Amanda BRADSHAW, Petitioner, v. Barney Samuel BRADSHAW, Respondent

No. 16-0328

Supreme Court of Texas.

Argued February 28, 2018 Opinion delivered: June 29, 2018

Nicholas B. Bacarisse, Rachel A. Ekery, for Barney Samuel Bradshaw.

Barney Samuel Bradshaw, pro se.

Ebb B. Mobley III, for Amanda Bradshaw.

Chief Justice Hecht announced the judgment of the Court and delivered an opinion in which Justice Brown and Justice Blacklock joined.

While married to Amanda Bradshaw, Barney Samuel Bradshaw was convicted and sentenced to 60 years in prison for the continuous sexual abuse1 of Amanda's daughter, who was younger than 14 years old at the time of the offense.2 In the couple's divorce, the trial court divided their community home 80% to Amanda and 20% to Barney. The court of appeals affirmed.3 Amanda contends that the division was not just and right and that she should have been awarded 100% of the home because of his criminal abuse of the family.4 We reverse the judgment of the court of appeals and remand the case to the trial court to reconsider the division of the community estate.

**I**

Amanda and Barney married in November 2010 and lived together in a home Amanda owned before the marriage, together with Amanda's 2 young daughters, S.S. and A.G., and A.G.'s sister, K.M. In February 2012, the home was destroyed by fire. Using insurance proceeds, Amanda paid off the mortgage, sold the property, and bought a new home for the family in June 2012.

That summer, Barney, then 34, began sexually abusing Amanda's 13-year-old daughter, S.S. Barney was accused of requiring S.S. to perform various sex acts with him for more than a year, often daily, sometimes weekly, stopping for a while, then resuming. Barney had also sexually abused A.G., then 15, who knew he was abusing S.S. When K.M., then 16 or 17, told A.G. that Barney had abused her, A.G. said that she and S.S. had both had "sexual problems" with Barney.5 In August 2013, S.S., A.G., and K.M. were visiting their aunt for a few days when they began to talk with each other about their shared nightmare. "[I]n the midst of great angst and emotion", with the girls "crying hysterically," A.G. told the aunt, "[Bradshaw has] been messing with us, and we can't take anymore, and [S.S.] has been getting *542the brunt of it."6 "[We want] 'this to stop.' "7 The aunt called the police.8

Barney was charged with continuous sexual abuse of a young child, S.S., who was at the time of the offense younger than 14 years old.9 The 3 girls all testified at the trial, as well as a friend of theirs, B.P., whom Barney had also sexually assaulted. All the abuse occurred in the Bradshaw home, the yard, the bathroom, and Barney's bedroom. Barney was convicted and sentenced to 60 years in prison without parole.

Meanwhile, Amanda had filed for divorce. At the hearing, she testified only very briefly, and Barney, in jail awaiting trial, was not allowed to testify. The court awarded Amanda all of the community estate10 and the home as her separate property. The court of appeals reversed, holding that the evidence did not support either the award of all the community property to Amanda or the characterization of the home as her separate property.11

On remand, Amanda presented additional evidence. She testified that Barney had physically abused her on multiple occasions, and S.S. and A.G. testified that Barney had sexually abused them repeatedly. Barney testified by telephone from prison. He claimed an interest in the fire insurance proceeds and in the home, asserting that he had made extensive repairs to it. He denied all the allegations of abuse, contending that they had been concocted to deprive him of an interest in the home. While the case was pending in the trial court, Barney's conviction was affirmed on appeal.12

Between the divorce case and the criminal case, 5 different women testified under oath to Barney's physical and sexual abuse. For some, the abuse continued for more than a year. Nearly all of the abuse occurred at the Bradshaw home during Barney and Amanda's 3-year marriage. The trial court found that the home was community property and awarded 80% of it to Amanda and 20% to Barney, based on "fault in the breakup of the marriage". The court awarded the rest of the community property to the party in possession.

Amanda appealed, arguing that she should have been awarded 100% of the home and that anything less was not "just and right". The court of appeals affirmed the property division, noting that "although fault may be considered in making a disproportionate distribution of community property, '[t]he division should not be a punishment for the spouse at fault.' "13

We granted Amanda's petition for review.14

*543**II**

The division of a community estate in divorce must be "just and right, having due regard for the rights of each party and any children of the marriage."15 "Just" and "right" are broad terms. *Black's Law Dictionary* defines "just" as "[l]egally right; lawful; equitable",16 and "right" as "[t]hat which is proper under law, morality, or ethics".17 And "due regard" simply means the "[a]ttention, care, or consideration"18 that is "[j]ust, proper, regular, and reasonable".19 A trial court should consider many factors, including "the spouses' capacities and abilities ... and the nature of the property."20 The court may consider the "fault in breaking up the marriage", though the community-property division "should not be a punishment for the spouse at fault."21 In the end, "the court is to do complete equity as between the husband and wife and the children, having due regard to all obligations of the spouses and to the probable future necessities of all concerned."22

Because the standards for dividing a community estate involve the exercise of sound judgment, a trial court must be accorded much discretion in its decision.23 The division "should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair."24 The appellate court cannot merely reweigh the evidence. Rather, "[a] determination of whether the property division decreed in a divorce constitutes an abuse of discretion presents a legal rather than a factual question for appellate review."25 And in deciding that legal question, the trial court is entitled to no deference. "[A] trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled."26

Thus, the issue before us is this: In the circumstances presented, can it be just and right, as a matter of law, in dividing a community estate in divorce, to award an interest in the family home to a spouse convicted of using the home to sexually abuse his stepdaughter? The issue is not whether Barney's conviction for sexual abuse of his stepdaughter contributed to the breakup of his marriage and for that reason could be considered in dividing the community estate. The trial court appears to have done just that. Nor is the issue whether awarding Amanda 100% of the home "could operate to punish Barney for his fault in the dissolution of the marriage,"

*544as the court of appeals worried.27 It can certainly be argued that Barney's punishment was his 60-year prison sentence, not the unequal division of the home (though as JUSTICE BOYD observes, "[a] sixty-year prison sentence hardly seems sufficient").28 Wholly apart from whether Barney's crime contributed to the breakup of the marriage, the question is whether it can be just and right to award him an interest in the home he repeatedly used to sexually abuse multiple victims, including his stepdaughters.

We have little difficulty answering no. As broad as the terms "just" and "right" are, they are not meaningless. They express values fundamental to our society, values we hold precious. Our society is diverse, and perceptions of what is "just" and "right" can differ with perspective. But we think it virtually beyond argument that awarding Barney an interest in the very home he used to sexually abuse his stepdaughter, for which he was convicted, and others is unjust and wrong, not as a matter of fact, but as a matter of law. Such an award was thus an abuse of discretion.

Barney argues that the award is justified because Amanda took $5,000 from his disability benefits account after filing for divorce, he worked on the home and helped furnish it, Amanda offered no evidence that his criminal conviction affected her financially, and awarding her 100% of the home could be considered punitive. These arguments might be relevant to whether this is an appropriate uneven distribution for fault in the breakup of the marriage. But they miss the point: Barney should not be awarded an interest in the home he was convicted of using to sexually assault his stepdaughter. Barney insists that the allegations against him are untrue, and that the award of 20% of the home was "a hedge against any residual doubt" the trial court may have had that he is guilty as charged. But the evidence against him in the criminal trial was overwhelming, the sentence was severe, and his conviction has been affirmed on appeal. Barney argues that awarding Amanda 100% of the home would be unjust because she was given other community property in her possession that was his. But the case is being remanded for reconsideration of the division of the community estate, and those arguments are best addressed on remand.

For JUSTICE BOYD , "Barney's cruelty and the harm he inflicted on Amanda and her daughters are indisputably abhorrent and intolerable in any civilized society",29 but he argues that the Court has "found an abuse of discretion only when the trial court ignores a governing legal standard."30 JUSTICE BOYD contends that while he "might"-not *would* , but *might* -personally agree that Barney should have no interest in the home, that cannot override the trial court's exercise of discretion. If awarding Barney an interest in the home could be just and right, we would agree. But it cannot be-as a matter of law. JUSTICE BOYD opines that "this Court's view of what is 'just and right' is irrelevant to the issue before us."31 In finally interpreting a statute, this Court's view is all that is relevant. "Maybe", JUSTICE BOYD muses, "Texas law should require those who abuse their spouses or children or step-children to forfeit all interests in any property they use to commit those crimes. But *545the State's right, in the exercise of its police power, to 'declare a forfeiture of the property of private individuals' involves policy decisions best exercised by the Legislature, not by this Court."32 In the circumstances of this case, we disagree. The Legislature has already made the policy decision: a division of a community estate must be just and right.33 As JUSTICE BOYD notes, "we must 'take statutes as we find them.' "34 As a matter of law, the trial court's division of the home in this case is neither just nor right.

JUSTICE BOYD states that "when a statute authorizes the trial court to make a discretionary determination by applying equitable standards like 'just and right,' appellate courts cannot restrict that discretion by declaring that a particular application is or is not just and right."35 But that is precisely what appellate courts do, as we have done, for example, in holding that using a community division to punish a spouse for fault in the breakup of the marriage is not just and right.36 JUSTICE BOYD argues that even if we spoke for the Court, our decision would not be retroactive.37 Rarely are our decisions *not* retroactive, and JUSTICE BOYD does not argue why a legal interpretation of "just and right" would be an exception.

To be clear, we limit our opinion today to narrow circumstances where the behavior involves the use of community property, is as egregious as Barney's, and results in a criminal conviction. Family violence is, deplorably, all too common. We do not hold that its occurrence alone deprives the guilty spouse of an interest in all or even a specific part of the community estate. The elements that compel our decision are that Barney sexually abused his stepdaughters and others repeatedly over a protracted period, that he used the family home to commit the abuse, and that he was convicted and severely sentenced for the continuous sexual abuse of a child under the age of 14. One can hypothesize a harder case than this one-a single incident, weak evidence, an enormous home, no criminal conviction. A division of community property can be just and right despite violence directed against the family. The award of an interest in the home to Barney cannot be. JUSTICE BOYD complains that this is "unworkable as a legal principle."38 We fail to see why it is more unworkable than reasonableness, a standard that pervades the law.

1

*See* Tex. Penal Code § 21.02(b) ("A person commits an offense if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.").

2

*Bradshaw v. State* , 466 S.W.3d 875, 877 (Tex. App.-Texarkana 2015, pet. ref'd).

3

487 S.W.3d 306, 312 (Tex. App.-Texarkana 2016).

4

*See* Tex. Fam. Code § 7.001 ("In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.").

5

*Bradshaw* , 466 S.W.3d at 883.

6

*Id.* (alterations in original).

7

*Id.*

8

*Id.*

9

*See* Tex. Penal Code § 21.02(b).

10

The court awarded Amanda the community property in her possession and awarded the same to Barney. But because Barney was incarcerated, this essentially amounted to an award of the community estate to Amanda.

11

*In re Marriage of Bradshaw* , No. 12-14-00056-CV, 2014 WL 3940092, at *2-4 (Tex. App.-Tyler Aug. 13, 2014, no pet.) (mem. op.).

12

*Bradshaw* , 466 S.W.3d at 884.

13

487 S.W.3d 306, 312 (Tex. App.-Texarkana 2016) (quoting *Young v. Young* , 609 S.W.2d 758, 762 (Tex. 1980) (alteration in original) ).

14

61 Tex. Sup. Ct. J. 254 (Jan. 19, 2018). Because Barney was without counsel, the Court referred the case to the Supreme Court of Texas Pro Bono Program available through the State Bar of Texas Appellate Section. Barney has been very ably represented in this Court by counsel obtained through the Program.

15

Tex. Fam. Code § 7.001.

16

*Just* , Black's Law Dictionary (10th ed. 2014).

17

*Right* , *id.*

18

*Regard* , *id.*

19

*Due* , *id.*

20

*Murff v. Murff* , 615 S.W.2d 696, 699 (Tex. 1981).

21

*Young v. Young* , 609 S.W.2d 758, 761-762 (Tex. 1980).

22

*Hedtke v. Hedtke* , 112 Tex. 404, 248 S.W. 21, 22 (1923).

23

*Murff* , 615 S.W.2d at 698.

24

*Hedtke* , 248 S.W. at 23.

25

*Mann v. Mann* , 607 S.W.2d 243, 244 (Tex. 1980).

26

*In re State Farm Lloyds* , 520 S.W.3d 595, 604 (Tex. 2017) (internal quotations omitted); *accord**In re Prudential Ins. Co. of Am.* , 148 S.W.3d 124, 135 (Tex. 2004) ; *Huie v. DeShazo* , 922 S.W.2d 920, 927-928 (Tex. 1996) ; *Walker v. Packer* , 827 S.W.2d 833, 840 (Tex. 1992).

27

487 S.W.3d 306, 312 (Tex. App.-Texarkana 2016).

28

*Post* at 554.

29

*Post* at 554.

30

*Post* at 552.

31

*Post* at 552.

32

*Post* at 555 (quoting *State v. Richards* , 157 Tex. 166, 301 S.W.2d 597, 600 (1957) ).

33

Tex. Fam. Code § 7.001.

34

*Post* at 555 (quoting *Entergy Gulf States, Inc. v. Summers* , 282 S.W.3d 433, 443 (Tex. 2009) ).

35

*Post* at 553.

36

*Young v. Young* , 609 S.W.2d 758, 762 (Tex. 1980).

37

*Post* at ----.

38

*Post* at 553.

"Amanda presents a forceful argument", JUSTICE BOYD begrudges.39 We agree.

* * * * *

The judgment of the court of appeals is reversed and the case is remanded to the trial court for further proceedings.

Justice Devine filed an opinion concurring in the judgment, in which Justice Guzman joined.

Justice Lehrmann filed a dissenting opinion.

Justice Boyd filed a dissenting opinion, in which Justice Green, Justice Johnson, and Justice Lehrmann joined.

Justice Devine, joined by Justice Guzman, concurring.

*546A trial court must have some understanding of the extent and value of the community estate before it can make an equitable division. When the underlying record fails to provide this basic information, any division of property must lack a reasonable basis and be perceived as arbitrary. Because the record here does not provide sufficient information about the community estate for the trial court to make an equitable division, I agree that the case must be remanded to the trial court for further proceedings.

**I**

"In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." TEX. FAM. CODE § 7.001. A number of factors may be relevant to the determination of a "just and right" division. *Murff v. Murff* , 615 S.W.2d 696, 699 (Tex. 1981). A non-exclusive list includes such factors as the parties' disparity in income or earning capacity, the parties' capacities and abilities, the parties' relative needs and financial condition, the parties' relative fault in ending the marriage, the benefits the party without fault would have received had the marriage continued, as well as the parties' relative physical conditions, future business prospects, disparity in age, separate estates, education, and the nature of the property to be divided. *Murff* , 615 S.W.2d at 699 ; *Young v. Young* , 609 S.W.2d 758, 762 (Tex. 1980).

The trial court has wide discretion in balancing these factors and determining the proper division. *Murff* , 615 S.W.2d at 698. Although the marital estate need not be divided equally, the division must be equitable. *Chafino v. Chafino* , 228 S.W.3d 467, 473 (Tex. App.-El Paso 2007, no pet.). If the trial court makes an unequal division, it must have a reasonable basis for doing so. *Id.*

An appellate court should reverse the trial court's division only when the trial court abuses its discretion. *Murff* , 615 S.W.2d at 698. Additionally, when the trial court does not file its findings and conclusions, its distribution of the estate must be affirmed if there is any basis in the record to support its decision. *Rosemond v. Al-Lahiq* , 331 S.W.3d 764, 766 (Tex. 2011) ; *Worford v. Stamper* , 801 S.W.2d 108, 109 (Tex. 1990).

In reviewing the division of a marital estate, the appellate court may not substitute its own discretion for that of the trial court. *See**McKnight v. McKnight,*543 S.W.2d 863, 866 (Tex. 1976). An abuse of discretion requires something more than that the trial court should have reached a different result. *Nath v. Texas Children's Hosp.* , 446 S.W.3d 355, 371 (Tex. 2014). Instead, an abuse of discretion occurs when the trial court "acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." *Walker v. Gutierrez* , 111 S.W.3d 56, 62 (Tex. 2003).

A trial court can act arbitrarily and thus abuse its discretion in several ways. For example, a trial court abuses its discretion when it exercises discretion it does not legally possess or fails to exercise discretion when it must. *Landon v. Jean-Paul Budinger, Inc.* , 724 S.W.2d 931, 937-38 (Tex. App.-Austin 1987, no writ). A court also acts in an arbitrary manner when it attempts to exercise its discretion without sufficient information to make a rational decision. *Id.* at 938. Finally, a court abuses it discretion when it exercises its discretion in a manner that lacks any support in the record. *Id.* at 938-39 ; *See also**547*In re Marriage of Brown* , 187 S.W.3d 143, 148 (Tex. App.-Waco 2006, no pet.)

**II**

The court of appeals' conclusion that the trial court did not abuse its discretion is not grounded in the evidence but on our admonition that a fair-and-just division "should not be a punishment." 487 S.W.3d 306, 312 (Tex. App.-Texarkana 2016) (quoting *Young* , 609 S.W.2d at 762 ). The court reasoned that the trial court did not abuse its discretion by giving Amanda 80 percent of the Florey Lake property because awarding her any more than that could be viewed as punishing Barney. *Id.* at 312. The court thus dismissed Amanda's argument that the trial court abused its discretion in dividing the Florey Lake property by assuming that awarding more than 80 percent to Amanda was outside the range of choices permitted by law.

I disagree with this premise. Neither the Family Code nor our decision in *Young* establishes a threshold beyond which an award must be deemed a punishment as a matter of law. In *Young* , we merely stated that a trial court may not punish the spouse at fault when dividing marital property. *Young* , 609 S.W.2d at 762. Thus, a trial court that seeks to punish a spouse when dividing property has "arrived at its determination in violation of [a] general rule[ ] of law" and, hence, abused its discretion. *Landon* , 724 S.W.2d at 939. But *Young* does not establish a range of choices permitted by law or a presumption that an award outside that range is a punishment. *See**Young,*609 S.W.2d at 762. Although relatively rare, other courts of appeal have affirmed divisions where one spouse received more than 80 percent of the property. *See, e.g.,**Ohendalski v. Ohendalski* , 203 S.W.3d 910, 912 (Tex. App.-Beaumont 2006, no pet.) (affirming award of 81 percent of the community estate to wife); *Wright v. Wright* , 65 S.W.3d 715, 716 (Tex. App.-Eastland 2001, no pet.) (affirming award of 88 percent of the community estate to wife). Neither does the Family Code create a range of acceptable awards; it simply instructs that the property division be just and right. TEX. FAM. CODE § 7.001. If the evidence supports a disproportionate division of the marital estate, a trial court must order a division that is just and right, guided by that evidence.

The record here supports a disproportionate, fault-based award of property to Amanda. Even so, Amanda complains that the disproportionate award does not go far enough because no evidence supports Barney's award of a 20 percent interest in the Florey Lake property. In short, Amanda argues that the property division, though disproportionately in her favor, still is not "just and right." *Id.* The argument requires us to examine the entire record to determine whether the trial court had sufficient information on which to exercise its discretion and whether evidence exists to support the trial court's decision.

Although the home where Amanda and Barney began their marriage was Amanda's separate property and an insurance settlement for its loss was used to purchase the Florey Lake property, the court of appeals nevertheless determined that Amanda failed to adequately trace these funds or rebut the community-property presumption that attaches to property purchased during the marriage. 487 S.W.3d at 310-11. The record reflects that Amanda's insurance company settled her claim by paying approximately $166,000 for the house, $60,000 for its contents, and another $13,000 for the family's additional living expenses following the loss. About $40,000 of the settlement was used to pay off the mortgage company's lien, and Amanda sold the property after that. Amanda used *548$125,000 of the insurance settlement to buy the Florey Lake property outright. The sale closed in June 2012, about nineteen months after the marriage. Amanda took title to the property solely in her name. The rest of the insurance money was used to furnish the new home and pay other expenses.

Barney claims to have a community interest in both the insurance proceeds and the Florey Lake property. He testified about contributing a mattress, some furniture he did not identify, and a remarkable five televisions to the house that burned. Moreover, Amanda testified that during the marriage she paid the home's mortgage of $450 a month from her earnings. The couple lived in the house for about a year and so approximately $5400 of community funds were expended on the mortgage during this period. During the marriage, Barney received social security disability payments, but did not testify about any other earnings. He did, however, testify about making plumbing repairs to Amanda's first house and to providing assistance with the construction of an addition to the Florey Lake property. It was also undisputed that the insurance-settlement check was made payable to Amanda and Barney even though the insured home was Amanda's separate property.

The last known value of the Florey Lake property was its sales price of $125,000. Barney's awarded interest in the property is thus worth perhaps $25,000. Assuming the addition to the Florey Lake property added to the home's value, Barney's interest is worth even more. Given the community contribution, this seems to be an exceedingly generous award to Barney even before considering his fault or other factors supporting a disproportionate award.

When Barney's fault is factored into the analysis of a just-and-right division, what seems at first blush to be a generous valuation of Barney's community interest becomes even more untenable. In *Young* , we noted a concern that the trial court not delve into every "bicker, nag, and pout" between the parties when examining fault as a relevant consideration. *Young* , 609 S.W.2d at 762. Fault implicates reprehensible conduct, not a disagreeable personality. For example, James Young deserted his wife and left her with the sole responsibility of raising their son. *Id.* at 759. We concluded that this reprehensible act was certainly worthy of consideration when dividing the marital estate. *Id.* at 762. In retrospect, Amanda and her daughters would, in all probability, have considered it a blessing had Barney merely abandoned the family. Instead, he stayed, causing his family and others unspeakable physical and emotional harm. It is difficult to imagine a situation where considering fault in the division would be more appropriate.

Apart from Barney's fault, other relevant factors such as the nature of the property and the parties' relative needs support a disproportionate award to Amanda. *Murff* , 615 S.W.2d at 699. Ironically, Barney has been awarded an interest in the very asset that facilitated his criminal activity. Moreover, the parties' financial obligations and, hence, their needs, are vastly different. Amanda has two daughters to shelter and support and needs the home. Barney, on the other hand, is incarcerated for sixty years; the state has made arrangements for his room, board, and other necessities for his foreseeable future. *Bradshaw v. State* , 466 S.W.3d 875, 877 (Tex. Crim. App.-Texarkana 2015, pet. ref'd). He has no need of the Florey Lake property and has stated that he would prefer to have his community interest paid in a lump sum. But the interest awarded to him in the Florey Lake property has no apparent relationship to his community interest, *549particularly if the trial court's intent was to factor in Barney's fault.

Another significant factor is the value of Amanda's separate property that was either contributed to or commingled with the community estate. Courts may consider the amount of separate property consumed or contributed during the marriage when dividing the marital estate. *See, e.g.,**Monroe v. Monroe* , 358 S.W.3d 711, 717 (Tex. App.-San Antonio 2011, pet. denied) (concluding that community estate would have been minimal but for husband's contribution of separate property during the marriage); *Dickson v. Dickson* , 544 S.W.2d 200, 204 (Tex. Civ. App.-Austin 1976, writ dism'd w.o.j.) (giving a disproportionate award to the wife because "much of [the wife's] separate property was consumed in supporting the family," and "the community estate profited greatly from transactions funded entirely by [the wife's] separate property").

Barney, however, argues that his interest in the Florey Lake property may be justified by the substantial work he put into repairing and improving both houses. His argument is in the nature of a reimbursement claim, but the record contains no evidence of the values involved. Barney merely testified that he repaired some plumbing at Amanda's first house and that he helped to make an addition to the second house. He provides no more detail than that. Nor does he offer any evidence of either the cost of those repairs or any enhancement to the underlying property value.

The standard of review is for abuse of discretion, which in family law cases "overlaps with the traditional sufficiency-of-evidence standards of review." *Roberts v. Roberts* , 531 S.W.3d 224, 231 (Tex. App.-San Antonio 2017, pet. denied). Because of this, our courts of appeals have generally "engage[d] in a two pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its application of discretion?" *Lindsey v. Lindsey* , 965 S.W.2d 589, 592 (Tex. App.-El Paso 1998, no pet.) ; *accord**Roberts* , 531 S.W.3d at 231, *Beshears v. Beshears* , 423 S.W.3d 493, 499 (Tex. App.-Dallas 2014, no pet.) ; *Iliff v. Iliff* , 339 S.W.3d 126, 134 (Tex. App.-Austin 2009), aff'd, 339 S.W.3d 74 (Tex. 2011) ; *Swaab v. Swaab* , 282 S.W.3d 519, 525 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ; *Boyd v. Boyd* , 131 S.W.3d 605, 611 (Tex. App.-Fort Worth 2004, no pet.).

For the first prong, a trial court abuses its discretion in dividing the community estate without knowledge of its extent and proof of its value. *See, e.g.* , *In re Marriage of Brown* , 187 S.W.3d at 147-48 ; *Barnard v. Barnard* , 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004, pet. denied) ; *Sandone v. Miller-Sandone* , 116 S.W.3d 204, 207-08 (Tex. App.-El Paso 2003, no pet.). "Without the ability to determine the size of the community pie, [a court] can make no determination that the slices awarded to each spouse were just and right." *Sandone* , 116 S.W.3d at 207-08. Although the trial court held four hearings over the course of the proceedings below, only the middle two included any evidence about the parties' property interests. And even then, those hearings primarily concerned tracing insurance proceeds from the destruction of Amanda's separate property into the Florey Lake property to determine its proper characterization. The parties here have fought over the Florey Lake property's characterization and the community's interest therein to the exclusion of other assets. Along the way, the parties have alluded to other community assets, such as vehicles, tools, televisions, accounts, and furnishings, without ever providing an inventory. Apparently, Florey *550Lake is the parties' primary asset but the community's interest is not developed in the record. The circumstances are reminiscent of those in *Marriage of Brown* wherein the court of appeals held the trial court did not have adequate information on which to divide the estate and thus no reasonable basis for its award. *In re Marriage of Brown* , 187 S.W.3d at 148. There, "a sketchy listing of community assets" and "no discussion of the net value" did not provide the trial court with any reasonable basis on which to divide the community estate. *Id.* As in this case, the husband was in prison for child molestation, and fault played a role in the trial court's decision to award 100 percent of the community estate to the wife. *Id.* at 146-47. The court of appeals concluded that the trial court's division might be just and right but that the record was inadequate to make that determination. *Id.* at 148.

Here, the information available to the trial court was even more limited. Not even a sketchy inventory exists in the record. Clearly, the lion's share of Florey Lake's value is attributable to the destruction of Amanda's separate property, but some undefined part of the insurance proceeds used to purchase and furnish that property was burdened by the community. Moreover, Barney claims that his community efforts added value to the Florey Lake property, although no evidence exists in this record as to what that additional value might be. A trial court cannot divide the marital estate equitably without evidence of the extent of the community estate or its value. *Gonzalez v. Gonzalez* , 331 S.W.3d 864, 869 (Tex. App.-Dallas 2011, no pet.).

**III**

JUSTICE BOYD complains that I read too much into Amanda's abuse-of-discretion argument because she "has never once complained about the sufficiency of the evidence." *Post* at 555. I respectfully disagree. Amanda submits in her briefing that sufficiency of the evidence is not an independent ground of reversible error. Instead, she claims it is a factor relevant to assessing whether the trial court abused its discretion, that is, whether the trial court had sufficient evidence on which to exercise its discretion. JUSTICE BOYD further exclaims that it "is simply not true" to suggest that Amanda's argument includes a no-evidence complaint because "she never argues that 'no evidence supports' the award of some interest to Barney." *Post* at 556. Again I disagree. Amanda expressly argues that "the record is totally silent as to any rationale" for awarding Barney any interest in the Florey Lake property. Moreover, JUSTICE BOYD reads Amanda's statement that the record "contains sufficient evidence upon which the trial court could determine the division of property" out of context to suggest an inconsistency with her abuse-of-discretion contention. *Post* at 555. In context, Amanda's statement about the evidence refers to the testimony of her daughters, herself, and Barney regarding Barney's fault, which Amanda interprets as an overriding factor, sufficient by itself to sustain an award of the entire Florey Lake property to her. While I disagree that this factor is controlling to the exclusion of all others, I likewise disagree with JUSTICE BOYD 's characterization of the statement as Amanda abandoning the evidentiary concerns that are otherwise apparent in her abuse-of-discretion complaint.

A just-and-right division of community property does not have to be equal, but it does have to be informed. Thus, a court abuses its discretion when it purports to make an equitable division of the community estate without "sufficient information upon which to exercise its discretion."

*551*Lindsey* , 965 S.W.2d at 592. The court of appeals nevertheless affirmed the trial court's division, assuming that the division was equitable rather than arbitrary and assuming further that a more disproportionate award could have amounted to a penalty. I disagree with both assumptions and join the Court's judgment here remanding the cause to the trial court for further proceedings.

39

*Post* at 552.

Justice Lehrmann, dissenting.

While I join JUSTICE BOYD 's dissenting opinion in full, I write separately to reiterate that our precedent does not impose any specific limits on the size or percentage of a community property award. Perhaps trial courts and family-law practitioners will find this reminder helpful in the absence of a binding majority opinion in this case.

We warned, in *Young v. Young* , that a community property division should not punish a spouse for his or her fault in a divorce. 609 S.W.2d 758, 762 (Tex. 1980). But that does not foreclose the possibility that a highly unequal division can be "just and right." Rather, *Young* simply forecloses the trial court from considering retribution or punition in determining what is just and right. Our law recognizes numerous other, valid factors that might, in extraordinary cases such as this one, support an award of eighty percent or more to a single spouse.1 Such disparity does not de facto or presumptively constitute punishment, though it may fairly raise suspicions; it is permissible to the extent supported by valid legal considerations. As the concurrence recognizes, a division like the one in this case is a rarity, *ante* at 547, and I believe correctly so.2

However, the occasional affirmance of more unequal divisions than the one at issue here does not allow the inference that the trial court erred by failing to award Amanda more than eighty percent of the house. The Family Code entrusts the trial court with broad discretion in dividing marital property, and I cannot say the trial court's eighty-percent award was an abuse of discretion.

Justice Boyd, joined by Justice Green, Justice Johnson, and Justice Lehrmann, dissenting.

Five members of the Court agree to reverse the trial court's judgment in this divorce case, but they do not agree on any proper ground for reversal. Three Justices would reverse because, in their view, the trial court's property division is "unjust and wrong" as a matter of law. *Ante* at 544 ( HECHT , C.J., plurality op.). Two Justices would reverse because, in their view, no evidence supports the trial court's judgment. *Ante* at ---- ( DEVINE , J., concurring). We dissenting Justices would affirm the trial court's judgment because the applicable standard of review and our well-established preservation-of-error requirements permit no other option. Applying the governing standard of review and addressing the issues the parties actually raise, we must agree with the court of appeals' decision affirming the trial court's judgment. Because the Court reverses, we dissent.

*552**I.**

**Just and Right Division**

Amanda Bradshaw filed this suit to divorce Barney Bradshaw after he was arrested for sexually assaulting Amanda's daughter in the home they shared on Florey Lake Road. After four separate hearings, the trial court entered a final divorce decree dissolving the marriage "on the ground of cruel treatment," finding the Florey Lake house to be community property, and disproportionately awarding Amanda eighty percent of the interest in the home. The court also awarded each party the personal property in their respective possession or control, but Barney was in prison and so possessed none of that property. The court of appeals affirmed. *In re Marriage of Bradshaw* , 487 S.W.3d 306, 312 (Tex. App.-Texarkana 2016).

Amanda presents a forceful argument that the trial court's decision to award Barney any interest in the Florey Lake house "is manifestly unfair and unjust" because it creates a "windfall for the spouse at fault and a continuing stigmata on his blended family." "To award [Barney] any interest in the home (a crime scene) where the victims of his crimes now reside," she contends, "is simply an abuse of discretion." The CHIEF JUSTICE agrees, but his plurality opinion misapplies the abuse-of-discretion standard.

The Texas Family Code requires trial courts hearing divorce cases to "order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." TEX. FAM. CODE § 7.001. This provision "affords the trial court wide latitude and discretion in dividing the community estate of the parties upon dissolution of their marriage." *Vallone v. Vallone* , 644 S.W.2d 455, 460 (Tex. 1982) (citing *Eggemeyer v. Eggemeyer* , 554 S.W.2d 137, 142 (Tex. 1977) ; *McKnight v. McKnight* , 543 S.W.2d 863, 866 (Tex. 1976) ). Appellate courts must "presume that the trial court exercised its discretion properly" and may reverse the trial court only if "a clear abuse has been shown." *Id.* (citing *Murff v. Murff* , 615 S.W.2d 696, 699 (Tex. 1981) ). We have found an abuse of discretion only when the trial court ignores a governing legal standard.1

Agreeing with Amanda, the Court's plurality would hold that it is not "just and right, as a matter of law, in dividing a community estate in divorce, to award an interest in the family home to a spouse convicted of using the home to sexually abuse his stepdaughter." *Ante* at 543 ( HECHT , C.J., plurality op.). But this Court's view of what is "just and right" is irrelevant to the issue before us. The Family Code "clearly vests discretion *in the trial court* in determining the proper division of the community estate of the parties." *Carle v. Carle* , 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950) (emphasis added).

*553Under the Code, the trial court "was empowered, in pronouncing the decree of divorce, to order a division of the estate of the parties to the divorce suit in such way as *to the court* seemed just and right." *Hedtke v. Hedtke* , 112 Tex. 404, 248 S.W. 21, 22 (1923) (emphasis added). In exercising that discretion, the trial court "can be controlled by what the facts may lead *him* to believe is just and right." *Ex parte Scott* , 133 Tex. 1, 123 S.W.2d 306, 313 (1939) (emphasis added).

The plurality suggests that its view can trump the trial court's discretion despite the abuse-of-discretion standard because, when "finally interpreting a statute, this Court's view is all that is relevant." *Ante* at 544 ( HECHT , C.J., plurality op.). But we are not interpreting a statute here. No one disputes the meaning of the statute's terms, and no one disputes that the statute requires trial courts to divide the parties' property in a lawful, equitable, and proper manner under law, morality, or ethics. *Ante* at ---- ( HECHT , C.J., plurality op.). The issue here is the statute's *application* , not its meaning, and the plurality concludes that the trial court misapplied the statute, not that it misinterpreted it. As we have repeatedly recognized, the statute grants the trial court-not this Court-"broad discretion" in determining how the statute applies to particular facts. *Young* , 609 S.W.2d at 762. As an appellate court, our role "in reviewing cases where property is divided in a divorce action is to determine only if there is an abuse of discretion." *McKnight* , 543 S.W.2d at 866. In short, the issue before this Court "is not whether we agree with the [division] imposed by the trial court, but whether we can say that the trial court exceeded its discretion." *Plorin v. Bedrock Found. & House Leveling Co.* , 755 S.W.2d 490, 491 (Tex. App.-Dallas 1988, writ denied) (addressing sanctions order).

Even the plurality cannot say that the trial court acted in this case "in an arbitrary or unreasonable manner without reference to any guiding rules or principles." *Walker v. Gutierrez* , 111 S.W.3d 56, 62 (Tex. 2003). Instead, it simply declares that any view other than its own is against the law. Noting that a trial court "has no discretion in determining what the law is or applying the law to the facts," *ante* at 543 ( HECHT , C.J., plurality op.) (quoting *In re State Farm Lloyds* , 520 S.W.3d 595, 604 (Tex. 2017) ), it declares that the trial court's decision in this case "is unjust and wrong, not as a matter of fact, but as a matter of law." *Ante* at 544 ( HECHT , C.J., plurality op.). By declaring in hindsight that the law prohibits the trial court's decision, it attempts to create an abuse of discretion.

The plurality's logic contains several fatal flaws. First, when a statute authorizes the trial court to make a discretionary determination by applying equitable standards like "just and right," appellate courts cannot restrict that discretion by declaring that a particular application is or is not just and right. *McKnight* , 543 S.W.2d at 866. "Matters of equity" and "the responsibility for just decisions" are "addressed to the trial court's discretion." *Bocquet v. Herring* , 972 S.W.2d 19, 21 (Tex. 1998). By declaring as a matter of law that "the trial court's division of the home in this case is neither just nor right," *ante* at 545 ( HECHT , C.J., plurality op.), the plurality is impermissibly "substituting [its] determination of 'just and right' for the trial court's determination," and thus "infringing upon the trial court's discretion." *McKnight* , 543 S.W.2d at 866.

Second, the plurality's new "law" is manifestly unworkable as a legal principle. As if enacting a statute, the plurality would declare that it is not "just and right, as a matter of law, in dividing a community *554estate in divorce, to award an interest in the family home to a spouse convicted of using the home to sexually abuse his stepdaughter." *Ante* at 543 ( HECHT , C.J., plurality op.). But it would limit the new law "to narrow circumstances where the behavior involves the use of community property, is as egregious as Barney's, and results in a criminal conviction." *Ante* at 545 ( HECHT , C.J., plurality op.). And the spouse who is precluded from receiving any interest must have "abused his stepdaughters and others repeatedly over a protracted period, [must have] used the family home to commit all of the abuse, and [must have been] convicted and severely sentenced for the continuous sexual abuse of a child under the age of 14." *Ante* at 545 ( HECHT , C.J., plurality op.). But does this new law apply only if the abuse involves a home, or can it involve a vehicle or some other community property? And must it involve sexual abuse, or would egregious physical or emotional abuse suffice? Must the abuse involve a child or step-child, or would the new law apply to abuse against the spouse? And what if the abuser has not yet been convicted at the time of the divorce, or the conviction remains on appeal or subject to habeas relief? The plurality announces not a legal principle but the result of its own application of the equitable "just and right" standard to the facts of this particular case.

Third, even if the Court adopted the plurality's view as a new generally applicable legal principle, it would not apply retroactively to render the trial court's decision an abuse of discretion in this case. A "lower court ordinarily should not be said to have abused its discretion in following existing law, even if that law is no longer valid or should be significantly changed." *In re Smith Barney, Inc.* , 975 S.W.2d 593, 599 (Tex. 1998).

Finally, and most importantly, the plurality's pronouncement is not the law even after today's decision. The plurality asserts that its position is "virtually beyond argument," *ante* at 544 ( HECHT , C.J., plurality op.), but six Justices disagree. Failing to carry the Court's majority, the new principle the plurality announces is not the law, so the trial court could not have abused its discretion by ignoring or failing to apply what was not, and is still not, the law.

All of this is not to say that we agree with the trial court's decision. To be sure, Barney's cruelty and the harm he inflicted on Amanda and her daughters are indisputably abhorrent and intolerable in any civilized society.2 A sixty-year prison sentence hardly seems sufficient. But unlike this Court, the

> trial court in a divorce case has the opportunity to observe the parties on the witness stand, determine their credibility, evaluate their needs and potentials, both social and economic. As the trier of fact, the court is empowered to use its legal knowledge and its human understanding and experience. Although many divorce cases have similarities, no two of them are exactly alike. Mathematical precision in dividing property in a divorce is usually not possible. Wide latitude and discretion rests in these trial courts and that discretion should only be disturbed in the case of clear abuse.

*555*Murff* , 615 S.W.2d at 700. Here, the trial court conducted four hearings, reviewed all the testimony and other evidence, considered Barney's abusive conduct, and granted Amanda's divorce petition on the ground of Barney's "cruel treatment" of Amanda. *See* TEX. FAM. CODE § 6.002 (authorizing fault-based divorce when one spouse "is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable"). Although Amanda and Barney each owned a fifty-percent interest in the Florey Lake house, the court disproportionately awarded eighty percent of the interest to Amanda and twenty percent to Barney. Having observed the testimony and considered all the evidence, the court expressly found that this uneven division reflected "due regard for the rights of each party." *Id.* § 7.001.

Regardless of how we might have awarded the interests, the trial court did not act arbitrarily or ignore guiding rules or principles, which is the only legitimate basis on which we could find it abused its discretion. In fact, the Family Code did not require the trial court to disproportionately divide the house or even consider Barney's "fault" at all. As we explained in *Young* , the Code permits a trial court to consider a party's fault when deciding how to divide the marital property, but this "does not mean that fault must be considered in all cases where a divorce is granted on fault grounds." *Young* , 609 S.W.2d at 762. In short, the law simply did not require the trial court to award all of the interest to Amanda.

Maybe it should. Maybe Texas law should require those who abuse their spouses or children or step-children to forfeit all interests in any property they used to commit those crimes. But the State's right, in the exercise of its police power, to "declare a forfeiture of the property of private individuals" involves policy decisions best exercised by the Legislature, not by this Court. *State v. Richards* , 157 Tex. 166, 301 S.W.2d 597, 600 (1957). Ours is a judicial function-not a legislative one-and we must "take statutes as we find them." *Entergy Gulf States, Inc. v. Summers* , 282 S.W.3d 433, 443 (Tex. 2009). The Legislature has granted trial courts discretion to determine what is just and right, and we have no authority to impose our judgment on that question.

**II.**

**Supporting Evidence**

In his concurring opinion, JUSTICE DEVINE crafts a different ground for reversal, concluding that the record "does not provide sufficient information about the community estate for the trial court to make an equitable division." *Ante* at 546 ( DEVINE , J., concurring). His conclusion will be a huge surprise to the courts below, but no one will be as shocked as Amanda, who repeatedly and consistently asserted the opposite. Throughout the case, Amanda has never once complained about the sufficiency of the evidence. To the contrary, as the party who bore the evidentiary burden to support a disproportionate property division, Amanda has always contended that she submitted sufficient evidence.

In the trial court, Amanda argued that the evidence "would justify [the trial court] in ruling that [the house on Florey Lake Road] should be totally awarded to her." In the court of appeals, she argued that the evidence supported awarding the entire interest to her and that the "value" of the parties' personal property was not "an issue" because "only one asset [the house] is at issue." And in her brief to this Court, she asserted that the record "contains sufficient evidence upon which the trial court could determine the division of property," and although "the parties' testimony is *556conflicting, it provides sufficient evidence to support a determination of division of community property."

As the concurring opinion explains, Amanda "submits in her briefing that sufficiency of the evidence is not an independent ground of reversible error. Instead, she claims it is a factor relevant to the assessment of whether the trial court abused its discretion, that is, whether the trial court had sufficient evidence on which to exercise its discretion." *Ante* at 550 ( DEVINE , J., concurring). To be exact, Amanda's brief explains:

Review of the trial court's division of property, involves a two pronged inquiry:

> (1) did the trial court have sufficient evidence upon which to exercise its discretion?

> (2) Did the trial court err in its application of that discretion?

> Under the first prong, legal and factual insufficiency are not independent grounds of reversible error. They constitute factors relevant to assessment of whether the trial court abused its discretion. *Garza v. Garza* , 217 S.W.3d 538, 549 (Tex. App.-San Antonio 2006, no pet.) ; *Moroch v. Collins* , 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied).

> Under the second prong, appellate review begins with the presumption that the trial court properly exercised its discretion, and therefore, the property division will only be disturbed if the trial court ordered a division that is manifestly unfair and unjust. *Murff* , 515 [615] S.W.2d at 699.

Amanda then agrees that the first "prong" is not at issue in this case because the evidence is sufficient to allow the trial court to make a just and right division of the parties' community property:

> Under the first prong of appellate review, the trial record at bar contains sufficient evidence upon which the trial court could determine the division of property. Both Amanda and Sam, as well as Amanda's teenage daughters testified. Although the parties' testimony is conflicting, it provides sufficient evidence to support a determination of division of community property.

Instead, she focuses solely on the second prong, arguing that "[u]nder the second prong of appellate review, the trial court's division of property should be examined to see if there was an abuse of discretion," and "[b]eginning with a presumption that the trial court properly exercised its discretion, the trial court's decision at bar is manifestly unfair and unjust."

In short, the concurrence's assertion that Amanda complains that "no evidence supports Barney's award of a 20 percent interest in the Florey Lake property," *ante* at 547 ( DEVINE , J., concurring), is simply not true.3 The concurrence notes that Amanda "argues that 'the record is totally silent as to any rationale' for awarding Barney any interest in the Florey Lake property," *ante* at 550 ( DEVINE , J., concurring), but that argument addresses the trial court's failure to explain its reasoning, not any lack of evidence to support its reasoning. Specifically, Amanda argues:

> [A]n award to her of 100% interest in the community property home (78 Florey Lake) would be just and right, in *557view of the fact that [Barney] is a convicted multiple child molester and wife abuser, and his criminal acts lead directly to the parties' divorce on grounds of cruelty. To award [Barney] any interest in the home (a crime scene) where the victims of his crimes now reside is simply an abuse of discretion.

> The trial court did grant a fault based divorce. But the record is totally silent as to any rationale for awarding [Barney] any interest at all in the parties' homestead, a residence that was the crime scene of multiple sex crimes committed by [Barney] against his stepdaughters.

Our "well-established error-preservation rules ... preclude a party from seeking appellate review of an issue that the party did not properly raise in the trial court." *G.T. Leach Builders, LLC v. Sapphire V.P., LP* , 458 S.W.3d 502, 516 (Tex. 2015).4 And we "have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error." *Walling v. Metcalfe* , 863 S.W.2d 56, 58 (Tex. 1993) (per curiam).5 A party simply waives any issue it fails to properly "present ... in the courts below." *State Office of Risk Mgmt. v. Martinez* , 539 S.W.3d 266, 273 (Tex. 2017).6

*558Error-preservation rules govern this Court as well. A petition filed in this Court "must state concisely all issues or points presented for review," and if "the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals." TEX. R. APP. P. 53.2(f). "Neither [the court of appeals] *nor this court* is authorized to reverse a trial court's judgment in the absence of a properly assigned error or one which can properly be classified as fundamental." *Tex. Power & Light Co. v. Cole* , 158 Tex. 495, 313 S.W.2d 524, 529 (1958) (emphasis added). We are simply "without jurisdiction" to consider an issue that "was not affirmatively pleaded" in the trial court and "not assigned as error" in the court of appeals or this Court. *Edwards v. Strong* , 147 Tex. 155, 213 S.W.2d 979, 980 (1948).

These rules are not meaningless technicalities that we can ignore at will. "Important prudential considerations underscore our rules on preservation." *In re B.L.D.* , 113 S.W.3d 340, 350 (Tex. 2003). They "conserve[ ] judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds." *Id.* They "further the goal of accuracy in judicial decision-making [by giving] lower courts [an] opportunity to first consider and rule on error." *Id.* And importantly here, they "promote fairness among litigants. A party 'should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.' " *Id.* (quoting *Pirtle v. Gregory* , 629 S.W.2d 919, 920 (Tex. 1982) (per curiam) ). In this case, Barney has never had an opportunity or any need to argue that sufficient evidence supports the judgment because Amanda has consistently agreed that it does.

This Court, of course, must comply with the rules that govern appeals as well. When a party fails to complain that the evidence is insufficient and instead asserts the opposite at every level, the law simply does not permit us to consider that issue. Because Amanda has never complained about the sufficiency of the evidence and instead asserts that the evidence is sufficient, it is "error for [this Court] to address it sua sponte." *Murphy* , 458 S.W.3d at 916.

The great irony here is that Amanda, as the party seeking a disproportionate division of the community property, bore the burden to provide evidence sufficient to support any judgment disproportionately awarding the Florey Lake house's interest to her. *See**Haley v. Haley* , 713 S.W.2d 801, 803 (Tex. App.-Houston [1st Dist.] 1986, no writ). And as the party now challenging the judgment, Amanda bears the burden to demonstrate that the trial court abused its discretion. *See**Zeptner* , 111 S.W.3d at 734.7 If, as the concurring opinion would hold, the record lacks an adequate "inventory" or information regarding the relevant property's "value," *ante* at ----, Amanda failed to provide that evidence. *Id.* Ironically (and erroneously), the concurring opinion would rule in Amanda's favor on insufficient-evidence grounds even though Amanda-who as Petitioner must *559demonstrate that the evidence is insufficient-asserts the very opposite.

The concurrence does not explain whether it finds the evidence factually or legally insufficient. Although it concludes that the record contains "*no* evidence" regarding a couple of the relevant factors, *ante* at 549, 550 (DEVINE, J., concurring) (emphasis added), it also asserts that the record "does not provide *sufficient* information about the community estate," *ante* at 546 (DEVINE, J., concurring) (emphasis added). Because the abuse-of-discretion standard governs, "legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion," rather than "independent grounds of error." *Zeptner v. Zeptner* , 111 S.W.3d 727, 734 (Tex. App.-Fort Worth 2003, no pet.) ; *see**Beaumont Bank v. Buller* , 806 S.W.2d 223, 226 (Tex. 1991) (holding that abuse-of-discretion standard applied to review of turnover order, but "[w]hether there was no evidence to support the turnover award would, of course, be a relevant consideration in determining if the trial court abused its discretionary authority in issuing the order"). Under our Constitution, however, this Court cannot consider whether the evidence is factually insufficient because the courts of appeals' decisions "shall be conclusive on all questions of fact brought before them on appeal or error." TEX. CONST. art. V, § 6. The "task of weighing all the evidence and determining its sufficiency is a power confined exclusively to the court of appeals." *Coulson v. Lake LBJ Mun. Util. Dist.* , 781 S.W.2d 594, 597 (Tex. 1989). We can only consider whether *no* evidence supports the trial court's decision. To the extent the concurring opinion finds the evidence factually insufficient, it would exercise jurisdiction we do not have. *See**Campbell v. State* , 85 S.W.3d 176, 184 (Tex. 2002) ("[W]e do not have jurisdiction to review the factual sufficiency of the evidence.").

Amanda, however, is correct that the evidence supports the property division. The trial court held four separate hearings before entering the judgment Amanda now challenges on appeal. Amanda testified at all of them, Barney testified at three, and Amanda's two daughters each testified at one. The testimony focused on the Florey Lake house, the parties' personal property, and Barney's fault in causing the marriage to fail. At three of the four hearings, the trial court personally asked Amanda or Barney for additional information about their personal property and the house on Florey Lake.

Much of the evidence was undisputed. Amanda and Barney were married for about three years, and no children were born or adopted during the marriage. Before they married, Amanda owned a different house, solely in her own name, which she had acquired in a prior divorce. They lived in that first house together for about a year, during which she paid the monthly $450 mortgage payments using income from her job. A fire destroyed that house, and the insurance company paid benefits of about $167,000 for the house, about $60,000 for the contents, and about $13,000 for additional living expenses. The insurance company paid these benefits by check made payable to both Amanda and Barney, which Amanda agreed to "because [they] were married." They used $40,000 of the insurance payment to pay off the mortgage on the first house and then sold that property "to some friends really cheap." They then used $120,000 to buy the Florey Lake house, "cash outright." The title to the new house was in Amanda's name only, but they relied on Barney's social security disability status to reduce the property taxes. They used the rest of the insurance money to maintain and improve the house and to buy furnishings and other property *560including "two Harleys," furniture, equipment, and a trailer.8

Barney testified that he brought a lot of personal property to the marriage, including a vehicle, multiple TVs, DVD players, furniture, mattresses, and dishes, because Amanda's ex-husband had "cleaned her out." Amanda disagreed, testifying that the only thing Barney brought to the marriage was a "raggedy" truck, some clothes, some tools, and a car and other items that belonged to Barney or his brother. And despite his conviction, Barney denied Amanda's and her daughters' testimony detailing how he repeatedly abused each of them. Regarding the property, Barney claimed that, after they married, he contributed work to repair the plumbing and water damage at the first house and to maintain and build an addition on and improvements to the Florey Lake house. Amanda did not dispute this, but could not remember if it was true. Nor did she dispute Barney's "best estimate" that the combined value of the house and all personal property at the time of the divorce was "[b]etter than $200,000." And Amanda did not dispute Barney's testimony that she took $5,000 of his social security payments from his account after they separated.

The concurrence mentions several reasons why it believes this evidence is insufficient to support the trial court's division, but none of them have merit. It observes, for example, that the division "seems to be an exceedingly generous award to Barney even before consideration of fault," and "even more untenable" when fault is considered. *Ante* at 548 ( DEVINE , J., concurring). But this point complains of the *effect* of evidence, not the *lack* of evidence. We have made it clear that trial courts can wholly refuse to consider fault, even "where a divorce is granted on fault grounds." *Young* , 609 S.W.2d at 762. And if the trial court decides to consider it, "[f]ault and disparity in the parties' incomes are only two of the many factors the trial court should consider when dividing a marital estate." *Stafford v. Stafford* , 726 S.W.2d 14, 16 (Tex. 1987). The concurrence's view that the award was "exceedingly generous" or "untenable" does not support its conclusion that the evidence was insufficient. To the contrary, if the evidence is sufficient to allow the concurring opinion to reach that conclusion, it was sufficient to enable the trial court to divide the property as well.

The concurrence also rejects Barney's testimony regarding "the substantial work he put into repairing and improving both houses," concluding that his argument "is in the nature of a reimbursement claim but the record contains no evidence of the values involved." *Ante* at 549 ( DEVINE , J., concurring). But Barney's argument is not in the nature of a reimbursement claim. Reimbursement claims involve a request for payments between the community property and one spouse's separate property or between the two spouses' separate-property estates. TEX. FAM. CODE § 3.402(a) ; *Vallone* , 644 S.W.2d at 459 ("A right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit.") (citing *Dakan v. Dakan* , 125 Tex. 305, 83 S.W.2d 620, 627 (1935) ). Here, Amanda no longer disputes that the Florey Lake house is community property, so we must accept that it *561is. Even if evidence of specific values is required to justify transferring one spouse's separate property to the community estate or community property to one spouse's separate estate, no authority requires more to support the trial court's equitable division of community property in which each spouse otherwise owns an equal interest.

The concurrence also complains that the parties failed to submit an inventory providing the value of the parties' various personal property. *Ante* at ---- ( DEVINE , J., concurring). But no law requires an inventory. *See* TEX. FAM. CODE § 6.502(a)(1) (providing that trial court "may" order one or both parties to submit an inventory "of the real and personal property owned or claimed by the parties"). And as Amanda herself agrees, the trial court awarded *all* of that property to her, and the division of the community interest in the Florey Lake house is the *only* issue in this appeal. The record contains evidence that the house is worth at least $120,000, and the house and personal property combined are worth "better than $200,000." So-to use the concurring opinion's own standards-the evidence provided the trial court with "some understanding of the extent and value of the community estate," *ante* at 546 ( DEVINE , J., concurring), including "evidence of the extent of the community estate or its value," *ante* at 550 ( DEVINE , J., concurring), and "sufficient information [for the trial court] to make a rational decision," *ante* at 546 ( DEVINE , J., concurring).

The concurring Justices disagree with the trial court's division, but that provides no valid basis to reverse it. To the contrary, because the abuse-of-discretion standard governs, we *must* affirm "if there is *any* basis in the record to support its decision." *Ante* at 546 ( DEVINE , J., concurring) (emphasis added) (citing *Rosemond v. Al-Lahiq* , 331 S.W.3d 764, 766 (Tex. 2011) (per curiam); *Worford v. Stamper* , 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) ). The trial court conducted four separate hearings and repeatedly personally questioned Amanda and Barney to learn more about their marital estate, and particularly about the Florey Lake house. Yet the concurrence would hold that the trial court acted *arbitrarily* and *abused* its discretion because it lacked sufficient information. And it would hold that the court of appeals committed error because no evidence supports the trial court's decision, even though Amanda never raised that issue. Our preservation requirements and the applicable standard of review prohibit such ivory-tower quarterbacking.

Finally, the concurrence asserts that *In re Marriage of Brown* , 187 S.W.3d 143 (Tex. App.-Waco 2006, no pet.), supports its holding because the circumstances in this case are "reminiscent of those" in *Brown* . *Ante* at 550 ( DEVINE , J., concurring). Although the underlying facts are tragically similar, the procedural "circumstances" and the trial court's awards are completely opposite. In *Brown* , the husband appealed and argued that the trial court abused its discretion by awarding 100% of the community estate to the wife. 187 S.W.3d at 146. The court of appeals agreed, concluding that the trial court abused its discretion because "the trial court was not provided adequate information about what was being divided; the value of assets, outstanding debts, and other relevant considerations like [the husband's] total defense cost," and "the trial court improperly considered the uses for which [the husband] was apparently going to spend his community share." *Id.* at 148. The issue in *Brown* was whether the trial court abused its discretion by awarding *all* of the community estate to the wife. *Id.* at 146. Here, the issue is whether the trial court abused its discretion by *not* awarding all of the community estate to the wife.

*562"The party complaining of the division of the community estate has the burden of showing from the evidence in the record that the trial court's division of the community estate was so unjust and unfair as to constitute an abuse of discretion." *In re Marriage of C.A.S. & D.P.S.* , 405 S.W.3d 373, 384 (Tex. App.-Dallas 2013, no pet.). Here, Amanda relies on the record evidence to argue that the trial court's division was unjust and unfair. But she does not challenge the evidence itself, and instead agrees that the evidence was sufficient, which in fact it was.

**III.**

**Conclusion**

The facts here are undeniably egregious, but the law governing our review is clear. In this Court, the controlling issue is whether the trial court abused its discretion, not whether Barney abused Amanda and her daughters. The trial court divided the interests as it deemed just and right, and we cannot legitimately conclude that it acted arbitrarily or violated guiding rules and principles. Nor can we accomplish that result by declaring the trial court's decision to be "unlawful" or by *sua sponte* inventing an evidentiary issue that Amanda never raised and that contradicts her own assertions. Regardless of how we might have ruled had we presided in the trial court, we simply have no *proper* basis on which to hold that the trial court abused its discretion.

1

Those factors include, among others, the parties' income, earning capacity, and financial needs. *Murff v. Murff* , 615 S.W.2d 696, 698 (Tex. 1981).

2

The concurrence musters two cases in which a court of appeals affirmed an award of more than eighty percent to one spouse. *Ante* at 547 (first citing *Ohendalski v. Ohendalski* , 203 S.W.3d 910, 912 (Tex. App.-Beaumont 2006, no pet.) ; then citing *Wright v. Wright* , 65 S.W.3d 715, 716 (Tex. App.-Eastland 2001, no pet.) ).

1

*See, e.g.* , *Young v. Young* , 609 S.W.2d 758, 762 (Tex. 1980) (explaining an abuse of discretion would occur if the trial court disproportionately awards community property as "a punishment for the spouse at fault" instead of as a just and right "division" of the community estate); *Eggemeyer* , 554 S.W.2d at 142 (finding abuse of discretion when trial court's division assigned one spouse's separate property to the other spouse); *Cockerham v. Cockerham* , 527 S.W.2d 162, 173 (Tex. 1975) (finding abuse of discretion when trial court ignored jury findings that "extend to issues of fact from which the status of property is determined") (citing *Stafford v. Stafford* , 41 Tex. 111, 118-19 (1874) ; *Rice v. Rice* , 21 Tex. 58, 66 (1858) ; *Baker v. Baker* , 104 S.W.2d 531, 532 (Tex. Civ. App.-San Antonio 1936, no writ) ); *Craig v. Craig* , 31 Tex. 203, 204 (1868) (finding abuse of discretion when trial court's property division divested one party of "all his property").

2

As the court of appeals noted, "Barney denied the accusations made by Amanda and her daughters and claimed that his actions had no part in dissolving the marriage. Barney testified, '[Amanda's] got another man in the house. She's lied to courts. She's lied to you people. Her kids are lying. And it's destroyed my life.' " 487 S.W.3d at 312. In light of Barney's conviction and the trial court's finding of cruelty in this case, we give no credence to Barney's denials.

3

The concurrence accurately describes Amanda's argument in its very next sentence: "In short, Amanda argues that the property division, though disproportionately in her favor, still is not 'just and right.' " *Ante* at 547 ( Devine , J., concurring). Amanda argues that justice required the trial court to award all of the house's interest to her, but she never argues that "no evidence supports" the award of some interest to Barney.

4

*See* Tex. R. App. P. 33.1(a)(1) ("As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court."); *Wells Fargo Bank, N.A. v. Murphy* , 458 S.W.3d 912, 916 (Tex. 2015) (" 'Parties are restricted on appeal to the theory on which the case was tried.' Appellate courts are similarly restricted and may not overlook the parties' trial theories.") (quoting *Davis v. Campbell* , 572 S.W.2d 660, 662 (Tex. 1978) ).

5

*See**Murphy* , 458 S.W.3d at 916 ("A court of appeals commits reversible error when it sua sponte raises grounds to reverse a summary judgment that were not briefed or argued in the appeal."); *Garcia v. Robinson* , 817 S.W.2d 59, 60 (Tex. 1991) (per curiam) ("The court of appeals should not have reached this issue, however, because the Robinsons did not raise it in the trial court or brief it on appeal."); *Vawter v. Garvey* , 786 S.W.2d 263, 264 (Tex. 1990) (per curiam) ("A court of appeals may not reverse a trial court's judgment in the absence of properly assigned error."); *San Jacinto River Auth. v. Duke* , 783 S.W.2d 209, 210 (Tex. 1990) (per curiam) ("A court of appeals may not reverse a trial court's judgment in the absence of properly assigned error."); *State Bar of Tex. v. Evans* , 774 S.W.2d 656, 658 n.5 (Tex. 1989) ("None of the arguments were raised by Evans at trial or on appeal, and the court of appeals thus erred in raising these arguments sua sponte and basing its reversal on these grounds."); *Tex. Nat. Bank v. Karnes* , 717 S.W.2d 901, 903 (Tex. 1986) (per curiam) ("The court of appeals may not reverse a trial court's judgment in the absence of properly assigned error."); *Cent. Educ. Agency v. Burke* , 711 S.W.2d 7, 8 (Tex. 1986) (per curiam) ("An appellate court is not authorized to reverse a trial court's judgment in the absence of properly assigned error."); *Prudential Ins. Co. v. J.R. Franclen, Inc.* , 710 S.W.2d 568, 569 (Tex. 1986) (per curiam) ("An appellate court is not authorized to reverse a trial court's judgment in the absence of properly assigned error."); *State Bd. of Ins. v. Westland Film Indus.* , 705 S.W.2d 695, 696 (Tex. 1986) (per curiam) ("An appellate court is not authorized to reverse a trial court's judgment in the absence of properly assigned error.") (citing *Gulf Consol. Int'l, Inc. v. Murphy* , 658 S.W.2d 565, 566 (Tex. 1983) (per curiam) ("The court of appeals is not authorized to reverse a trial court's judgment in the absence of a properly assigned error.") ); *Am. Gen. Fire & Cas. Co. v. Weinberg* , 639 S.W.2d 688, 689 (Tex. 1982) ("The Court of Appeals erred when it reversed the trial court's judgment on a point neither party assigned.").

6

*See**Nall v. Plunkett* , 404 S.W.3d 552, 556 (Tex. 2013) (per curiam) (holding that party "waived the issue of whether summary judgment was proper on the merits in this case by failing to brief it in the court of appeals"); *Samples Exterminators v. Samples* , 640 S.W.2d 873, 875 (Tex. 1982) (per curiam) (holding that party "waived his right to complain of" issue he failed to present as a point of error in the court of appeals and that the "court of appeals erred in reversing the trial court's judgment in the absence of properly assigned error").

7

*See also**Finch v. Finch* , 825 S.W.2d 218, 221 (Tex. App.-Houston [1st Dist.] 1992, no writ) ("One who complains of the way the trial court divided the properties must be able to show from the evidence in the record that the division is so unjust and unfair as to constitute an abuse of discretion."); *Gendebien v. Gendebien* , 668 S.W.2d 905, 909 (Tex. App.-Houston [14th Dist.] 1984, no writ) ("Appellant has failed to prove that Appellee owned such land and has failed to show the trial court abused its discretion in the division of the community property.").

8

The parties provided much of this testimony to support their competing positions on whether the Florey Lake house was Amanda's separate property. The trial court ultimately held that it was community property, and the court of appeals affirmed. Amanda does not complain of that holding in this Court, so we must accept that the house is community property.