In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00437-CV ___________________________
KELLY M. TENEYCK, Appellant
V.
RONALD W. TENEYCK, Appellee
On Appeal from the 393rd District Court Denton County, Texas Trial Court No. 20-10161-393
Before Kerr, Wallach, and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
In this appeal from the trial court’s final divorce decree, appellant Kelly M.
Teneyck (Kelly) asserts five issues. In three issues, she contends that the trial court
abused its discretion by ordering the parties to equally share possession of their children,
awarding $1.3 million in separate property to appellee Ron W. Teneyck (Ron), and
finding that Kelly waived her reimbursement claim. In two issues, she contends that the
trial court committed reversible error by failing to file certain findings of fact and
conclusions of law. We conclude that the trial court did not abuse its discretion in its
possession order and characterization of Ron’s separate property, and it did not find
that Kelly waived her reimbursement claim. We further conclude that any error in the
trial court’s failure to file additional findings of fact and conclusions of law was
harmless. Accordingly, we affirm the final divorce decree.
I. Background
Kelly and Ron met and began living together in 2012. Two years later, their first
child, B.M.T., was born. The family moved to Texas and purchased a house in The
Colony a year later. The couple married on May 23, 2016, and their second child,
B.O.T., was born in 2017.
Ron filed a petition for divorce in December 2020 in which he also sought joint
managing conservatorship of the children and a property division. Kelly answered and
filed a counterpetition for divorce.
2 The trial court held a bench trial at which Kelly and Ron testified. Although Kelly
previously had representation, she was pro se at trial. After closing arguments, the trial
court announced its ruling that the parties were divorced and that it was ordering a joint
managing conservatorship with Kelly’s having the right to designate the children’s
residence and a “50/50” possession schedule, instead of a standard possession order.
Compare Tex. Fam. Code Ann. §§ 153.3101–.3171 (standard possession), with id.
§ 153.133 (parenting plan for joint managing conservatorship). The trial court found
that the marital residence, Ron’s stock shares, and life-insurance policies were Ron’s
separate property. The trial court noted that Ron had stipulated to a community-
property reimbursement for funds spent on the residential mortgage, although Kelly
did not plead it, and the trial court awarded a $63,728.81 reimbursement. The trial court
issued a written final divorce decree reflecting these rulings.
Kelly timely sought findings of fact and conclusions of law under Texas Rule of
Civil Procedure 296. When the trial court did not file findings and conclusions, Kelly
filed a timely notice of past due findings and conclusions. The trial court filed findings
and conclusions four days later, and Kelly filed a timely request for additional and
amended findings and conclusions under Rule 298. The trial court filed supplemental
findings and conclusions, and this appeal followed.
II. Standards of Review
The trial court is vested with broad discretion in making decisions on custody,
control, possession, and visitation, and we review such decisions for an abuse of
3 discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); C.W. v. B.W., No. 02-
19-00270-CV, 2020 WL 4517325, at *2 (Tex. App.—Fort Worth Aug. 6, 2020, no pet.)
(mem. op.). We also review a trial court’s alleged property characterization error for an
abuse of discretion. Boyd v. Boyd, 131 S.W.3d 605, 617 (Tex. App.—Fort Worth 2004,
no pet.).
A trial court abuses its discretion if it acts without reference to any guiding rules
or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d
609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
appellate court cannot conclude that a trial court abused its discretion merely because
the appellate court would have ruled differently in the same circumstances. E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d
at 620.
A trial court also abuses its discretion by ruling without supporting evidence.
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But it does not abuse its
discretion if it decides based on conflicting evidence, so long as some substantive and
probative evidence supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92,
97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).
In family-law cases, the traditional sufficiency standards of review overlap with
the abuse-of-discretion standard of review; therefore, legal and factual insufficiency are
not independent grounds of error but are relevant factors in our abuse-of-discretion
assessment. Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no
4 pet.). To determine whether a trial court has abused its discretion because the evidence
is legally or factually insufficient to support the decision, we must determine (1) whether
the trial court had sufficient evidence upon which to exercise its discretion and
(2) whether the trial court erred when it applied that discretion. Id.
In determining the first question, we apply the same standards of review to a trial
court’s findings of fact that we apply to a jury’s answers to questions in the court’s
charge. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Evidence is legally
insufficient to support a finding only when (1) the record bears no evidence of a vital
fact, (2) the rules of law or of evidence bar the court from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of
a vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining legal
sufficiency, we must consider evidence favorable to the finding if a reasonable
factfinder could, and we must disregard contrary evidence unless a reasonable factfinder
could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge “every reasonable
inference deducible from the evidence” in support of the challenged finding. Gunn,
554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).
When reviewing an assertion that the evidence is factually insufficient to support
a finding, we set aside the finding only if, after considering and weighing all the evidence
in the record pertinent to that finding, we determine that the credible evidence
5 supporting the finding is so weak, or so contrary to the overwhelming weight of all the
evidence, that the finding should be set aside and a new trial ordered. Pool v. Ford Motor
Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
When the burden of proof at trial is by clear and convincing evidence, as it is for
establishing that property is separate from the community, see Tex. Fam. Code Ann.
§ 3.003(b), we apply a higher standard of legal and factual sufficiency review. Boyd,
131 S.W.3d at 611. “Clear and convincing evidence” is defined as that “measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code
Ann. § 101.007; Boyd, 131 S.W.3d at 611.
III. Analysis
A. The Possession Order
In her third issue,1 Kelly contends the evidence is insufficient to support the trial
court’s 50/50 possession order. She also contends that the trial court’s possession order
is “inherently arbitrary” because it was issued “without the guidance of the required
child custody report.”
1 We address Kelly’s issues out of order for simplicity.
6 1. Sufficiency of the Evidence
“Suits affecting the parent-child relationship are intensely fact driven, which is
why courts have developed best-interest tests that consider and balance numerous
factors.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). “The best interest of the child shall
always be the primary consideration of the court in determining the issues of
conservatorship and possession of and access to the child.” Tex. Fam. Code Ann.
§ 153.002. “The standard possession order is presumably in the child’s best interest, but
that presumption is rebuttable.” In re E.D., No. 02-20-00208-CV, 2022 WL 60781, at
*12 (Tex. App.—Fort Worth Jan. 6, 2022, no pet.) (mem. op.) (citing Tex. Fam. Code
Ann. § 153.252).
The policy is “to encourage frequent contact between a child and each parent for
periods of possession that optimize the development of a close and continuing
relationship between each parent and child.” Tex. Fam. Code Ann. § 153.251(b). A trial
court has discretion to determine the best interest of the child when establishing terms
and conditions of conservatorship. In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). “A
trial court is ‘in the best position to observe the witnesses and their demeanor, and
therefore is given great latitude in determining a child’s best interests.’” In re E.S.,
No. 02-20-00407-CV, 2021 WL 2149627, at *7 (Tex. App.—Fort Worth May 27, 2021,
pet. denied) (mem. op.) (quoting In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex.
App.—San Antonio 2011, pet. denied)). A 50/50 possession schedule may be in a
child’s best interest. See, e.g., In re S.H., No. 02-15-00360-CV, 2017 WL 2871682, at
7 *8 (Tex. App.—Fort Worth July 6, 2017, no pet.) (mem. op.) (“[W]e cannot say that the
trial court abused its discretion in determining that a week-on, week-off possession
schedule was in [the child’s] best interest.”).
The Supreme Court of Texas has identified factors that courts may consider
when determining the best interest of a child, including: (1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) the plans for the child by the
individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent that may indicate that the existing
parent–child relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This is
not an exhaustive list, and a court need not have evidence on every factor listed to make
a valid finding as to the child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The Texas Family Code sets out similar factors for a court to consider when deviating
from the standard possession order: (1) the age, developmental status, circumstances,
needs, and best interest of the child; (2) the circumstances of the managing conservator
and of the parent named as a possessory conservator; and (3) any other relevant factor.
Tex. Fam. Code Ann. § 153.256.
8 Kelly contends that little best-interest evidence was offered at trial and that
evidence of Kelly’s and Ron’s “parental abilities” was “scant.” But she points to three
pieces of evidence to show that the 50/50 schedule was not in the children’s best
interests. First, as evidence of the physical danger posed to the children, Kelly cites drug
tests and testimony purportedly reflecting that Ron had a “documented history of drug
and alcohol abuse” and that he “tested positive for marijuana twice during the
proceedings.” The results of the drug tests, however, were not admitted at trial. Thus,
they are not part of our analysis. Regardless, the cited drug-test reports reflected in the
record show that Kelly took and failed two drug tests, testing positive for cannabinoids
and THC,2 while Ron took and passed three drug tests. Ron admitted at trial that certain
concerns had been raised about whether he abused alcohol or drugs. The record further
reflects that Ron denied drug use and complied with the trial court’s order for alcohol-
use monitoring. Ron’s alcohol-use report admitted at trial showed 633 compliant tests
and 0 non-compliant tests. He further testified that he does not drink and become
intoxicated when with the children.
Kelly next cites evidence to show that Ron did not know B.M.T.’s age at trial and
had to be corrected by his attorney. The cited testimony, however, reflects that Ron
“THC is an abbreviation for tetrahydrocannabinol, which is marijuana’s active 2
ingredient.” In re J.B., No. 02-22-00384-CV, 2023 WL 1859766, at *1 n.7 (Tex. App.— Fort Worth Feb. 9, 2023, pet. denied) (mem. op.).
9 corrected his own answer. When asked, “How old is [B.M.T.]?” Ron answered,
“[B.O.T.] is 7 and [B.M.T.] -- [B.M.T.] is 7. [B.O.T] is 4.”
Finally, Kelly cites evidence that Ron “did not know about B.M.T.’s educational
plan, the 504 plan Kelly handled with the school.” Kelly cites the following exchange
from her cross-examination of Ron:
Q. What plan is [B.M.T.] on for extra help for the schooling that will follow her through until college?
A. Well, this is the first meeting of this year, which is the 26th. We’re going to meet and we’re going to find out what the plan is going to be. We have not yet met with any of the teachers or principals yet this year about how we’re going to address [B.M.T.].
Kelly responded, “[B.M.T.] was put on [a] 504 plan in kindergarten and it follows her
through college. It doesn’t stop. Just so you know.” Ron was also unable to name
B.M.T.’s special-education class but said that he had met the teacher. On redirect, he
clarified that he had been involved in the children’s “504 and ARD meetings at school”
and B.M.T.’s individualized education plan, which was the topic of “the meeting on the
26th.” He further testified that he had participated in all school meetings about which
he was notified and that he “would change [his] schedule to make sure [he was] there.”
We disagree that this evidence demonstrates that the 50/50 schedule is not in
the children’s best interests: some of the cited evidence does not reflect what Kelly
contends and other evidence contradicts it. See Coleman v. Coleman, 109 S.W.3d 108,
111 (Tex. App.—Austin 2003, no pet.) (“The district court is the sole judge of the
10 weight and credibility of the evidence.”). We also disagree that there is “scant” evidence
of Kelly’s and Ron’s parenting abilities and the best-interest factors.
Ron cites his testimony as evidence rebutting the best-interest presumption
favoring the standard possession order. Citing Ragsdale v. Progressive Voters League in her
reply brief, Kelly contends this self-serving testimony does not rebut the presumption.
See 801 S.W.2d 880, 882 (Tex. 1990) (“It is the general rule that the testimony of an
interested witness, such as a party to the suit, though not contradicted, does no more
than raise a fact issue to be determined by the jury.”). She notes that she contradicted
at least some of Ron’s testimony. We must accept uncontradicted testimony as true
unless it is “unreasonable, incredible, or its belief is questionable,” in which case it
merely raises a fact issue. Id.
At the trial’s outset, Ron submitted to the trial court a proposed parenting plan
seeking a 50/50 possession schedule. Kelly did not object, and the plan was admitted.
Ron testified that such a schedule was in the children’s best interests because he and
Kelly were “extremely close” to their children, he had done “everything with [them]
from the very beginning,” he had not been apart from B.M.T. except for the period
beginning with his separation from Kelly until the trial court issued temporary orders,
and B.M.T. calls him her “BFF.” Ron also testified that his proposed parenting plan
would require the parents to live close enough to one another to have a “shared
schedule.” He further testified that he was not proposing a 50/50 possession schedule
to avoid or reduce his child support obligation but that he had sufficient resources to
11 pay the maximum amount of child support and to support the children during his half
of the possession schedule. Ron opined that the proposed schedule would also give
Kelly the flexibility to seek employment and save money.
Ron further testified that the 50/50 possession schedule would mitigate the risk
that the parent with greater access to the children would take advantage of the other.
Ron alleged that this had happened under the court’s temporary schedule. Ron said that
Kelly had interfered with scheduled video calls with the children. He detailed one
incident in which Kelly allegedly prevented the children from participating in a video
call with Ron’s sister, who was battling pancreatic cancer. According to Ron, Kelly’s
justification was that the children “will never see [Ron’s sisters].” He also described a
conflict in which Kelly insisted that Ron pick up B.M.T. from Kelly’s house rather than
the school. According to Ron, Kelly did so because he would not use the same parking
spot as Kelly when picking up B.M.T. from school. Ron noted that under the temporary
orders, his time with B.M.T. started when school let out, implying that Kelly was
intruding on his time with B.M.T. Ron also testified about derogatory and threatening
text and e-mail messages Kelly allegedly sent to Ron’s employer during the divorce,
noting that he had obtained a temporary injunction to prohibit Kelly from contacting
his employer because of those communications.
Ron also testified that he participated in the children’s healthcare “100 percent.”
He noted that the children had not seen a dentist, that both parents had been
responsible for the children’s dental care, and that the children would “be seeing the
12 dentist very soon.” When asked about the children’s vision exam, Ron detailed B.M.T.’s
results, noting that she wanted glasses because they are “the fashionable thing” but that
she does not need them. He did not know about B.O.T.’s results because Kelly allegedly
withheld them from him. When questioned on cross-examination about whether he
paid for the children’s hearing, speech, and vision testing, Ron said that he had but that
if Kelly did not receive any payment, he would “be more than happy” to pay. Kelly
asserted in her cross-examination that Ron had canceled the family’s health insurance,
and Ron responded that he had not canceled the policy but that the insurance carrier
had changed, something his employer controlled.
Kelly did not directly address Ron’s proposed 50/50 schedule, but she testified
that it was in the children’s best interests for her “to have the [children]” because she
had “always taken care of them, registered them, activities, [and] everything.” She
acknowledged that Ron “definitely loves his kids” but that, to her, “there is a difference
between parenting and loving.” She asserted that she had raised the children “from the
beginning,” “had them by [her] side,” and “ha[d] done everything for them.” After
recounting her frustrations with Ron’s allegedly failing to fulfill his promises, she
testified that she wanted to “move on” and take the children “during school hours” to
ensure that they complete their schoolwork. Kelly also testified that she volunteers at
the “school system.” She further asserted that she wanted Ron in the children’s lives
but that she needed him “to coparent and to listen and to be there.” She ended her
13 direct testimony by saying, “I’m asking just for the 50/50, the kids 50/50, to do
coparenting classes and to relocate and restart.”
When asked where she planned to relocate, Kelly testified that she did not intend
to leave the state but only wanted to move “outside the current neighborhood.” Kelly
testified on cross-examination that she hoped to open a restaurant after the divorce
because she had experience in that business. She hoped to run the restaurant “and make
things and do [her] own schedule with [her] girls.” When asked why she had not worked
in the 20 months since Ron filed his petition, Kelly said that Ron told her not to work
because he had to travel. She also testified that Ron had refused to “help out on these
days” if she did get a job.
She also addressed Ron’s allegation that she prevented him from picking up
B.M.T. from school. Kelly testified that B.M.T. got confused when Ron parked in a
different location from the one that they had used for the previous three years.
According to Kelly, Ron had started parking on the other side of the school. Kelly
alleged that she had to search for B.M.T. when B.M.T. became confused about which
parent was picking her up. Kelly testified that she was merely attempting to ensure that
B.M.T. knew where to go after school regardless of which parent was picking her up.
After the close of evidence, the trial court asked Ron to explain why he requested
a 50/50 schedule versus expanded visitation. Ron explained that both parties had
completed coparenting classes but that the acrimony between them concerned him. He
hoped that the 50/50 schedule would put the parties on “an equal playing field” and
14 mitigate the risk that the children would be “used as a weapon” against either party. He
also reiterated that the maximum child support combined with the 50/50 schedule
would relieve some of Kelly’s financial burdens.
The trial court’s findings and conclusions state that
• “[Ron] is a fit parent. [Ron] loves his children, spends time with his children and provides parental guidance to the children in a safe and suitable way.”
• “[Kelly] is a fit parent. [Kelly] loves her children, spends time with the children, and provides guidance to the children in a safe and suitable way.”
• “The divorce was an intense emotional experience for both parties where sometimes emotions resulted in inappropriate language and actions by both parties. However, [Kelly] engaged in some conduct that went beyond the norm for a contested divorce in contacting [Ron’s] employer.”
• “[I]t is in the best interests of the two children that each parent play a significant role in the children’s lives and that there be an allocation of conservatorship duties where each parent has a significant role in making material decisions regarding the children. Accordingly, the possession schedule and allocation of conservatorship duties as set forth in the docket entries attached hereto as Exhibit A is appropriate.”
The trial court’s docket entry states that “[Kelly] and [Ron] [are] to have week on and
week off possession during [the] school year” with the non-possessory parent to have
“possession on Wednesday from time school is dismissed until 8:00 . . . p.m.” The trial
court stated in its supplemental findings and conclusions that the reasons for its
possession order were adequately stated in its original findings and conclusions and
15 added that “the relationship between [Ron] and the children is illustrated by the
pictures” admitted at trial. The pictures reflect Ron and the children eating and playing.
The record reflects sufficient evidence to support the trial court’s finding that
the 50/50 schedule is in the children’s best interests. Specifically, the record reflects
conflicts between the parties over scheduled visits under the temporary possession
schedule, which used a phased approach culminating with a standard possession
schedule. Although Kelly explained the conflict over picking up B.M.T. at school, she
did not contradict Ron’s allegation that she had interfered with his scheduled video calls
with the children, and we may take Ron’s allegation as true. See Ragsdale, 801 S.W.2d at
882. Despite their conflicts, both parties testified that they loved and cared for their
children, spent significant time with them, wanted the other parent to maintain a close
relationship with them, and exhibited a willingness to coparent. Additionally, there is
evidence that the 50/50 schedule combined with Ron’s child support would provide
Kelly the flexibility to pursue employment opportunities. See Tex. Fam. Code Ann.
§ 153.256 (court may consider managing and possessory conservators’ circumstances
and “any other relevant factor” when deviating from the standard possession order).
We hold that the trial court had sufficient evidence upon which to order a
50/50 possession schedule and that it did not abuse its discretion in doing so. See
J.J.R.S., 627 S.W.3d at 218; Neyland, 324 S.W.3d at 649.
16 2. Child-Custody Report
Kelly also contends that the trial court’s possession determination is arbitrary
because the trial court did not wait for the psychological and custody evaluations that
it had ordered in March 2021 with the parties’ agreement. The record reflects that the
psychologist assigned to do the evaluations notified the trial court in July 2021 that she
had not conducted the parties’ first interviews because they had failed to timely submit
the necessary paperwork and could not agree on interview dates. The psychologist
notified the court again in June 2022 that no evaluation had occurred because of the
parties’ “nonresponsiveness . . . to move forward” and that she had established
September 1, 2022, as the deadline by which the parties were to update their paperwork
and agree on interview dates. If the parties failed to comply, the psychologist said she
would notify the trial court that the evaluations could not be completed “due to the
parties’ noncompliance.” The record contains no additional correspondence from the
psychologist, and trial was held on September 13, 2022. Citing Section 107.113 of the
Family Code, Kelly contends that the trial court’s failure to await the outcome of the
psychological and custody evaluations renders the trial court’s possession determination
“inherently arbitrary.” We disagree.
The Family Code does not require a trial court to order a custody evaluation or
to await a custody-evaluation report. Rather, the trial court has discretion to order such
an evaluation. Tex. Fam. Code Ann. § 107.103(a). Evaluators who conduct an
evaluation must prepare a report. Id. § 107.113(a). But here, the psychologist did not
17 perform an evaluation because the parties failed to prepare the necessary paperwork
and to agree on interview dates. Kelly cites no evidence reflecting any excuse or good-
faith attempt to comply with the psychologist’s requirements. Accordingly, the trial
court did not act arbitrarily by issuing the possession order without waiting for a report
that was plainly not forthcoming.
We overrule Kelly’s third issue.
B. The Property Characterization
In her fourth issue, Kelly contends that the trial court abused its discretion by
awarding $1.3 million in separate property to Ron because he failed to prove his
separate interest by clear and convincing evidence. Kelly takes issue with the separate-
property characterization of three specific items: the marital residence, shareholder
interests in RCP Fund I, LLC, and two life-insurance policies. We address each in turn.
1. Applicable Law
In Texas, property owned before marriage—or acquired during marriage by gift,
devise, or descent—is separate property and remains the spouse’s separate property
during and after the marriage. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001.
A trial court has no discretion to divest a party of his or her separate property via a
divorce decree. Alcedo v. Alcedo, No. 02-17-00451-CV, 2019 WL 2292979, at *3 (Tex.
App.—Fort Worth May 30, 2019, pet. denied) (mem. op.).
But as a starting point for a property division, “[p]roperty possessed by either
spouse during or on dissolution of marriage is presumed to be community property.”
18 Tex. Fam. Code Ann. § 3.003(a). A party claiming certain property as separate must
rebut the community-property presumption with clear and convincing evidence. Pearson
v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011); Tex. Fam. Code Ann. § 3.003(b).
Generally, one spouse’s uncorroborated testimony is not sufficient to meet this burden.
See Boyd, 131 S.W.3d at 614 (rejecting proposition that “uncorroborated, uncontradicted
testimony of a spouse is per se sufficient to clearly and convincingly prove the separate
character of property”); Newland v. Newland, 529 S.W.2d 105, 107–08 (Tex. App.—Fort
Worth 1975, writ dism’d) (citing instances in which uncorroborated testimony would
suffice because no other evidence exists).
We determine whether property is separate or community by its character at the
time of inception. Boyd, 131 S.W.3d at 612. “Inception of title occurs when a party first
has a right of claim to the property by virtue of which title is finally vested.” Id. The
spouse claiming certain property as separate must trace and clearly identify the property.
Id. (citing Est. of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)). Tracing involves
establishing the property’s separate origin through evidence showing the time and
means by which the spouse originally obtained possession of the property. Id. Generally,
“mere testimony that property was purchased with separate funds, without any tracing
of the funds, is insufficient to rebut the community presumption.” Id.
“Separate property will retain its character through a series of exchanges so long
as the party asserting separate ownership can overcome the presumption of community
property by tracing the assets on hand during the marriage back to property that,
19 because of its time and manner of acquisition, is separate in character.” Id. (citing
Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975)). When evidence establishes
that a spouse’s title to property originated before the marriage, making the property that
spouse’s separate property, the community-property presumption “no longer prevails.”
Galindo v. Galindo, No. 02-22-00472-CV, 2023 WL 4630673, at *3 (Tex. App.—Fort
Worth July 20, 2023, no pet. h.) (mem. op.) (quoting Welder v. Lambert, 44 S.W. 281,
287 (Tex. 1898)). If one spouse improves his or her separate property with community
funds, then the other spouse would be entitled to reimbursement to the community
estate out of the separate, improved estate. Id. (citing Dakan v. Dakan, 83 S.W.2d 620,
627 (Tex. 1935)). The equitable claim for reimbursement, however, “is not a right, title,
or interest in the land as such.” Id. (quoting Dakan, 83 S.W.2d at 628). And a spouse’s
separate property does not change to community property merely because it was
improved with community funds. Id.
2. The Marital Residence
The parties do not dispute that the marital residence was purchased in 2015,
before the parties married in 2016. The record reflects that Ron was the only grantee
on the deed and the only borrower on the loan application. Thus, under the inception-
of-title rule, the marital residence was Ron’s separate property. See Boyd, 131 S.W.3d at
612.
As evidence that the marital residence became community property, Kelly cites
a 2017 mortgage refinance in which Ron identified the residence as community property
20 and listed the parties’ joint checking account as a source of down payment. She further
cites her testimony that the mortgage company for the refinance led her to believe that
she would be on the deed. Using community funds to refinance the mortgage, however,
would not transform the marital residence from separate to community property. See
Galindo, 2023 WL 4630673, at *3. Rather, there must be some evidence that Ron made
a gift by executing a deed. See id. at *4 n.7; Ryan v. Ryan, No. 02-22-00471-CV,
2023 WL 4007393, at *3 (Tex. App.—Fort Worth June 15, 2023, no pet.) (mem. op.).
Copies of the loan application, note, and lien for the 2017 refinance were
admitted at trial. The lien identifies both Kelly and Ron as borrowers but includes a
provision limiting liability for the mortgage to those borrowers who signed both the
lien and note. The loan application and note list only one borrower: Ron.
Kelly contends that the facts at issue here are like those in In re Marriage of Nash,
in which the court held that a deed to only one spouse is insufficient to overcome the
community-property presumption. 644 S.W.3d 683, 702 (Tex. App.—Texarkana 2022,
no pet.). Nash is inapplicable, however, because the property at issue there was
purchased during marriage, and no evidence showed that the bank had agreed to hold
only the one spouse’s separate property liable for the note. Id.
The evidentiary record here does not reflect that Ron executed a deed during the
2017 refinance to transfer ownership of the marital residence to Kelly or the community
estate. Thus, the evidence sufficed to support the trial court’s determination that the
marital residence was Ron’s separate property.
21 3. Shareholder Interests in RCP Fund I, LLC
Ron testified at trial that he worked for Suntex Marina Investors and that Suntex
issued him 1,500 “Class B units” of stock on July 31, 2015. Documents that Ron
purportedly received from Suntex were admitted into evidence. Kelly did not object.
Citing the documents, Ron testified that the “Class B units” would be converted to
“Class A units” under certain circumstances. One of the documents is a letter
purportedly from Suntex’s chief financial officer indicating that Ron received the
1,500 Class B units on July 31, 2015, as part of Suntex’s acquisition of another company.
Another document is a letter from the same person indicating that the “Suntex
recapitalization transaction” had completed and that Ron’s stock would roll over to
33,051 Class A units. Ron testified that he cashed out a portion and rolled over
33,000 units.
Ron also offered Capital Account Statements and a subscription agreement
purportedly from Resilient Capital Partners (RCP). Kelly again did not object, and the
trial court admitted the documents. The subscription agreement states that RCP Fund
I, LLC (RCP Fund) was “seeking capital contributions . . . of membership interests in
Suntex Marina Investors LLC . . . in exchange for the issuance of limited liability
company interests in [RCP Fund I, LLC].” Ron testified that the RCP documents
reflected that the Suntex Class B units eventually became shares of RCP Fund.
Specifically, Ron pointed to the following language in the subscription agreement:
22 Amount of Capital Contribution: Suntex Units: $558,262.18 Rollover Percentage: 100%
Kelly offered no contrary evidence.
On appeal, Kelly contends that the unauthenticated letter from Suntex’s chief
financial officer “contain[ed] hearsay statement[s] by a non-testifying party” and was
“at best cumulative testimony.” But because Kelly did not object to any of Ron’s
evidence at trial, she failed to preserve these complaints for appeal. See Tex. R. App. P.
33.1(a)(1)(A); Tex. R. Evid. 103(a)(1).
Citing Parmeter v. Parmeter, 348 S.W.2d 51, 54 (Tex. App.—Dallas 1961, no writ),
Kelly contends that with the letter excluded, Ron’s “testimony alone is insufficient to
rebut the [community-property] presumption.” In Parmeter, one spouse testified that
neither the community nor the other spouse had equity in an airplane purchased during
the marriage because the asset had depreciated. Id. The spouse offered “no figures as
to values or depreciation.” Id. The court concluded that such a general statement by an
interested party could do no more than raise a fact issue and so was not conclusive
proof that there was no community property. Id.
Although we agree with this proposition, Parmeter doesn’t apply here. Unlike the
general testimony in Parmeter, Ron testified specifically about when and how he acquired
the Class B units and how they were converted to shares of RCP Fund. And unlike the
unsupported testimony in Parmeter, Ron offered corroborating documentary evidence.
Ron’s testimony and evidence trace the RCP Fund shares to Suntex Class B units that
23 he received before the marriage. We conclude that sufficient evidence supports the trial
court’s determination that the RCP Fund shares were Ron’s separate property. See Boyd,
131 S.W.3d at 612.
4. Life-Insurance Policies
At trial, Ron introduced documents reflecting the details of two universal life-
insurance policies. Kelly did not object, and the trial court admitted them. Ron testified
that the policies were issued on May 22, 1999, and June 14, 2001. The documents
corroborated his testimony.
Kelly does not contest that the policies were Ron’s separate property under the
inception-of-title rule. Instead, she contends that the policies increased in value with
each premium payment, that any property division should have accounted for payment
from community funds, and that Ron failed to offer evidence on this issue. But using
community funds to pay the premiums and increase the policies’ value would not
change their character from separate to community property; at most, a reimbursement
claim would arise. See Galindo, 2023 WL 4630673, at *3. Thus, the evidence sufficed to
support the trial court’s determination that the life-insurance policies were Ron’s
separate property under the inception-of-title rule. See Boyd, 131 S.W.3d at 612.
Having concluded that the record reflects sufficient evidence to support the trial
court’s determination that the marital residence, the RCP Fund stock, and the life-
insurance policies were Ron’s separate property, we overrule Kelly’s fourth issue.
24 C. Kelly’s Reimbursement Claim
In her fifth issue, Kelly contends the trial court abused its discretion when it
determined that she had waived her reimbursement claim because the claim was tried
by consent. Ron contends that the trial court did not in fact find any waiver because he
had stipulated to the reimbursement, which the trial court properly calculated.
As previously noted, a spouse is entitled to reimbursement to the community
estate from the other spouse’s separate estate that has been improved with community
funds. Galindo, 2023 WL 4630673, at *3. The spouse seeking reimbursement has the
burden to plead and prove reimbursable expenditures. McCoy v. McCoy, No. 02-15-
00208-CV, 2016 WL 3659122, at *2 (Tex. App.—Fort Worth July 7, 2016, no pet.)
(mem. op.) (citing Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982)). A trial court’s
discretion in evaluating a reimbursement claim is as broad as that exercised when
making a just and right division of the community estate. Id.
The parties do not dispute that Kelly had the burden to plead a reimbursement
claim and failed to do so. Nonetheless, Ron stipulated to a reimbursement and included
it in his proposed property division, which was admitted at trial. Ron testified that he
owed about $656,000 on the mortgage for the marital residence and that almost
$64,000 had been paid down since the 2017 refinance. Ron’s verified amended
inventory and appraisement, admitted at trial, reflects a mortgage balance of
$667,727.19. Ron’s proposed property division reflects a $63,728.81 paydown. Kelly
offered no evidence to contradict the values in Ron’s proposed property division, but
25 she did inform the court that the parties had been paying $3,468 per month on the
mortgage.
As to Ron’s life-insurance policies, the trial court asked whether Ron had a
breakdown of the increase in the policies’ cash value. Ron responded that it was Kelly’s
burden to prove the increased value and that he did not have a breakdown. Kelly offered
no evidence on this question. And the record does not show that either party considered
the RCP Fund stock as part of any reimbursement claim. The trial court’s final decree
includes an award to Kelly for $43,153 that represents her portion of community funds
used to pay down the mortgage on the marital residence.
After closing arguments, the trial court rendered an oral ruling that included its
reimbursement-claim calculation. The trial court noted that Ron “could have just sat
back and said ‘it’s your burden to prove [the reimbursement claim], Ma’am,’ but [he]
didn’t[,] to [his] credit. So I’m finding [he is] correct.” The trial court found that no
evidence was offered to prove a reimbursement claim on the life-insurance policies or
the RCP Fund stock. Finding that Ron’s proposed property division was the only
evidence offered to show the value of the assets at issue in the property division, the
trial court listed the items included in the community estate and set the value at
$116,366.99.
The trial court awarded Kelly 70% and Ron 30% of the community estate. To
arrive at the reimbursement value for the marital residence, the trial court subtracted
from Ron’s 30% share the value of four specific items it was awarding to Ron from the
26 community estate: a golf cart, a bank account, a health savings account, and an IRA.
The remaining $20,575 was Ron’s share of the equity in the marital residence.
Subtracting this from the $63,728.81 paydown reflected on Ron’s proposed property
division, the trial court determined that Kelly would receive “[$]43,153 out of the home
equity.” The trial court’s final decree reflects this same division, and the trial court’s
findings of fact are consistent with its oral pronouncement. Although we may not treat
the trial court’s oral statements as findings of fact, see Seasha Pools, Inc. v. Hardister,
391 S.W.3d 635, 640 (Tex. App.—Austin 2012, no pet.), they do reflect the trial court’s
reasoning. Because the record reflects that the trial court did not find that Kelly had
waived the reimbursement claim, we overrule her fifth issue.
D. Findings of Fact and Conclusions of Law
In her first issue, Kelly contends that the trial court erred by not making “specific
asset findings” when she requested them. According to Kelly, she requested findings of
fact and conclusions of law on “several issues related to [the] characterization and value
of the marital assets.” She complains that the trial court’s findings “just state generally
the amount the court found as reimbursement . . . but not the methodology or
calculation on how it reached that conclusion.” In her second issue, Kelly contends that
the trial court erred by not making “specific ‘best interest of the child’ findings” when
she requested them. According to Kelly, the trial court’s findings are “wholly
inadequate” to explain why it deviated from the standard possession order.
27 In both issues, Kelly contends that the trial court’s failure to file adequate
findings of fact and conclusions of law left her “guessing the reasons for the trial court’s
decision[s].” Thus, she contends that we should reverse the trial court’s property
distribution and possession order and remand for a new trial.
The record reflects that Kelly timely requested findings of fact and conclusions
of law under Texas Rule of Civil Procedure 296. See Tex. R. Civ. P. 296 (permitting any
party to request findings and conclusions in a case tried without a jury). When the trial
court did not file its findings and conclusions, Kelly timely filed a notice of late filing
under Rule 297. See Tex. R. Civ. P. 297 (providing requirements for filing a notice of
past due findings and conclusions). The trial court filed its findings and conclusions,
and Kelly timely filed a request for additional and amended findings and conclusions
under Rule 298. See Tex. R. Civ. P. 298 (providing requirements of filing request for
additional or amended findings and conclusions). The trial court filed supplemental
findings and conclusions.
Under Rule 296, a trial court’s failure to file findings of fact and conclusions of
law is presumed reversible error, unless the record affirmatively shows that the
requesting party was not harmed by their absence. Tenery v. Tenery, 932 S.W.2d 29,
30 (Tex. 1996). Error is harmless unless it prevents an appellant from properly
presenting a case to the appellate court. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d
261, 263 (Tex. 2014); Tenery, 932 S.W.2d at 30. Kelly does not explain how she was
harmed by the trial court’s failure to produce findings and conclusions beyond those
28 that it filed, and the record shows that she was not harmed. See Graham Cent. Station,
442 S.W.3d at 263. Indeed, Kelly was able to challenge the sufficiency of the evidence
to support the trial court’s determinations at issue, and we have addressed those
challenges. Any error in failing to file additional findings and conclusions was harmless.
See id. We overrule Kelly’s first and second issues.
IV. Conclusion
Having overruled all of Kelly’s issues, we affirm the trial court’s final divorce
decree.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered: August 31, 2023