Zagorski v. Zagorski

116 S.W.3d 309, 2003 Tex. App. LEXIS 7056, 2003 WL 21959753
CourtCourt of Appeals of Texas
DecidedAugust 19, 2003
Docket14-99-01044-CV
StatusPublished
Cited by188 cases

This text of 116 S.W.3d 309 (Zagorski v. Zagorski) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zagorski v. Zagorski, 116 S.W.3d 309, 2003 Tex. App. LEXIS 7056, 2003 WL 21959753 (Tex. Ct. App. 2003).

Opinions

OPINION ON REHEARING

JOHN S. ANDERSON, Justice.

The opinion of May 23, 2002 is withdrawn, the following is substituted in its place and appellant’s motion for rehearing is overruled.

This is an appeal from the properly division in a divorce case. Lori Zagorski and Anthony Zagorski were married on December 30, 1993. No children were bom or adopted during the marriage. Lori petitioned for divorce on August 18, 1997, and Tony counterclaimed.1 After a nine day bench trial, the trial court entered a divorce decree and filed findings of fact and conclusions of law. In three issues on appeal, Lori complains (1) there is insufficient evidence to support the trial court’s finding that the money Tony received during the marriage from a foreign bank account was his separate property; (2) the trial court’s erroneous characterization of the money Tony received from the foreign bank account resulted in an unfair and unjust division of property; and (3) the trial court erred in evaluating Lori’s claim for reimbursement. We affirm.

I.

Standards of Review

The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). Upon appeal, we presume the trial court properly used its discretion, and will reverse the cause only where the trial court clearly abused that discretion, and only if the error materially affects the court’s just and right division of the property. Id.; Jacobs v. Jacobs, 687 S.W.2d 731, 732-33 (Tex.1985). The test for abuse of discretion is whether the court acted without reference to any guiding rules or principles; the appropriate inquiry is whether the trial court’s ruling was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). We may not substitute our judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru v. Ford Motor Co., 84 [314]*314S.W.3d 198, 204 (Tex.2002). Under an abuse of discretion standard, legal and factual sufficiency challenges are not independent reversible grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 228, 226 (Tex.1991).

In her first issue, Lori challenges the legal and factual sufficiency of the evidence to support one of the trial court’s findings of fact, and two of its conclusions of law. Findings of fact in a bench trial have the same force and dignity as a jury verdict; an appellate court reviews sufficiency challenges to findings of fact by the same standards we apply in reviewing a jury’s findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Property possessed by either spouse on dissolution of the marriage is presumed to be community property, and to overcome this presumption, a party must establish by clear and convincing evidence that the disputed property is separate property. Tex. Fam.Code Ann. § 3.003 (Vernon 1998). When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of legal and factual sufficiency review. In re J.F.C., 96 S.W.3d 256 (Tex.2002); In re C.H., 89 S.W.3d 17 (Tex.2002). In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 265-66; In re C.H., 89 S.W.3d at 25-26. In a factual sufficiency review, we consider all of the evidence and must determine not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. In re the interests of JFC, ABC and MBC, 96 S.W.3d 256 (Tex.2003); In re C.H., 89 S.W.3d 17, 25 (Tex.2002).

Even applying this heightened standard of review, a factual sufficiency point requires the appellate court to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. Tate v. Tate, 55 S.W.3d 1, 5 (Tex.App.-El Paso 2000, no pet.).

Conclusions of law are reviewed de novo as legal questions. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, writ denied). We review conclusions of law to determine whether the conclusions drawn from the facts are correct. Zieben v. Platt, 786 S.W.2d 797, 802 (Tex.App.-Houston [14th Dist.] 1990, no writ). We will follow a trial court’s conclusions of law unless they are erroneous as a matter of law. Hitzelberger, 948 S.W.2d at 503. Even an incorrect conclusion of law will be followed if the controlling findings of fact support a correct legal theory. Id. A trial court’s conclusions of law may not be challenged for factual insufficiency. Zieba v. Martin, 928 S.W.2d 782, 786 n. 3 (Tex.App-Houston [14th Dist.] 1996, no writ). As a result, we will sustain the first point of error, an insufficient evidence issue, only if the fact finder could not have reasonably found the fact was established by clear and convincing evidence. Id. To this end, we must first determine whether the evidence was such that the trial judge could reasonably form a firm belief or conviction about the truth of Tony’s claim that the funds in the foreign bank account were his separate property, and second, whether the trial judge could reasonably conclude that the fact that Tony had accumulated personal savings of at least $2,057,524.20 prior to [315]*315the date of the parties’ marriage was highly probable.

II.

Does The Evidence Support Characterizing The Funds in The Darwin Ltd. Account as Tony’s Property?

In her first issue, Lori argues the trial court erred in characterizing funds in the Darwin Ltd. bank account (the “Account”), and the mutations therefrom, as Tony’s separate property. Lori contends the evidence was legally and factually insufficient to support both the trial court’s finding Tony had in excess of $2 million in the Account prior to the date he and Lori were married, and the concomitant conclusion of law that assets purchased with those funds were also separate property.2 The gravamen of Lori’s argument is that Tony failed to establish the funds in the Account at the time of the marriage were his funds, and therefore all assets purchased with those funds were community property. We address first the question of whether Tony properly established the funds in the Account prior to the marriage were his.

In this first issue, Lori challenges only the following trial court finding and conclusions:

Findings of Fact
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7. Prior to the date of the parties’ marriage, which was December 30,1993, ANTHONY J.

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Bluebook (online)
116 S.W.3d 309, 2003 Tex. App. LEXIS 7056, 2003 WL 21959753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zagorski-v-zagorski-texapp-2003.