Jimmy Zamarripa v. Syliva C. Zamarripa

• Court: Court of Appeals of Texas
• Decided: June 30, 2009
• Docket: 14-08-00083-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 30, 2009

Affirmed and Memorandum Opinion filed June 30, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00083-CV

JIMMY ZAMARRIPA, Appellant

V.

SYLVIA C. ZAMARRIPA, Appellee

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 05-CV-141,078

M E M O R A N D U M   O P I N I O N

Appellant Jimmy Zamarripa appeals from a final divorce decree following a bench trial.  Jimmy contends that the trial court erred by characterizing all of his pension benefits as community property.  We affirm.

Background

Jimmy and appellee Sylvia Zamarripa were married on June 3, 1984.  Jimmy began receiving funds from a pension plan administered by Central Pension on June 1, 2003.  Jimmy filed a petition seeking divorce on February 9, 2005.  Neither Jimmy=s original petition nor his amended petition filed on February 28, 2005 identifies any portion of his pension benefits as his separate property.

Sylvia submitted interrogatories, requests for disclosure, and requests for production to Jimmy on October 12, 2005 to determine the existence and value of any property Jimmy claimed to be separate property.  The appellate record does not contain Jimmy=s responses to these discovery requests.

Sylvia filed her inventory and appraisement on March 28, 2007.  She identifies Jimmy=s Central Pension benefits as part of the community estate in her inventory.  Sylvia describes this pension as being administered by Central Pension and paid to employee Jimmy Zamarripa in the form of A[r]etirement of $2,600.95 per month as of December 31, 2005.@  All other information about the pension is stated to be A[u]nknown@ to Sylvia.  Sylvia=s inventory also states that Jimmy=s separate estate is unknown to Sylvia.

Jimmy filed his inventory and appraisement on April 11, 2007.  He also identifies his Central Pension benefits as part of the community estate.  Jimmy states that he began receiving pension benefits on June 2, 2003, and describes these benefits as A[r]etirement of $2,603.90 per month as of January 1, 2007.@  Jimmy=s inventory describes as A[u]nknown@ Jimmy=s percentage of vesting, the value of the community interest in his pension benefits, and the method of computation.  Jimmy did not identify any portion of his pension benefits as part of his separate estate, but he did list several items of personal property as his separate property.

On April 19, 2007, Jimmy and Sylvia signed a mediated settlement agreement for a partial divorce settlement.  This agreement required Jimmy to produce to Sylvia Acurrent statements on [Jimmy=s] pension showing account values@ by May 1, 2007.  The appellate record does not contain these statements.

Sylvia filed a proposed division of property and debts on August 14, 2007, in which she proposed that half of Jimmy=s pension benefits be awarded to her in the divorce.  Jimmy did not file a proposed division of property with the trial court.

Jimmy testified at trial that he began contributing to his pension fund 10 years before marrying Sylvia in 1984, and that he contributed $24,000 toward his pension before the marriage.  No documentation tracing this asserted $24,000 contribution was offered to corroborate Jimmy=s testimony.  Jimmy=s trial counsel later stated during questioning: ANow, let=s go to your retirement accounts because that=s joint property.@  Jimmy did not refute this statement in answering his trial counsel=s question.  Jimmy further testified that he paid his trial counsel from his pension benefits, which he did not consider to be community property.  Jimmy later testified that he began contributing to his pension fund in 1970.

Sylvia testified that she had accessed information about the form and duration of Jimmy=s pension through a website.  Sylvia further testified that Jimmy had provided to her no documentation to show that he had ever checked information about his pension=s form or duration through the website.  Sylvia also testified that Jimmy had not informed her of the amount he had accrued in his pension.  Sylvia stated that Jimmy began contributing to his pension 10 years before they married in 1984, and that she considered the value of those 10 years to be Jimmy=s separate property.  Sylvia also testified that Jimmy=s average annual income more than doubled from the 1993-1998 period to the 1999-2003 period.  Following Sylvia=s testimony, the trial court took judicial notice of Jimmy=s first amended petition seeking divorce and the absence therein of any pleading for separate property. 

The trial court signed its final divorce decree awarding Sylvia half of Jimmy=s entire pension benefits on November 2, 2007.  Jimmy timely filed a motion for new trial on November 27, 2007.  On December 4, 2007, the trial court signed a Qualified Domestic Relations Order (AQDRO@) informing Central Pension of its obligations under the divorce decree.  This QDRO states that Sylvia is to receive half of Jimmy=s Amonthly retirement benefit amount,@ and that Jimmy=s participation in the pension fund lasted from June 1, 1970 until he received his first benefits on June 1, 2003. 

The trial court held a hearing on Jimmy=s motion for new trial on December 6, 2007, and signed an order denying the motion on December 21, 2007.  The trial court signed an amended QDRO to the same effect as the first one on February 28, 2008.  Jimmy appeals from the trial court=s November 2, 2007 final divorce decree.

Analysis

Jimmy does not challenge on appeal the trial court=s division of community property.  Rather, he challenges the trial court=s legal conclusion characterizing all of his pension benefits as community property subject to division by the court.  Jimmy asserts that the trial court erred by characterizing as community property that portion of his pension benefits attributable to contributions he made before marrying Sylvia in 1984.  The dispositive issue on appeal is whether Jimmy overcame the presumption of community property by proffering clear and convincing evidence establishing the separate character of the disputed asset.

A.      Definitions and Standard of Review

Characterization of marital property is a conclusion of law.  See Carter v. Carter, 736 S.W.2d 775, 777 (Tex. App.CHouston [14th Dist.] 1987, no writ).  We review the trial court=s conclusions of law de novo.  Stavinoha v. Stavinoha, 126 S.W.3d 604, 608 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Zagorski v. Zagorski, 116 S.W.3d 309, 314 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (opinion on rehearing).  We review conclusions of law to determine whether they are correct based on the facts of the case.  Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.  We will uphold a trial court=s conclusions of law if the judgment can be sustained on any legal theory supported by the evidence.  Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.

Separate property is that property owned by a spouse before marriage; acquired during the marriage by gift, devise, or descent; or as a recovery for personal injuries sustained during the marriage.  Stavinoha, 126 S.W.3d at 607; see also Tex. Const. art. XVI, _ 15; Tex. Fam. Code Ann. _ 3.001 (Vernon 2006).

Community property is that property, other than separate property, acquired by either spouse during marriage.  Tex. Fam. Code Ann. _ 3.002 (Vernon 2006); Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001); Stavinoha, 126 S.W.3d at 607.  All property possessed by either spouse during or on dissolution of marriage is presumed to be community property.  Tex. Fam. Code Ann. _ 3.003(a) (Vernon 2006); Barnett, 67 S.W.3d at 111; Stavinoha, 126 S.W.3d at 607.

To overcome the community property presumption, a spouse claiming assets as separate property must establish their separate character by clear and convincing evidence.  Tex. Fam. Code Ann. _ 3.003(b); Stavinoha, 126 S.W.3d at 607; Zagorski, 116 S.W.3d at 314.  Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the finder of fact a firm belief or conviction as to the truth of the allegations sought to be established.  Tex. Fam. Code Ann. _ 101.007 (Vernon 2009); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); Stavinoha, 126 S.W.3d at 607.  This evidence must generally trace and clearly identify the property as separate.  Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

The clear and convincing burden is not satisfied when characterizing the property at issue as separate property requires surmise or speculation by the court.  See McKinley v. McKinley, 496 S.W.2d 540, 544 (Tex. 1973); Courtney v. Courtney, No. 14-01-01103-CV, 2002 WL 1732996, at *4 (Tex. App.CHouston [14th Dist.] July 25, 2002, no pet.) (not designated for publication).  Any doubts as to the character of marital property must be resolved in favor of the community property presumption.  See Courtney, 2002 WL 1732996, at *5.

If the evidence shows separate and community property have been so commingled as to defy resegregation and identification, the clear and convincing evidentiary burden has not been met and the community presumption prevails.  Zagorski, 116 S.W.3d at 316.  Testimony that some portion of commingled property is separate property, standing alone, is insufficient to rebut the community property presumption.  See id.

As a general rule, the clear and convincing standard is not satisfied by testimony that funds possessed at the time the marriage is dissolved are separate property when that testimony is contradicted or unsupported by documentary evidence tracing the asserted separate nature of the funds.  See, e.g., Rogers v. Rogers, No. 14-00-00077-CV, 2001 WL 1013405, at *3 (Tex. App.CHouston [14th Dist.] Sept. 6, 2001, pet. denied) (mem. op., not designated for publication) (A[wife=s] contradictory, vague, and equivocal testimony, without more, was insufficient for a reasonable jury to determine under the clear and convincing standard that the funds, at their inception, were her separate property@; evidence made it Aimpossible to accurately segregate and identify which portions of the account belong to whom@); Brehm v. Brehm, No. 14-99-00055-CV, 2000 WL 330076, at *3 (Tex. App.CHouston [14th Dist.] Mar. 30, 2000, no pet.) (not designated for publication) (husband=s testimony that he purchased certificate of deposit with separate assets, without documentary evidence tracing the supposedly separate funds, held insufficient to rebut the community property presumption notwithstanding wife=s failure to provide controverting testimony); In re Marriage of Santopadre, No. 05-07-00027-CV, 2008 WL 3844517, at *3 (Tex. App.CDallas Aug. 19, 2008, no pet.) (mem. op., not designated for publication) (husband=s failure to produce documentary evidence establishing the time and means by which he originally obtained possession of assets C including a pension C precluded trial court from finding that husband met clear and convincing standard notwithstanding husband=s testimony that the assets were his separate property).

B.      Jimmy Failed to Rebut Community Property Presumption

It is undisputed that the portion of Jimmy=s pension benefits attributable to contributions made after his 1984 marriage to Sylvia is community property.  Jimmy argues on appeal that the portion of his pension benefits attributable to contributions made before the marriage is his separate property.  Sylvia contends that Jimmy failed to overcome the community property presumption and establish by clear and convincing evidence the portion of his pension benefits attributable to pre-marriage contributions.

The parties assume that the trial court treated Jimmy=s entire pension as community property subject to division by the court.^[1]  See Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Slaton v. Slaton, 987 S.W.2d 180, 182 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  Jimmy did not request findings of fact or conclusions of law from the trial court, and the court filed none.  It therefore is implied that the trial court found that Jimmy failed to meet his burden to rebut the community property presumption with clear and convincing evidence of the disputed asset=s separate character.  See Mays v. Pierce, 203 S.W.3d 564, 571 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).^[2]  Because Jimmy has provided this court with a complete reporter=s record, he may challenge the legal and factual sufficiency of the trial court=s implied finding that he failed to meet his heightened evidentiary burden.  See id.

We first address the legal sufficiency of the evidence to support the trial court=s finding that Jimmy failed to rebut the community property presumption with clear and convincing evidence of the disputed asset=s separate character.  Both Jimmy and Sylvia identified the entirety of Jimmy=s pension benefits as part of the community estate in their respective inventories and appraisements.  Jimmy did not identify any portion of his pension benefits as separate property in his original or amended petition for divorce.  Jimmy supplied the court with no documentary evidence corroborating his separate property claim or tracing any amount of asserted pre-marriage contributions.  The credibility of Jimmy=s and Sylvia=s testimony and the resolution of any conflicts in the evidence was under the trial court=s purview.  See Zagorski, 116 S.W.3d at 318-19.  On this record, we conclude that the evidence is legally sufficient to support the trial court=s implied finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient to overcome the community property presumption.

The following evidence speaks to the factual sufficiency of the evidence supporting the trial court=s finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient to overcome the community property presumption: (1) Jimmy did not identify any portion of his pension benefits as separate property in his original or amended petition seeking divorce; (2) Jimmy and Sylvia identified Jimmy=s pension as community property in their respective inventories and appraisements; (3) Jimmy did not list any portion of his pension benefits as separate property in his inventory and appraisement, but did list several other items; (4) Jimmy and Sylvia testified that he began contributing to his pension fund 10 years before marriage; (5) Jimmy also testified that he began contributing to his pension in 1970 (14 years before marriage) and had contributed $24,000 toward his pension before marriage; (6) Sylvia testified that Jimmy did not tell her how much money he had accrued in his pension; and (7) Jimmy failed to provide Sylvia or the court with any documentation corroborating his testimony about pre-marriage contributions or tracing the amount of any pre-marriage contributions.

Standing alone, Jimmy=s and Sylvia=s imprecise and contradictory testimony fails to rebut the community property presumption in light of the pleadings before the court identifying the entirety of Jimmy=s pension benefits as community property.  See Zagorski, 116 S.W.3d at 316; see also Rogers, 2001 WL 1013405, at *3; Brehm, 2000 WL 330076, at *3; In re Marriage of Santopadre, 2008 WL 3844517, at *3.^[3]  In addition, because the trial court was left to speculate about which portion of Jimmy=s pension benefits, if any, was separate property, the trial court was obligated to resolve all doubts in favor of the community property presumption.  See Courtney, 2002 WL 1732996, at *4-*5. 

On this record, we conclude that the evidence is factually sufficient to support the trial court=s implied finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient to overcome the community property presumption.

Our conclusions regarding the legal and factual sufficiency of the evidence to support the trial court=s implied finding are underscored by In re Marriage of Santopadre.  In that case, the parties were married in September 1996 while the husband was working for Texas Instruments.  In re Marriage of Santopadre, 2008 WL 3844517, at *1.  Two years later, the husband took early retirement from Texas Instruments.  Id.  The wife filed for divorce in 2000 and a final divorce decree was signed in May 2004 after a bench trial.  Id.  This final divorce decree awarded 10 assets to the husband as his separate property, including certain real property in New Mexico; Texas Instruments stock; and the husband=s Texas Instruments retirement benefits and employee pension plan.  Id. at *3.

On appeal, the wife challenged the trial court=s characterization of the 10 assets as separate property.  Id.  The husband introduced only three exhibits at trial: (1) a one-page summary regarding the purchase and financing of the New Mexico property; (2) an e-mail between the parties regarding the sale of stock valued at $5,000; and (3) the wife=s inventory and appraisement.  Id. at *3 n.1.  The husband testified that all of the assets were his separate property, but he presented no deeds, closing statements, property tax statements, financial records, or other documents indicating when these assets were acquired or established.  Id. at *3.  The Dallas Court of Appeals reversed the trial court=s judgment because (1) the clear and convincing evidence standard required the husband to Ashow the time and means by which he originally obtained possession of each asset@; and (2) the evidence produced at trial was legally and factually insufficient to establish by clear and convincing evidence that the 10 assets were his separate property.  Id.; see also Rogers, 2001 WL 1013405, at *1, *3 (evidence was sufficient to support trial court=s conclusion that wife failed to establish that Merrill Lynch account opened during marriage was her separate property despite (1) husband=s concession that the funds originally belonged to his wife=s mother, and (2) wife=s testimony that these funds were given to her through gift or inheritance; wife=s testimony and the Afew limited and incomplete documents@ admitted into evidence did not trace or clearly identify the funds in the account as her separate property).^[4]

We conclude that the evidence before the trial court was legally and factually sufficient to support the trial court=s implied finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient to overcome the community property presumption with respect to his pension benefits.  See id. at 608; Zagorski, 116 S.W.3d at 314.  Because this finding supports the trial court=s legal conclusion that all of Jimmy=s pension benefits are community property, we must allow this legal conclusion to stand.  See Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.^[5]

C.      Jimmy Did Not Establish That His Pension Is a Defined Benefit Plan

Jimmy also asserts that (1) his pension is a defined benefit plan; and (2) the characterization of his separate property interest is controlled by statute.^[6]  See Tex. Fam. Code Ann. _ 3.007(a), (b) (Vernon 2006).

Under section 3.007(a), a spouse who is a participant in a defined benefit plan Ahas a separate property interest in the monthly accrued benefit the spouse had a right to receive on normal retirement age, as defined by the plan, as of the date of marriage.@  Id. _ 3.007(a).  AThe community interest in a defined benefit plan shall be determined as if the spouse began to participate in the plan on the date of marriage and ended that participation on the date of dissolution or termination of the marriage.@  Id. _ 3.007(b).

The trial court had before it the following evidence addressing the nature of Jimmy=s retirement plan: (1) Sylvia=s inventory and appraisement listing Jimmy=s pension under the heading of ACompany Retirement Benefits@ as A[r]etirement of $2,600.95 per month@ administered by Central Pension; (2) Jimmy=s inventory and appraisement listing Jimmy=s pension under the heading of ARetirement Benefits C IRA/SEP@ as A[r]etirement of $2,603.90 per month@ administered by Central Pension; (3) the admission of both parties in their respective appraisements that they did not know the value of the community interest in Jimmy=s pension or the method of computation of the amount of his pension; and (4) Jimmy=s testimony that his pension paid him a monthly benefit after he retired.  Jimmy never invoked the term Adefined benefit plan@ or section 3.007 until the hearing on his motion for new trial.

Jimmy asserts that the evidence listed above established that his pension was a defined benefit plan subject to division under sections 3.007(a) and (b).  Jimmy predicates his argument on Smith v. Smith, 22 S.W.3d 140, 148 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (opinion on rehearing), in which we described a defined benefit plan as one that promises employees a monthly benefit beginning at retirement.  Jimmy misplaces his reliance on this description because a defined contribution plan also may be paid as an annuity through which a retiree receives a monthly benefit.  See Vickery v. Vickery, 999 S.W.2d 342, 350 (Tex. 1999) (annuity may be distributed in monthly payments); Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and Post-Judgment Partition Actions, 37 Baylor L. Rev. 107, 114 (1985) (defined contribution plan may be paid in the form of an annuity or a lump-sum payment).

Therefore, even taking as a given that Jimmy=s pension is paid to him as a monthly benefit, this fact by itself does not determine whether the pension is a defined benefit plan, a defined contribution plan, or some other type of retirement plan.  See Vickery, 999 S.W.2d at 350; Brown, 37 Baylor L. Rev. at 112-17.  Furthermore, Jimmy did not invoke section 3.007 or the term Adefined benefit plan@ below to make the trial court aware of his assertion that his pension was such a plan governed by sections 3.007(a) and (b) until his motion for new trial.  Jimmy=s inventory listed his pension under the heading of ARetirement Benefits C IRA/SEP.@  This record left the trial court to speculate regarding the nature of Jimmy=s retirement plan.^[7] 

On this record, Jimmy has not established that his pension is a defined benefit plan.  See McKinley, 496 S.W.2d at 544; Courtney, 2002 WL 1732996, at *4-*5.  Therefore, he cannot rely on section 3.007 to establish his separate property interest in the pension benefits.  See Courtney, 2002 WL 1732996, at *4-*5; In re Marriage of Santopadre, 2008 WL 3844517, at *3.

We overrule Jimmy=s issue regarding the trial court=s characterization of his entire pension fund as community property.

Conclusion

The trial court=s judgment is affirmed.

/s/        William J. Boyce

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

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¹           The divorce decree does not explicitly characterize Jimmy=s pension as community property; rather, the decree simply includes the entire pension as part of Athe parties= marital estate@ and awards each party half of the pension pursuant to the Ajust and right division of the parties= marital estate.@  Both parties assume that the trial court found Jimmy=s entire pension to be community property and divided it equally.  But this assumption is unnecessarily broad.  Contrary to the parties= assumptions, the trial court=s division of Jimmy=s pension is not inconsistent with the testimony of both parties that part of the pension is Jimmy=s separate property.

This is more easily seen by first noting that the trial court prefaced the property division with the statement that it was making a disproportionate division of the marital estate.  In awarding Jimmy half of the pension, the trial court did not expressly characterize Jimmy=s share as separate property, community property, or both.  Thus, even assuming that the trial court found part of the pension to be Jimmy=s separate property, Jimmy still cannot demonstrate that he was divested of separate property unless the amount of the pension benefit attributable to his pre-marriage contribution exceeds the amount he actually received in the judgment.

To illustrate, let us assume that 25 percent of the pension was Jimmy=s separate property and 75 percent of it was community property.  If the community property were divided equally, Sylvia would have gotten 37.5 percent of the pension benefit (i.e., half of 75 percent) and Jimmy would have received 62.5 percent (i.e., half of 75 percent plus his separate property of 25 percent).  But by dividing the marital estate disproportionately, the trial court in this example could award Sylvia as much as 75 percent of the pension benefit (representing the entire community interest in the pension, and none of Jimmy=s separate property) and award Jimmy only 25 percent (representing his entire separate property interest, and none of the community property).

Because the judgment is affirmed on any legal theory supported by the record, and Jimmy does not challenge the disproportionate division of the marital estate, his arguments that the trial court improperly characterized the pension benefits and divested him of his separate property must fail unless the record conclusively establishes that more than half of the pension should have been characterized as Jimmy=s separate property.  But Jimmy has not taken that position, at trial or on appeal, and the record supports the trial court=s implied finding that Jimmy=s separate property interest in the pension does not exceed 50 percent.

²           When no findings of fact or conclusions of law are filed or properly requested in a non-jury trial, we imply that the trial court made all necessary findings to support its judgment.  See Mays, 203 S.W.3d at 571.  Sylvia urges us to affirm based upon Jimmy=s failure to explicitly challenge a specific finding of fact.  See Zagorski, 116 S.W.3d at 319.  Because we must generously construe our briefing rules, we conclude that Jimmy=s original appellate brief adequately described his challenge as encompassing the legal and factual sufficiency of the trial court=s implied finding that he failed to meet his evidentiary burden.  See Tex. R. App. P. 38.9.

³           Jimmy urges us to construe as a Ajudicial admission@ Sylvia=s testimony that (1) Jimmy began contributing to his pension 10 years before they married, and (2) she considered the value of contributions made during those 10 years to be Jimmy=s separate property.  We need not decide whether this testimony constituted a judicial admission because Jimmy=s failure to provide corroborating documentary evidence rendered unduly speculative any effort to overcome the community property presumption and specifically apportion pension assets between community property and separate property.  See Zagorski, 116 S.W.3d at 316; Rogers, 2001 WL 1013405, at *3; Brehm, 2000 WL 330076, at *3; In re Marriage of Santopadre, 2008 WL 3844517, at *3. 

⁴           See also Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (husband=s testimony insufficient to meet clear and convincing evidence standard in absence of deposit slips or bank records tracing source of funds); Boyd v. Boyd, 131 S.W.3d 605, 616 (Tex. App.CFort Worth 2004, no pet.) (clear and convincing evidence standard not met where husband failed to present specific tracing testimony or corroborating testimony or evidence of nature of real and personal property); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.CAustin 2002, pet. denied) (clear and convincing evidence standard not met where husband=s testimony and exhibits offered failed to Aprovide account numbers, statements of accounts, dates of transfers, amounts transferred in or out, sources of funds or any semblance of asset tracing@); Bahr v. Kohr, 980 S.W.2d 723, 728-29 (Tex. App.CSan Antonio 1998, no pet.) (wife=s testimony insufficient to meet clear and convincing evidence standard because documentary evidence offered did not show date account was opened, running balance of account, or identity of party receiving wire transfer for asserted purchase of property at issue); Robles v. Robles, 965 S.W.2d 605, 616 (Tex. App.CHouston [1st Dist.] 1998, pet. denied) (husband=s testimony insufficient to meet clear and convincing evidence standard where husband provided no supporting documentary evidence to trace funds used to purchase property); In re Marriage of Moore, 890 S.W.2d 821, 837 (Tex. App.CAmarillo 1994, no pet.) (clear and convincing evidence standard not met by husband=s testimony that he owned certain farm equipment prior to marriage where he failed to trace such equipment from that time to the time of the divorce proceeding).

⁵           Jimmy also asserts that the trial court acted without jurisdiction and its action is void because the court lacked the authority to divest him of his separate property.  See Slaton, 987 S.W.2d at 182.  AJurisdiction@ refers to a court=s authority to adjudicate a case.  Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).  In general, as long as the court entering a judgment has jurisdiction over the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void.  Id.  The proper means of challenging errors other than lack of personal or subject matter jurisdiction is through the appellate process.  See id.  Barring lack of personal or subject matter jurisdiction, a trial court has jurisdiction to characterize property as separate or community property, even if it does so incorrectly.  See id.  Because Jimmy does not challenge the trial court=s jurisdiction over the parties or subject matter of the case, and instead challenges the trial court=s assertedly erroneous characterization of his entire pension as community property, his jurisdictional argument fails.  See id.

⁶           The two principal types of qualified private pension plans are defined benefit plans and defined contribution plans.  Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and Post-Judgment Partition Actions, 37 Baylor L. Rev. 107, 112 (1985).  Under a defined benefit plan, the future benefit to be received is specified in advance and Adefined@ by a benefit formula or benefit schedule, and plan contributions are made as required to fund the specified benefit.  Id.  Under a defined contribution plan, the contributions to the fund are specified and Adefined@ but there is no predetermined scale of benefits, and the benefit amount received by the retiring employee is determined by the accumulated contributions allocated to that employee at retirement.  Id.  Both plans may be contributory or non-contributory, but in a defined benefit plan individual account balances need not be maintained for each participant.  Id. at 115.  In a defined benefit plan, the future benefit to be received is specified in advance according to one of four basic formulas or some combination thereof: (1) a flat amount formula; (2) a flat percentage of earnings formula; (3) a flat amount per year of service formula; or (4) a percentage of earnings per year of service formula.  Id. at 115-16.

⁷           If the trial court had concluded that Jimmy=s pension was in fact a defined benefit plan subject to division under sections 3.007(a) and (b), Jimmy contends it would have been required to characterize a substantial fraction of that pension as his separate property.  See Tex. Fam. Code Ann. _ 3.007(a); In re Marriage of Santopadre, 2008 WL 3844517, at *3.  According to the formula described in section 3.007, this fraction would have been determined by dividing the number of years of Jimmy=s participation in the defined benefit plan prior to marriage by his total number of years of participation in the plan; this value would represent the percentage of the pension characterized as Jimmy=s separate property.  See Tex. Fam. Code Ann. _ 3.007(a), (b); In re Marriage of Santopadre, 2008 WL 3844517, at *3.