Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-11-00554-CV

Martin E. ROBERTS,

Appellant

v.

Margaret D. ROBERTS,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2009-CI-09297

Honorable Antonia Arteaga, Judge Presiding

OPINION ON APPELLEE’S MOTION FOR EN BANC RECONSIDERATION

Opinion by: Patricia O. Alvarez, Justice

Sitting en banc: Catherine Stone, Chief Justice

Karen A. Angelini, Justice

Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: May 1, 2013

AFFIRMED IN PART, REVERSED IN PART, REMANDED

On the court’s own motion, we withdraw the panel opinion and judgment of December 

19, 2012, and substitute this en banc opinion and judgment. Appellee’s motion for en banc 

reconsideration is denied. See TEX. R. APP. P. 49.7. 
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Martin Roberts appeals from a divorce decree dissolving the marriage between Martin 

and Margaret Roberts signed on July 15, 2011. On appeal, Martin complains of the trial court’s 

award to Margaret of (1) reimbursement of separate property funds expended towards the 

mortgage on the marital residence, and (2) spousal maintenance. Although both parents were 

designated as joint managing conservators, Martin complains the divorce decree (1) violates the 

Establishment Clause of the First Amendment to the United States Constitution by requiring him 

to surrender the children to Margaret during his periods of possession so they may attend 

religious instruction; and (2) violates the Equal Protection Clause of the Fourteenth Amendment 

to the Constitution by imposing a morality clause solely against Martin on the basis of his 

gender.

BACKGROUND

Martin and Margaret married on March 8, 1997, and had two children together. Martin 

worked as a civilian for the U.S. Army and was also in the Navy Reserves. It is undisputed that 

for several years prior to separation, Martin’s income was the family’s sole source of income.

Martin filed for divorce in 2009. The case went to trial before a jury in 2011 on a 

geographical restriction sought by Martin that is not at issue in this appeal. The trial court heard 

the remaining non-jury issues including possession of and access to the children, characterization 

and division of property, and spousal maintenance. Pertinent to this appeal, the trial court 

ordered a disproportionate division of the marital estate and confirmed Margaret’s separate 

property reimbursement claim in the amount of $41,000, represented by equity in the marital 

residence that was awarded to Margaret. At the time of divorce, the marital residence was 

valued at $140,000 and unencumbered by a mortgage. The trial court ordered Martin to pay 

spousal maintenance in the amount of $1,550 per month for thirty-six months and $1,000 per 
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month for an indefinite period thereafter. Although Martin requested findings of fact and filed a 

notice of past due filings, the trial court issued none.1

CHARACTERIZATION OF SEPARATE PROPERTY AND REIMBURSEMENT

In his first point of error, Martin challenges the legal sufficiency of the evidence to 

support Margaret’s reimbursement award. Specifically, he asserts Margaret did not sufficiently 

trace her allegedly separate property, and therefore did not overcome the presumption of 

community property. In other words, Martin complains the trial court abused its discretion when 

it confirmed $41,000 as reimbursement to Margaret’s separate property estate.

A. Standard of Review

Martin complains there is no evidence to support Margaret’s separate property 

reimbursement claim. Trial courts are afforded broad discretion in dividing marital property 

upon divorce, and absent an abuse of discretion we will not disturb the property division. Padon 

v. Padon, 670 S.W.2d 354, 358 (Tex. App.—San Antonio 1984, no writ); Moroch v. Collins, 174 

S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). A trial court abuses its discretion 

“when it acts arbitrarily or unreasonably, or without any reference to guiding rules and 

principles.” Tellez v. Tellez, 345 S.W.3d 689, 690 (Tex. App.—Dallas 2011, no pet.). “A trial 

court does not abuse its discretion if there is some evidence of a substantive and probative 

character to support the decision.” Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San 

Antonio 2006, no pet.). Legal sufficiency is a relevant factor in our assessment of whether the 

trial court abused its discretion, but it does not constitute an independent ground of reversible 

error. Id.

When, as in this case, the trial court does not issue findings of fact and conclusions of 

law, we must presume “the trial court made all the findings necessary to support its judgment.” 

 1 Martin did raise the failure of the trial court to issue findings of fact. 
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Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the evidence supports the trial court’s 

implied findings, “we must uphold the judgment on any theory of law applicable to the case.” 

Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso 2005, no pet.).

B. Reimbursement

A claim for reimbursement is an equitable claim arising upon dissolution of a marriage 

when funds from one marital estate have been expended to benefit another marital estate. See id.

at 650; Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). A spouse seeking reimbursement 

must establish that the contribution was made by one marital estate to another, that the 

contribution was reimbursable, and the value of the contribution. See Vallone, 664 S.W.2d at 

457–59. In our review of the trial court’s actions, we presume the trial court properly exercised 

its discretion. Id. at 460.

C. Characterization

The character of marital property is determined by the inception of title rule. TEX. FAM.

CODE ANN. § 3.006 (West 2011). Separate property includes property owned by a spouse before 

marriage and acquired by a spouse during marriage by gift, devise, or descent. Id. § 3.001; TEX.

CONST. art. XVI, § 15. Community property is property acquired by either spouse during the 

marriage that is not separate property. TEX. FAM. CODE ANN. § 3.002. On dissolution of a 

marriage, all property possessed by either spouse is presumed to be community property. Id.

§ 3.003(a). To overcome this presumption, a spouse must generally trace and identify, by clear 

and convincing evidence, the property it claims is separate property. Bahr v. Kohr, 980 S.W.2d 

723, 728 (Tex. App.—San Antonio 1998, no pet.); TEX. FAM. CODE ANN. § 3.003(b). “Tracing 

involves establishing the separate origin of the property through evidence showing the time and 

means by which the spouse originally obtained possession of the property.” Boyd v. Boyd, 131 
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S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.). The clear and convincing evidence 

standard is generally “not satisfied by testimony that property . . . is separate property when that 

testimony is contradicted or unsupported by documentary evidence tracing the asserted separate 

nature of the property.” Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th 

Dist.] 2010, pet. denied).

We recognize the trial court’s mischaracterization of property upon dissolution of a 

marriage is not an automatic ground for reversal. See Garza, 217 S.W.3d at 549. The trial court 

abuses its discretion, and reversal is warranted, only when the error materially affects the just 

and right division of the community estate. See id. A de minimis effect does not require 

reversal. Id.

D. Analysis

Because a reimbursement claim may arise when separate property is used to pay a 

community debt, we begin our analysis by determining whether there is some evidence to 

support the trial court’s implied finding that $41,000 constituted Margaret’s separate property. 

See Vallone, 644 S.W.2d at 459.

1. Characterization of Property as Separate Property

At the dissolution of the marriage, all of Martin and Margaret’s property was presumed to 

be community property. See TEX. FAM. CODE ANN. § 3.003(a). To rebut this presumption, 

Margaret was required to prove the separate character of the various funds she claimed to be her 

separate funds by clear and convincing evidence. See id. § 3.003(b); Graves, 329 S.W.3d at 139. 

It appears the trial court arrived at $41,000 by considering the following funds: $9,000 Margaret 

received as a bequest from her aunt during the marriage, $20,000 in two certificates of deposit 

(CDs), $10,000 in a savings account, and $2,000 in a brokerage account that Margaret owned 
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prior to the marriage.2 With regard to the $9,000, Margaret introduced a photocopy of the check 

and a letter from her father describing the bequest. As to the remaining accounts, Margaret 

testified that they constituted her separate property. She produced statements of account for two 

share certificate/IRA accounts she claimed as her separate CDs. She introduced no other 

documentary evidence tracing the separate origin of the funds in these accounts. 

Margaret’s testimony and documentary evidence in the form of a photocopy of the check 

and a letter from her father sufficiently traced the separate nature of the $9,000. These 

documents established the separate origin of the funds by showing the time and means by which 

Margaret originally obtained possession of them. See Boyd, 131 S.W.3d at 612. The statements 

of account for the two CDs reflected account balances during the marriage. Thus, the documents 

failed to establish the separate origin of the funds because they did not show the time and means 

by which Margaret originally obtained possession of them. See id. Although Margaret testified 

she came into the marriage with the CDs, her testimony was contradicted by Martin’s testimony 

that the CDs were created by monies obtained during the marriage.3

 See Graves, 329 S.W.3d at 

139. Because Margaret’s testimony was contradicted and “unsupported by documentary 

evidence tracing the asserted separate nature of the property,” it was insufficient to trace the 

separate origin of the CDs. See id. As to the remaining accounts, Margaret introduced no 

documentary evidence establishing their separate nature. Therefore, Margaret did not clearly and 

convincingly establish the separate nature of the funds in the CDs, and savings and brokerage 

accounts, and thus failed to overcome the presumption of community property. See id. 

 2 The record on appeal is unclear as to exactly what comprised the $41,000 that Margaret claims is her separate 

property. In oral argument, Margaret’s counsel could not identify the specific separate property components that 

formed the basis of the reimbursement award. 3 Margaret’s testimony was also inconsistent as to the amounts in the certificate of deposit accounts. At various 

points in the record, Margaret agreed that the CDs contained $20,000. However, the court asked if both accounts 

contained $10,000. Margaret responded “No. No. One is $18,378.55. The other is $16,311.39.”
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Having determined that Margaret established the $9,000 was her separate property, we 

next examine whether the trial court’s error in characterizing the property is of the magnitude to 

require reversal. See Garza, 217 S.W.3d at 549.

2. Harm Analysis 

Martin argues that the mischaracterization of $41,000 as separate property resulted in an 

80/20 division of property, instead of the 60/40 division represented in the court’s order, which 

requires reversal. We have held that $32,000 of the $41,000 was improperly characterized, and 

thus look to see if that affected the just and right division of the community estate. 

The marital residence, valued at $140,000 and unencumbered by a mortgage, formed the 

bulk of the marital estate. According to the assets inventoried in the decree and the values set 

forth in the record, the marital estate contained assets worth approximately $225,000 and 

community debts totaling approximately $58,000—bringing the total value of the marital estate 

to roughly $167,000. Thus, $32,000 represents nearly 20% of the overall estate.

Therefore, we conclude that the mischaracterization of $32,000 had more than a de 

minimis effect on the trial court’s just and right division of marital property. See Monroe v. 

Monroe, 358 S.W.3d 711, 718–19 (Tex. App.—San Antonio, pet. denied) (holding that a 

mischaracterization of property constituting less than 2% of the value of the entire estate had 

only a de minimis effect on the just and right division of the estate); McElwee v. McElwee, 911 

S.W.2d 182 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (concluding that a 

mischaracterization of property valued at $45,000, and that resulted in a 64/36 division of 

property instead of the 61/39 division intended by the court, had more than a de minimis effect). 

Accordingly, we remand the cause for a just and right division. See Jacobs v. Jacobs, 687 

S.W.2d 731, 733 (Tex. 1985). Because the case is being remanded for a just and right division, 
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we do not reach the issue of whether the trial court abused its discretion in ordering 

reimbursement from the community estate.

SPOUSAL MAINTENANCE

In his second, third, and fourth points of error, Martin challenges the trial court’s award 

of spousal maintenance.4 Specifically, Martin contends the trial court abused its discretion by 

awarding maintenance because Margaret failed to rebut the presumption against spousal 

maintenance. He further asserts that the court failed to make a finding that Margaret suffered 

from a debilitating mental or physical disability, which is required for an award of spousal 

maintenance for an indefinite term. 

Section 8.052 of the Texas Family Code states that once a trial court determines a spouse 

is eligible to receive spousal maintenance, it “shall determine the nature, amount, duration, and 

manner of periodic payments by considering all relevant factors, including: (1) each spouse’s 

ability to provide for that spouse’s minimum reasonable needs independently, considering that 

spouse’s financial resources on dissolution of the marriage.” TEX. FAM. CODE ANN. § 8.052(1).

Because the trial court cannot make a proper maintenance determination without 

considering the financial resources of each spouse upon dissolution of the marriage, and we are 

remanding the cause for a just and right division of the marital estate—which will affect the 

parties’ financial resources—we reverse the portion of the trial court’s order awarding spousal 

maintenance. Therefore, we do not address Martin’s points of error pertaining to the spousal 

maintenance awards.

 4 At trial, when asked whether he was opposed to paying Margaret spousal maintenance, Martin replied that he was 

not opposed to paying maintenance, but that he was opposed to paying maintenance for more than three years. 
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RELIGIOUS INSTRUCTION CLAUSE

Martin contends the trial court violated the Establishment Clause of the First Amendment 

to the United States Constitution, which provides that “Congress shall make no law respecting an 

establishment of religion, or prohibiting the free exercise thereof,” by granting Margaret the right 

to take the children to religious education on Sunday mornings during weekends when Martin 

otherwise has possession of the children. See U.S. CONST. amend. I. Under the decree, Margaret 

may “pick up the children no earlier than 30 minutes before the religious education begins and 

shall return the children to Martin . . . no later than 30 minutes after the religious education 

ends.” Martin asserts the decree favors Margaret’s religious beliefs over his, thus violating the 

Constitution.

A. Standard of Review

The primary consideration in determining managing conservatorship, possession, and 

support of and access to a child is what is in the best interest of the child. TEX. FAM. CODE ANN.

§ 153.002. “[B]ecause the trial court is in the best position to observe the demeanor and 

personalities of the witnesses and can feel forces, powers, and influences that cannot be 

discerned by merely reading the record,” the trial court has broad discretion in determining what 

is in the child’s best interest. E.C., Jr., ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex. 

App.—Corpus Christi 2000, no pet.). This determination will be reversed only if the trial court 

abused its discretion. See id.

B. Analysis

The final divorce decree provides that both parents, as joint managing conservators, have 

the right to direct the children’s moral and religious training during their times of possession. It 

also contains a “Religious Education” clause that gives Margaret the right to pick the children up 

from Martin on Sunday mornings during weekends that he otherwise has possession to take the 
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children to religious classes. The clause further provides that on those Sundays, Martin’s 

possession extends to 9:00 p.m. Martin contends this clause favors Margaret’s religious beliefs 

by allowing Margaret to take the children to religious education during his times of possession.

Martin relies on Rosenstein v. Rosenstein to support his position. Rosenstein v. 

Rosenstein, 2011 WL 3546592, at *1 (Tex. App.—Fort Worth, Aug. 11, 2011) (mem. op.). 

Rosenstein involved the dissolution of a marriage and the possession order for the couple’s two 

children. Id. The children’s mother claimed the trial court abused its discretion and violated the 

Establishment Clause by awarding the children’s father holiday possession based upon his 

Jewish religion. Id. at *8. The possession order granted the father possession of the children on 

Wednesday evenings and Sunday mornings from 8:30 a.m. to 1:00 p.m. so that he could take 

them to religious classes. Id. at *12–13. The order’s “Provisions for Jewish Religious Holidays” 

provided that “[t]o the extent Jewish Religious Holidays conflict in any manner with other 

holidays or possession orders addressed herein, the following Jewish Religious Holiday 

possession order prevails.” Id. This order gave the father exclusive periods of possession on the 

Jewish religious holidays of Rosh Hashanah, Yom Kippur, Hanukkah, and Passover. Id. at *13. 

The court noted that Christmas and Hanukkah celebrations, as well as Passover and Easter, often 

overlap, and held that the possession order violated the mother’s rights under the Establishment 

Clause “[g]iven the total absence of evidence that [the mother’s] religious preferences or 

preferences for no religion are illegal or immoral or otherwise present a danger to the children.” 

Id. at *14.

The current case is distinguishable from Rosenstein. In Rosenstein, other than Easter and 

Christmas, the mother was given “no Sunday mornings, no Wednesday nights, and less than fifty 

percent of Sunday afternoons and nights, and all her periods of possession are subject to [the 
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father’s] superior right of possession during four Jewish holidays, the extent of which [was] not 

made clear in the decree.” Id. Thus, unlike the decree in Rosenstein, which deprived the mother 

of significant periods of possession, ultimately favoring the father’s religious schedule over the 

mother’s visitation times, the decree between Martin and Margaret does not favor either spouse’s 

religious preference or preference for no religion, and gives Martin additional time to 

compensate for the periods when the children attend their religious classes.

Just as the court has discretion to mold the decree to accommodate activities such as 

soccer games and music lessons if it finds them in the child’s best interest, it may accommodate 

a parent’s desire for the children’s religious education, provided that it does not favor one 

parent’s religion over another or over a preference for no religion. Martin has not directed us to, 

nor have we located, any evidence in the record that the court’s decreed visitation schedule, 

accommodating, inter alia, the children’s current religious education, in any way favors

Margaret’s religion. Both parents are given the right to direct the children’s religious education. 

Martin has additional time on Sundays to compensate for the time the children spend in religious 

studies on Sundays during his possession period. Therefore, the court did not abuse its discretion 

in crafting this visitation schedule and did not run afoul of the Constitution. Accordingly, we 

affirm the trial court’s inclusion of the religious instruction clause.

MORALITY CLAUSE

Martin contends the trial court violated the Equal Protection Clause of the Fourteenth 

Amendment to the United States Constitution by imposing a morality clause on the basis of 

gender. The divorce decree contains a “Morality Clause” in which the court orders that “no 

unrelated adult with whom Martin E. Roberts has a romantic relationship with shall be present in 

his home during the hours of 8:00 p.m. and 8:00 a.m. while he is in possession of the children.”
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The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within 

its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. At its core, it 

guarantees the equal treatment of similarly situated parties. City of Cleburne, Tex. v. Cleburne 

Living Ctr., 473 U.S. 432, 439 (1985). “Because the Amendment is directed at the States, it can 

be violated only by conduct that may be fairly characterized as ‘state action.’” Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 924 (1982). A party asserting an equal protection claim must 

establish that: “(1) the party was treated differently than other similarly situated parties; and (2) 

the party was treated differently without a rational basis by the government.” Downs v. State, 

244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d). 

Trial courts possess broad discretion “in fashioning restrictions on a parent’s possession 

and access that are in the best interest of the children.” Moreno v. Perez, 363 S.W.3d 725, 739 

(Tex. App.—Houston [1st Dist.] 2011, no pet.). Texas Rule of Appellate Procedure 38.1 

provides that the appellant’s brief “must contain a clear and concise argument for the contentions 

made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(h). If the 

appellant contends the trial court abused its discretion, it is his burden to demonstrate in what 

manner the trial court acted arbitrary or unreasonably. In re A.J.G., 131 S.W.3d 687, 691 (Tex. 

App.—Corpus Christi 2004, pet. denied).

The entirety of Martin’s “argument” on this point of error is that imposing a morality 

clause on him without imposing the same on Margaret violates the Equal Protection Clause. 

Martin does not inform us and we cannot discern how the Equal Protection Clause is implicated. 

Because Martin fails to provide a clear and concise argument on this point of error and cites no 

authority to support his argument that the trial court’s inclusion of a morality clause violated his 
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equal protection rights, Martin has waived his challenge on this ground. See id. at 691–92; TEX.

R. APP. P. 38.1(h). 

CONCLUSION

We reverse the portions of the trial court’s order confirming and ordering reimbursement 

for $41,000 of Margaret’s separate property and ordering spousal maintenance, and remand the 

cause for a just and right division and a proper spousal maintenance determination. We affirm

the remainder of the trial court’s order.

Patricia O. Alvarez, Justice