                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                           No. 04-16-00016-CV

                                            Matias S. RUIZ,
                                              Appellant

                                                   v.

                                        Susan Elizabeth RUIZ,
                                              Appellee

                     From the 218th Judicial District Court, Wilson County, Texas
                                 Trial Court No. 15-04-00198-CVW
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Jason Pulliam, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: December 28, 2016

AFFIRMED

           This appeal arises out of a divorce proceeding between appellant Matias Ruiz and appellee

Susan Elizabeth Ruiz. In six issues on appeal, Matias asserts the trial court erred by finding the

Texas presumption of community property was not overcome or rebutted and Matias did not meet

his burden of proof to show tracing to allow a designation of separate property; characterizing

certain items as community property; dividing several separate property accounts as community

property; and denying admission of a copy of the marriage certificate. The trial court’s judgment

is affirmed.
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                                          BACKGROUND

       The parties were married on December 21, 1999, in Saltillo, Mexico. Prior to their

marriage, the parties secured a civil marriage application in Mexico. According to the testimony

of Mexican law expert David Lopez, at the time a couple obtains a marriage license in Mexico,

they must select one of two “regimes” or marriage contracts they wish to regulate their assets. The

choices are a community property regime or a separate property regime. Matias and Susan selected

the separate property regime.

       Susan filed an original petition for divorce in Bexar County on April 22, 2015, and

subsequently filed a first amended petition and a second amended petition for divorce on

September 10, 2015. In her petition, Susan requested disproportionate division of the community

property. In his original counterclaim for divorce, filed on June 24, 2015, Matias alleged he and

Susan entered into a premarital agreement defining the parties’ rights to their property as separate.

A copy of the parties’ Mexican marriage certificate, which included the information indicating the

parties agreed to a separate property regime but was not signed by the parties, was attached to

Matias’s pleading as Exhibit A.

       At trial, Lopez testified on Matias’s behalf and opined that a marriage application is

considered a premarital agreement in Mexico. Matias testified he and Susan both signed the

marriage application. Susan, however, testified she did not recall signing the marriage application

because she was only involved with arranging the actual wedding ceremony and party. According

to Susan, the paperwork was handled solely by Matias and she does not remember whether a

premarital agreement or property regime selection was discussed with her prior to the wedding. A

copy of the marriage application was not offered as evidence; rather, only an unsigned, uncertified

copy of the parties’ marriage certificate was offered. Lopez testified that in Mexico, the marriage

certificate accurately reflected the property regime selection made on the marriage application.
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          After considering the testimony and evidence, the trial court entered a Final Decree of

Divorce. The trial court made the following finding regarding the division of the marital estate:

          The Court finds that the parties elected the separate property regime under their
          application for marriage in Mexico; however, the Court further finds that Mr. Ruiz
          has failed to meet his burden of proof to show tracing to allow separate property to
          be awarded to Mr. Ruiz and further, that he has not overcome the community
          presumption.

The trial court then listed the division of assets, identifying both community and separate property

assets.

          This appeal followed.

                         ADMISSIBILITY OF MARRIAGE CERTIFICATE COPY

          In his sixth issue, Matias contends the trial court erred by refusing to admit a copy of the

Ruiz’s Mexican marriage certificate.

                                         Standard of Review

          An appellate court reviews a trial court’s ruling on evidentiary issues for abuse of

discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). A trial

court abuses its discretion when it acts without regard for guiding rules or principles. U-Haul Int’l,

Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). Even if the trial court errs by admitting or

excluding evidence, reversal is only appropriate if the error is harmful, that is, the error probably

resulted in an improper judgment. Id. An appellate court ordinarily will not reverse a judgment

because the trial court erroneously excluded evidence when the evidence in question is cumulative

or not controlling on a material issue dispositive to the case. Id. In determining whether the

excluded evidence probably resulted in the rendition of an improper judgment, this court reviews

the entire record. See McShane, 239 S.W.3d at 234.




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                                            APPLICATION

        During Susan’s testimony, Matias offered Exhibit 2, a copy of the Ruiz’s Mexican marriage

certificate into evidence. The trial court sustained Susan’s objection to the certificate, stating,

“Unless it is a certified copy, the objection is sustained.”

        Generally, an original writing is required to prove its content. TEX. R. EVID. 1002.

However, a duplicate is admissible to the same extent as the original document unless a question

is raised regarding the original’s authenticity or circumstances make it unfair to admit the

duplicate. TEX. R. EVID. 1003. Further, an original is not required, and other evidence of the

content of the document is admissible, if the original is not physically located in Texas. TEX. R.

EVID. 1004.

        According to Matias, the admission of the certificate was necessary to confirm selection of

the separate property regime, which he argues proves the existence of a valid and enforceable

premarital agreement between the parties. As discussed below, this court disagrees with Matias’s

characterization that the unsigned marriage certificate proves the existence of a valid and

enforceable premarital agreement between the parties. Although the trial court did not allow

admission of the marriage certificate copy itself, the information contained in the certificate was

presented to the trial court through witness testimony, and the trial court found in the divorce

decree the parties did choose the separate property regime. Therefore, this court concludes the

trial court did not abuse its discretion by refusing to admit an uncertified copy of the marriage

certificate.

        Even if this court were to conclude the trial court erred by refusing admission of the

marriage certificate, Matias has not shown the certificate’s exclusion probably resulted in the

rendition of an improper judgment. According to Matias, the admission of the certificate was

necessary to confirm selection of the separate property regime. As noted above, the information
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contained in the certificate was presented to the trial court through witness testimony, and the trial

court found in the divorce decree the parties did choose the separate property regime. Therefore,

this court concludes, if error existed in the exclusion of the marriage certificate, the error was

harmless.

       Issue six is overruled.

                                       PROPERTY DIVISION

                                        Standard of Review

       An appellate court reviews the trial court’s division of the parties’ estate for an abuse of

discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). To constitute an abuse of discretion,

the property division must be manifestly unfair. O’Carolan v. Hopper, 71 S.W.3d 529, 531 (Tex.

App.—Austin 2002, no pet.). The trial court is not required to divide the estate equally, but must

do so in an equitable manner. Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—Houston [14th

Dist.] 1996, no writ.); see TEX. FAM. CODE ANN. § 7.001 (West 2006). The trial court has wide

discretion and can take many factors into consideration in making a just and right division of the

community property. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). However, the

trial court has no discretion to divest a spouse of separate property. Eggemeyer v. Eggemeyer, 554

S.W.2d 137, 141-42 (Tex. 1977).

                                            Application

       Matias’s first five issues on appeal relate to the trial court’s designation and division of

certain assets as community property. Matias specifically complains of the designation and

division of the following assets, which Matias identifies as “financial or retirement type” accounts:

McCarthy (401k); McCarthy Employee Stock Ownership Plan; Millennium; and Charles Schwab.

       Matias asserts the accounts in question were his separate property and the trial court erred

by finding Matias did not meet his burden of proof with regard to the tracing of separate property
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and divesting him of this separate property. Matias also contends the trial court erred when it

found he failed to overcome or rebut the Texas presumption of community property. In support

of his position, Matias points to the language of the Final Divorce Decree, which he asserts shows

the trial court found the parties’ selection of the separate property regime as part of their marriage

application in Mexico created an enforceable premarital agreement.

       Matias argues that because the parties were married in Mexico, where they chose a separate

property regime as part of their civil marriage contract, the Texas community property

presumption does not apply and he is not required to utilize any “tracing” principles to demonstrate

his property was separate. In response, Susan argues Texas law applies to parties married

elsewhere but domiciled in Texas and the trial court’s finding of a Mexican civil marriage contract

does not overcome the Texas community property presumption.

       As a preliminary matter, this court does not agree with Matias that the trial court’s finding

the parties chose a separate property regime equates to a finding of a valid and enforceable

premarital agreement. The marriage certificate, although showing the parties selected a separate

property regime, was not signed by the parties, and no signed marriage application was offered.

Thus, despite Matias’s argument otherwise, the certificate did not meet the requirements of a valid

and enforceable premarital agreement under Texas law — even coupled with the expert testimony

regarding Mexican law. See TEX. FAM. CODE ANN. § 4.002 (West 2006) (providing a premarital

agreement must be in writing and signed by both parties).

       Matias has presented this court with no case law to support his argument he has no burden

to demonstrate the property was separate because the parties were married in Mexico. This court

likewise finds no such support and declines to apply such an approach. The divorce was filed in

Texas, and the trial court found the parties met the domiciliary and residence requirements of



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Family Code section 6.301. Therefore, this court applies Texas law. See TEX. FAM. CODE ANN.

§§ 1.103, 6.301 (West 2006).

       It is well established that all property possessed by either spouse at the dissolution of

marriage is presumed to be community. See TEX. FAM. CODE ANN. § 3.003 (West 2006); Garza

v. Garza, 217 S.W.3d 538, 548 (Tex. App.—San Antonio 2006, no pet.) “To overcome this

presumption, a party must present clear and convincing evidence that the property is separate.”

Garza, 217 S.W.3d at 548. The party asserting the property is separate must trace and clearly

identify what property he claims is separate. Id. Tracing involves establishing the separate origin

of the property through evidence showing the time and means by which the spouse originally

obtained possession of the property. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth

2004, pet. denied). Mere testimony that property is separate, without any tracing of the funds, is

insufficient to rebut the community property presumption. Garza, 217 S.W.3d at 548. When the

character of property is in question, Texas courts have held in favor of the community estate.

Ellebracht v. Ellebracht, 735 S.W.2d 658, 659 (Tex. App.—Austin 1987, no writ). This is not a

divestiture of separate property, but a necessary classification of property as established by the

presumption of community property. Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011).

       Matias admitted on cross-examination that he could not present a copy of an actual

premarital agreement designating division of the parties’ assets. Additionally, the record does not

contain evidence of the Mexican marriage application, other than the testimony of Matias’s expert

witness. According to Lopez, however, under the Civil Code of Coahuila, Mexico at the time the

parties married, salaries, wages, bonuses, and retirement benefits belonged to the person who

earned them under the separate property regime. Matias testified the accounts in question were

funded through proceeds of his employment. Lopez additionally testified both on direct and cross-



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examination that Mexican courts employed tracing principles to determine which spouse owned

assets.

          Under Texas law, Matias had the burden of presenting clear and convincing evidence that

all assets in question were his separate property. See Garza, 217 S.W.3d at 548. Clear and

convincing evidence means “the measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or convictions to the truth of the allegations sought to be established.”

TEX. FAM. CODE ANN. § 101.007 (West 2014).

          Apart from Matias’s testimony, the record contains no evidence indicating the source of

the funds, dates of transfers, or any asset tracing by Matias in relation to any of the accounts in

question. In the absence of records tracing the source of the funds, Matias’s testimony alone does

not rise to the level of clear and convincing and is insufficient to overcome the community property

presumption. See Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.—Houston [14th Dist.] 2002,

no pet.).

          This court concludes Matias did not satisfy his burden of overcoming or rebutting the

community property presumption by presenting a valid and enforceable premarital agreement.

Further, this court concludes Matias failed to provide clear and convincing evidence the accounts

in question were his separate property. Accordingly, this court concludes the trial court did not

abuse its discretion by characterizing the accounts in question as community property and dividing

them as such or by finding Matias failed to overcome or rebut the community property

presumption.

          Issues one through five are overruled.

                                            CONCLUSION

          Based on the forgoing, the trial court’s judgment is affirmed.

                                                    Jason Pulliam, Justice
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