in the Matter of the Marriage of Emma Ruth Vinson and Ben Andrew Vinson, Sr.

Opinion

ACCEPTED

06-14-00101-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

5/6/2015 11:14:02 PM

DEBBIE AUTREY

CLERK

CASE NO. 06-14-00101-CV

FILED IN

6th COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE TEXARKANA, TEXAS SIXTH APPELLATE DISTRICT OF TEXAS 5/7/2015 8:27:00 AM

AT TEXARKANA, TEXAS DEBBIE AUTREY Clerk

IN THE MATTER OF THE MARRIAGE OF EMMA RUTH VINSON AND BEN ANDREW VINSON BEN ANDREW VINSON, RESPONDENT/APPELLANT EMMA RUTH VINSON, PETITIONER/APPELLEE

Appeal from the County Court at Law Rusk County, Texas

Cause No. 2011-12-590CCL

The Hon. Robin Sage, Sitting by Assignment, Presiding

JOE SHUMATE

State Bar No. 18327500

James J. Rosenthal

State Bar No. 24088801

107 North Main Street

P. O. Box 1915

Henderson, Texas 75653-1915 Tel: (903) 657-1416

Fax: (903) 655-8211

Attorney for Appellant, Andrew Ben Vinson

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record for Appellant certifies that the following listed persons have an interest in the outcome of this case. These representations are made so that this Court may evaluate possible disqualifications or recusal. APPELLANT Andrew Ben Vinson, Appellant

Joe Shumate, Lead Attorney for Appellant at trial and on appeal. James J. Rosenthal, Briefing Attorney for Appellant on appeal. 107 N. Main St. P. O. Box 1915 Henderson, Texas 75653

APPELLEE Emma Ruth Vinson, Appellee

Beau T. Sinclair, Attorney for Appellee on appeal. SBOT NO. 24029835 400 S. Broadway Ave. Suite 102 Tyler, TX 75702

Robert Foster, Attorney for Appellee at trial. SBOT NO. 07295200 227 E. Tyler Street Longview, TX 75601

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT OF ERROR NO. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The trial court abused its discretion in failing to confirm the interest and accumulations upon Appellant’s separate property interest in Appellant’s Texas Bank 401k Plan as Appellant’s separate property, and partitioning the same as property of the community estate.

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 iii

INDEX OF AUTHORITIES

CONSTITUTION AND STATUTES: Page TEX. CONST. ART. XVI, § 15 14 TEX. FAM. CODE ANN. § 3.001 14 TEX. FAM. CODE ANN. § 4.001 14 TEX. FAM. CODE ANN. § 4.003 15 TEX. FAM. CODE ANN. § 4.004 15 TEX. FAM. CODE ANN. § 4.005 15 CASES Page State Barnard v. Barnard, 133 S.W.3d 782, 790 (Tex. App.– Ft. Worth, 2004) 14 Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) 15, 16 Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977) 2 Estate of Hanau v. Hanau, 730 S.W.2d 663 (Tex. 1987) 18 Fazakerly v. Fazakerly, 996 S.W.2d 260 (Tex. App.—Eastland 1999) 15 Holloway v. Holloway, 671 S.W.2d 51 (Tex. App.-Dallas 1983, writ dism'd) 19 Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex.1996) 3 Licata v. Licata, 11 S.W.3d 269, 272-73 iv

(Tex.App.–Houston [14th Dist.] 1999, pet. denied) 14

Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.-Houston [1st Dist.] 1993, no writ) 13

Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex.App.– Houston [14th Dist.] 2003, pet. denied) 3

McClary v. Thompson, 65 S.W.3d 829, 837 (Tex. App.—Fort Worth 2002, pet. denied) 15

McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.App.-Houston [1st Dist.] 1995, writ denied) 13, 18

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711, 40 Tex. Sup. Ct. J. 846 (Tex. 1997) 3

Miller v. Miller, 700 S.W.2d 941 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) 16 Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) 2 Pearce v. Pearce, 824 S.W.2d 195, 200 (Tex. App.—El Paso 1991, writ denied) 15

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989) 4

Pool v. Ford Motor Co., 715 S.W.2d 629, 635, 29 Tex. Sup. Ct. J. 301 (Tex. 1986) 4

Robles v. Robles, 965 S.W.2d 605 (Tex. App.-Houston [1st Dist.] 1998, pet. denied) 18

Sandone v. Miller–Sandone, 116 S.W.3d 204, 208 (Tex.App.-El Paso 2003, no pet.) 13

Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998) 2

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Smith v. Smith, 22 S.W.3d 140, 143–44 (Tex.App.-Houston [14th Dist.] 2000, no pet.) 3

Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.) 2 Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex. 1984) 16 Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003) 3

Welder v. Welder, 794 S.W.2d 420 (Tex. App.-Corpus Christi 1990, no writ) 19, 20

Winger v. Pianka, 831 S.W.2d 853, 854 (Tex. App.—Austin 1992, writ denied) 15

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) 2

Zagorski v. Zagorski, 116 S.W.3d 309 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) 18

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PREAMBLE

The Reporter’s Record will be cited as “RR Vol [#], [Page #s]:[Line #s],”

and the Clerk’s Record will be cited as “CR, [Page #s]:[Line #s].”

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STATEMENT OF THE CASE

This is an appeal from a Final Decree of Divorce entered on October 14, 2014 by the County Court at Law of Rusk County, Texas, Honorable Judge Robin D. Sage, sitting by assignment, presiding. (CR, 26-36) Petitioner/Appellee filed an Original Petition for Divorce on December 15, 2011. (CR, 4) Trial was commenced on April 21, 2014, recessed for a ruling on characterization of property, and concluded on August 13, 2014. (CR, 56) The trial court made its Findings of Fact and Conclusions of Law in response to Respondent’s request on December 9, 2014. (CR, 45-48) Respondent/Appellant, Andrew Ben Vinson, commenced this appeal by notice filed on December 12, 2014. (CR, 49).

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STANDARD OF REVIEW

The standard of review for property division issues in family law cases is generally abuse of discretion. A trial court has broad discretion in dividing the “estate of the parties,” but must confine itself to community property. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977).

The trial court’s discretion to divide marital property upon divorce should be corrected on appeal only when an abuse of discretion has been shown. Murff v. Murff, 615 S.W.2d 696 (Tex. 1981); Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998). A trial court abuses its discretion when it acts without reference to any guiding principles or acts in an arbitrary or unreasonable manner. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). To determine whether the trial court abused its discretion in its property division incident to divorce, the court should engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its application of discretion? See Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.).

The trial court has no discretion in making a determination of law or in the application of the law. Consequently, the trial court’s erroneous legal conclusion, even in an unsettled area of the law, is an abuse of discretion. Huie v. DeShazo,

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922 S.W.2d 920, 927–28 (Tex.1996). The appellate court should review the trial court’s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143–44 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The standard of review for conclusions of law is whether they are correct. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex.App.– Houston [14th Dist.] 2003, pet. denied).

In reviewing a legal sufficiency or no-evidence point of error, an appellate court must consider only the evidence and inferences tending to support the trial court's finding and disregard all contrary evidence and inferences. See Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). An appellate court should sustain a “no evidence” point when the record discloses one of the following: (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711, 40 Tex. Sup. Ct. J. 846 (Tex. 1997).

When conducting a factual sufficiency review, an appellate court must consider all of the evidence, including any evidence contrary to the verdict. Plas- Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex.

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1989). Furthermore, an appellate court must reverse on the basis of factual insufficiency if the trial court’s finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635, 29 Tex. Sup. Ct. J. 301 (Tex. 1986).

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ISSUES PRESENTED

Point of Error No. 1

The trial court abused its discretion in failing to confirm the interest and accumulations upon Appellant’s separate property interest in Appellant’s Texas Bank 401k Plan as Appellant’s separate property, and partitioning the same as property of the community estate.

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STATEMENT OF FACTS

Andrew Ben Vinson (“Appellant”) and Emma Ruth Vinson (“Appellee”)

were married on or about February 14, 1999, and ceased to live together as husband and wife on or about October 9, 2011. (CR, 5). Appellee filed an Original Petition for Divorce on December 15, 2011 on the grounds of insupportability. (CR, 4-5) The parties executed and entered into an Agreement in Contemplation of Marriage (“Premarital Agreement”) on February 10, 1999.1 (CR, 45; Exhibit A– First Amended Original Petition for Divorce, with attachment).

Summarized, the relevant provisions of the Premarital Agreement provide as follows (Exhibit A, Agreement in Contemplation of Marriage): # ¶ 1.05 sets forth the parties’ intention to identify and preserve their respective separate and community property rights.

# ¶ 2.01 identifies the parties’ separate property, incorporates the parties’

separate property schedules to the Agreement, and sets forth the parties’

1 Due to clerical error, the Appellee’s Amended Petition for Divorce, to which the referenced Premarital Agreement was attached, was not included in the originally designated record on appeal. Appellant is making efforts contemporaneous to the filing of this brief to have the Clerk’s Record properly supplemented to include all pleadings relevant to this appeal. For the time being, and praying for the indulgence of the Court, Appellant has exhibited Appellee’s Amended Petition for Divorce as filed with the clerk of the trial court, with the attached Agreement to reference in regards to the terms and conditions of the premarital agreement.

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intention to preserve the separate nature of identified property, as well as income and enhancement thereto, during and after the marriage.

# ¶ 2.03 provides that separate property identified to the Agreement is to be preserved before, during, and after the marriage # ¶ 2.04 provides generally that property acquired during the marriage, including income, compensation and contributions to a retirement account, which is not otherwise defined as separate property by the Agreement, is community property, and contains a provision which transforms separate property to community property under certain, limited conditions.

# ¶ 2.06 provides that income earned from and enhancement of value to the parties’ separate property identified to and incorporated into the Agreement retains its separate property character.

# ¶ 11.01 provides for a mandatory property division upon divorce with each spouse receiving 100% of their separate property, and 50% of the community property.

# Schedule A – Assets of Ben Andrew Vinson – includes the retirement account at issue as line item no. 5: CNB 401K Plan (estimate), $234,424.00.

The trial court found the Premarital Agreement to be valid and enforceable in this action. (CR, 45)

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After the hearing, the trial court divided the marital estate between the parties and confirmed to each party their separate property; all in accord with the provisions of the premarital agreement. (CR, 27-30)(division of marital property); (CR, 32-34)(confirmation of separate property). The property divisions relevant to this appeal include the following:

Property Awarded To Husband:

H-7 “A portion of Ben Andrew Vinson, Sr.’s retirement benefits in the Texas Bank 401k Plan arising out of Ben Andrew Vinson, Sr.’s employment with Texas Bank as of the date that the Final Decree is signed by the Court, that portion being FIFTY PERCENT (50%) of the amount remaining in the account after deduction of the amount owned by Ben Andrew Vinson, Sr.’s separate estate ($234,000.00), together with any interest, dividends, gains, or losses on the amount awarded to husband arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.” (CR, 28)

Property Awarded To Wife:

W-5 “A portion of Ben Andrew Vinson, Sr.’s retirement benefits in the Texas Bank 401k Plan arising out of Ben Andrew Vinson, Sr.’s employment with Texas Bank as of the date that the Final Decree is signed by the Court, that portion being FIFTY PERCENT (50%) of the amount remaining in the account after deduction of the amount owned by Ben Andrew Vinson, Sr.’s separate estate ($234,000.00), together with any interest, dividends, gains, or losses on the amount awarded to husband arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.“ (CR, 29)

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In relevant part, the trial court further determined and confirmed the following to be the separate property of the parties:

H-5 “The sum of total sum of $234,000.00 in Ben Andrew Vinson, Sr.’s retirement benefits in the Texas Bank 401k Plan arising out of Ben Andrew Vinson, Sr.’s employment with Texas Bank as of the date that the Final Decree of Divorce is signed by the Court.” (CR, 33)

The following summary describes the relevant testimony and evidence introduced at trial regarding Appellant’s Texas Bank 401k Plan.

Appellant testified that he was asking the trial court to confirm his premarital contributions to his Texas Bank 401k Plan– identified in Schedule A of the Premarital Agreement as being approximately $234,000.00– and any interest and accumulation thereto as his separate property. (RR4, 61-2) There was a prior stipulation between the parties that the value of Appellant’s Texas Bank 401k Plan account was approximately $234,000 at the time of marriage. (RR4, 63) However, owing to clerical error, the transcript of that hearing was not available at the time of the filing of this brief.2 Appellant’s recollection of the stipulation, as evidenced by the available record, is that the parties only stipulated to the value of the plan at the time of marriage as set forth in the schedules to the premarital

2 Appellant has requested that the Court Reporter supplement the record on appeal as soon as is feasible, and will, if necessary, supplement this brief to conform to that record once properly supplemented.

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agreement, and were seeking the ruling of the trial court as to the proper characterization of that amount under the provisions of the premarital agreement, but entered no stipulation in regards to the amount or characterization of interest and accumulation to that amount. (RR4, 62-3)

Appellant accrued his separate property interest in the Texas Bank 401k while working at Citizens National Bank prior to the parties marriage. (RR4, 62) After beginning employment at Texas Bank in February 1999– approximately the same time as the parties were married– the Appellant “rolled over” the prior balance of his 401k from Citizens National Bank to the Texas Bank 401k Plan in 2002. (RR4, 67) The accumulated value of those rollover funds– as distinguished from new contributions– as of December 31, 2013 was $347,206.37. (RR6, Exhibit P-5, Pg. 3)

The pertinent part of Exhibit P-5 identifies the following:

Summary of contributions by type Contribution type Current Year-to-date Since Initial Ending Balance Percent vested Ending vested

Quarter Investment balance Your Contributions $0.00 $0.00 $172,044.25 $213,421.39 100% $213,421.29 Rollover Into Plan $0.00 $0.00 $293,891.00 $347,206.37 100% $347,206.37 Deemed Loan $0.00 $0.00 $0.00 $0.00 100% $0.00 Repayments Matching $0.00 $0.00 $39,807.28 $46,606.18 100% Total $0.00 $0.00 $505,742.53 $607,233.84 $607,233.84

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The trial court was made aware of this information by the testimony of Appellant during the trial, who referenced the exhibit and supplied the only testimony on the matter. (RR4, 67-8) Upon considering the evidence, the trial court ruled:

“As to the Texas 401(k), I previously found the $234,000 was his separate property. Any contributions or increase in that amount of money that was over that, I find would have would have been commingled, and so I’m using the $234,000 figure as his separate property.” (RR4, 78)

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SUMMARY OF THE ARGUMENT

Appellant complains that the trial court abused its discretion and committed reversible error by failing to award Appellant the interest and accumulation upon his separate property interest in the Texas Bank 401k Plan, contrary to the provisions of the Premarital Agreement. As a result, Appellant’s separate property interest in the 401k plan was confirmed at $234,000.00, instead of $347,206.37– the amount of Appellant’s separate property rollover plus interest and accumulation over time. The trial court’s ruling that such funds were “commingled,” when such funds are clearly distinguished from contributions made after the rollover, and therefore traceable, is contrary to the facts adduced at trial and applicable law.

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ARGUMENT AND AUTHORITIES

Point of Error No. 1

The trial court abused its discretion in failing to confirm the interest and accumulations upon Appellant's separate property interest in Appellant's Texas Bank 401k Plan as Appellant's separate property, and partitioning the same as property of the community estate.

If the division of marital property lacks sufficient evidence in the record to support it, then the trial court's division is an abuse of discretion. See Sandone v. Miller–Sandone, 116 S.W.3d 204, 208 (Tex.App.-El Paso 2003, no pet.) (holding that trial court abused its discretion in dividing property because there was no evidence of community estate's value); see also Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.-Houston [1st Dist.] 1993, no writ) (legal and factual sufficiency are relevant factors in assessing whether trial court abused its discretion).

If the trial court mischaracterizes separate property as community property, the error requires reversal because the subsequent division of the community estate divests the spouse of his or her separate property. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.App.-Houston [1st Dist.] 1995, writ denied). When there is insufficient evidence before the trial court to support a determination that an item of property is the separate property of one spouse reversal and remand is proper because the appellate court “cannot say whether the trial court properly or

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improperly divested either party of their separate property.” Barnard v. Barnard, 133 S.W.3d 782, 790 (Tex. App.– Ft. Worth, 2004).

Texas law generally provides that all property, both real and personal, or a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse. See Tex. Const. Art. XVI, § 15; See also TEX. FAM. CODE ANN. § 3.001. The law further places the burden of overcoming the presumption of community property on the party asserting a separate property interest by clear and convincing evidence. Licata v. Licata, 11 S.W.3d 269, 272-73 (Tex.App.–Houston [14th Dist.] 1999, pet. denied). In this case, however, the marital property rights of the parties are determined by the Premarital Agreement, and their separate property interests at the inception of the marriage were identified in property schedules incorporated in the Agreement.

A premarital agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage. TEX. FAM. CODE ANN. § 4.001(1) Property which may be subject to a premarital agreement is broadly defined to include any “interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” TEX. FAM. CODE ANN. § 4.001(2). Texas law defines “property” very broadly to include every species of valuable right and interest. Winger v. Pianka, 831 S.W.2d

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853, 854 (Tex. App.—Austin 1992, writ denied). This broad definition of property encompasses a variety of assets, including retirement benefits. TEX. FAM. CODE ANN. § 4.003.

A premarital agreement becomes effective on marriage, and may direct the disposition of the parties’ property upon separation, marital dissolution, death, or any other specified event. TEX. FAM. CODE ANN. § 4.004; TEX. FAM. CODE ANN. § 4.003(a)(3). A premarital agreement may be amended or revoked after marriage only in a writing signed by both parties. TEX. FAM. CODE ANN. § 4.005.

A premarital agreement is subject to the same general rules of construction and interpretation as any contract. When presented with such an agreement, the court must consider not only the meaning given to the terms of the agreement by the parties, but also the legal effect that the parties intended the agreement to have. See generally, McClary v. Thompson, 65 S.W.3d 829, 837 (Tex. App.—Fort Worth 2002, pet. denied); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Pearce v. Pearce, 824 S.W.2d 195, 200 (Tex. App.—El Paso 1991, writ denied).

The language of a contract should be given its plain grammatical meaning.

Fazakerly v. Fazakerly, 996 S.W.2d 260 (Tex. App.—Eastland 1999). When constructing or interpreting a contract, the entire agreement should be read and taken as a whole to effectuate the parties' true intentions. Coker v. Coker, 650

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S.W.2d 391 (Tex. 1983); Miller v. Miller, 700 S.W.2d 941 (Tex. App.—Dallas 1985, writ ref'd n.r.e.). Therefore, “an interpretation which gives a reasonable, lawful, and effective meaning to all of the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.” Restatement (Second) of Contracts § 203(a). As a general rule, contract terms are construed against the drafter in the case of an ambiguity. Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex. 1984). Just as express terms are favored over implied terms and specific terms are favored over general terms, “terms stated earlier in an agreement are favored over the subsequent terms.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

The Premarital Agreement between the parties is a facially valid and enforceable prenuptial agreement which specifically identifies items of separate property the parties intended to be kept separate during and after their marriage, waives any claim of community property, contribution, or reimbursement for improvement or enhancement in value to such property, and preserves such separate property in the event of a division of property in divorce. See Exhibit A – Agreement in Contemplation of Marriage, ¶¶ 1.05, 2.01, 2.03, 2.06, 2.07, 14.01, and 16.06. This intended division is accomplished via the provisions of the Agreement which define the separate property subject to the Agreement and the

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provides for the inclusion of property schedules in which each party specifically identifies items of their separate property to be incorporated into the Agreement. Id. at ¶¶ 2.01, 4.01, 16.04, Schedule A, Schedule B.

The retirement fund at issue here– formerly the CNB 401k plan identified in the Appellant’s separate property schedule, and later rolled over into the Appellant’s Texas Bank 401k Plan– is identified to the Premarital Agreement as Appellant’s separate property. As such, pursuant to ¶¶ 2.01, 2.03, and 2.06 of the Agreement, all increment in value or appreciation of the value of Appellant’s separate property interest in his 401k plan was Appellant’s separate property.

While the trial court properly confirmed $234,000.00 of the 401k as Appellant’s separate property pursuant to the Premarital Agreement, the trial court failed to award any accumulation and enhancement of those funds, though traceable, as Appellant’s separate property.

According to the testimony of Appellant– the only testimony on the subject– and the plain breakdown of the different contribution components of the 401k plan provided by American Funds, (RR6, Exhibit P-5), the traceable value of Appellant’s separate property interest– a.k.a., the rollover– grew to increase in value over time to $347,206.37. Instead of awarding Appellant the enhanced value of his clearly identified separate property interest in the 401k, the trial court

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ruled that any appreciation over and above the $234,000.00 identified in Appellant’s separate property schedule in 1999 was “commingled” with the community estate’s interest in the 401k plan. Not only is this ruling contrary to the express language of the Premarital Agreement, which specifically preserves to Appellant his existing separate property interests at the time, as well as any increment in value or appreciation to such property during and after marriage, it incorrectly applies Texas law concerning the commingling of marital estates.

Texas law provides that when separate and community funds are commingled in a manner defying segregation and identification, it is presumed that the entire fund consists of community property. Estate of Hanau v. Hanau, 730 S.W.2d 663 (Tex. 1987); Robles v. Robles, 965 S.W.2d 605 (Tex. App.- Houston [1st Dist.] 1998, pet. denied); McElwee v. McElwee, 911 S.W.2d 182 (Tex. App.-Houston [1st Dist.] 1995, writ denied). The presumption, however, can be dispelled through proof illustrating that the separate properties which went in never came out. Thus, a showing that community and separate funds were deposited in the same account does not divest the separate funds of their identity and establish the entire amount as community when the separate funds can be traced and the trial court can accurately determine each party's interest. Zagorski v. Zagorski, 116 S.W.3d 309 (Tex. App.-Houston [14th Dist.] 2003, pet. denied);

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Welder v. Welder, 794 S.W.2d 420 (Tex. App.-Corpus Christi 1990, no writ); Holloway v. Holloway, 671 S.W.2d 51 (Tex. App.-Dallas 1983, writ dism'd).

Irrespective of tracing method employed, the Welder decision makes it clear that traceability is the touchstone when separate property has been alleged to have been commingled.

“As long as separate property can be definitely traced and identified, it remains separate property regardless of the fact that it may undergo mutations and changes. Norris v. Vaughan, 260 S.W.2d 676, 679 (Tex.1953). Specifically, our courts have found no difficulty in following separate funds through bank accounts. Sibley v. Sibley, 286 S.W.2d 657, 659 (Tex.Civ.App.-Dallas 1955, writ dism'd). A showing that community and separate funds were deposited in the same account does not divest the separate funds of their identity and establish the entire amount as community when the separate funds may be traced and the trial court is able to determine accurately the interest of each party. Holloway v.

Holloway, 671 S.W.2d 51, 60 (Tex.App.-Dallas 1983, writ dism'd);

Harris v. Ventura, 582 S.W.2d 853, 855 (Tex.Civ.App.-Beaumont 1979, no writ). One dollar has the same value as another and under the law there can be no commingling by the mixing of dollars when the number owned by each claimant is known. Trawick v. Trawick, 671 S.W.2d 105, 110 (Tex.App.-El Paso 1984, no writ); Farrow v.

Farrow, 238 S.W.2d 255, 257 (Tex.Civ.App.-Austin 1951, no writ).

In addition, when separate funds can be traced through a joint account to specific property purchased with those funds, without surmise or speculation about funds withdrawn from the account in the interim, then the property purchased is also separate. See McKinley v. McKinley, 496 S.W.2d 540, 543-44 (Tex.1973);

DePuy v. DePuy, 483 S.W.2d 883, 887-88 (Tex.Civ.App.-Corpus Christi 1972, no writ).” Welder v. Welder, 794 S.W.2d 420, 425 (Tex. App. 1990).

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Tracing the enhancement in value of Appellant’s separate property interest in his 401k plan is made easy by the documentation provided by Petitioner’s Exhibit 5, which includes a simple reference table segregating the source of each contribution to the fund and the growth of each fund source over time. The table shows the following:

Summary of contributions by type Contribution type Current Year-to-date Since Initial Ending Balance Percent vested Ending vested

Quarter Investment balance Your Contributions $0.00 $0.00 $172,044.25 $213,421.39 100% $213,421.29 Rollover Into Plan $0.00 $0.00 $293,891.00 $347,206.37 100% $347,206.37 Deemed Loan $0.00 $0.00 $0.00 $0.00 100% $0.00 Repayments Matching $0.00 $0.00 $39,807.28 $46,606.18 100% Total $0.00 $0.00 $505,742.53 $607,233.84 $607,233.84

The “Rollover Into Plan” row identifies the Appellant’s rollover contribution into the Plan at the date of initial investment. The initial investment amount of $293,891.00– made in 2002 according to other parts of the account statement– is consistent with Appellant’s testimony that the amount rolled over was the amount of his premarital contributions, plus accumulations between 1999 and 2002. The table then shows the present value of the amount of the initial rollover investment, including interest and accumulation across all funds, to be $347,206.37.

21

Based upon the Appellant’s testimony, the provisions of the Premarital Agreement, and the clearly traceable growth of Appellant’s separate property interest in the 401k plan by virtue of the segregation of the rollover account from contributions made directly into the plan after the rollover, it is clear that the trial court’s confirmation of only $234,000 of the 401k as Appellant’s separate property was an abuse of discretion. While any error in the confirmation of a spouse’s separate property in divorce may warrant reversal and remand, the error in valuation here– approximately $113,000.00– is significant enough to substantially skew the remainder of the trial court’s division of property. As such, only an order reversing the trial court’s division of property and directing a just and right division of the community property after awarding Appellant the full value of his separate property interest in the 401k plan, including traceable enhancement, will rectify the error.

PRAYER FOR RELIEF

WHEREFORE, Appellant, Andrew Ben Vinson prays that this Honorable Court reverse and set aside in all things the judgment of the trial court as to the division of marital property as well as the confirmation of the Appellant’s separate property, and remand this cause for new trial to determine a just and right division of the marital property in light of the proper valuation of Appellant’s separate

22

property. Appellant also prays for such other and further relief to which Appellant may be entitled at law and in equity.

Respectfully Submitted,

LAW OFFICES OF JOE SHUMATE 107 N. Main

P O Box 1915

Henderson, TX 75653

Tel: (903) 657-1416

Fax: (903) 655-8211

By:

JOE SHUMATE

State Bar No. 18327500

JAMES J. ROSENTHAL

State Bar No. 24088801

Attorney for Appellant

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CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 3,465 words (excluding any caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix). This is a computer-generated document created in WordPerfect, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

Date: May 6, 2015

________________________________________

Joe Shumate James J. Rosenthal Attorney for Appellant, Andrew Ben Vinson LAW OFFICES OF JOE SHUMATE 109 N. Jackson P.O. Box 1915 Henderson, TX 75653-1915 903-657-1416 Phone 903-655-8211 Fax shumate.law@suddenlinkmail.com

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing document has been served upon all known counsel of record and/or parties without counsel via:

_____ certified U.S. mail, return receipt requested _____ hand/messenger delivery _____ regular first class U. S. mail, postage prepaid __X__ facsimile transmission as set out below.

Said service being made this 6th day of May, 2015, by sending to:

Beau T. Sinclair SBOT NO. 24029835 400 S. Broadway Ave.

Suite 102 Tyler, TX 75702 Fax: (903) 753-8289

_____________________________________

JAMES J. ROSENTHAL

APPENDIX

COURT DOCUMENTS

Exhibit A: First Amended Original Petition for Divorce (with Agreement in Contemplation of Marriage, attached)

Exhibit B: Final Decree of Divorce

CONSTITUTION AND STATUTES TEX. CONST. ART. XVI, § 15 TEX. FAM. CODE ANN. § 3.001 TEX. FAM. CODE ANN. § 4.001 TEX. FAM. CODE ANN. § 4.003 TEX. FAM. CODE ANN. § 4.004 TEX. FAM. CODE ANN. § 4.005

EXHIBIT A

First Amended Original Petition for Divorce (with Agreement in Contemplation of Marriage, attached)

EXHIBIT B Final Decree of Divorce

Tex. Const. art. XVI, § 15

§ 15. Separate and community property of husband and wife

All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses' community property.

Tex. Fam. Code § 3.001

§ 3.001. Separate Property A spouse's separate property consists of: (1) the property owned or claimed by the spouse before marriage;

(2) the property acquired by the spouse during marriage by gift, devise, or descent; and

(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Tex. Fam. Code Ann. § 4.001

§ 4.001. Definitions In this subchapter: (1) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage. (2) “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

Tex. Fam. Code Ann. § 4.003

§ 4.003. Content (a) The parties to a premarital agreement may contract with respect to:

(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) the modification or elimination of spousal support; (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) the ownership rights in and disposition of the death benefit from a life insurance policy; (7) the choice of law governing the construction of the agreement; and (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (b) The right of a child to support may not be adversely affected by a premarital agreement.

Tex. Fam. Code Ann. § 4.004

§ 4.004. Effect of Marriage A premarital agreement becomes effective on marriage.

Tex. Fam. Code Ann. § 4.005

§ 4.005. Amendment or Revocation After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.