the community estate need not be eq ual. Schlueter , 975 S.W.2d at 588; Forgason v. Forgason , 911 S.W.2d 893, 896 (Tex.App.–Amari llo 1995, w rit denied).8

Acourt may a buse its dis cret ion by ruling a rbitrari ly, unreas onably or w ithout reference to any

guiding rules and principles , or wi thout supporting evidence. Bocquet v. Herring , 9 7 2 S

. W. 2d 19, 21 (Tex. 1998) ; Morrow v. H .E.B. , Inc. , 714 S.W. 2d 297, 298 (Tex. 1986 ). W hen dete rmin ing whe ther the c ourt has a buse d its d iscre tion , we must view the evidence i n the light most favorable to the trial court’s ac tions and indul ge in ev ery leg al presumption in fav or of the judgment. Tucker v. T ucker , 908 S.W.2d 530, 532 (Tex.App.–San Anton io 1995, writ denied).
When questioned by

the court dur ing the hea ring , appel lant ad mitted that s ix i tems he had identified as community pro perty were in fact app ell ee’s sepa rate prop erty. Appellant

also testified that law boo ks he listed at $5,500 actuall y had been purchased for $850, a freezer

listed at a v

alue of $750 had been destro yed and an automobi le he valued at $3,300 had been purc hased for $500. Appellee testified she had acquired most of the property thatappellant cla imed to be community pr

operty pri or to her marr iage to appell ant, that some of the items appell ant listed did not e xi st a nd ot hers had b een r

epos sess ed. A ppel lee als o tes tifi e d that appliances and other items belonging to the community estate had been taken and sold by appellant prior to his incarceration, and that he was responsible for the lo ss of other assets. Appell ee testified that s he had no place to l ive. Appellant, relyin g on the factorsreferenced in Murff , 615 S.W.2d at 699, contends there were no factor

s to support a disproporti onate divisi on of community property. The factors a court may

consider i n making a ju st and rig ht divis ion of property are not limi ted9

to those identified in Murff

. See A bernathy v. Fehlis , 911 S.W.2d 845, 848 (Tex.App.–Austin 1995, no wr it). Phillips v . Phillips , 75 S.W.3d 5 64, 573 (Tex.App.–Beaumont

2002, no pet.), cited by appellant, does not stand for a contr ary rul e. T he circumstances of each marriag e dictate w hat factors shoul d be considered i n th e divisi on of property upon divorce. Young v. Young , 609 S.W .2d 758, 761 (Tex. 1980 ).
Aspouse may r

ecover an app ropriate shar e not only of pr

operty ex isti ng i n the community

at the time of divorce, but also that w hich her spouse improperly depleted from the comm unit y e state. Sc hlueter , 975 S.W.2d at 589. The trial cour t also may consider whether one o f th e par ties to th e ma rriage has wa sted comm unit y a ssets. Phil lips , 75 S.W.3d at 573; s ee Schlueter , 975 S.W.2d at 589; Beard v. Beard , 49 S.W.3d 40, 66 (Tex.App.–Waco 2001, pet. denied).
On this record, and i n the absence of finding s concerning the values of any of the assets of the community es tate, w e pres ume that the trial court proper ly consi dered the entire circumstances of the parties, including the brief durati on of their time tog ether, and correctlyexercised its d iscretion in dividing their property. We cannot say that the court
ac te d arbitrarily or without evidence to support its decision. Appellant’s third issue is overrule d. The judgment of the trial cour t is affirmed.

James T. Campbell Justice