AFFIRMED in part; REVERSE and REMAND in part; and Opinion Filed July 29, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01214-CV
LORIANNE JENAE WOLF, Appellant V. JOHN ROBERT NYGARD, Appellee
On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-16-0756
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Reichek In this appeal from a final decree of divorce, Lorianne Jenae Wolf challenges
the trial court’s reimbursement award of $204,896.64 to her former husband, John
Robert Nygard. Wolf additionally challenges the trial court’s failure to make a
disproportionate division of the community estate based on the disparity in the
parties’ attorney’s fees. Because we conclude Nygard failed to prove his entitlement
to reimbursement by clear and convincing evidence, we reverse the trial court’s
$204,896.64 award and remand the cause to the trial court to re-evaluate its just and
right division of the marital estate. In her first issue, Wolf contends the evidence is insufficient to support the trial
court’s reimbursement award to Nygard. Nygard’s request for reimbursement was
based on his purported use of separate property funds as a down payment to purchase
the marital residence.
Under Texas law, property possessed by either spouse during or upon
dissolution of marriage is presumed to be community property. TEX. FAM. CODE
ANN. § 3.003(a). As the party seeking reimbursement, Nygard had the burden to
prove, by clear and convincing evidence, that funds from his separate estate were
used to benefit and enhance the community estate. See In re B.H.W., No. 05-15-
00841-CV, 2017 WL 2492612, at *7 (Tex. App.—Dallas June 9, 2017, pet. denied)
(mem. op.). When a party seeks reimbursement from the community estate, he must
clearly trace the original separate property into a particular asset on hand during
marriage. Id. As a general rule, mere testimony that property was purchased with
separate funds, without any tracing of the funds, is insufficient to rebut the
community property presumption. Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—
Dallas 2012, no pet.). The burden of tracing is a difficult, but not impossible, burden
to sustain. Id. at 344.
In this case, Nygard sought reimbursement for two cashier’s checks totaling
$204,896.64 that were used as a down payment on a house he and Wolf purchased
during their marriage. Nygard claimed the funds for the two checks came from the
sale of a house he owned before he married Wolf and an inheritance from his
–2– mother’s estate. According to Nygard, he received $102,368.15 from the sale of his
separately owned house and $115,696.68 in inherited funds.
One of the checks used as a down payment on the marital residence was a
cashier’s check issued by Valley Bank and Trust Co. in the amount of $110,051.39.
This amount was the exact balance of funds in Wolf and Nygard’s joint savings
account at Valley Bank shortly before the check was issued. The evidence admitted
at trial shows the joint savings account at Valley Bank was opened less than a year
earlier with a cashier’s check issued by Central Bank & Trust in the amount of
$86,606.42. Although statements from Central Bank show that Nygard opened a
savings account there with a deposit of $102,368.15, the amount he received from
the sale of his separate house, the record also shows that Wolf and Nygard had a
joint checking account at Central Bank into which paychecks were deposited. The
statements from both the savings and checking accounts at Central Bank are
incomplete, and there is no documentation to show the balances in either account at
the time Central Bank issued the cashier’s check used to open the savings account at
Valley Bank. Accordingly, there is no way to determine what funds, if any, in the
Valley Bank savings account came from Nygard’s sale of his separate property
house.
Furthermore, statements from Valley Bank and Trust show that, after the joint
savings account was opened with the Central Bank cashier’s check, there was a
$10,000 withdrawal, followed several months later by a deposit of $32,996.90. This
–3– deposit, along with accrued interest, resulted in the $110,051.39 balance used for the
down payment on the marital residence. There is no record showing the source of
the $32,996.90 deposit, so we must presume it was community funds. See TEX. FAM.
CODE ANN. § 3.003(a). When separate property and community property have
become so commingled as to defy resegregation and identification, the property is
presumed to be community property. Beal Bank v. Gilbert, 417 S.W.3d 704, 710
(Tex. App.—Dallas 2013, no pet.).
As for the $115,696.68 Nygard asserted he received from his mother’s estate,
there is little evidence in the record to show his receipt of the alleged funds, and no
evidence to show what he did with the money after he received it. The only
documentary evidence regarding the largest of the claimed distributions from
Nygard’s mother’s estate was a handwritten note on a bank statement,
“[$]325,248.70 ÷ 5 = $65,049.74 Amount sent to each sibling.” The trial judge ruled
the handwritten note inadmissible and stated he would not consider it. Additionally,
Nygard produced no evidence that he deposited any of the claimed inherited funds
in an account associated with the purchase of the house, or any other account.
The second cashier’s check used for the down payment on the marital
residence was issued by Great Western Bank in the amount of $94,845.25. The
record contains no statements from Great Western for the account from which the
money was drawn. Wolf testified the Great Western cashier’s check was drawn
from an account that was jointly owned and used by the parties as a “joint operating
–4– account.” She further testified the money used to open the Great Western account
was community funds and, while the account was open, they both made deposits and
withdrawals. Nygard conceded at trial that the Great Western cashier’s check was
drawn from a joint account. When asked whether community money was put into
the account, Nygard responded, “I don’t remember.”
After reviewing the record, we conclude Nygard failed to prove by clear and
convincing evidence that he was entitled to reimbursement in the amount of
$204,896.64. We sustain Wolf’s first issue.
Although Wolf asks this Court to render judgment that Nygard take nothing
by his reimbursement claim, “once reversible error affecting the ‘just and right’
division of the community estate is found, the court of appeals must remand the
entire community estate for a new division.” Jacobs v. Jacobs, 687 S.W.2d 731,
733 (Tex. 1985).1 Even where a reimbursement claim can be identified in the trial
court’s property division, we cannot simply modify the decree by striking the
reimbursement award, “because to do so would be to make a new division of the
estate of the parties, a matter within the discretion of the trial court.” Id. (quoting
Faulkner v. Faulkner, 582 S.W.2d 639
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AFFIRMED in part; REVERSE and REMAND in part; and Opinion Filed July 29, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01214-CV
LORIANNE JENAE WOLF, Appellant V. JOHN ROBERT NYGARD, Appellee
On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-16-0756
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Reichek In this appeal from a final decree of divorce, Lorianne Jenae Wolf challenges
the trial court’s reimbursement award of $204,896.64 to her former husband, John
Robert Nygard. Wolf additionally challenges the trial court’s failure to make a
disproportionate division of the community estate based on the disparity in the
parties’ attorney’s fees. Because we conclude Nygard failed to prove his entitlement
to reimbursement by clear and convincing evidence, we reverse the trial court’s
$204,896.64 award and remand the cause to the trial court to re-evaluate its just and
right division of the marital estate. In her first issue, Wolf contends the evidence is insufficient to support the trial
court’s reimbursement award to Nygard. Nygard’s request for reimbursement was
based on his purported use of separate property funds as a down payment to purchase
the marital residence.
Under Texas law, property possessed by either spouse during or upon
dissolution of marriage is presumed to be community property. TEX. FAM. CODE
ANN. § 3.003(a). As the party seeking reimbursement, Nygard had the burden to
prove, by clear and convincing evidence, that funds from his separate estate were
used to benefit and enhance the community estate. See In re B.H.W., No. 05-15-
00841-CV, 2017 WL 2492612, at *7 (Tex. App.—Dallas June 9, 2017, pet. denied)
(mem. op.). When a party seeks reimbursement from the community estate, he must
clearly trace the original separate property into a particular asset on hand during
marriage. Id. As a general rule, mere testimony that property was purchased with
separate funds, without any tracing of the funds, is insufficient to rebut the
community property presumption. Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—
Dallas 2012, no pet.). The burden of tracing is a difficult, but not impossible, burden
to sustain. Id. at 344.
In this case, Nygard sought reimbursement for two cashier’s checks totaling
$204,896.64 that were used as a down payment on a house he and Wolf purchased
during their marriage. Nygard claimed the funds for the two checks came from the
sale of a house he owned before he married Wolf and an inheritance from his
–2– mother’s estate. According to Nygard, he received $102,368.15 from the sale of his
separately owned house and $115,696.68 in inherited funds.
One of the checks used as a down payment on the marital residence was a
cashier’s check issued by Valley Bank and Trust Co. in the amount of $110,051.39.
This amount was the exact balance of funds in Wolf and Nygard’s joint savings
account at Valley Bank shortly before the check was issued. The evidence admitted
at trial shows the joint savings account at Valley Bank was opened less than a year
earlier with a cashier’s check issued by Central Bank & Trust in the amount of
$86,606.42. Although statements from Central Bank show that Nygard opened a
savings account there with a deposit of $102,368.15, the amount he received from
the sale of his separate house, the record also shows that Wolf and Nygard had a
joint checking account at Central Bank into which paychecks were deposited. The
statements from both the savings and checking accounts at Central Bank are
incomplete, and there is no documentation to show the balances in either account at
the time Central Bank issued the cashier’s check used to open the savings account at
Valley Bank. Accordingly, there is no way to determine what funds, if any, in the
Valley Bank savings account came from Nygard’s sale of his separate property
house.
Furthermore, statements from Valley Bank and Trust show that, after the joint
savings account was opened with the Central Bank cashier’s check, there was a
$10,000 withdrawal, followed several months later by a deposit of $32,996.90. This
–3– deposit, along with accrued interest, resulted in the $110,051.39 balance used for the
down payment on the marital residence. There is no record showing the source of
the $32,996.90 deposit, so we must presume it was community funds. See TEX. FAM.
CODE ANN. § 3.003(a). When separate property and community property have
become so commingled as to defy resegregation and identification, the property is
presumed to be community property. Beal Bank v. Gilbert, 417 S.W.3d 704, 710
(Tex. App.—Dallas 2013, no pet.).
As for the $115,696.68 Nygard asserted he received from his mother’s estate,
there is little evidence in the record to show his receipt of the alleged funds, and no
evidence to show what he did with the money after he received it. The only
documentary evidence regarding the largest of the claimed distributions from
Nygard’s mother’s estate was a handwritten note on a bank statement,
“[$]325,248.70 ÷ 5 = $65,049.74 Amount sent to each sibling.” The trial judge ruled
the handwritten note inadmissible and stated he would not consider it. Additionally,
Nygard produced no evidence that he deposited any of the claimed inherited funds
in an account associated with the purchase of the house, or any other account.
The second cashier’s check used for the down payment on the marital
residence was issued by Great Western Bank in the amount of $94,845.25. The
record contains no statements from Great Western for the account from which the
money was drawn. Wolf testified the Great Western cashier’s check was drawn
from an account that was jointly owned and used by the parties as a “joint operating
–4– account.” She further testified the money used to open the Great Western account
was community funds and, while the account was open, they both made deposits and
withdrawals. Nygard conceded at trial that the Great Western cashier’s check was
drawn from a joint account. When asked whether community money was put into
the account, Nygard responded, “I don’t remember.”
After reviewing the record, we conclude Nygard failed to prove by clear and
convincing evidence that he was entitled to reimbursement in the amount of
$204,896.64. We sustain Wolf’s first issue.
Although Wolf asks this Court to render judgment that Nygard take nothing
by his reimbursement claim, “once reversible error affecting the ‘just and right’
division of the community estate is found, the court of appeals must remand the
entire community estate for a new division.” Jacobs v. Jacobs, 687 S.W.2d 731,
733 (Tex. 1985).1 Even where a reimbursement claim can be identified in the trial
court’s property division, we cannot simply modify the decree by striking the
reimbursement award, “because to do so would be to make a new division of the
estate of the parties, a matter within the discretion of the trial court.” Id. (quoting
Faulkner v. Faulkner, 582 S.W.2d 639, 642 (Tex. Civ. App – Dallas 1979, no writ)).
The amount of $204,896.64 is not a de minimis amount in the context of the
1 Wolf cites this Court’s opinion in In re M.S.C., No. 05-14-01581-CV, 2016 WL 929218 (Tex. App.— Dallas Mar. 11, 2016, no pet.) (mem. op.), for the proposition that we can render judgment in her favor. In re M.S.C. did not address the trial court’s division of the community estate, but rather alleged failures by the parties to make payments owed under an agreed divorce decree. Accordingly, In re M.S.C. is inapplicable. –5– community estate. Accordingly, the proper disposition is to remand the entire
community estate for a new property division in light of our holding. Id.; Attaguile
v. Attaguile, 584 S.W.3d 163, 176-77 (Tex. App.—El Paso 2018, no pet.).
In her second issue, Wolf contends the trial court abused its discretion by
failing to make a disproportionate division of the community estate based on the
disparity in the parties’ attorney’s fees. We decline to address this issue, because
we have already found reversible error in the division of the community estate. See
Touponse v. Touponse, No. 02-20-00285-CV, 2021 WL 2753504, at *5 (Tex.
App.—Fort Worth July 1, 2021, no pet. h.) (mem. op.). Since the error could affect
whether the trial court deems the remaining awards to be just and right, we leave the
attorney’s fees issue to the trial court’s consideration in its new division on remand.
Id.; Finn v. Finn, 658 S.W.2d 735, 749 (Tex. App.—Dallas 1983, writ ref’d n.r.e.)
(attorney’s fees left for reconsideration by trial court in making just and right
division of property on remand).
Based on the foregoing, we reverse the divorce decree with respect to the
property division and affirm in all other respects. The cause is remanded to the trial
court for further proceedings consistent with this opinion.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE 191214F.P05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LORIANNE JENAE WOLF, On Appeal from the 439th Judicial Appellant District Court, Rockwall County, Texas No. 05-19-01214-CV V. Trial Court Cause No. 1-16-0756. Opinion delivered by Justice JOHN ROBERT NYGARD, Reichek. Justices Schenck and Appellee Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's judgment dividing the community estate. In all other respects, the trial court's judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant LORIANNE JENAE WOLF recover her costs of this appeal from appellee JOHN ROBERT NYGARD.
Judgment entered July 29, 2021
–7–