                                  NO. 12-12-00158-CV

                      IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

RACHEL HARTON,                                §              APPEAL FROM THE
APPELLANT

V.                                           §               COUNTY COURT AT LAW

RANDY WADE,
APPELLEE                                     §               RUSK COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Rachel Harton (formerly Wade) appeals the trial court’s post-divorce division of real
property not divided in her divorce from Randy Wade. In two issues, Rachel contends that the
trial court abused its discretion in making its post-divorce property division. We affirm.


                                          BACKGROUND
       During their marriage, Randy and Rachel owned a rent-to-own business with locations in
Henderson and Jacksonville.      When they divorced in 2002, Rachel’s counsel prepared the
divorce decree that Randy, who was pro se, approved.               The divorce decree divided the
community property between the parties as follows:



       Rachel                                        Net Worth

       Real Estate                                   $105,000.00
       Stocks & Mutual Funds                         $165,000.00
       Personal Property                             $ 49,200.00
       IRA                                           $ 94,000.00
                                                     $413,200.00
       Randy                                         Net Worth

       Real Estate                                   $ 7,364.00
       Business (Henderson)                          $ 98,000.00
       Business (Jacksonville)                       $133,000.00
                                                     $238,364.00



       In 2010, Rachel filed an amended petition, requesting a post-divorce division of the real
property that had not been divided in the divorce decree. According to Rachel, the following
community property owned by the parties remained undivided:


       Real Property                                 Net Worth

       503 N. U.S. 79, Henderson                     $ 72,000.00
       1412 S. Jackson, Jacksonville                 $140,000.00
       Mineral Interest, Rusk County                   unknown



       At the 2011 hearing in this case, Jose Feliciano, Jr., a certified financial consultant,
testified that at the time of their 2002 divorce, Rachel and Randy agreed to the net worth values
on all of the property shown above. Rachel testified that after reviewing a formula she
discovered on the internet, she concluded the total net worth of the rent-to-own business was
$648,528.00, rather than the $231,000.00 she agreed to in 2002. Additionally, Randy testified
that at the time of the divorce, he borrowed $37,000.00 that he, in turn, paid to Rachel as part of
their 2002 property division.
       At the conclusion of the hearing, the trial court entered a decree dividing the Rusk
County mineral interests equally between Rachel and Randy, and awarding the Henderson and
Jacksonville real property to Randy. This appeal followed.


                                       PROPERTY DIVISION
       In her first issue, Rachel contends that the trial court abused its discretion when it failed
to follow the ratio of the property division made between the parties in 2002 to make a just and
right post-divorce division of the undivided property. In her second issue, she argues that the
trial court failed to divide the undivided real property in a just and right manner. We will
consider these two issues together.



                                                 2
Standard of Review
       We review a trial court’s division of property under an abuse of discretion standard. Von
Hohn v. Von Hohn, 260 S.W.3d 631, 640 (Tex. App.—Tyler 2008, no pet.). A trial court does
not abuse its discretion if there is some evidence of a substantive and probative character to
support the decision. Id. The mere fact that a trial judge may decide a matter within his
discretionary authority in a different manner than an appellate judge in a similar circumstance
does not demonstrate that an abuse of discretion occurred. Bailey v. Rodriguez, 351 S.W.3d
424, 426 (Tex. App.—El Paso 2011, no pet.). An abuse of discretion does not occur when the
trial court bases its decisions on conflicting evidence or as long as some evidence of a
substantive and probative character exists to support the trial court’s decision. Id.
       However, in family law cases, the abuse of discretion standard of review overlaps with
the traditional sufficiency standards of review and, as a result, legal and factual sufficiency are
not independent grounds of reversible error. Granger v. Granger, 236 S.W.3d 852, 856 (Tex.
App.—Tyler 2007, pet. denied). Instead, they constitute factors relevant to our assessment of
whether the trial court abused its discretion. Id. Thus, in considering whether the trial court
abused its discretion because the evidence is legally or factually insufficient, we apply a two-
prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion;
and (2) did the trial court err in its application of that discretion? Id. We then consider whether,
based on the evidence, the trial court made a reasonable decision. Id.
Applicable Law
       Section 9.203(a) of the Texas Family Code states as follows:

         (a) If a court of this state failed to dispose of property subject to division in a final decree of
             divorce or annulment even though the court had jurisdiction over the spouses or over the
             property, the court shall divide the property in a manner that the court deems just and
             right, having due regard for the rights of each party and any children of the marriage.


TEX. FAM. CODE ANN. § 9.203(a) (West 2006). In a post-divorce partition of jointly held assets,
the court has discretion to divide the assets in any manner that is just and reasonable. Wallace v.
Fuller, 832 S.W.2d 714, 715 (Tex. App.—Austin 1992, no writ); see also Haas v. Otto, 392
S.W.3d 290, 292 (Tex. App.—Eastland 2012, no pet.) (―Postdivorce partition is an appropriate
vehicle to address an undivided or overlooked asset.‖). ―A presumption arises on appeal that the
trial court correctly exercised its discretion in dividing property in a divorce proceeding, and the

                                                         3
burden rests on the appellant to show from the record that the division was so disproportionate,
and thus unjust and unfair, as to constitute an abuse of discretion.‖ In re Marriage of Notash,
118 S.W.3d 868, 874 (Tex. App.—Texarkana 2003, no pet.) (quoting Grossnickle v.
Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana 1996, writ denied)).
Analysis
       When the net worth of each of the community property assets awarded in the 2002
divorce and the 2011 post-divorce property division are combined, the total net worth awarded to
Rachel and Randy in the divorce is as follows:


       Rachel                                        Net Worth

       Original Division                             $413,200.00
       Additional Cash                               $ 37,000.00
                                                     $450,200.00


       Randy                                         Net Worth

       Original Division                             $238,364.00
       Additional Property                           $212,000.00
                                                     $450,364.00


       The above evidence shows that when the awards to each party in the 2002 divorce decree
and the 2011 post-divorce division of property are viewed as a whole, there is only $164.00 net
worth difference between the total awards to Rachel and Randy. An indispensable element of
community property is the joint ownership of or interest in such property by husband and wife.
See Gen. Ins. Co. of Am. v. Casper, 426 S.W.2d 606, 609 (Tex. Civ. App.—Tyler 1968), writ
ref’d n.r.e. per curiam, 431 S.W.2d 311 (Tex. 1968). Thus, if a husband and wife owned
property jointly, then a starting place for the division of community property would be for each
party to receive fifty percent of the marital estate. See id. Likewise, upon a spouse's death, the
surviving spouse is the owner of the one-half interest of the community property due to the
dissolution of the marriage. See Jones v. State, 5 S.W.2d 973, 975 (Tex. Comm’n App. 1928).
Again, if upon dissolution of a marriage by death, the surviving spouse receives one-half of the
community property, then the starting point when a marriage is dissolved by divorce would also
be a fifty percent division of the community property. See id.; Kreis v. Kreis, 36 S.W.2d 821, 827
(Tex. Civ. App.–Amarillo 1931, writ dism’d w.o.j.) (surviving spouse has undivided one-half


                                                 4
interest in estate as owner); Phillips v. Parrish, No. 01-96-00822-CV, 1997 WL 549227, at *7
(Tex. App.—Houston [1st Dist.] Aug. 29, 1997, writ denied) (not designated for publication)
(husband and wife are tenants in common or joint owners if divorce decree fails to provide for
division of community property).
         Here, Rachel presented no evidence to show why the division of community property
upon divorce should be anything other than a fifty percent split between the parties. Further, she
cited no authority for the proposition that the trial court abused its discretion when it failed to
follow the ratio used in the 2002 community property division. Finally, it was reasonable for the
trial court to use the net worth values for the real property as determined by the parties in 2002
rather than the value Rachel used at the 2011 hearing. Because Rachel failed to overcome the
presumption that the trial correctly exercised its discretion in dividing the property, we hold that
the trial court did not abuse its discretion in awarding the real property located in Henderson and
Jacksonville to Randy in its post-divorce property division. See In re Marriage of Notash, 118
S.W.3d at 874. We overrule Rachel’s first and second issues.


                                                    DISPOSITION
         Having overruled both of Rachel’s issues, the judgment of the trial court is affirmed.


                                                                JAMES T. WORTHEN
                                                                  Chief Justice



Opinion delivered May 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



                                                           5
                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             MAY 22, 2013


                                         NO. 12-12-00158-CV


                                         RACHEL HARTON,
                                             Appellant
                                                V.
                                          RANDY WADE,
                                             Appellee



                                Appeal from the County Court at Law
                         of Rusk County, Texas. (Tr.Ct.No. 2002-06-382)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, RACHEL HARTON, for which execution may issue, and that this
decision be certified to the court below for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      6
