Bette J. Worrell v. Eric Decartney Worrell

• Court: Court of Appeals of Texas
• Decided: August 19, 2004
• Docket: 13-02-00258-CV
• Status: Published

Opinion

Worrell v. Worrell

NUMBER 13-02-00258-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BETTE J. WORRELL,                                                                   Appellant,

v.

ERIC DECARTNEY WORRELL,                                                    Appellee.

On appeal from the County Court at Law Number Three

of Montgomery County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Justice Hinojosa

          Appellant, Bette J. Worrell, filed this appeal after the trial court signed a final decree of divorce dissolving her marriage to appellee, Eric Decartney Worrell. In a single issue, appellant contends the trial court erred by characterizing separate property as community property and by denying her reimbursement on dissolution of the marriage. We affirm.

          At issue in this case are two social security checks received by appellant during the marriage: the first check in the amount of $36,984.50 received in 1996 and a second check in the amount of $8,553.60 received in 1997. Appellant contends this money was her separate property and was used to complete the interior of the family home; thus, she was entitled to reimbursement.

          A trial court may not divest a spouse of his or her separate property. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977). If a trial court mischaracterizes property in its division of a marital estate, the error requires reversal if the mischaracterization has more than a de minimus effect on the court’s just and right division of the property. Vandiver v. Vandiver, 4 S.W.3d 300, 302 (Tex. App.–Corpus Christi 1999, pet. denied).

          There is a statutory presumption that property possessed by a spouse at the time of the dissolution of a marriage is community property. See Tex. Fam. Code Ann. § 3.003(a) (Vernon 1998). As a general rule, any property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and a spouse must present clear and convincing evidence to establish that such property is separate property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 1998). Clear and convincing evidence is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 1998); Slaton v. Slaton, 987 S.W.2d 180, 182 (Tex. App.–Houston [14th Dist.] 1999, pet. denied). To overcome this presumption, the spouse asserting separate ownership must clearly trace the particular assets on hand at the dissolution of the marriage back to the original separate property. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). Where separate and community property have become so commingled that they cannot be resegregated and identified, mere proof that property was separate property does not discharge the burden of tracing. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965).

          Assuming without deciding that the social security checks received by appellant were separate property, we conclude that she failed to clearly trace this property to the particular assets on hand at the dissolution of the marriage. See Cockerham, 527 S.W.2d at 167. Appellant testified that the parties had two bank accounts: a Brown & Root account and a Bank One account. Both appellant and her husband put money in these accounts. Appellee’s paycheck went into the Bank One account. When asked what she did with the two checks at issue, appellant said she “put them in the bank.” However, she failed to specify which bank. Cancelled checks representing payment for the building and supplies for the house construction were drawn on both accounts. The trial court found that the funds at issue were commingled in the two accounts and appellant had not overcome the presumption that the money was community property.

          After reviewing the entire record, we conclude the trial court did not err in finding that appellant had not overcome the presumption that the money was community property. Accordingly, the trial court did not abuse its discretion in dividing the parties’ property. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).

          The trial court’s final decree of divorce is affirmed.

                                                                           FEDERICO G. HINOJOSA

                                                                           Justice

Memorandum Opinion delivered and filed this

the 19th day of August, 2004.