TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00290-CV
Evaristo Gabriel Vazquez, Appellant
v.
Jessica Lynn Bailey, Appellee
FROM THE 207TH DISTRICT COURT OF HAYS COUNTY NO. 16-0582, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
MEMORANDUM OPINION
After a protracted six-year divorce proceeding, the trial court entered a Final
Decree of Divorce, which among other things, appointed Evaristo Gabriel Vazquez (Father) and
Jessica Lynn Bailey (Mother) joint managing conservators of their two children, granted Mother
the exclusive right to designate the primary residence of the children, denied Father’s request for
reimbursement, and divided the marital estate between Father and Mother. Father now appeals
that divorce decree. For the following reasons, we affirm the decree.
BACKGROUND
Mother and Father were married on November 29, 2008. The parents had two
minor children, son and daughter, during the marriage, and Father had two now-adult sons from
a previous relationship. Mother ultimately filed for divorce on March 21, 2016, and the initial
proceeding culminated in an associate judge issuing findings and recommendations on January 2, 2018. Father thereafter moved for a new trial, arguing that he did not knowingly waive his right
to a de novo hearing, and the trial court granted the motion on May 30, 2018.
A bench trial was then held over eleven nonsequential days spanning from
April 15, 2019, through April 19, 2022, during which Father, Mother, and several other
witnesses testified. 1 Amongst a myriad of topics and issues, much of the testimony and evidence
focused on real property owned by Mother in San Marcos, Texas, that she purchased prior to the
marriage and on which Father completed a variety of renovations during the course of their
marriage (the “San Marcos Residence”). There was also testimony and evidence addressing two
pieces of property intended for Father’s adult sons, one property owned by Father prior to the
marriage (the “Wimberley Property”) and another property purchased in the Canyon Lake area
during the marriage (the “Canyon Lake Property”), on both of which Father had completed
various improvements during their marriage. Portions of the trial also focused on Mother’s
retirement account with the Teacher Retirement System of Texas (the “TRS Account”), which
was opened prior to their marriage but may have received some contributions or experienced
growth during the marriage.
On the last day of the bench trial, the trial court granted the divorce. Relevant to
this appeal, the trial court appointed both parents as joint managing conservators, with Mother
having the right to establish the children’s primary residence; denied Father’s reimbursement
claim as to community funds expended on the San Marcos Residence; and awarded 100% of the
San Marcos Residence and the TRS Account to Mother as part of the division of the marital
1That extended period included interruptions from scheduling conflicts, the COVID-19 pandemic, and disputes over holding virtual hearings. 2 estate. The trial court then entered a final decree of divorce consistent with those rulings on
May 17, 2022. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s decisions on conservatorship, possession, the award of a
reimbursement claim, and the division of the marital estate for abuse of discretion. See Penick
v. Penick, 783 S.W.2d 194, 198 (Tex. 1988) (division of marital estate); In re Estate of Baker,
627 S.W.3d 523, 526–27 (Tex. App.—Waco 2021, no pet.) (reimbursement claims); Espe
v. Castellaw, No. 03-19-00475-CV, 2021 WL 2021137, at *1 (Tex. App.—Austin May 21, 2021,
no pet.) (mem. op.) (conservatorship and possession). “A trial court abuses its discretion if it
acts without reference to any guiding rules and principles such that the ruling is arbitrary or
unreasonable.” Espe, 2021 WL 2021137, at *1 (citing Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004)).
The abuse of discretion standard overlaps with traditional sufficiency standards of
review in family law cases. See Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin
2006, pet. denied). Challenges to legal and factual sufficiency do not constitute independent
grounds for asserting errors but are instead relevant factors in determining whether the trial court
abused its discretion. See Espe, 2021 WL 2021137, at *2. “Evidence is legally sufficient when
it would enable reasonable and fair-minded people to reach the verdict under review and is
factually insufficient only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust.” A.S. v. Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786,
795 (Tex. App.—Austin 2023, no pet.). A trial court does not abuse its discretion if there is at
least some substantive, probative evidence that “exists to support the trial court’s decision.” See
3 Espe, 2021 WL 2021137, at *2 (citing Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—
Austin 2002, no pet.)).
Furthermore, because findings of fact and conclusions of law were not requested
or filed, “it is implied that the trial court made all findings necessary to support its judgment.”
See Estrada v. Garrett-Estrada, No. 03-22-00017-CV, 2023 WL 3132552, at *4 (Tex. App.—
Austin Apr. 28, 2023, pet. denied) (mem. op.). In this context, we view the evidence in the light
most favorable to the trial court’s decision, and the judgment must be affirmed if it can be upheld
on any legal theory supported by the evidence. See id. (citing Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990)).
DISCUSSION
In his pro se briefing, Father raises three challenges to the final divorce decree:
(1) the appointment of Mother as the joint managing conservator with the right to establish the
children’s primary residence; (2) the denial of his reimbursement claim; and (3) the award of
100% of the TRS Account to Mother as part of the division of the marital estate. 2 Father also
argues that the multi-year time period of the divorce proceeding violated his due process rights.
We address each argument in turn.
Conservatorship
In his first issue, Father challenges the appointment of Mother as the joint
managing conservator with the right to establish the children’s residence. See Tex. Fam. Code
2 We construe pro se filings liberally and with patience “so as to obtain a just, fair and equitable adjudication of the parties’ rights.” Housing Auth. of City of Austin v. Elbendary, 581 S.W.3d 488, 491 n.1 (Tex. App.—Austin 2019, no pet.) (quoting Veigel v. Texas Boll Weevil Eradication Found., 549 S.W.3d 193, 195 n.1 (Tex. App.—Austin 2018, no pet.)). “However, pro se litigants must comply with the same rules and standards as those represented by attorneys.” Id. 4 § 153.134(a) (authorizing court to appoint parents as joint managing conservators if appointment
in best interest of child), (b) (requiring court to render appointment order containing various
provisions, including designating “the conservator who has the exclusive right to determine the
primary residence of the child”). The primary consideration for all issues of conservatorship is
the best interest of the child. See Tex. Fam. Code § 153.002; see also Chacon v. Gribble,
No. 03-18-00737-CV, 2019 WL 6336184, at *5 (Tex. App.—Austin Nov. 27, 2019, no pet.)
(mem. op.). Trial courts have broad discretion in determining what is in the child’s best interest,
see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and they may use the
non-exhaustive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), in
making that determination. Although a single factor may be adequate in certain cases to support
a best interest finding, no single factor is controlling, not all factors apply in every case, and the
best interest determination is not limited only to those factors. Chacon, 2019 WL 6336184, at *5.
Liberally construing Father’s briefing, he contends that Mother should not have
been designated joint managing conservator with the right to establish the children’s residence
because of “unrebutted” evidence of frequent injuries and illnesses suffered by the children while
in Mother’s care. Father refers to evidence in the record that their son suffered a broken arm,
that their daughter suffered various bruises and abrasions to her face and body over several years,
that son suffered repeated fungal infections on one of his toes, that the children suffered
numerous mosquito bites, and that the children suffered various minor injuries while playing
with older students of Mother. 3 But the trial court heard testimony demonstrating that son broke
his arm while playing at school, not under Mother’s supervision. The trial court also heard
3 Son and daughter were nine years old and four years old, respectively, when the de novo trial started, and they were twelve years old and seven years old, respectively, when the final decree was entered. 5 Mother’s testimony regarding the cause or circumstances of the various bruises, abrasions, and
mosquito bites suffered by the children and her explanation that they were “minor” and the type
of injuries toddlers and young children experience in their daily activities. Moreover,
photographic evidence of the various injuries and illnesses was also admitted. The court was
therefore best positioned to observe the witnesses’ demeanor and weigh the credibility of their
competing testimony in light of the photographic evidence of those injuries and illnesses. See
Coburn v. Moreland, 433 S.W.3d 809, 823–24 (Tex. App.—Austin 2014, no pet.) (“We,
therefore, defer to the trial court’s judgment in matters involving factual resolutions and any
credibility determinations that may have affected those resolutions.”). Father also contends that
Mother failed to seek adequate treatment from doctors and failed to adequately feed the children,
leading to daughter being chronically underweight and son suffering from constipation. But in
addition to Mother’s testimony contradicting Father’s version of events, written discovery
responses from the children’s pediatrician that were admitted into evidence stated that, in the
pediatrician’s professional opinion, neither child was “significantly underweight” nor had
“significant issues” with constipation, that the pediatrician had no concerns of neglect, that
neither parent is neglectful, and that Father “seems pre-occupied with gathering evidence against
[Mother].” See id.
In sum, there is some substantive, probative evidence in the record supporting
Mother’s appointment as the joint managing conservator with the right to designate the
children’s residence. See Espe, 2021 WL 2021137, at *2; Estrada, 2023 WL 3132552, at *4.
Father has failed to show that the trial court abused its discretion in finding that it was in the
children’s best interest for Mother to be appointed joint managing conservator with the right to
establish the children’s residence. We overrule Father’s first issue.
6 Reimbursement Claim
In his second issue, Father argues that the trial court erred in denying his request
for reimbursement. He contends that he is entitled to reimbursement for the renovations he
completed on the San Marcos Residence, which the parties agree is Mother’s separate property.
We review a trial court’s award of reimbursement for an abuse of discretion.
In re Estate of Baker, 627 S.W.3d at 526–27; see also Marin v. Marin, No. 03-22-00013-CV,
2023 WL 2776296, at *4 (Tex. App.—Austin Apr. 5, 2023, no pet.) (mem. op.). Under Section
3.402 of the Texas Family Code, a spouse may seek reimbursement of funds expended by the
marital estate “when one or both spouses use property of one marital estate to confer on the
property of another marital estate a benefit which, if not repaid, would result in unjust
enrichment to the benefited estate.” Tex. Fam. Code § 3.402(a). “The right of reimbursement is
not an interest in property or an enforceable debt, per se, but an equitable right which arises upon
dissolution of the marriage through death, divorce, or annulment.” Marin, 2023 WL 2776296, at
*5 (quoting Vallone v. Vallone, 644 S.W.2d 455, 458–59 (Tex. 1982)). Reimbursement is “not
merely a balancing of the ledgers between the marital estates.” Id. at *4. “The rule of
reimbursement is purely an equitable one.” Vallone, 644 S.W.2d at 458. Trial courts have broad
discretion in evaluating a claim for reimbursement, and “[g]reat latitude must be given to the trial
court in applying equitable principles to a claim for reimbursement.” Marin, 2023 WL 2776296,
at *4. Father, as the spouse seeking reimbursement, must establish “(1) that a contribution was
made by one marital estate to another, (2) that the contribution was reimbursable, and (3) the
value of the contribution.” Id.; see also Tex. Fam. Code § 3.402(b).
On appeal, Father focuses on the third element: the value of the contribution.
Generally, the value of the benefit conferred for improvements to real property is “measured by
7 the enhancement in the value of the benefited estate’s real property that resulted from the
improvements.” Tex. Fam. Code § 3.402(d)(2). Although Father introduced evidence about the
costs of the various renovations to the San Marcos Residence, “evidence of the cost of
improvements alone is not sufficient to prove enhanced value.” In re Marriage of McCoy & Els,
488 S.W.3d 430, 435 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Rather, that
“enhancement value” is determined through evidence showing the fair market value of the
property in its improved condition at the time of dissolution compared to the fair market value of
the property if the improvements had not been made. Marin, 2023 WL 2776296, at *5. “Thus, it
is not sufficient for the party seeking reimbursement to prove that the value of property has
simply increased over time; the party seeking reimbursement must prove that the enhanced value
of the property ‘was actually due to the renovations’ or other improvements.” In re Marriage of
McCoy & Els, 488 S.W.3d at 435 (quoting Garza v. Garza, 217 S.W.3d 538, 547 (Tex. App.—
San Antonio 2006, no pet.)).
The court did consider evidence of the original value of the San Marcos
Residence at the time Mother purchased the property before the marriage ($57,250) and
appraisals of the property at the time of dissolution of the marriage ($155,100, $160,000, and
$190,000). But those appraisals addressed the fair market value of the improved San Marcos
Residence, rather than analyzing the hypothetical fair market value of the San Marcos Residence
if the renovations had not taken place. Father argues that Mother conceded the hypothetical
value of the San Marcos Residence when she stated at the July 26, 2019 hearing that she believes
the San Marcos Residence would be worth “at least $130,000” if it was in the unrenovated
condition. However, Mother’s statement regarding her opinion on the hypothetical value of the
San Marcos Residence occurred in response to a question about the value of the San Marcos
8 Residence “today,” that is, the date of the hearing, not the date of the dissolution of the marriage.
See Marin, 2023 WL 2776296, at *5. Moreover, when asked for the basis of her opinion,
Mother explained that there are “very few properties for sale, there’s very few, even just empty
lots,” that she is neither a real-estate agent nor an appraiser, and that she does not own any other
real estate. See In re Marriage of McCoy & Els, 488 S.W.3d at 436 (explaining that conclusory
statements about property value without improvements are not competent evidence when
unaccompanied by evidence substantiating factual basis for opinion (citing DZM, Inc. v. Garren,
467 S.W.3d 700, 703 (Tex. App.—Houston [14th Dist.] 2015, no pet.))). Father has failed to
demonstrate there was sufficient evidence to support his reimbursement claim based on the value
of the improvements to the San Marcos Residence under Section 3.402(d)(2)’s “enhancement
value” approach, and therefore the trial court did not abuse its discretion in denying the
reimbursement claim. 4
4 Father also at times appears to argue that he is separately entitled to reimbursement for the value of his “time, toil, talent, or effort” in renovating the San Marcos Residence. The value of a spouse’s contribution may also be “measured by the value of the time, toil, talent, or effort beyond that which was reasonably necessary to manage and preserve the [other] spouse’s separate property” when the reimbursement-seeking spouse uses their “time, toil, talent, or effort to enhance” the separate property. Tex. Fam. Code § 3.402(d)(3). However, Father has not directed us to any example, nor have we found any, of this provision being used as an alternative for seeking reimbursement for improvements to real property. See, e.g., In re Marriage of Moore, No. 12-22-00286-CV, 2023 WL 3369399, at *10 (Tex. App.—Tyler May 10, 2023, no pet.) (mem. op.) (explaining reimbursement claim arises out of spouse’s time, toil, talent, and effort “from a business under the spouse’s control and direction”); In re Marriage of Slagle, No. 14-16-00113-CV, 2018 WL 2306736, at *4 (Tex. App.—Houston [14th Dist.] May 22, 2018, pet. denied) (mem. op.) (describing this method of determining value of contribution as relating to inadequate compensation “for a business entity under the control and direction of that spouse”); see also In re Marriage of McCoy & Els, 488 S.W.3d 430, 435 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“Nor is evidence of the cost of improvements alone sufficient to prove enhanced value.”).
Assuming without deciding that Father could seek reimbursement for the value of his renovations to the San Marcos Residence under this alternative valuation approach, we cannot 9 Furthermore, the trial court also heard testimony and evidence from both Father
and Mother that, during the marriage, Father purchased the Canyon Lake Property for one of
Father’s adult sons, that Father made improvements to both the Wimberley Property (intended
for his other adult son) and the Canyon Lake Property, and that Mother and Father provided
various types of financial support to Father’s two adult sons. See Tex. Fam. Code § 3.402(f)
(directing court, if appropriate, to offset competing reimbursement claims). The trial court also
heard testimony that the community estate took depreciation on the San Marcos Residence to
offset its tax burden during several years when the property was leased to third parties. See id.
§ 3.402(g)(3) (allowing for reimbursement claim to be offset by “any reduction in the amount of
any income tax obligation of the conferring estate by virtue of the conferring estate claiming
tax-deductible items relating to the property of the benefited estate, such as depreciation, interest,
taxes, maintenance, or other deductible payments”). Thus, even assuming Father was entitled to
a reimbursement claim, the trial court could have considered that other evidence and determined
that any reimbursement claim for Father should have been completely offset. See id. § 3.402(f).
Taken together, we conclude that the trial court did not abuse its discretion in
denying Father’s reimbursement claim. See Marin, 2023 WL 2776296, at *5. We overrule
Father’s second issue.
say the trial court abused its discretion. Father did testify regarding the cost of materials and labor for various renovations undertaken on the San Marcos Residence, although this testimony often confused the cost of those past renovations with what they would cost in the present (or what Father would have charged a third party for similar renovations). But the trial court also reasonably could have credited competing testimony from Mother that several of the renovations were completed either prior to the marriage or were done by Mother, that numerous repairs arose because of the poor workmanship of Father’s renovations, and that renovations were completed without the necessary permits or inspections. 10 Division of Marital Estate
In his third issue, Father argues that the trial court erred in denying his request for
either half of the entire TRS Account or half of the community portion of the TRS Account.
“In a decree of divorce or annulment, the court shall order a division of the estate
of the parties in a manner that the court deems just and right, having due regard for the rights of
each party and any children of the marriage.” Tex. Fam. Code § 7.001. A trial court has broad
discretion in making the division of the marital estate, and we review that division for an abuse
of discretion. See Cyree v. Cyree, No. 03-21-00319-CV, 2022 WL 17835215, at *3 (Tex.
App.—Austin Dec. 22, 2022, no pet.) (mem. op.); see also Penick, 783 S.W.2d at 198. We
presume the trial court exercised this discretion properly, and the division must be manifestly
unfair to constitute an abuse of discretion. See Cyree, 2022 WL 17835215, at *3 (citing Ashraf
v. Ashraf, No. 03-11-00467-CV, 2012 WL 1948347, at *7 (Tex. App.—Austin May 24, 2012, no
pet.) (mem. op.) and O’Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no
pet.)). Appellant therefore bears the burden of showing the division was “so disproportionate,
and thus unfair, that it constitutes an abuse of discretion.” See id. (quoting O’Carolan v. Hopper,
414 S.W.3d 288, 311 (Tex. App.—Austin 2013, no pet.)); see also Murff v. Murff, 615 S.W.2d
696, 700 (Tex. 1981) (observing that “[m]athematical precision in dividing property in a divorce
is usually not possible” and that “[w]ide latitude and discretion rests in these trial courts and that
discretion should only be disturbed in the case of clear abuse”).
Father does not challenge that the overall division of the marital estate is just and
right but instead argues that he should have received half of the community property contained in
11 the TRS Account. Even assuming the entire TRS Account was community property, 5 neither
specific community property, nor all of the community property, need “be equally divided.”
Murff, 615 S.W.2d at 699; see also Delancey v. Delancey, No. 03-10-00240-CV, 2011 WL
677401, at *6 (Tex. App.—Austin Feb. 24, 2011, no pet.) (mem. op.) (“A just and right division
of the couple’s community property need not be an equal split.”). For example, Father was
awarded 100% of the Canyon Lake Property, 6 which was purchased during the marriage, in the
division of marital estate. Although Mother may have received the entire TRS Account in the
division of marital estate, Father has failed to establish that the overall division of the marital
estate was so disproportionate as to be manifestly unfair (or that the TRS Account somehow
constituted such an overwhelming portion of the marital estate to make any division of the
remaining property so disproportionate as to be manifestly unfair). See Tex. Fam. Code § 7.001;
see also Cyree, 2022 WL 17835215, at *3. We overrule Father’s third issue.
Due Process Challenge
In his final issue, Father contends that holding the de novo trial over several,
disjointed days spanning an approximately three-year period violated his due process rights.
As an initial matter, Father did not raise this objection before the trial court but
instead has raised it for the first time on appeal. See Tex. R. App. P. 33.1(a); cf. In re L.M.I.,
5 Mother testified at trial that her TRS Account had approximately $18,000 in funds at the time she and Father met, and a value of $20,173 at the time of the divorce. She would later testify that the funds in the account had not grown because she was no longer a teacher in the school district and therefore was not adding funds to the account and that the TRS Account was instead “just gaining interest.” 6 The Canyon Lake property was purchased for approximately $5,500 during the marriage, and conflicting testimony valued the Canyon Lake property between $8,500 and $30,000 after numerous improvements were made to the property. 12 119 S.W.3d 707, 711 (Tex. 2003) (concluding due process challenge in termination proceeding
not preserved when raised for first time on appeal). Even if Father had preserved this issue for
appellate review, Father’s due process challenge has been inadequately briefed. Father contends
that the three-year period was per se unreasonable, 7 but he has failed to provide any meaningful
analysis or cite relevant authority beyond a reference to the Texas Constitution. See LMP Austin
English Aire, LLC through Lafayette English Partner, LLC v. Lafayette English Apartments, LP,
654 S.W.3d 265, 291 (Tex. App.—Austin 2022, no pet.) (“When, as here, a party fails to
properly cite to the record and omits meaningful argument, appellate courts may consider the
issue waived due to inadequate briefing.”); Cruz v. Van Sickle, 452 S.W.3d 503, 512–13 (Tex.
App.—Dallas 2014, pet. Struck) (concluding issue waived for inadequate briefing because due
process claim “does nothing more than reference certain constitutional provisions” without
meaningful analysis); see also Housing Auth. of City of Austin v. Elbendary, 581 S.W.3d 488,
491 n.1 (Tex. App.—Austin 2019, no pet.) (“[P]ro se litigants must comply with the same rules
and standards as those represented by attorneys.”). The only other authority referenced by Father
is the one-year deadline for commencing trial on the merits under Section 263.401 of the Texas
Family Code, but that deadline only applies to termination proceedings and is inapplicable here.
See Tex. Fam. Code § 263.401(a) (dismissing automatically, with certain limited exceptions,
termination suit if trial on merits is not commenced within one year of Texas Department of
7 Although Father contends in his briefing that the extended time period was the sole fault of the trial court, the record belies that assertion. For example, at the December 8, 2020 hearing, the parties discussed how Mother’s counsel had attempted to set a hearing throughout the previous months since the COVID-19 pandemic began affecting court operations but that Father opposed any virtual setting. Only after the trial court denied Father’s request for in-person hearings at the December 2020 hearing did the parties resume the bench-trial dates in the subsequent months. 13 Family and Protective Services being appointed temporary managing conservator). We overrule
Father’s final issue.
CONCLUSION
For these reasons, we affirm the divorce decree. 8
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Smith and Theofanis
Affirmed
Filed: April 25, 2024
8 We also dismiss as moot Bailey’s motion to dismiss appeal, which sought to dismiss Father’s appeal on the ground that he waived his appellate issues by failing to comply with the briefing rules. See Tex. R. App. P. 38.1. 14