## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00013

- CV

IN THE MATTER OF THE MARRIAGE OF MICHAEL NASH AND TEXIE NASH

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 17

- 0526

Befor e Morriss, C.J., Stevens and Carter , * JJ. Opinion by Justice Stevens

____________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### O P I N I O N
Michael Nash appeals the trial court’s final divorce decree dissolving his marriage to Texie Nash. On appeal, Michael challenges the trial court’s characterization of fourteen pieces of property as community assets. We find that the trial c ourt proper l y characterized thirteen of the dispute d properties as community property but sustain Michael’s po in t of error relating to the characterization of a property known as t he “ Loop and 59 tract.” Because the Loop and 59 tract should have been characterized as Michael’s separate property, we reverse the portion of the trial court’s order setti ng forth its p r o perty division and remand the matter to the trial court for further proceedings consistent with this opinion. We sever the port ion of the trial court ’ s decree granting the parties’ divorce and affirm that portion of the trial court’s judg me nt. I. Fa c t ua l Background Michael and Texie were married on August 6, 1997. Because Texie had inherited and acquired a sizeable estate prior to the marriage, the couple executed a premarital agreement (PMA)

. 1 The PMA, further discussed in detail be lo w, included a l ist of Michael ’ s and Texie’s separate property assets at the time of the marriage and contained a provision stating that wages earned during marriage would remain separate property. The PMA also contemplated the creation of community proper ty and incl ude d a provision establishing joint bank accounts. The evidence at trial established that the couple’s assets were a source of some marital discord. Michael had incorporated a business just prior to the marriage, which struggled financially fo r the fir st f

ew years. Texie loaned substantial sums of money to the company , and

1 “A premarital agreement becomes effective on marriage.” T EX
. F AM
. C ODE A NN
. § 4.004.3

an expert witness testified that most of the couple’s income during the first several years of marriage , as reported on their income tax return s, came from Texie’s separate p roperty

. In t he early 2000 s, Michael purchased several properties during a time when Texie believed he did not have sufficient income to do so. Texie said that she gave her separate property to Michael because she bel ieved he had insufficient incom e . T he couple had separated and filed fo r divorce seve r al times before this divorce

. Michael first filed for divorce in 2002, but the couple reconciled at the beginning of 200 3. Texie filed for divorce in 2006, but it was dismissed that same year aft er reconciliation

. T exie testifie d that Michael agree d to give her a fifty

- percent interest in his business to demonstrate his renewed commitment to the marriage, and Michael’s company was converted into a limited partnership , Nash Trucking & Construction , Ltd., naming Texie a fi fty

- perce nt limited partner. The business
grew , and the couple acquired additional assets. Michael purchase d several properties between 200 0 and 2011 that were deeded only to him. According to Texie , Michael told her that her name was not required on docum ents
at tached to real pro pert y acquisitions unless they sold the property

. Texie believed that she had an interest in those properties because funds other than Michael’s separate property had been used to acquire them. The record showed that e vi d enc e of tracing, as detai led below, was largely lacking. The couple had numerous checking accounts , and Texie testified, “Money’s been tossed back and forth so many times, it’s hard to keep up with what went where.” Expe rt t estimony indicate d t hat se v er al of the couple’s bank acc ounts had b een com m ingled.4

Another separation occurred in 2012 that undisputedly impacted the couple’s financial relationship. Michael said that , after 2012, he and Texie discussed their assets , in cluding commingled acc ount s a nd the business , “more colle ctively bec a use . . . [they] had kind of gotten past that mine and yours and his and her stuff , and that ’ s how [they] were getting a long

. ” He continued, “ W e were buying property togeth er , so that

. . . ac tually became and [w a s] going to b e our propert y rather than how it h a d always be e n .” Michael admitted that he and Texie had

co m mingle d some accounts in 2012, but Chad Maddux, a certified public accountant , testified that he believed t he parties had commingled funds before t h en . The trial court granted the divorce and c h aracterized the p a rties’ numerous assets. In a section label ed “ Division of the Marital Estate ,” t he trial court awarded to Michael the following community property : (1) six tracts of real property ; (2) f i ve per sonal vehicles ; (3) thr ee closely held bu s inesses ; (4) three business trucks ; (5) a motor home ; (6) t hree all

- terrain vehicles ; (7) a moped ; (8) a golf cart ; (9) two boats ; (10) two W ave R unners ; (11) five four

- wheelers ; (12) a
wagon ; ( 13) nineteen t ra ctors or trailers ; ( 14 ) twenty

- one item s in the category of equipment and
to ols ; (1 5 ) three hundred head of cattle ; (1 6 ) six horses ; (1 7 ) t w o life insurance policies ; (1 8 ) a

one - percent community inter est in a promissory note obtained after the sale o f Na sh Trucking & Construction, Ltd. ; ( 1 9 ) fifty percent of twenty

- six gas, oil, and m ineral interests ; a nd ( 20 ) 2 , 500 share s of stocks, bonds, and securities, a mong other things. Michael was also ordered to pay all debts incurred solely by him. Texie re c e iv ed the following community property: (1) eleven tracts of real property; (2) thre e items label ed as equipment and tools; (3) one vehicle; (4) a 7230 tractor and John Deer e tractor; (5) a pontoon boat ; (6) any life insurance policy insuring her life;5

( 7 ) f ifty percent of twenty

- six gas, oil , and mineral interests; (8 ) 2,500 shares of stocks, bonds, and securi ties; and (9) $52,800.00 pursuant to an order holding Michael in contempt for violatin g
court or ders during the pendency of the divorce. To equali z e t he division of community property, t he trial court ordered Michael to pay Texie $198,725.69. No findings of fact or conclusions of law were requested or filed. On appeal, Michael argues th a t the tri al court erred by failing to find that the followin g pr operty was his separate property : ( 1) the Grubb Pottery W arehouse tract ; (2 ) Home stead I ; ( 3 ) Homestead II ; ( 4 ) Homestead III ; ( 5 ) the Loop a nd 59 tract ; ( 6 ) the Post Ranch tract I ; ( 7 ) the P ost Ranch
tract II ; ( 8 ) the Caddo Lake lots ; ( 9 ) the Nash Tr u c ki ng and Construction note ; ( 1 0 ) the Brown
tract ; (1 1 ) the T & P FCU savings account ; (12 ) the Joh n Deere 6150R tractor ; (1 3 ) the 7230 cab
tracto r and loader ; and ( 14 ) the 1996 Caterpillar 41 6 b a ckhoe

. II. Thirteen of the Fourteen Items of Propert y at Is s u e Were Properly Characterized A. Standard of R eview “The Texas Family Code requires the trial court to d ivide a marital estate in a ‘just and right’ manner, conside ring the rights of the parties.” In re Marriage o f Moncey , 404 S.W.3d 701, 706 (Tex. App.

— T e xa rkana 2013, no pet.) (quoting T EX
. F AM
. C O DE A NN
. § 7.001). “Trial courts can only divide community property, and the phrase ‘estate of the parties’ encompasses the community property of a marriage, but does n o t reach separate property.” Id. (quoting
P ea rson v. Fillingim , 332 S.W.3d 361, 363 (T e x. 2011 ) (per curiam)). “Property possessed by either spous e during or on dissolution of marriage is presumed to be com munity property .” T EX
. F AM
. C ODE A NN
. § 3.003(a)

. To rebut this presumption, the6

person s e e ki ng to prove the separate character of the propert y must do so by clear and convincing evidence. T EX
. F AM
. C ODE A NN
. § 3.003(b). Separate property is the proper ty owned before marriage as well as “ property acqu ired

. . . during marriage through gift, d e vi se, or descent. ” T EX
. F AM
. C ODE A NN
. § 3

. 001. All othe r property that is not separate property is communit y property. T EX
. F AM
. C ODE A NN
. § 3.002. “‘Clear and convi ncing ev idence’ means the measure or de gree of pr oof that will produce in the mind o f th e trier of fact a firm belief or convicti o n as to the tr uth of the allegations sought to be established.” T EX
. F AM
. C ODE A NN
. § 101.007. “Any doubt as to the characte r of pro perty should be resolved in fav or o f the community estate.” In re Marriage o f M oncey , 404 S.W.3d at 706 (citing Garza v. Garza , 217 S.W.3d 538, 548 ( Tex. App.

— San Antonio 2006, no pet.)). “Reversible error ex ists as a matter of law only if the t rial cour t c haracterizes property as communi ty property and awards it to one
spouse w h e n it is established as the separate propert y of t he other spouse.” Id

. (citing Eggemeyer v. Eggemeyer , 554 S.W.2d 137, 140 (Tex. 19 77)). That said, characterization of marital p rop erty often involves questions of fact. Maldonado v. Maldonado , 556 S.W.3 d 40 7, 414 (Tex. App.

— Houston [1st Dist.] 201 8 , no pet. ) (“ Whether propert y is separate or community in nature is a mixed question of law and fact. ”); Irvin v. Parker , 139 S.W.3d 7 03, 708 (Tex. App.

— Fort Worth 2004, no pet.) (“ Whether the presumption as to t he community character of marital property i s ove rcome is a question for the jury .” (quoting Smith v. Lanier , 998 S.W.2d 324, 332 (Tex. Ap p.

— Austin 1999, pet. denied) ( citing Or rill v. Orrill , 271 S.W.2d 173, 175

– 7 6 (Tex. App.

— Texarkana 1954, no writ) ) )) ; Ca ll away v. Clark , 200 S.W.2d 447, 449 (Tex. App.

— Texarkana 1947 , writ ref’d) (“ [T] estimony7

raised a question of fact as to w hether the property was paid for w ith separate or co mmunity funds, and was properly submi tted to the jury by the trial court. ”). B e c ause no findings of fact and conclusions o f law were requested or filed , “ ‘ we imply all findings of fact necessary to
suppor t the judgment ’ of the trial court

. ” Bouknight v. Bouknight , No. 06

- 14

- 00034

- CV, 2 014
WL 4930818, at *2 (Tex. App.

— Texarkana Oc t

. 2 , 2014, pet

. denied) (mem. op.) (quoting
Bu r den v. Burden , 420 S.W.3d 305, 307 (Tex. App.

— Texarkana 2013, no pet.) ) (citing BMC Software Belgium, N.V. v. March and , 83 S.W.3d 7 89, 795 (Tex. 2002) )

. “ When faced with conf licting evidence, the fact

- finder m ay choose whic h witnesses to believe and may r e solve inconsistencies in any witness ’ testimony. ” Id. (citing McGalliard v. Kuh lma nn , 722 S.W.2d 694, 697 (Tex. 1986) )

. As a res ult, “[w] e do not interfere with the fa ct

- finder ’ s resolution of conflicts in t he evidence or its determination of the weight and credibility of witness testimony, as its determ inations on these matters are ge nerally considered conclusive. ” Id. B. Impact of the PMA o n Our Analysis As a preli minary issue, we must f irst address Mi c h ae l’s argument that the P MA removes the application of the c ommunity property presumption for property a cqu ired after the marriage. To evaluate this clai m, we look to the language of the PMA

.

“ [G] enerally, in Texas, courts interpret premarital agreemen t s l ike other written
cont r act s.” Matter of Marriage of I.C. & Q.C

. , 551 S.W.3d 119, 122 (Tex. 2018) (quot ing Williams v. Williams , 246 S.W.3d 207, 210 (Te x. App.

— Housto n [14th Dist.] 2007, no pe t.) (citing Beck v. Bec k , 814 S.W.2d 745, 748

– 49 (Tex. 1991) ( us ing the terms “ premari t al agreement ” and “ contract ” interchangeably ) ) )

. “ The interpretation of an unambigu ous contract is8

a question of law for the cou rt. ” Id. (citi ng MCI Telecomms. Corp. v . Tex. Utils. Elec. Co

. , 995 S.W.2d 647, 650 (Tex. 1999) )

. “ W he n in terpreting a contra c t, our ‘ primary objective is to ascertain and give effect to the parties ’ intent as expressed in the instrument. Objective mani festations of in tent control, ’ not the s ubjective intent of the p arties. ” Id. (quoting URI, Inc.

v. K le berg Cty

. , 543 S.W.3d 7 5 5, 763

– 64 (Tex. 2018) )

. 2

“ One important distinction does exist between the constru ction of premarital agreements and normal co ntracts. Premari tal property agreements we construe narrowly in f avor of the community estate. ” Wi l l ia ms v. Williams , 246 S.W

. 3d 207, 211 (Tex. App.

— Houston [14th Dist.] 2007, no pet.) (citing Fisch er - Stoker v. Stoker , 174 S.W.3d 272, 278

– 79 (Tex. App.

– Houston [1st Dist. ] 2005, pet. denied); M cClary v. Thompson , 65 S.W .3d 829, 837 (Tex. App.

— Fort Wor th 2 00 2, pet. denied ) ) ; see I n re Marriage of McNelly , No. 14

- 13

- 00281

- CV, 2014 WL 2039855, at *2 (Tex . App.

— Housto n [1st Dist.] May 15, 2014, pet. denied) ( mem. op.); Mora v.
Mora , No. 04

- 10

- 00832

- CV, 2012 WL 1721540, at *1 (Tex. App.

— San Antonio May 16, 20 1 2 , no pet. ) (mem. op.) (ci t ing McClary , 65 S.W.3d at 837 ) ). “ Not all premarital agreements remove the couple ’ s entire marital estate from Texas ’ communit y property laws. ” In re Works , 118 S.W.3 d 906, 909 (Tex. App.

— Texa rkana 2003, orig. proceeding ) . “ S o m e premarital agreements

. . . only purport to remove certain items of the marital estate

. . . from the community proper ty laws. ” Id. at 909

– 1 0.

2 “Unless the contract indicates th at the parties used a term in a technical or u nusua l s ense, co n tractual terms are g iven their plain, ordinary, and gener ally accepted me aning .” Matter of Marriage of I.C. & Q.C

. , 551 S.W.3d at 122 (citing Dynegy Mid

stream Serv s. v. Apach e Corp

. , 294 S.W.3d 164, 168 (Tex . 2009); Herita ge Res. , Inc. v. Na ti o n s Bank , 939 S.W.2d 118, 121 (Tex. 1996)).9

Micha el and Texie’s PMA recited the “ intent [] to list and define the separate pro perty each party [was] br i n gi ng into the ma rriage an d to preserve the separate character of such property after their marriage for all purposes , incl uding but not necessarily limit ed to , accounting , liabilit ies , and owner ship

. ” The PMA included exhibit li sts of Michael ’ s and Texi e ’ s separate property. Mic h ael’s seven

- item list of separate property included a “1996 Backhoe ” with an es timated $45,000.00 value, four trailers, one veh icle, and an East Texas National Bank

accou nt with $10,000.00 beginning with n umbers 107. Texie’s se p a ra te property included ma n y

“ Oil and Gas Mineral Interests ” and sizeable bank accounts, among other things. B ased on our narrow construction, and in lin e with the parties’ intent to list and defi ne the separate property each party was bringing into the m a rr iage, we find that the p hrase “separate property” in the PMA was limited to the list s of se parate property s pecified in the PMA exhibit lists. In the PMA, Michael and Texie agreed that increas es in value and mutations generated from each party ’ s sepa r a te property would be the s eparate property of the spouse who owned it prior to the mar riage and that all wag e s and salaries earned by a spouse would be the separate property of the spouse

. They also stipulated that, if both of th eir names were “ placed o n an account that [was] ot h erwise the separate property of one of the P arties, it [was] for m a nagement
purposes only and

. . . [would] remain the separate property of the owner

- spouse.” Even so, the PMA contemplated the creation o f c ommunity property. I t sp ecifically provided th a t Michael and Te xie would “ maintain a joint a ccount

. . . into whic h they [ would ] deposit funds from time to time

. . . [to] be used to pay household expenses and such ot her
expenses ” as they agreed. A cco rding to the PMA, t his a c c ou nt would “ be owned as c ommunity10

property between the P arties

. ” As for debts, Michael and Texie agreed that “ all liabilities and obligations

. . . exi st[ing] at the date of their marriage or

. . . in curred

. . . subsequent to th eir marriage [would] be e n fo rceable against and di s ch arged from the s eparate property of th e P arty who in c ur

re d the li ability or obligation or from the c ommunity property subject to that P arty ’ s sole management, control, and disposition .” Under the PMA, Michael and Texie would a l so have the r ight to tra n sfer or convey property to the other party , and the PMA provided tha t neither of them intended “ to limit or restrict the right a nd power to receive any such transfers or c onveyances from the other P arty .”
Y et, “[t]he commingling b y o ne Party of his or her separate fu nds or property with the separate funds or property of th e other Party,” oral statements of a party, and “ [ t ] he way title [was] held on either Party’s separate pro perty” could not be considered evid ence of any intent t o c h ange a separate pro perty in t erest int o c ommunity property

. Because the PMA contemplates that t he parties could create community property, we find that it does not expressly negate the applic ation o f the presumption outright

. Instea d , it established t h e separ ate property that the p arties had prior to the marriage and, as applicable here, exempted t he following categories of property acquired after marriage from being considered community prop erty: wages and salary, increases in valu e and mutations ge n e r a ted
f rom separate prope rty l isted in the PMA , and bank accounts that were listed in the PMA as

s eparate property and were not joint accounts as con templated by the PMA . As a result, two obviou s prin ciples govern our analysis of the c haracterization of t h e asse ts at issue. Firs t,
p r operty acquired before marriage is separate property unless it was u sed to maintain a joint11

account as contemplated by the PMA. Second, property acquired after marr iage i s presumed to be community property , but the presumpt i o n will be rebutted by cle ar a n d convincing evidence if it falls into the category of items exempte d from being considered community property under th e PMA. 3
C. General Rules Governing Characterizatio n of Property “We determine whethe r property is sepa r a t e or c ommunity by its ch arac t er at the time of inception.” Marriage of Taylor , No. 06

- 14

- 00061

- C V, 2015 WL 428121, at *3 (Tex. App.

— Texarkana Feb. 3, 2015, no pe t.) (mem. op.) (citing Barnett v. Barn ett , 67 S.W.3d 107, 111 (Tex. 2001)). “Incep tion of t i t l e occurs when a party first has a right of claim to the property by virtue

3 Texie argue s tha t Michael’s appeal is barred by the acceptance

- of

- benefits doctrine because Mich a el argues that the PMA “does away w ith communi ty property for these spouses,” w hile acc epting th e ben efits of com mu n i t y prop ert y awarded to him under the divorce de cree. The estoppel

- based accept ance - of

- benefits doctrine “precludes a party from ‘first adopting [a] judgment as right, and then repudiat ing it as wrong, [so as to take] advantag e[ ] of it s bei ng both r ight a n d wrong .’ Estoppel prevents l itigants from taking co ntrad ictory positions as a means of gaining an unfair advantage from the inconsistency.” Kramer v. Kast leman , 508 S.W.3d 211, 217 ( Tex. 2017) (quoting Matlow v. Cox , 25 Tex. 578, 58 0

– 81 (1860)). [B ] e f ore de nyi ng a merits

- based resolution to a dispute, court s must evaluate whe ther, by asserting dominion over assets awarded in the judgment under review, the appealing party clearly in tended to acquiesce in the ju dgme nt; whether the a ssets have bee n so d i s sipate d a s to prevent their recovery if the judgment is r eversed or modified ; and whether the opposing party will be unfairly prejudiced. Id. We do not find those requirement s met here. Michael demonstrated a t trial that he and T exie agr eed to esta b l i sh com mun ity property after 2012. While Michael’s brief does state that the PMA “ practically speaking , . . . does away with community property,” (emphasis added), we interpret that as an argument that the PMA does away with a co mm uni ty propert y presu mp t i o n wi th re spect to the disputed properties. At a post

- ju dgment hearing, M ichael testified that he had received the benefit of the community property aw ard ed to him under the divorce decree. Even so, “m erely us ing, holding, c ontro ll in g, or s ecuring poss e s s ion of co m munity property awarded in a divorce decree do es not constitute clear intent to acquiesce in the judgment and will not preclude an appeal abs ent prejudice to the nonappealing party.” Id. at 2 28. Mic hael also testi fied th at he was not asking t h e trial co urt to enforce the property di vision and was wa iting for the app eal to determine the proper characterization of the disputed assets. Also, a rev iew of ten non

- exhaustive factors listed in Kram er do es no t lead to the c onclu si on that t he appeal sh o u l d be b a rred. See id. at 228

– 29. Becau se Michael’s acti ons are not incon sistent with his claims of error on appeal and , when possible, “an adjudicatio n on the merits is preferred in Texas,” we find tha t the ac ceptance

- of

- ben efits d octrine d oes not bar t h i s appe a l. Id. at 227 (quoting Sutherland v. Spe ncer , 376 S.W.3d 752, 756 (Tex. 20 12) (quoting Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 86 (Te x. 1992 )) ) ; see Matter of Marriage of A.W.E. & D.M.F.N

. , N o . 05

- 19

- 01303

- CV, 20 2 1 WL 82 24 92, at *3, * 5 (Tex. A pp.

— Dallas Mar. 4, 2021, no pet.) (mem. op. )

.12

of which title is fi nally vested.” Id. (quoting Zagorski v. Zagorski , 1 16 S.W.3d 309, 316 (Tex. App.

— Houston [1st Dist.] 20 03, pet. denied)). “Further, to overcome th e communi t y p roperty
presum ption, the sp o use claiming property a s separate ‘must clearly trace the original separate property into the particular assets on hand during the marriage.’” Id. (quoting Cockerham v.
C ockerham , 527 S.W.2d 162, 167 (Tex. 1975)). “Tracing i n v olves establis hing the sepa r ate origin of the property through evidence showing the time and m eans by which the spouse originally obtained possessi on of the property.” Id

. (quoting Zagorski , 116 S.W .3d at 316; In re Marriage of Parker , 997 S. W.2d 833, 8 3 7 (Tex. App.

— Te xarkana 1999, pet. denied)). “Even though the separate property may go through a series of exchanges, it will retain its separate ch aracter if the party can trace the assets on hand du ring the marriage to property that was
separ ate when f

i r s t acquired.” Id. (citing C e lso v. Celso , 864 S.W.2d 652, 654 (Tex. App.

— Tyler 1993, no writ) (citing Cockerham , 527 S.W.2d at 167)). D. Characteri zation of the Disputed Property We place the disput ed properties into three categories. The fi rst categ o r y involves
prope rties purchas e d du ring the marriage with funds from bank accounts that Michael a rgues were solely his separate property, but Texie ar gues were com m ingled. The properties purchased using these disputed accounts include the Grubb P ottery W a r e h ouse tract, the Homestead
p ro pert ies, the Loop and 59 tract, the Post Ranch tract s, and the Cad do Lake lots , and their proper characterization re qu ires us to first review the nature of the disputed ac counts. The second category of properties, compris e d o f the Nash Truc king and Con st ruct ion note and the Brown tract, requires a review of the charact erization of the business. The third cate gory of13

properties, which does not involve preliminary issues, is comprised of the T&P FCU savings account, the John D e e re 6150R tract or, the 7230 c ab t ractor and loader , and the 1996 Caterpillar 416 backhoe

. 1. Cha racterization of Properties Purchased Duri ng the M arriage w ith

Funds from the Disputed Bank Accounts

a. Re view of the Parties’ Bank Accounts

“ A party seeking to r e b ut the commu nity presum pt ion m ust trace the assets on hand during the marriage back to prope rty that is separate in character. ” In re Marriag e of Born , No. 06

- 08

- 00066

- CV, 2009 WL 1010876, at *2 ( Tex. App.

— Texarkana Apr. 16, 2009, no pet

. ) (mem. op.) ( c i t ing Cockerham , 527 S.W. 2d at 167; Boyd v. Boyd , 131 S.W.3d 605, 612 (Tex. App.

— Fort Worth 20 04, no pet. ) ). “ Tracing involves establis hing the separate origin of the property through evidence showi ng the time and means by which the spouse originally ob t a i n ed possession of the pr op erty. ” Id. (cit ing Boyd , 131 S.W.3d at 612 ); see Robles v. Robles , 965 S.W.2d 605, 614 (Tex. App.

— Houston [1 st Dist.] 1998, pet

. denied)

. “[C] onclusory or uncorroborated t estimony that funds are separate property is insuffici e n t to rebut the community
p re sumption, unless there is also evidence that traces the funds. ” In re Marriag e of Bo rn , 2009 WL 1010876, at * 5; see Robles , 965 S.W.2d at 61 4 (“ Mere testimony that the property was purchase d with separate funds, without any t r a c i ng of the funds, is gene ra lly insufficient to rebut the presu mption. ” (citing McElwee v. McElwee , 911 S.W.2d 1 82, 188 (Tex. App.

— Hous ton [1st Dist.] 1995, writ denied) ) )

. Even the designation of a bank account as se parate property in a premarital agre e m e n t does not overc ome the co mmunity property presumption withou t proper14

evidence of tracing. Osorno v. Osorno , 7 6 S.W.3d 509, 512 (Tex . App.

— Houston [1 4th Dist.] 2002, no pet.)

.

“ The burden of tracing is a difficult , but not impossible, burden to sust a i n . ” In re Marriag e of Bor

n , 2009 WL 1010876, at *2 . “ Courts h ave no difficulty in following separate funds through bank accounts. ” I d. at *3. “ A showing of community and separate funds existing in the same account does not divest th e separate funds o f t h eir identity and establi sh the ent ire amount as community, if the separate fund s may be traced and the trial court is able to det ermi ne accurately the interest of each party. ” Id. (citing Holloway v. Holloway , 671 S.W.2d 51, 60 (Tex. App.

— Dallas 1983, w r i t dism ’ d) )

. That said, “[ i] f sepa rate property and community property have bee n so commingled as to defy resegregation and ident ific ation, the statutory presumption of community property prevails .” Id. at *2. Texie testified that she and Michael ha d n u merous checking accounts d uring th e marriage and that money h ad “ been tossed ba ck and forth so many times, [it was] hard to keep up w ith what went where.” A review of the parties’ numerous bank accounts necessarily impacted the trial cou rt’s character i z a t ion of properties acquired u si ng funds kept in those ac counts. As a resul t, we discuss the disputed bank accounts that were use d to p urchase real property after the marriage. i. The Panola National Bank Account Texie testified that she a nd Michael ba n k e d at Panola National Bank ( the Pa no la
Accoun t)

. When asked, “Did ya’ll bank at Panola National Bank and have a joint account at Panola Nat ional Bank that nobody has produced any statements for,” Michael responded,15

“Ex a ctly. I told you I do no t remembe r . ” While both parties stated that th ey were u nable to obtain any reco rds for this bank account, Texie and her expert CPA, Chad Mad dux, testi fied that

a review of a Merrill Lynch bank account that was undisputed as Texie’s separate property showe d that he r s e parate property funds were depos it ed into t he Pan ola Accoun t betwee n 1998 and 2001. Michael did not remember the account, but T exie testi fied that Michael had deposited money into i t. While there was no testimony as to when this accoun t was created, t h e Panol a Accoun t was not listed on the PMA an d was presume d to be created after the marriage. On these facts, t he trial court could h ave determined, based on Texie’s testimony, that the account was a community joint account as contemplate d by the PMA. 4
ii. T h e Austin Bank A cc ount
T exie and Michael had a bank account at A ustin Bank with an account number ending in 179 (the Austin Account) . The A ustin Ac c ount was created after th e marriage

. Evidence at trial showed that both parties ’ names were on the accoun t a n d that they b ot h deposited separate
pr operty funds into it

. Michael s igned an affidavit opini ng that the Austin Account was not a community account, but instead “ he ld the separate funds of both of [them] per the terms of the [PMA].” Yet, it is undisp u t e d that no tracing f or this bank account w as available

. A f ter reviewing th e Austin Ba nk records that were available and comparing them to Michael’s tax returns, Maddux testified that there were deposits into the Austin A ccount that

were neither wages n o r s alary

. Michael s aid that he “[ p ] ossibl y ” e arned more tha n what he had

re po rted to t he Internal Rev enue Service (IRS) , and there was evidence of sources of income that

4 Michael does not argue otherwise in his b riefing.16

were not increases in value or mutations generated from separate property, such as g a m b l ing winnings, sales of cattle, and r en tal in come . Michael a dmitted that r ental i ncome from property purchased after the marriage may have been deposited into the Austin Account at some point

. Doug Fejer, a CPA who served as Michael ’ s own expert , tes t i f i ed t hat , in the absence of appropria te recor ds t hat could be used to trace the so urce of th e funds d eposited into the account, the Austin A ccount was presumed to be c ommunity property. When a tr ial court is left to speculate, based on testimony and sp o t t y records, what part of an account is o rigina l separate

property principal and wha t part is community , the community presumption prevails

. In re Marriag e of Born , 2009 WL 101087 , at *7

. Considering this evidence, the trial court could have found that t h e Austin Bank account had been co m ming led , and Mi chael does not ar gue otherwise. iii. The Texas Nat ional Bank Accoun ts In 20 06, Michael testified that he moved his banking business to Texas National Bank and created thr ee accounts with account numbers endi n g i n 127 (the 127 Account), 761 (the 761 Account), and 660 ( the 660 Account). Both Texie ’ s an d Michael’s names were on the 761 Account. Maddux testified, and Michael admitted, that the 761 A ccount had been com m ingled. There was no evidence e stablishin g t h e source of the income used to open the 127
Account or the 660 Acco unt , and Michael admitted that he p roduced no statements showin g any kind of tracing for those accounts during the relevant timeframe . Howe ver, he believed they were his sep arate prope r t y . The 12 7 Account and the 660 Account bore only Michael’s name. Even so , Maddux testif

ied that the money deposited i nto those a ccounts exceeded what Michael17

had reported as his income , and Michael admitte d that he may have earned more tha n what he
rep o r t e d to the IRS. As an example, Michael deposited thousands of dollars into the 127
A ccoun t fr om sales of cattle and rental i ncome. Mic hael’s expert , Fe jer, conceded tha t those deposits were community funds because the PMA did not expressly list those s o u r c es of income

as separat e property. Because t he funds were com m ingled, Fejer agr eed that the community presumption applie d to th e 127 A ccou nt

. Michael admi tted that, in 2010, he depos ited rental income into the 660 A ccount, and Maddux testified that t h e 6 60 Account was com m ingle d as well. Michael’ s testimony that the 127 Account and the 66 0 Acc ount were separate property constituted insuffi cient evide nce to rebut the community presumption that t hese accounts, created after marriage, were community pr o p e r ty. See i d. at * 5; Robles , 965 S.W.2d at 6 1 4

. As a result of “ incomplete documentary , and less

- than

- compelling oral, evidence tracing t he account from i ts presumed status as commun ity property, during the marriage, to [Mic h a el’s] separate property, b e f

o r e the marri age ,” Michael “ failed to accurat ely segregate the sep arate and community pr opert y interests .” Born , 2009 WL 1010876, at * 7. Th e trial court p roperly characterized the Te xas National Bank Accounts as com m ingled, community property.

b. The Gr u b b Pottery Ware house Tract The trial court a warded t he Grubb Potter y W arehouse tract ( Grubb) , which was purchased by Michael in 2005 , to Tex ie

. The evidence at trial showed that Michae l alone entered into an earnest money contract and paid $5,000.00 in e a r n est money. Texie t estified that sh e clai med ownership in Grubb because a portion of the m oney used to purchase the t ract came18

from the sa le of another pro perty that was purchased fro m a $50,000 .00 inher itance from her grandmother

. A $66,880.00 deposi t t h at was not c lassified as wages or salary , and could not be traced by Michael, was de posite d in the Austin Account bearing both p arties ’ name s. 5 A $52,977. 98 cashier’s check was writt en on the Austin Account and used to make a down payment on Grubb. T h e r emainder of Grubb’s $400,000.00 purchase price was financed by Texas National Bank

. Mich ael alone signed the promissory note , and only his name was included on the deed to Grubb, but Texie signed the deed of trust securing the remaining funds used to p u r chase Grubb. Texie testified that she di d no t realize that Michael planned to k eep G rubb a s his separate property and believe d that her mone y contributed toward its purchase. Texie a nd Maddux both testified that there was no tracing for the Austin Ac c o u n t that was us ed to purchase Grubb.
Beca use it was acquired after the marri age, Grub b was presumed to be community property, and it was Mich ael’s burden to rebut that presumption by c lear and convincing evidence. Citing to Weir zchula v. Weir

zchula , 6 2 3 S .W.2d 730, 73 2 (T ex. App.

— Houston [1 st Di st.] 1981 , no pet. ) , Michael argues that the inception

- of

- t itle rule required the trial court to find that Grub b was his separate property b ecause he alone entered into the earnest money contract. Even so, Weir

z c h ul a is easily d istinguishable since the husband in that ca se “ent ered into an earnest money contract while he was st ill a single man.” Id

. Here, Michael entered into the
earnest mo ney contract during the marriage , admits that he did not trace the sourc e of the $5,000

. 0 0 in earnest money , and further admits that he did not trac e th e source of the down

5 The amount of this deposit exceeded the parties ’ reported income fo r that tax year

.19

payment. Applyin g the inception

- of

- title rule, Grubb was purchased after the marri age, the earnest money payment and down payment came from funds that wer e pr esumed to be community property, and Michael failed to t race those funds to establish that they came from his
sepa rate property. See Matter of Marriage of Collinsworth , 598 S.W.3d 357, 364 (Tex. App.

— Texarkana 2020, no pet.)

. Next, Micha el ar gues th a t h is n ame alone was on the deed, but “[t] he communit y
presu mption is not contradicted by legal title in just one spo use. ” Tipp s v. Chinn Expl. Co

. , No. 06

- 13

- 00033

- CV, 2014 WL 4377813, at *2 (Tex. App.

— Texarkana Sept. 5, 2014, pets. den ied) (mem. op.) ( “ ‘ Wh ere the grant or deed to community lands is in the name o f the husband, the legal title to the lands is in him .’ But legal title in the husband ’ s name does not, alone, alter the community nature of the property, and the wife still can have an equally a b so lute estate or interest in the property. ” (quotin g Burnh am v. Hardy Oil Co. , 195 S.W. 1139, 1143 (Tex. 1917 )) )

. Even so, Michael a ttem pts to prove the separate character of the property by arguing that Texie was not liable on the deb t he incurred to p u rc has e Grubb. Michael acknowledges that property pu rchased on community credit is community property

. See Puente v . Puente , No. 01

- 1 9

- 00 952

- CV, 2021 WL 1414218, at *5 (Tex. App.

— Houston [1st Dist.] Apr. 15, 20 21, no pet. ) (mem. op.) ( c iting Cockerham v . Co cke rham , 527 S.W.2d 162, 171 (Tex. 1975) (“ It is w ell
est ablished that debts contracted during marriage are presum ed to be on the cr edit of the community and thus are joint community obligations, unless it is s hown the creditor agreed to look solely t o t he se parate estate of the contracting spouse for sat isfacti on. ”) ) ; Mock v. Mock , 21620

S.W.3d 370, 374 (Tex. App.

— East land 2006, pet den ied ) ; Jones v. Jones , 890 S.W.2d 471, 475 (Tex. App.

— Corpus Christi 1994, writ denied ) (“ Likewise, prop erty purchased o n c re dit during a marriage is community property unless there exists an express agreement on the part of the lender to look solely to the sep arate estate of the purchasing spouse for satisfaction of the indebted ness. ”). Yet, Michael contends th at the PMA p r o vi d ed “that the debts of a s p ouse are
pay able from their separate property ” and that , as a result, “the presumption of com munity credit [was ] ov ercome by the fact that Michael alone was the party to the loan.” We do not agree with Michael’s reading of t h e P MA, which provided that “ all liabilities and obl igation s . . . [would] be enforceable against and discharged from the s eparate pro perty of the P arty who in c ur

re d the liability or obligation or from the community property subject to that
Par ty’s sole m a n ag e ment, control, and disposition .” (Emphasis adde d)

. Th e PMA, which contemplated purchases on community credit, di d no t alter the character of prope rty acquired after marriage, but merely clarified the parties ’ liabilities for debts incurre d by one sp o u se . See Goy al v. Hora , No. 03

- 19

- 00868

- CV, 2021 WL 214962 8, at *11 (Tex. App.

— Austin May 27, 2021, no pet.) (mem. op .) ( c iting James W. Paulsen, Acqui ring Separate Property on Credit:
A Review and Proposed Revision of Texas Marital Property Doctrine , 3 7 St

. Mary ’ s L. J. 675, 676 (2006) ( stating “ apparent black letter rule ” that “ anything acquired by either spouse on cr edit during marriage is community p roperty, unless the creditor agrees at the outset to look only to separate property for repayment, ” or p ut differently, “ all property acquired on credit du ring

ma rriage is community property, unless that property is acqui red b y a separate

- property

- secured

non - recourse loan ”) ) ; see also Tedder v. Gardner Aldrich, LLP , 421 S.W.3d 651, 6 5 5

– 54 (Tex.21

2013) ; Coc k e rh a m , 527 S.W.2d at 171 ( “[T] he fact that the debts are co mmunity liabilities would not, without more, necessaril y le ad to the conclusion they were joint liabilities. Characterization of the debts as community liabilities is only one aspect of the circu m s ta n ces to be considered in determining whether the debts a re joint. ”)

. In other words, the PMA’s reference about how debt s would be paid did no thing to change the community presumption , inception

- of

title rule , or other applicable rules

. Also , nothing i n t his case showed that Texas National Bank agreed t o look solely to Michael’s separate property assets to satisfy the obli gation on the promisso ry note because Texie also signed the deed of trust , which listed “Michael Nash and
Tex ie Nash, husband and wi f e ” as grantors to the debt. See Welder v. Welder , 7 94 S.W. 2d 420,
427

– 28 (Tex. App.

— Corpus Christi 1990 , no pet. ) (“[ T] he intention of one spouse alone to repay a loan out of separate funds and hold the property purchased with the proceeds of that loan a s

s e parate property has never been controlling

. . . . [T] he intention of the lender to look solely to the pro pert y of one s pouse i s an evidentiary factor of prime importance in showing by clear and convincing evidence that the sp ouses intended to hold the p r o perty as one spouse ’ s separate property, especial ly wher e there is no other evidence of such an agreement

. ”).
Bec ause it was purchased after the marriage, Grubb was presumptively community property. The funds used to purcha se the property came from t h e Austin Account , which the evidence showed housed communi ty funds and community credit. Because Michael f aile d to
trace the so urce of the funds used to his separate property, and also failed to show that Texas National Bank a greed to look solely to his s ep arate property funds in satisfaction of the debt22

incurr ed, we find that the trial court did not err by co nclu ding that Grubb w as community property.

c. Homestead s I, II, and III The trial court awarded three tracts of real pro perty, known as Homestead t r ac ts, I, II, and III, to Texie as a part of its jus t and r ight division of community property. To evaluate Mich a el’s
comp laint that the trial court erred by failing to find that the Homestead properties were his separate proper ty, we recite the facts in v o lv ing ea ch transaction. In 2000, Michael found a piece o f property , known as the Fitzgerald tract (Homeste ad I ) ,
an d too k Texie to see it. He claimed that Texie had no interest in the property but decided to purchase it anywa y. Michael made the $48,0 0 0 .0 0 down payment for the purchase of Homestead I in cash a nd could not remember whe re the money came from. Texie sai d tha t she could not remember if she provided Michael with any money to assist with the down payment but testif ied that they were both pu t t in g mone y into the Panola Account , which was the sa me

acco unt that was used to pur chase Homestead I

. The remai ning purchase price for Homestead I was financed through Panola National Bank. While only Michael execute d the promissory note, Michael a n d T e xie both signed a deed of trust naming the m as obli gors of the debt o n th e same day. Even so, the deed conv eyed the property only to Michael. 6 Texie said that, although she never demanded that Michael add her to the d eed , s he believed that she owne d th e property from the beginning beca use the y both vi sited it and discusse d bu ilding a home there

.

6 The deed did not s t ate whether Mi chael w as marrie d and did n o t conta i n any separate property recital.23

A few years later , the parties decided to move their marital home in favor of building a

new marital home on Homestead I. Michae l and Texie borrowed $390 , 0 00

. 0 0 to construct the home, were bo th list ed as gra ntors o n the loan , an d si gned the deed of trust to secure th e not e. Michael admits that he did not trace the source of funds used to make the down payment
on Homestea d I but claims that it was his se p a rat e property because the deed wa s i n his n ame and h e alo ne signed the promissory note. We disagree.
Because it w as acquired after the marriage, Homestead I was presumptively community property. The communi ty presumpti on was not contradicted simply b e cau se the deed contained his name al one. S ee Tipps , 2014 WL 4377813, at *2 . Because nothing indicated that Panola National Bank agreed to look only to Mi chael’s sepa rate property to sati sfy the note on Homestead I, the property was purchased using com m u n i ty c re dit. See Puente , 2021 WL 1414218, at *5 (citing Cockerham , 527 S.W.2 d at 171) ; Mock , 216 S.W.3d at 374 ; Jones , 890 S.W.2d at 475 ; Welder , 794 S.W.2d at 427

– 28

. On these facts, the trial court co uld find that Michael failed to rebut the communit y p r op er ty presumpt ion by clear and convincing evidence. As a result, the tria l cou rt properly concluded that Homestead I was community property. As for Homestead s II and III, they were a lso purchased af ter the marriage and were paid for with cash that M i c h a el ad mitted he could not trace. His expert, Fejer , testified that Michael did not make sufficient income as reported on tax r eturns to pay for Homestead s II and III. Texie t estified t hat Michael had “ taken a lot of our community money and separate p r o p er ty

mo ney and p ut his name only on things and claimed it as his own separate prop erty ,” including the homestead properties

. Although the deeds listed only Michael’s n ame, that fact did not24

operate to de feat the community presumption since Mic hae l coul d n ot e sta blish tha t his separate property was used to purchase the tracts. As a res ult, the trial court did not err in concluding that Homestead s II and III were communit y property.

d. The Loop and 59 Tract Michael purchased the Loop and 59 Trac t i n 200 6 , w h ic h th e trial c ourt awarded to Texie

. Michael paid $6,000.00 in earnest mon ey fr om the 660 Account, transferred $65,000.00 over the phone from an unknown source into the 127 Accou nt, and received a cash ier’s check from the 127 account to make a $33,6 0 3 .6 5 d own payment. No evidence tracing the source of the funds used to pay for the t ract was introduced into evidence, but Texie testified , “ S ome of our community prope rty has gone into [the Loop and 59 T ract].” Michael maintained that the Loop and 59 T r a ct wa s his sepa rate property. Michael alone signed a promissory note for $19 5,000 .00 for the remaining balance. 7 While the deed of trust securing the note was signed by both Mich ael and T exi e, who were both listed as grantors, it listed only Mic hael as t he bo r rower. T he deed to the Loop and 59 Tract named only Michael and provid ed th at the tract was conveyed to him , “ a married man, as his sol e and separate property and not joined in

. . . by his spouse as [the ] property constitute [d] no part of his hom e s te a d

. ” “Althou gh we begin with a community property presumption, ‘a presumpt ion o f separate property arises where the instrument of conveyance contains a separ ate prop erty recital.’” Cardenas v. Cardena s , No. 13

- 16

- 00064

- CV, 2017 WL 1089683, at *2 (T ex. A pp.

— C orpus Chr isti Mar. 23, 2017, no pet.) (mem. op.) (quoting In re Marriag e of Moncey , 404 S.W.3d 701,

7 Evidenc e at trial showed that payments on the note w ere made from the 660 Account.25

712 (Tex. App.

— Texarkana 2013, no pet.) (quotin g Rober ts v. Ro berts , 999 S.W. 2d 424, 431 (Tex. App

. — El Paso 1999, no pet.)) ). “ A ‘ separate property r e cit al ’ is a recital in an instrument that the cons idera tion comes from the separate property of a spouse or that the propert y is
tra nsf erred to a spouse as the transferee ’ s sep arate property or for the transferee ’ s separate u se. ” Id. (citing S tearns v. M

a rte ns , 476 S.W.3d 541, 547 n.4 (Tex. App.

— Houston [14th Dist.] 2015, no pet.)). “ Such a ‘ separate property recital ’ negates the com mun ity

- p roperty presumption and creates in i ts place a [generally ] rebuttable presumption of sep arate p roperty. ” Id. (qu o t i ng In re Marriag e of Monc ey , 404 S.W.3d at 712

– 13; Magness v. Magnes s , 24 1 S.W.3d 910, 912

– 13 (Tex. App.

— Dallas 2007, pet. denied); Roberts , 999 S.W.2 d a t 432 ; Kyles v. Kyles , 832 S.W.2d 194, 19 6 (Tex. App.

— Beaumont 1992, n o wri t) ). “ Thereafte r, the s p o u se con tending that the
pro perty is community property has the burden to de feat the separate property presumption.” In

re Marriag e of Moncey , 404 S.W.3d at 712

– 13 (quotin g S ander s v. Sanders , No. 02

- 08

- 00201

- CV, 20 10 WL 4056 196, at *16 (Tex. App

. — Fort W o r t h O ct. 14, 2010 , no pet. ) (mem. op.)). The separate property deed recital here created a pr esumption that the Loop and 5 9 Tract was Michael’s separate property. See Se itz v. S eitz , 608 S.W.3d 272, 278 (Tex. App.

— Houston [ 1st D ist.] 2 020, no p et.). W h i l e t his presumption is generally rebuttable, the deed recital is conclusive if the other spous e is also a party to the tran saction and cannot be rebutted in the absence of pr oof o f duress, fraud, accident, or mistak e. Id. ; s ee We ed v. F rost Bank , 565 S. W

. 3 d 3 97, 406 (Tex. App.

— San Antonio 2018, pet. denied) (citing Hodge v. Ellis , 277 S.W.2d 900, 90 4

– 90 5 ( Tex. 1955) ). As a r esult, where a wife is a party to th e t ransaction deeding property to a husband as his sole and separa te pr operty, the theo ry is th a t the wi fe has gifted her “interest in26

community property through [her] consent and partic ipati on in the deed transaction.” Weed , 565 S.W.3d at 403

– 04 . A spouse that signs a deed of trust is considered a party to the deed
tr ansac tion in the abse nce of p r o o f o f d uress, fraud, accident, or mistake. Hodge v. Ellis , 277 S.W.2d 900, 904 ( Tex. 195 5)

. In s uch a ca se, “t he result g enerally is to hold the pro perty to be separate property of the [spouse listed on the deed] , even thou gh th e consi deration be commu n i t y

o r f rom the separate estate of the [non

- listed spouse] , and even though the [non

- liste d spo use] on the tri al denies that the purchase was by way of a gift of either to the [spouse listed on the deed]

. ” Hodge , 277 S.W.2d a t 90 4 ; see Weed , 565 S.W.3d a t 4 04

– 06. Texie points to the lack of tracing of the source of funds used to purchase th e Loo p and 59 tr act and the eviden ce of com m ingling in the 12 7 Account and the 660 Account . Although this evidence could be considered if Texie we re not a part y to t h e dee d t ransaction, she signed a deed of trust on a loan executed by Michael to secure property conve yed t o him as hi s s ol e and separate property. Because Texie was a party to the deed transaction, the separate property recital deeding the L oop and 59 tr a c t to Mi chael was conclusive. As a result, we find that the trial court erred in finding that the Lo op an d 59 tract was c ommunity property.

e. The Post Ranch Tra cts The trial court awarded properties known as Post Ranch I and Post Ranc h II t o Micha el.
M i c h ael ar gues that both tracts were his separate property. We disagree. Michael leased Post Ranch I betw een 2005 an d 2 00 6. Michael acquired Post Ranch I with the help of Tony Marsh, described as a middleman, in 2007. The seller, Je t tie Ev ans Aut rey, a n e lde rly woman, deeded Post Ranch I to Michael and M arsh “ as their s o l e and separat e27

property .” The cons ideration for th e purchase included a $80,000.00 cashie r’s check from the 127 Account as a down payment to Autr e y and a $720,000.0 0 prom issory note ex e c u ted by Michael and Marsh to Autr e y. On the s ame day, Marsh sold his interest back to Michael in

exc hange for $90,000 .00 as a down payment from the 1 2 7 Accoun t. 8 Michael later paid Marsh $434,265.00 in the form of a cashier’s chec k draw n on th e 127 Acc o u n t. Texie t estified that she travel ed with Michael to Autr e y’s home but was otherwise not a part y to the transacti on. The evidence at trial showed that the 127 Account was co m mingled with cattle sales and other deposits that we re neit her wag es nor sa l a r y, and Micha el agreed that there was no tracing of the account or evidence of the source of deposit s int o the 127 Ac count during that time. Texie testified th at “ part of [her] separate property and c ommunity property ”
h ad been used to make paymen ts on P o s t R anc h I, and th e evidence at trial showed that payments on Michael’s promissory note were coming from the parties’ joint 761 Account. According to Maddux’s revi ew of the 761 Account, $186,446.55 was pa id to Autr e y from community fu nds , $2 08,310. 07 wa s p a id us ing Texie’s separate funds, and $124,110.20 was paid using Michael’s separate funds

. Even so, it was u ndisputed that the 761 Acco unt was a joint account, and Maddux and Fej er both testified that the 127 Account was co m mingle d a nd conta ined de posi t s

ex c eed ing Michael’s income. In November 2010, Michael purchased Post Ranch II from David Tyler. The d eed f rom Tyler contained the rec itation that Post Ranch II was conveyed to Michael “as his sole an d separate property.” Earnest money fo r th e p urch a s e c a me from the 660 Account , and the

8 Michael also paid Marsh $15,000.00 in earnes t money from the 127 Account.28

purchase price was paid by cashier’s check for $90,254. 21 from the 1 27 Acco unt. In addition to the ev idence of com m ingling of t he 12 7 Account, Michael admitted that, by 2010, the 660
Accou nt containe d rental income , a n d Ma d du x testified that the 660 Account was com m ingled as well. Although the Post Ranch tracts were pu rcha sed a fter the marriage, th e separate property deed recitals created a rebuttable presumption that the trac ts were Michael ’ s separ ate prop erty

. S e e Car de n as , 2017 WL 1089683, at *2 ; In re Marriag e of Moncey , 404 S.W.3d at 712 . Yet, because Texie was n ot a party to the deed tran sactions involving th e Post Ranch Tracts , she only needed to “[p]resent [] some evidence to rebut the deed’ s recita l’s sep a r a t e p ro p erty presumption,” and, if she did, “the burden shift[ed] back to [Michael] to prove that the prop erty [was] actually se parat e property. ” Weed , 565 S.W.3d at 407 (citing H odge , 277 S.W.2d at 906

– 07). In other words, if a spouse i s not li sted or o t h erw is e involved in the deed transaction, “a third party grantor, not interested in the community one way or another, has no st andin g whereby
t o impose a p articular character on t he estate conveyed; so the recital in his deed may be
regar ded mere ly as o n e o

f a n e xisting fact, which may properly be disputed by evidence .” Weed , 565 S.W.3d at 405 ( quoting Hodge , 277 S .W.2d at 90 5). “It is accordingly reasonable t o say that in such a case, once there is adduced evidence of probative force te nding to show t h e p rop er t y to have been purchased with community funds, the question as to the statu s of the property is

or dinaril y one of fa ct.” Id. ( q uoting Hodge , 277 S.W.2d at 905 )

. Evidence of “ substantial amounts of the community type funds in rel ation to the am o u n t of s e parate funds involved ,” “ the large total consideration paid for the properties, ” and “t he29

absence of evid ence as to othe r sep ara te property that might h ave been employed ” is sufficient to rebut the separate property presumption cre ated by a deed r e c i tal b y the spouse who did not participate in the transaction. Id

. at 406 (quoting Hodge , 277 S.W.2d at 906

– 07 ) . Here, Te xie’ s evi den ce showing that the Post Ranch tracts were purchased using funds from joint and

co m mi ngled accounts, th e large p urchase p r ice of the tracts, and the lack of tracing of the 127 Account was sufficien t to allow the fact

- finder t o conclu de that the dee d rec ita l was overcome.
See i d. at 415. As a result, we do not find that the trial court erred by concluding that the Post
R a n c h tr ac t s were community property. See id. at 413 (citing Hodge , 277 S.W.2 d at 907 ).

f. The Caddo Lak e Lots
T he trial court awar ded t o Texie the Caddo Lake l ot s , which Michael had purchased from John and Carla D os s in 2011 for $25,000.00. Mich a el paid $ 1 , 0 0 0.0 0 i n earnest money, made a $5,000.00 down payment, and later obtained a cashier’s check for the balance, a ll from the 127
A ccoun t. Michael testified that he did not trace the source of funds in the 127 Account. The deed from the Do sses reci ted tha t t h e C ad d o Lake l ots were conveyed to Michael “ as his so le and separate property .” Texi e did not participate in the deed tra nsact ion. After the transaction, Michael testified that he a nd Texie used co m mingled funds from a joint account to build a cabin

o n o n e o f t he Caddo Lake l ots

. Although the Caddo Lake l ots were purchased after th e mar riage, the separate prope rty deed rec itals crea ted a separate

- property presumption that Texie could rebut because she was not a party to the transactio n. See W eed , 56 5 S

. W .3d at 407 (citing Hodge , 277 S.W.2d at 906

– 07) ; Cardenas , 2017 WL 108968 3, at *2 ; In re Marriag e of Moncey , 404 S.W.3d at 712

. Here,30

bec ause Texie introduced evidence that the funds in the 127 Account were com m ingled, the separate

- pr operty pre sumptio n c r eat ed by the deed recital disappeared, Weed , 565 S.W.3d at
4 12

– 13, and “ the bu rden shift[ed] back to [ Michael] to prove that th e property [ was] actua lly separate property.” Id. at 407 (citing Hodge , 277 S.W.2d at 906

– 07). The deed re cital itse lf was
i n s u ffi ci e nt , and Michael introduced no evidence tracing the source of funds from t he 127
Account. See id. at 415. As a result, we conclude th at th e tri al court did not err in finding that the Caddo Lake l ots were community property.

2. Ch aracteriza tion of P r ope rti es Involving the Business

a. The Nash Trucking and Construction Promissory Note Nash Trucking & Con struction, Inc. (the Comp any) , was in corpo rated by Michael a few days before his marriage to Texie. The Company , which delivered roc k to custo mers, w a s lar gel y compensated in cash for services

. Jo Joiner, an employee o f the compa n y, testified that she wo rked for the business fro m 1998 until 2016 and that i t struggled financially for the first few years. The evidence at trial showed t hat Texie had mad e s eve ral sizable loans to the Company that were never repaid and t o t al ed at least $200,000. 00. 9 By the end of 2002, Joiner testi fied that Te xie a nd Mi chael were separated, and Michael filed for divorce. According to Joiner, the couple reconciled in the b e g inn in g of 2003

. Jo iner said that, in 2003, Tex ie “was given 50 p ercent” of the Company and that Michael told her she “ be c a me [ a ] 50 perce nt ow ner. ” Texie testified that, in an effort to reconcile the marriage, Michael told her , “ I ’ m going to m ake you a par tne r .” In 2003, the Company was

9 Joiner testified that the co mpany boo ks reflect e d that i t had repaid $40,000.00 to Texie, but she wa s unsure if the m oney was actually repaid.31

converted into a limited partn ership with Texie named as fifty

- percent limited partner, Mich ael named as a fo rty

- n ine

- percent limited partner, and a new company, Nash Management, L.L.C., named as a on e - percent general p a rtn e r. Texie testified that she understood she was a partner when she sign ed the agreement o f limited partnership for Nash Truc king & Const ructi on, L td. (Partnership). A ccording to Texie , the Company’s conversion to the Partnership and her

a cquisit ion o f in ter est was made as “[Mich ael’s] way to demonstrate his rene wed c ommitment to [the] marriage .” Thereafter, Texie said tha t Michael ta lked about the Partnership as if it was their business and that she believed the Partnershi p was thei r co mmu nity prop e r t y. Ma ddux
tes tified that Texie owned fifty percent of th e Partnership as separate property, that Michael owned forty

- nine percen t as his sep arate prop erty, and that one percent belonged to the community estate. Michael testified that the c onve rsi on o f the C o m pa ny was made only for franchise tax
purposes. Fejer op ined that the PMA provided that the separate property nature of the Company

was not alter ed by the inclusion of Tex ie’s name on the Partnership because it provided that

“ increases in v alu e and [] m u t a t io ns generated from each P arty ’ s respective separate pro perty [ would ] be the separate property of the spouse who own [ ed ] th e property ” prior to t he marriage. Even so, (1) the Company was never listed in the PMA as Mich ael’s s eparate pr operty, (2 ) the
P M A pr ovi ded that Michael an d Texie would also have the righ t to transfer or convey property or other interest s to the other par ty and that neith er of them intended “ to limit or restrict the right and power to receive any s uch tra nsfers or conveya nce s from t h e o the r P arty ” ; and (3) F ejer admitted that there was no requirement that Texie receive anything in the Company conv ersion.32

Michael’s accoun tant said that he wanted the conversion to be a li mited partnership with

a “ general p artner

. . . set up as a s i n g l e mem ber LLC t hat we elected in to be an S

- c orp and then have the other 99 percent owned by Michael

. . . but the document s got prepared with it b eing a 50/50 s plit.” Dean Searle , the attorney who assisted with the conversion , testifie d tha t it was do n e t o c on vert the Company to a limited partnership to avoid franchise tax , but that it was possible to complete the c onversion without changing a ny ow ners hip interest

. Searle confirm ed that Michael could have decided not to inclu de Texie i n the t ransactio n . T exi e’s daughter before the marriage, Les lie Lynn Weir , t estified that she work ed at the business, where she met her husb and , Daniel Weir , w ho wa s also an employee

. Leslie testi fied that Texie did not have daily obligations at the bus iness

. Accordin g t o J o i n er, the Weir s bought the P artnership from Michael a nd Texie in 2015

. T he agreement for sale of the Partners hip said ,

“ T his agreement fo r sal e is by an d between Michael Na sh and wife Texie Nash hereinafter referred to as Nash, a ma rri ed c ouple

. ” M i c h ae l a nd Te xie both signed the document as sellers. In exchange, the Weir s m ade out the promissory note for $5,178,000. 00 to both Michael and
T exie. Even so, Leslie testified that she made out the checks on the promissory note to Mi chael. 10
Texie arg u e d th at Michael had gifted her a fifty percent interes t in the Partnership to reconcile the ir marriage. The trial court a greed. It found th at th e Partnership had been one percent com munity property, re presenting Nash Managem ent, L.L.C .’s , own ership in te r e s t ,

10 Fejer, who was asked to assume that the PMA provided tha t the p arties could change title to assets from one party to a nother without af

fe ct ing the c haracteriz a t i on of t he property, opined that the Weir s’ note wa s a mutation of t he interest in the Company a nd would be Michael’s separate property.33

for ty

- nine percent Michael’s separate property, a nd fifty percent Texie’s separate prop erty. As a result, it confir me d forty

- nine percen t of the sale proceeds of the Partnership s ecure d by the Weir s’ note payable as Mich a el’s separ ate pro perty, co nf i r m e d fif ty percent of the sale proceeds as Texie’s sep arate property, and awarded Michael th e remaining one percent commu ni ty interest in the sale proceeds. On appeal, Michael argues that the PMA provided that “ increases in v alue and [] mutati ons gener at e d f

ro m e ach P arty ’ s respective separate prop erty [ woul d ] be the separate property of the spo use who own [ ed ] t he property ” p rior to the marriag e. B ecause p remarital agreements are construed “ narro wly in favor of the community e state ,” Wi lliams , 246 S.W. 3d a t 21 1 , and “ [a] ny doubt as to the charact er of proper ty should be reso lved in favor of the communi ty estate , ” In re Marriag e of Moncey , 404 S.W.3d at 706 , we d isagr ee with Michael. In the same operative paragraph as the provi sion on wh ich Mic hael reli es , t h e PMA provided that it was the intent of the partie s to “list and define the separate property each party [was] br inging into the marriage and to preserve th e sep arate character of such property after their marr iage.” To ef fectuate t hat int ent, the pa r t i e s cre a ted a list of separate property. As a result of our narrow construction of the PMA, the term “ separate property,” as used in the PM A, was limited to t he li st of each party’s separate property , unless otherwise listed or defined in the PMA’s la ng u a g e . 11
I n other words, in the paragraph at issue, the parties agreed that mutations gener ated from the
p roperty listed in the PMA would be th e separate property of t he spouse who owned it prior to the marriage. Because the Com pany was n ot list ed as a s ep a r a t e pro perty asset under the PMA,

11 For example , while not included on the list of separate property, the PM A included “wag es an d salaries” and incom e f rom se p arate property as separate property.34

this provision of t he PMA did not apply. Instead, the applicable pro vision was the one that stated, “ [E] i ther Party shall ha ve th e right to transfer or convey to the ot h er Party any prop e r t y or interes t there in d uring h i s o r her lifetime, and neither Pa rty intends this agreement to limit or restrict t he r igh t and power to receive any such transfers or conveya nces from the ot h er P art y. ” Even so, Micha el argues that the evidence did not estab lish a gif t to Te xie of th e P a r t ne rsh ip interest. We disagree . “ A gift is a voluntary transfer of property to anothe r made gratuitously and without consideration. ” 12 In re Marriag e of Mo ncey , 404 S.W.3d at 7 10 (citing Magness v. Ma gness , 241 S.W.3d 910, 912 (Tex. App.

— Da llas 2007 , p e t

. d eni e d); Roberts v. Roberts , 999 S.W.2d 424, 432 (Tex. App.

— El Paso 1999, no pet.) )

. “ A spouse may mak e a gift of separate property to the other spouse. ” Magness v. Ma gness , 241 S.W.3d 910, 912 (Tex. App.

— Dallas 2007, pet . denie d) (citing Roberts , 9 9 9 S .W .2d at 432 ). “ Three element s are required to establish the existence of a gift: (1) intent to make a gift, (2) delivery of th e property, and (3) accep tance of the property

. ” In re Marriag e of M oncey , 404 S.W.3d at 7 10 ( citing Mag ness , 2 41 S.W.3d a t 9 1 2 ; Ro berts , 9 99 S.W.2d at 432)

. “[T]he intent must exist at the ti me of the transfer.” Id. “ Generally, the burden of proof rests on the person c laiming the existence of a gift. ” Id. (citing Robe rts , 999 S.W.2d at 432 )

. “ However, where t he convey an c e i s fro m
one sp ouse to the other spouse, there is a presumption of gift. ” Roberts , 999 S.W.2d at 432 (citing Story v. Marshall , 24 Tex. 305 (1859) ); see Rivers v. Rivers , No . 03

- 17

- 00690

- CV, 201 8
WL 6626718, at *1 (Tex. App.

— Austin Dec . 19, 2 018 , no p et

. ) ( me m. op.) (“[ W] hen one spouse uses separate funds to acquire property during marriage and takes title to that property in the

12 Mic hael’s argument t hat Texie paid no considera tion for her interest in the Partner ship is consistent with the trial court’s finding that it was a gift.35

names of both spouses , a presumption arises th at the purchasing spo use i ntended to make a gift of one half o f the s eparate f un d s t o the other s pouse. ” (citing Smith v. Strahan , 16 Tex. 314, 322 ( 1856 ) ) ) ; Pearson v. Pearson , No. 03

- 13

- 00802

- CV, 2016 WL 240683, at *6 (Tex. App.

— Austin Jan. 15, 2016 , no pet. ) (mem. op.) (“ In tersp ousal transfers are presum ed to be a gift a nd, thus, t h e s ep ara te prope rty of the recip ient spouse. ” ( citing In re Marriage of Morrison , 913 S.W.2d 689, 692 (Tex. App.

— Texarkana 1995, writ denied) ) )

. That presumption, however, ma y be rebutted by evid ence clearly establishing that there was no inte ntion to ma k e a g ift

. Cocker ham , 527 S.W.2 d at 168 (citing S trahan , 16 Tex. at 324 ) ; Pearson , 2016 WL 240683,
at *6. We begin with the assumption that Michael established that the Compa ny was his separate prope rty. Texie testified that , in 2003, Michae l gave he r a n in t ere st in the business to reconcile their mar riage. Joiner also testified that Tex ie was “given” fifty percent of the business and was made partn er. This evidence permitt ed the trial court t o fin d that Michael intended to make a gi ft. Th e gift wa s c o m me m ora ted and d elivered by t he creation of the Partnership , which listed Texie as a fif

ty

- percent owner. Texie testified to her understanding of the g ift and that she beli eved the Partnership was hers and Michaels. From this tes timony, the tria l court c o ul d ha ve

conc luded t hat Texie proved the three elements of a gift of the Partnership interest. The trial court could have also found that, based on the testimony showing t hat the conversion c ould have been completed without givin g Texie an owner ship in t e r es t , M ic hael fa iled to rebut the presumption of gift. The trial court’s conclus ion was further strengthened by Texie’s inclusion36

in the Weir transaction and her inclu sion on the note pay able. As a result, we fi nd no error i n the
t rial cour t’s characte r i z at i on of the pr oceeds from the sale of the Partnership.

b. The Brown Tract The C ompany obtained a loan and purchased property known as t he B r own t ract in 2000 for $35, 000 .00

. B ecause the Prop erty was owned by th e Company , Fe jer agr eed that it was neith e r co m mun ity nor separate property at the time

. Even so, as explained above, the Partnership was sold by Michael and Texie to the We i rs. The B rown t ract was initially p art of the purchase of Na sh Trucking but , aft er the sale o f the P artnershi p t o the Wei r s , t h e P artnership sold the B rown t ract back and conveyed it to both Michael and Texie. Michael argues that “the $35,000 purchase price was b orrow ed by Michael, thus i t is his separate pr opert y.” “[W] hen propert y is conveyed to an entity

. . . , it bec o m e s t he property of the entity and loses its separate or community character. ” Matter of Marriage of Hudson , No. 06

- 18

- 00011

- CV, 2018 W L 46562 88, at *3 (Tex. App.

— Texar kana Sept. 28, 2018, no p et.) (mem. op. ) (cit ing Lifshutz v. Lifs hutz , 199 S.W.3d 9, 2 7 ( Te x . A pp.

— San Antonio 2006, pet s . denied); Marshall v. Marshall , 735 S.W.2d 587, 594 (Tex. App.

— Dallas 1987, writ ref ’ d n.r.e. ) ).
As s et out above, even though the Com pany was Michael’s separ ate property pr ior t o the

convers ion, th e Partner ship became o w n ed by both Michael and Texie in accordance with the conversion documents. It is undisputed that the Partnership was sold to the Weir s and t hat the
Brown t ract was ini tially a part of th e sal e. Because Mic hael and Texie rea cquired the Brow n
t ract by de e d af

t er the Weir s sold the property back to them, the Brown t ract was acquired after the marriage and was presumptively community proper ty. B ased on these facts, and th e37

conversion of the Comp any and sale of the Partnership , the tri a l court properly foun d t ha t Mi chael did not meet his burden to show that the Brown t ract was his separate property.

3. The Remaining Properties

a. The T &P Federa l Cred it Union Account Texie tes tified that s he and Mich ael used an account at T&P Federa l Cr edi t Union ( T&P) , which s h e ad m itt ed was given to Michael by his grandfather. Beverly Bennett, a T&P employee, testified that the T&P A ccount was c reated in 1981 and named Michael and his mothe r, Molly Piercy , as the original owners

. Be nnett said th at T exi e ’s name was added to t h e ac c oun t by at least 2002

. The PMA provided that the parties could “ maintain a joint account , identified by the names of the Parties

. . . into which they [ would ] de posit funds from ti me to time

. . . [to] be used to pay h ouse hol d expense s an d such oth e r ex p ens es ” as they agreed. According to Bennett, Michael would deposit Texie’s paychecks from the Partnership into the T&P A ccount

. Benne tt produced a statement sho wing that the balan ce on the T&P A ccount in 2002, when th e a ccou nt had bo th Michael ’ s an d T ex i e’ s name s , was $1 , 10 5.10, and that the then

- current balance was over $75,000 .00. Texie said th at she placed a $50,000.00 gift received a s her separate property into the T&P A ccount , but al so st ated that she use d that money to purc hase prop erty in
Ha l l s vi l le. Bennett could not determine who made the additional deposit s into the T&P A ccou nt and testified t hat there was no evidence of any independent t r acing. Also, Texie produc ed a check made out to t he T&P account for $ 30,000 .00 fro m the p arties’ j oi n t 76 1 A c count and testified that she believed it was deposited into the T&P A ccount

.38

The PMA did not list any account at T&P as Michael’s separate property. 13 However, he
argues that, since the T&P A cco u nt w as opened pr ior to the ma rriage, it was h is s e par ate property. Texie argues that, because Michael failed to establish the balance in the T&P A ccount before marriage, he did not show that the balance at th e time of the divorce was t raced back to his s e para te propert y. The evide nce at trial est ab l i s hed th at the T&P A ccount was created before the marriage and belonged to Michael and Piercy , but did not show the balance of the ac count , if any, before the ma rriage. There were also no records showing wh e ther the fund s in th e accoun t had b een deple te d b efo re i t dipped to $1,105. 10 in 2002. By at least 2002, Texie testified that she and Michael both used that account during the m arriage, which had both parties ’ names, and proved that she deposited her sep a rate pro perty , inclu ding her wages, into the a c c o unt

. T he trial court could have found that the T&P Account’s use fell in line with the PMA’s provision specifying the creation and use of joint community accou nts. Texie also opined t hat community funds f rom
t heir joint 761 Account w ere dep osited in to t h e T &P A ccount , which could have supported a finding that the funds were com m ingled

. In such a circumstance, where “ community pro perty income ha [s] been commingl ed with the originally se parate principal, ” we have fo und that the
spouse c laiming the prop e r t y as se p arate must “trace

. . . [the] account and its holdings from the date of divorce back to the date of the marriage. ” In re Marriage of Born , 2 009 WL 1010876, at *3 (citing Co ckerham , 527 S.W.2d at 16 7 )

. Other wise, we ha ve fo und, as we d o here, t h a t a t ria l

13 Because w e co nstrue prem arita l agreement s narrowly , w e find the PMA’s definition of “separate property” was limited to t he list of the parties’ sep arate property in the PMA. Because the T&P A ccount was not listed as Michael’s separate property, we find in applicabl e th e provision addr es sing “[t] he comming l i n g by o n e Party of his or her separate funds or pro perty with the se parate funds or property of the other Party

. ”39

court d oes not err by determining that the account i s community property

. See id. We overrule Michael’s complaint about the T&P Account.

b. T he Caterpillar 416 Backhoe
T h e trial court awarded a C aterpillar “416 Ba ckh oe Tr actor ” to Mi chael. B e c a u se the PMA included a “1996 Backhoe” with an estimated $45,000.00 value as Michael’s separate property, Michael argues that the trial cou rt erred by characterizing the Caterpillar “416 Backhoe Tractor” as community property

. Texi e arg ues tha t nothing s h o ws tha t the “1996 Backhoe” listed in the PMA was the same backhoe as the one the trial court deemed to be community propert y. Because p remarital
agreem ents are construed “ narrowly in favor of the comm unit y estate ,” William s , 246 S .W.3d at 211 , and “ [a ] n y dou bt a s to the character of property should be resolved in favor of the community estate , ” In re Marriag e of Moncey , 404 S.W.3d at 706 , we a gree with Texie. The PMA said nothing about the brand o r type of the bac khoe cla imed as Micha el’s

se p arate pr o p e r ty and did not co ntain a vehicle identification number or any other identifying information. At trial, it was established th at the 416 Backhoe Tractor was once an a sset of the Company and Partnership , and busin ess records sh owed that the asset was acqu i r e d b y t h e Comp any o n February 26, 1999, aft er the marriage. As a result, nothing showed that the “416 Backhoe Tractor” was acquired in 1996 or was the same as the “1996 Backhoe” listed in the
PMA as M ichael’s se parate proper t y. More impor tant, t he C ater p i l lar “4 1 6 Backh oe Tr actor” was specifically identified during the sale of the Partnership as an asset that would be conveye d to both Michael and Texie before40

closing. From this e vidence, the trial court could de termine that t he “416 Backh oe Trac tor”

cam e i nto Mi c hael an d Tex ie’s possession after the marriage, that it was presumptively community property, and tha t Michael failed to demonstrate that the “416 Backhoe Tractor” was his separat e property. We find no e rror in the trial cou r t’s dec ision to char a c t e ri ze t he “416 Backhoe Trac tor” as community property.

c. T he T ractors
B etween 2010 and 2012, Michael purch ased a John Deere 6150R tractor and a 7230 cab tractor and loader. Michael ma de down payments on both tractors and financed the remaining balanc e s . B eca u se he alone sig ned t he contracts financing the tractors, Michael argues that he rebutted the communit y presumption. We begin with the presumption tha t the tractors were communit y property because they

w ere acquired after th e marriage. M ichael d i d no t t r ace the source of fu nds used to make the down payments on both tractors , it is presumed that the debt on the tractors was incurred on community credit , and there was no evidence that the lender agree d only to look to Michael ’ s separate pr operty i n t e res t i n its satisfact ion

. See Cockerham , 527 S.W.2d at 171; Jones , 890 S.W.2d at 475

. Also, t he evidence showed that Michael wrote checks on the 660 Account and the 761 Account to pay his financing obliga tion on the John Deere 6150R t r actor , that p aym e n t s

o n t h e f inancing obligat ion f

or the 7230 cab tractor and loader came from the 127 A ccount , and tha t these accounts had been com m ingled

.41

We find that the trial court did not err in determining that Michae l failed to meet his burden to show that the tr a c t or s we r e pu rchased using se parat e pro perty funds. As a result, the trial court properly determined t hat the tractors were community property. E. Summation We find that the tr ial court properly characte rized thirteen of the fourteen disputed
prope rt i e s a s co m muni ty property and overr ule Michael’s points of error related to th o se properties. 14 Even so, we find that the Loop and 59 tract was Michael’s separate property because of th e separate property rec ital, which became conclusive d ue t o Texie’s p ar t i c ip a tio n i n the transaction. A s a r esult, we next evaluate whether Michael has shown that he was harmed by this mischaracteriza tion. III. Michael Has Shown Harm A. Standard of Review “[E] ven if the trial court mischaracterizes propert y in its divisi on o f t h e m a ri ta l estate, the

error does not require reversal ‘ unless the mischaracterization would have had more than a de minimis effect on the [ ] court ’ s just and right division of the property

. ’ ” In re Mar riage of Moncey , 404 S.W.3d at 706 (second alteration in o riginal) (quoting Va nd i v e r v . V andiv e r , 4 S.W.3d 300 , 302 (Tex. App.

— Corp us Ch risti 1999, pet. denied) ). “T he burden to show that a

14 Mich ael also argues that the trial co urt should have found that the Loop and 59 tract, Homestead tracts, and Ca ddo L ak e lots w ere his sep a r a te pro p erty in ruling on his motion for summary judgment. “I t is well settled that where the movant uns uccessfully moves for summa ry judgment and subs equently loses in a trial on the merits, the order denying the summary j u dgment c annot be revi ewed on a p p eal.” Reule v. M & T Mortg

. , 483 S.W.3d 600, 612 (Tex. App.

— Houston [1st Dist .] 2015, pet. denied) (cit ing United Parcel Serv., In c. v. Tasdemiroglu , 25 S.W.3d 914, 916 (Tex. App.

— Houston [14th Dist.] 2000, pet. denied); O r ozco v. Orozco , 917 S .W.2d 70 ( T ex. Ap p . — San Antonio 1996, writ denied); Pennington v. Gurkof f , 899 S.W.2d 767 , 769 (Tex. App.

— Fort Wort h 1995, writ denied); Nash v. Civil Serv. Comm ’ n, Palestine , 864 S.W.2d 163, 165 (Tex. App.

— Tyler 1993, no wr it)); see C incinnat i Life Ins. v . Cates , 9 2 7 S.W. 2 d 623, 625 (Tex. 1996). Our resolution of the issues above also moots Michael’s complaints.42

trial court ’ s error caused a manifestly unjust property division is a high one and, even wit h ade quate briefing, more diffi cult when the record c o n t a i n s n o fin dings as to the value of the
estate a ssets

. ” Matter of Marriage of Rangel & Tovias

- Rangel , 580 S.W.3d 675, 683 (Tex. App.

— Hou ston [14th Dist.] 2019 , no pet.) . Citing to this caselaw, Tex ie arg ues that the lack of findi ngs o f fact and conc lu s i o ns of law p revents a findi ng of harm because “[w ] itho ut findings of fact, we do not know the basis for the division, the values assigned to the community assets, or the percentage of the marital esta te tha t each party received. ” I d.
Ev en so, “[r] ever si b l e e r ror exis ts as a matter of law

. . . if the tr ial c ourt characterizes property as community property and awards it to o ne spouse when it is established as the separate property of the other spouse. ” In re Marriage of Moncey , 404 S.W. 3d at 706 (citi ng E g ge m eye r , 55 4 S.W.2d at 140 ) ; see Vasudevan v. Vasudevan , No. 14

- 14

- 0076 5

- CV, 2015 WL 4774569, at *1 (Tex. App.

— H ouston [14th Dist.] Aug. 13, 2015 , no pet. ) (mem . op.) (“ On the other hand, if a trial co urt mischaracterizes separate prope rty as communit y p r o pe r ty, the error is by defin ition harmful, and we must reverse and rema nd because the subsequent division of the community estate would divest the spouse of his or her separate property. ” (citing Smit h v. Smith , 22 S.W.3d 140, 147 (Tex . App.

— Houston [14 t h D is t.] 200 0, no pet.) ) ) ; In re Marriage of Case , 28 S.W.3d 154, 16 1 (Te x. App.

— Texarkana 2000 , no pet. ) (“ When a court misc haracterizes separate property as community property, the error requires rever sal because a spouse is divest ed of separa te prope rt y . ” (c iti ng E ggemeyer , 554 S.W .2d at 140 ) )

. This is the precise situ ation before us.43

The Loop and 59 tract was Michael’s sep arate property, but the trial court awarded it to Texie because of its mischa r acterization as community pr oper ty. Altho ugh i ts v a l u e at tria l was disputed, it w as undisputed that Michael made a down paym ent of $33,603.65 a nd executed a promissory note for $195,000.00 when he purchased the property in 2007. Reversible error was

es t ablished as a matter of law beca use Michae l was di v e s t ed of his ownership of separa te property. In such a circumstance, rever sal of the property division is required. See Case , 28 S.W.3d at 162; Smith , 22 S.W.3d at 153. IV. Conclusion
W e sustain Micha e l’s point of error relating to t he charact eriza tio n o f t he Loop and 59 tract but ov errule his other points of error

. Bec ause the Loop and 59 tract should have been characterized as Michael’s separate property, we reverse the portion of the trial court’s o rder setting forth its prope rty division and r eman d t he mat ter to the trial court for further proceedings consistent wit h thi s opinion. We sever the portion of the trial court ’ s decree granting a divorce to the parties and affirm that por tion of the dec r ee. See Case , 28 S.W.3d at 1 62.

Scot t E. Stev e n s Ju stice Date Submitted : October 27, 2021 Date Decided: March 4 , 2022