AFFIRMED in part; REVERSE and REMAND in part; and Opinion Filed 

July 29, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-01214-CV 

LORIANNE JENAE WOLF, Appellant 

V. 

JOHN ROBERT NYGARD, Appellee 

On Appeal from the 439th Judicial District Court 

Rockwall County, Texas 

Trial Court Cause No. 1-16-0756 

MEMORANDUM OPINION 

Before Justices Schenck, Reichek, and Carlyle 

Opinion by Justice Reichek 

In this appeal from a final decree of divorce, Lorianne Jenae Wolf challenges 

the trial court’s reimbursement award of $204,896.64 to her former husband, John 

Robert Nygard. Wolf additionally challenges the trial court’s failure to make a 

disproportionate division of the community estate based on the disparity in the 

parties’ attorney’s fees. Because we conclude Nygard failed to prove his entitlement 

to reimbursement by clear and convincing evidence, we reverse the trial court’s 

$204,896.64 award and remand the cause to the trial court to re-evaluate its just and 

right division of the marital estate. 
 –2– 

In her first issue, Wolf contends the evidence is insufficient to support the trial 

court’s reimbursement award to Nygard. Nygard’s request for reimbursement was 

based on his purported use of separate property funds as a down payment to purchase 

the marital residence. 

Under Texas law, property possessed by either spouse during or upon 

dissolution of marriage is presumed to be community property. TEX. FAM. CODE 

ANN. § 3.003(a). As the party seeking reimbursement, Nygard had the burden to 

prove, by clear and convincing evidence, that funds from his separate estate were 

used to benefit and enhance the community estate. See In re B.H.W., No. 05-15-

00841-CV, 2017 WL 2492612, at *7 (Tex. App.—Dallas June 9, 2017, pet. denied) 

(mem. op.). When a party seeks reimbursement from the community estate, he must 

clearly trace the original separate property into a particular asset on hand during 

marriage. Id. As a general rule, mere testimony that property was purchased with 

separate funds, without any tracing of the funds, is insufficient to rebut the 

community property presumption. Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—

Dallas 2012, no pet.). The burden of tracing is a difficult, but not impossible, burden 

to sustain. Id. at 344. 

In this case, Nygard sought reimbursement for two cashier’s checks totaling 

$204,896.64 that were used as a down payment on a house he and Wolf purchased 

during their marriage. Nygard claimed the funds for the two checks came from the 

sale of a house he owned before he married Wolf and an inheritance from his 
 –3– 

mother’s estate. According to Nygard, he received $102,368.15 from the sale of his 

separately owned house and $115,696.68 in inherited funds. 

One of the checks used as a down payment on the marital residence was a 

cashier’s check issued by Valley Bank and Trust Co. in the amount of $110,051.39. 

This amount was the exact balance of funds in Wolf and Nygard’s joint savings 

account at Valley Bank shortly before the check was issued. The evidence admitted 

at trial shows the joint savings account at Valley Bank was opened less than a year 

earlier with a cashier’s check issued by Central Bank & Trust in the amount of 

$86,606.42. Although statements from Central Bank show that Nygard opened a 

savings account there with a deposit of $102,368.15, the amount he received from 

the sale of his separate house, the record also shows that Wolf and Nygard had a 

joint checking account at Central Bank into which paychecks were deposited. The 

statements from both the savings and checking accounts at Central Bank are 

incomplete, and there is no documentation to show the balances in either account at 

the time Central Bank issued the cashier’s check used to open the savings account at 

Valley Bank. Accordingly, there is no way to determine what funds, if any, in the 

Valley Bank savings account came from Nygard’s sale of his separate property 

house. 

Furthermore, statements from Valley Bank and Trust show that, after the joint 

savings account was opened with the Central Bank cashier’s check, there was a 

$10,000 withdrawal, followed several months later by a deposit of $32,996.90. This 
 –4– 

deposit, along with accrued interest, resulted in the $110,051.39 balance used for the 

down payment on the marital residence. There is no record showing the source of 

the $32,996.90 deposit, so we must presume it was community funds. See TEX. FAM.

CODE ANN. § 3.003(a). When separate property and community property have 

become so commingled as to defy resegregation and identification, the property is 

presumed to be community property. Beal Bank v. Gilbert, 417 S.W.3d 704, 710 

(Tex. App.—Dallas 2013, no pet.). 

 As for the $115,696.68 Nygard asserted he received from his mother’s estate, 

there is little evidence in the record to show his receipt of the alleged funds, and no 

evidence to show what he did with the money after he received it. The only 

documentary evidence regarding the largest of the claimed distributions from 

Nygard’s mother’s estate was a handwritten note on a bank statement, 

“[$]325,248.70 ÷ 5 = $65,049.74 Amount sent to each sibling.” The trial judge ruled 

the handwritten note inadmissible and stated he would not consider it. Additionally, 

Nygard produced no evidence that he deposited any of the claimed inherited funds 

in an account associated with the purchase of the house, or any other account. 

 The second cashier’s check used for the down payment on the marital 

residence was issued by Great Western Bank in the amount of $94,845.25. The 

record contains no statements from Great Western for the account from which the 

money was drawn. Wolf testified the Great Western cashier’s check was drawn 

from an account that was jointly owned and used by the parties as a “joint operating 
 –5– 

account.” She further testified the money used to open the Great Western account 

was community funds and, while the account was open, they both made deposits and 

withdrawals. Nygard conceded at trial that the Great Western cashier’s check was 

drawn from a joint account. When asked whether community money was put into 

the account, Nygard responded, “I don’t remember.” 

 After reviewing the record, we conclude Nygard failed to prove by clear and 

convincing evidence that he was entitled to reimbursement in the amount of 

$204,896.64. We sustain Wolf’s first issue. 

 Although Wolf asks this Court to render judgment that Nygard take nothing 

by his reimbursement claim, “once reversible error affecting the ‘just and right’ 

division of the community estate is found, the court of appeals must remand the 

entire community estate for a new division.” Jacobs v. Jacobs, 687 S.W.2d 731, 

733 (Tex. 1985).1

 Even where a reimbursement claim can be identified in the trial 

court’s property division, we cannot simply modify the decree by striking the 

reimbursement award, “because to do so would be to make a new division of the 

estate of the parties, a matter within the discretion of the trial court.” Id. (quoting 

Faulkner v. Faulkner, 582 S.W.2d 639, 642 (Tex. Civ. App – Dallas 1979, no writ)). 

The amount of $204,896.64 is not a de minimis amount in the context of the 

1

 Wolf cites this Court’s opinion in In re M.S.C., No. 05-14-01581-CV, 2016 WL 929218 (Tex. App.—

Dallas Mar. 11, 2016, no pet.) (mem. op.), for the proposition that we can render judgment in her favor. In 

re M.S.C. did not address the trial court’s division of the community estate, but rather alleged failures by 

the parties to make payments owed under an agreed divorce decree. Accordingly, In re M.S.C. is 

inapplicable. 
 –6– 

community estate. Accordingly, the proper disposition is to remand the entire 

community estate for a new property division in light of our holding. Id.; Attaguile 

v. Attaguile, 584 S.W.3d 163, 176-77 (Tex. App.—El Paso 2018, no pet.). 

 In her second issue, Wolf contends the trial court abused its discretion by 

failing to make a disproportionate division of the community estate based on the 

disparity in the parties’ attorney’s fees. We decline to address this issue, because 

we have already found reversible error in the division of the community estate. See 

Touponse v. Touponse, No. 02-20-00285-CV, 2021 WL 2753504, at *5 (Tex. 

App.—Fort Worth July 1, 2021, no pet. h.) (mem. op.). Since the error could affect 

whether the trial court deems the remaining awards to be just and right, we leave the 

attorney’s fees issue to the trial court’s consideration in its new division on remand. 

Id.; Finn v. Finn, 658 S.W.2d 735, 749 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) 

(attorney’s fees left for reconsideration by trial court in making just and right 

division of property on remand). 

 Based on the foregoing, we reverse the divorce decree with respect to the 

property division and affirm in all other respects. The cause is remanded to the trial 

court for further proceedings consistent with this opinion. 

191214F.P05 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
 –7– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

LORIANNE JENAE WOLF, 

Appellant 

No. 05-19-01214-CV V. 

JOHN ROBERT NYGARD, 

Appellee 

 On Appeal from the 439th Judicial 

District Court, Rockwall County, 

Texas 

Trial Court Cause No. 1-16-0756. 

Opinion delivered by Justice 

Reichek. Justices Schenck and 

Carlyle participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. We REVERSE that portion 

of the trial court's judgment dividing the community estate. In all other respects, 

the trial court's judgment is AFFIRMED. We REMAND this cause to the trial 

court for further proceedings consistent with this opinion. 

 It is ORDERED that appellant LORIANNE JENAE WOLF recover her 

costs of this appeal from appellee JOHN ROBERT NYGARD. 

Judgment entered July 29, 2021