AFFIRMED in part; REVERSE and RE MAND in part; and Opinion Filed July 29, 2021 

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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 fina l decree of divorce, Loria nne Jenae Wolf challenges the trial court’s reimbursement award of $204,896.64 to her fo rmer husband, John Robert Nygard. Wolf additionally challe nges 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 conc lude 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 ev idence is insufficient to support the trial court’s reimbursement award to Nygard. Nygard’s request fo r reimbursement was based on his purported use of separate pr operty funds as a down payment to purchase the marital residence. Under Texas law, prope rty possessed by either spouse during or upon dissolution of marriage is presumed to be community property. T EX

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. C ODE A NN . § 3.003(a). As the party seeking re imbursement, 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 propert y into a particular asset on hand during marriage. Id . As a general rule, mere testim ony that property was purchased with separate funds, without any tracing of th e 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 burde n of tracing is a difficult, but not impossible, burden to sustain. Id . at 344. In this case, Nygard sought reimburse ment for two cashier’s checks totaling $204,896.64 that were used as a down pa yment on a house he and Wolf purchased during their marriage. Nyga rd claimed the funds for the two checks came from the sale of a house he owned be fore 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 hous e and $115,696.68 in inherited funds. One of the checks used as a down pa yment 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 f unds in Wolf and Nygard’s joint savings account at Valley Bank shortly before the check was issued. Th e 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 Centr al 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 Centr al Bank cashier’s check, there was a $10,000 withdrawal, followed se veral 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 re sidence. There is no record showing the source of the $32,996.90 deposit, so we must presume it was community funds. See T EX

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. C ODE A NN . § 3.003(a). When separate prope rty and community property have become so commingled as to defy resegreg ation 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 $115,696.68 Nygard asserted he received from his mother’s estate, there is little evidence in the record to sh ow his receipt of the alleged funds, and no evidence to show what he did with th e money after he received it. The only documentary evidence regarding the larg est of the claimed distributions from Nygard’s mother’s esta te was a handwritten not e on a bank statement, “[$]325,248.70 ÷ 5 = $65,049.74 Amount sent to each sibling.” Th e trial judge ruled the handwritten note inadmissible and stated he would not consider it. Additionally, Nygard produced no evidence that he depos ited 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 mone y used to open the Great Western account was community funds and, wh ile the account was open, th ey 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 concl ude Nygard failed to prove by clear and convincing evidence that he was entitle d to reimbursement in the amount of $204,896.64. We sustain Wolf’s first issue. Although Wolf asks this Court to re nder judgment that Nygard take nothing by his reimbursement claim, “once reversib le 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 clai m can be identified in the trial court’s property division, we cannot simp ly 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 pr oposition 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 pr oper 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. A pp.—El Paso 2018, no pet.). In her second issue, Wolf contends th e trial court abused its discretion by failing to make a disproportionate divisi on 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 reversib le 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.) (m em. op.). Since the error could affect whether the trial court deems the remaining aw ards to be just and right, we leave the attorney’s fees issue to the trial court’s co nsideration in its new division on remand. Id .; Finn v. Finn , 658 S.W.2d 735, 749 (Tex. App.—Dal las 1983, writ ref’d n.r.e.) (attorney’s fees left for reconsiderati on by trial court in making just and right division of property on remand). Based on the foregoing, we reverse th e divorce decree with respect to the property division and affirm in all other re spects. The cause is remanded to the trial court for further proceedings c onsistent with this opinion.

191214F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–7– 

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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 c onsistent 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