Opinion issued June 5, 2014.




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-13-00182-CV
                           ———————————
                         CURTIS MOORE, Appellant
                                        V.
                        VERONICA MOORE, Appellee



                   On Appeal from the 310th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-52535



                         MEMORANDUM OPINION

      In this divorce case, we consider whether the trial court erred in (1)

characterizing appellant’s separate property as community property and including

it in the community property division, thereby causing a property division that was
not just and right; and (1) ordering that the appellant to pay periodic child support

in the amount of $1500 per month. We affirm in part and reverse and remand in

part.

                                 BACKGROUND

        Appellant Curtis Moore and appellee Veronica Moore were married on

January 6, 1996 and separated on August 29, 2011. They have one adult daughter

and one fourteen-year-old son. Curtis worked for Halliburton Corporation as a

purchasing supervisor for over 35 years. He was also involved in the real estate

business with his brother since the 1980s.

        Veronica filed for divorce on August 31, 2011. Before the separation,

Veronica was not employed, but at the time of trial she was working 30 hours per

week at a shoe store.

        After a bench trial, the trial court entered a Final Decree of Divorce that

dissolved the marriage, divided the community property, and determined custody

and child support of the minor child. In the division of real property, the trial court

concluded that 13 pieces of real property or real property interests belonged to the

community and divided them between the parties.          In doing so, the court noted

that “CURTIS MOORE owns no separate property that is not part of the

community estate of the parties as described and/or had failed to present sufficient

proof of separate property if he had any,” and “does not own or failed to

                                          2
adequately document ownership of any separate property that is not part of the

community.”     The court further noted that “CURTIS MOORE has not been

forthcoming with full disclosure of financial documents.” The trial court also

ordered Curtis to pay $1500 per month in child support. Curtis now brings this

appeal.

                  JUST AND RIGHT PROPERTY DIVISION

      In his first issue on appeal, Curtis contends the trial court’s division of

property was not just and right because (1) separate property was improperly

characterized as community; (2) the evidence is insufficient to support a

reimbursement claim by Veronica; (3) property that belonged to neither spouse

was included in the division; and (4) the trial court’s valuation of certain property

is not supported by the evidence.

Applicable Principles of Law

      In a decree of divorce, the trial court must order a just and right division of

the estate of the parties. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). “Trial

courts can only divide community property, [because] the phrase ‘estate of the

parties’ encompasses the community property of a marriage, but does not reach

separate property.” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011). “Texas

law prohibits courts from divesting spouses of their separate property.” Shanks v.

Treadway, 110 S.W.3d 444, 448 (Tex. 2003).

                                         3
      “The trial court has wide discretion in dividing the estate of the parties and

that division should be corrected on appeal only when an abuse of discretion has

been shown.” Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); see also Garza v.

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

exercising its discretion the trial court may consider many factors and it is

presumed that the trial court exercised its discretion properly.” Murff, 615 S.W.2d

at 699. These factors include: (1) the spouses’ capacities and abilities; (2) benefits

which the party not at fault would have derived from continuation of the marriage;

(3) business opportunities; (4) education; (5) relative physical conditions; (6)

relative financial condition and obligations; (7) disparity of ages; (8) size of

separate estates; (9) the nature of the property; and (10) disparities in earning

capacities and income. Id. “A trial court does not abuse its discretion if there is

some evidence of a substantive and probative character to support the

decision.” Garza, 217 S.W.3d at 549. “Because in family law cases the abuse of

discretion standard of review overlaps with the traditional sufficiency standards of

review, legal and factual insufficiency are not independent grounds of reversible

error; instead, they constitute factors relevant to our assessment of whether the trial

court abused its discretion.” Id.

      “Community property does not have to be divided equally, but the division

must be equitable.” Alonso v. Alvarez, 409 S.W.3d 754, 758 (Tex. App.—San

                                          4
Antonio 2013, pet. denied). “A disproportionate division must be supported by

some reasonable basis.” Id. at 758–59.

       “Property possessed by either spouse during or on dissolution of marriage is

presumed to be community property.” TEX. FAM. CODE ANN. §3.003(a) (Vernon

2006); see also Garza, 217 S.W.3d at 548. “The degree of proof necessary to

establish that property is separate property is clear and convincing evidence.” TEX.

FAM. CODE ANN. § 3.003(b); see also Garza, 217 S.W.3d at 548. Clear and

convincing evidence is defined as that “measure or degree of proof which 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; see

also Garza, 217 S.W.3d at 548.

      “The characterization of property as community or separate is determined by

the inception of title to the property, i.e., when a party first has a right of claim to

the property by virtue of which title is finally vested.” Sink v. Sink, 364 S.W.3d

340, 344 (Tex. App.—Dallas 2012, no pet.). Separate property includes “property

owned or claimed by the spouse before marriage” and “property acquired by the

spouse during marriage by gift, devise, or descent.” TEX. FAM. CODE ANN. § 3.001

(Vernon 2006).




                                           5
Standard of Review

      We review the trial court’s characterization of property in a divorce under an

abuse of discretion standard. Raymond v. Raymond, 190 S.W.3d 77, 80 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (citing Robles v. Robles, 965 S.W.2d 605,

613 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)). We determine the issue

of whether property is separate or community in nature by looking to the facts that,

according to rules of law, give character to the property. Raymond, 190 S.W.3d at

80 (citing McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st

Dist.] 1995, writ denied)).

      A trial court’s findings are reviewable for legal and factual sufficiency by

the same standards used in reviewing the evidence supporting a jury’s

verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Moroch, 174

S.W.3d at 857. In family law cases, however, the abuse of discretion standard

overlaps with the traditional sufficiency of evidence standard of review; as such,

legal and factual sufficiency are not independent grounds of reversible error, but

instead “constitute factors relevant to our assessment of whether the trial court

abused its discretion.” Moroch, 174 S.W.3d at 857 (citing Boyd v. Boyd, 131

S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.)); Mai v. Mai, 853 S.W.2d

615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). To determine whether

the trial court abused its discretion because legally or factually sufficient evidence

                                          6
does not support its decision, we must answer two questions: (1) whether the trial

court had sufficient evidence upon which to exercise its discretion, and (2) whether

the trial court erred in applying its discretion. Moroch, 174 S.W.3d at 857. The

sufficiency of evidence review “comes into play with regard to the first

question.” Id. We must then determine whether, based on the evidence presented at

trial, the trial court made a reasonable decision. Id. To uphold the trial court’s

determination, we must conclude that the decision was neither arbitrary nor

unreasonable. Id. Stated another way, the party challenging the trial court’s

characterization must first establish error by challenging the legal or factual

sufficiency of the evidence to support the property’s characterization and must then

show that because of the mischaracterization, the overall division of the property

was an abuse of discretion. Viera v. Viera, 331 S.W.3d 195, 207 (Tex. App.—El

Paso 2011, no pet.)

Characterization of Certain Properties as Community rather than Separate

      Curtis contends that the trial court erroneously characterized as community

property, and awarded to him in the division, three properties that he contends

were already his separate property. In its findings of fact and conclusions of law,

the trial court found that “CURTIS MOORE owns no separate property that is not

part of the community estate of the parties as described and/or failed to present

sufficient proof of separate property if he had any.” We will review the evidence

                                         7
submitted as to each of the challenged properties to determine whether the trial

court erred in its characterization.

      692 W. Boundary

      The trial court determined that the property located at 692 W. Boundary

Street, Giddings, Texas, was community property, valued the property interest held

by the community to be $56,550, and awarded it to Curtis in the property division.

In her Second Amended Inventory and Appraisement, Veronica listed 692 W.

Boundary Street as a community asset. In his initial Inventory and Appraisement,

Curtis listed 692 W. Boundary as property to be included in the community

property division, without specifically designating it as community or separate. In

the same inventory, Curtis later identifies 692 W. Boundary as his separate

property.1 Curtis’s First Amended Inventory refers to 692 W. Boundary on in the

portion of the inventory in which he lists his separate property. Curtis’s Third

Amended Inventory, which was admitted as an exhibit at trial, again lists 692 W.

Boundary only as a separate asset. Finally, Curtis’s Fourth Amended Inventory,

which was also admitted as an exhibit at trial, also identifies 692 W. Boundary as

his separate property.

      At trial, Curtis testified that he was given the property at 692 W. Boundary

in 1990, some six years before he and Veronica were married. The record also

1
      Curtis testified at trial that he was initially listing all real property without regards
      to characterization.
                                              8
contains a deed showing that Ruth Moore and Irma Moore transferred the property

to Curtis on March 9, 1990.         The record also contains information in the

documents that Veronica’s expert provided showing that Curtis obtained the

property by a gift deed in 1990, and that he transferred the property to Michael

Moore in 1995.

      Finally, Veronica testified at trial as follows:

      Q. In relation to Item 1.4 [the property at 692 W. Boundary], you
      would agree with me that your husband actually owned this property
      prior to marriage, right?

      A. Just the property.

      Q. All I asked you about was the property, right?

       ****

      Q. Okay. At some point in time there were apartments built on this
      property, true?

      A. True.

      Q. And when were those built, do you know?

      A. No. I don’t know the exact date.

      Q. Were they built prior to the marriage or after the marriage?

      A. Prior to the marriage.

Later, Veronica was asked, “The property [at 692 W. Boundary] was owned prior

to marriage, correct[?]” to which she responded, “Correct.”



                                           9
      Thus, while the trial court had some evidence to support its classification of

the 692 W. Boundary Street property as community, i.e., Veronica’s Second

Amended Inventory and arguably Curtis’s initial Inventory, we note that

Veronica’s assessment of the property is not supported by any documentary

evidence and Curtis’s initial inventory was superseded by amended inventories in

which he clearly identified the property as separate property.

      Indeed, we hold that the great weight and preponderance of the evidence

supports the conclusion that Curtis indeed established that the property was

separate. Both Curtis and Veronica testified at trial that Curtis owned the property

before they were married. More importantly, all of the documentary evidence

relating the property, including a real property deed, shows that Curtis acquired the

by gift in 1990. Because there is factually insufficient evidence to support the trial

court’s characterization of the 692 W. Boundary Street property as community

property, the trial court erred by including it in the community property division.

      846 W. Austin

      The trial court determined that the property located at 846 W. Austin,

Giddings, Texas, was community property, valued the property interest held by the

community to be $11,620, and awarded it to Curtis in the property division.

      In her Second Amended Inventory and Appraisement, Veronica listed 846

W. Austin as a community asset. In his initial Inventory and Appraisement, Curtis

                                         10
lists 846 W. Austin only as separate property. Curtis’s First Amended Inventory

lists 846 W. Austin as both community and separate property. Curtis’s Third

Amended Inventory lists 846 W. Austin as both separate and community. Finally,

Curtis’s Fourth Amended Inventory, which was also admitted as an exhibit at trial,

identified 846 W. Austin as both separate and community.

      At trial, Curtis testified that he and his brothers, Victor and Michael Moore,

obtained the property at 846 W. Austin in 1985. The record also contains a deed

showing that Curtis, Victor, and Robert Moore purchased the property from Martin

and Norma Halick on July 22, 1985. The record also contains information in the

documents that Veronica’s expert provided showing the deed history of the

property, with the last transfer occurring in 1990.

      Finally, Veronica testified at trial as follows:

      Q. Page 2 of Petitioner’s 18, Item 1, what property is identified there,
      ma’am?

      A. 86—846 West Austin, Giddings, Texas.

      Q. Okay. And it’s true, is it not that Mr. Moore owned that property
      prior to the marriage?

      A. Yes.

      Again, while the trial court had some evidence to support its classification of

the 846 W. Austin property as community, i.e., Veronica’s Second Amended

Inventory and Curtis’s conflicting inventories, we again note that Veronica’s

                                          11
assessment of the property as community is not supported by any documentary

evidence.

      Indeed, we hold that the great weight and preponderance of the evidence

supports the conclusion that Curtis established that the property was separate.

Both Curtis and Veronica testified at trial that Curtis owned the property before

they were married. More importantly, all of the documentary evidence relating the

property, including a real property deed, shows that Curtis and his brothers

acquired the property in 1985. Because there is factually insufficient evidence to

support the trial court’s characterization of the 692 Boundary Street property as

community property, the trial court erred by including it in the community property

division.

      Redding Springs Property

      In the divorce decree and in the findings of fact and conclusions of law, the

trial court included the property at 6630 Redding Springs, Houston, TX, as

community property. The findings of fact specifically state that the “Court finds

that CURTIS MOORE owns no separate property that is not part of the community

estate[.]” However, in Exhibit A, which is attached to and incorporated into the

Findings of Fact and Conclusions of Law, the Court describes the Redding Springs

property as follows:




                                        12
      Lease house at 6630 Redding Springs, Houston, Texas 77086,
      separate property of CURTIS MOORE, with the community
      reimbursement value of $20,000 awarded to CURTIS MOORE.

We recognize that findings of fact and conclusions of law filed after a judgment

are controlling if there is any conflict between the two documents. Arena v.

Arena, 822 S.W.2d 645, 652 (Tex. App.—Fort Worth 1991, no writ); Bendele v.

Tri–County    Farmer’s     Co-op, 635     S.W.2d    459,    469    (Tex.   App.—San

Antonio),aff’d as modified, 641 S.W.2d 208 (Tex. 1982); Law v. Law, 517 S.W.2d

379, 383 (Tex. Civ. App.—Austin 1974, writ dism’d). However, here there is an

inconsistency within the findings of fact and conclusions of law themselves. In

one portion of the findings, the Redding Springs property is designated as

community, and in Exhibit A, it is described as Curtis’s separate property. The

parties’ briefs are equally confusing as to whether the “reimbursement claim” is to

be awarded to Curtis or to Veronica. Indeed, Veronica’s brief argues that “Mr.

Moore appears to be arguing against an award to himself,” and in another portion

of her brief she states, “If the trial court made any error, it was in awarding Mrs.

Moore $20,000.00 instead of $113,400.00.” It appears to this Court that the trial

court included the Redding Springs property in its community division, but valued

it at only $20,000 in recognition of Curtis’s pre-marriage interest in the property.2


2
      At trial, Veronica was asked about the Redding Springs property, and the
      following exchange took place:

                                          13
      Thus, we will review the sufficiency of the evidence to support the

characterization of the Redding Springs property as community property.

Veronica’s Second Amended Inventory includes the Redding Springs property as

community property. Curtis’s initial inventory list Redding Springs in two places

on his inventory. In its first mention, it is not characterized, but when mentioned

again it is classified as his separate property. In his First Amended Inventory,

Curtis lists Redding Springs only as separate property. The same is true of his

Third and Fourth Amended Inventories. There is also a deed in the record showing

that Curtis obtained the property from the secretary of the Department of Housing

and Urban Development in 1985.

      At trial, Curtis testified that he had owned the Redding Springs property

since 1985. Veronica also testified that Curtis owned Redding Springs before

marriage.

      Q. And this address, this property that's 1.2, the Redding Springs,
      Houston, Texas, did Mr. Moore, you husband, have that prior to your
      marriage?



      Q.    Now this 1.2 property, your proposal is requesting that the Court
            only consider $20,000.00 of that value; is that correct?

      A.     Yes.

      Q.    So you’re doing that in consideration of your husband having an
            interest in it prior to you being married?

      A.    Yes.
                                          14
      A. Yes.

      Again, while the trial court had some evidence to support its classification of

the 846 W. Austin property as community, i.e., Veronica’s Second Amended

Inventory and Curtis’s initial inventory, we again note that Veronica’s assessment

of the property as community is not supported by any documentary evidence and

Curtis’s initial inventory was subsequently amended, each time describing Redding

Springs as separate.

      Indeed, we hold that the great weight and preponderance of the evidence

supports the conclusion that Curtis established that the property was separate.

Both Curtis and Veronica testified at trial that Curtis owned the property before

they were married. More importantly, all of the documentary evidence relating the

property, including a real property deed, shows that Curtis and his brothers

acquired the property in 1985. Because there is factually insufficient evidence to

support the trial court’s characterization of the Redding Springs property as

community property, the trial court erred by including it in the community property

division.

      Abuse of Discretion?

      Having concluded above that the evidence is insufficient to support a

characterization of the above-referenced properties as community property,        we

must now determine whether the trial court erred in exercising its discretion in

                                         15
dividing the community. When a trial court mischaracterizes separate property as

community property, the error requires reversal if the spouse is divested of the

separate property. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex.

1977) (“Trial courts have a broad latitude in the division of the marital community

property, but that discretion does not extend to a taking of the fee to the separate

property of the one and its donation to the other.”).

      Here, however, Curtis was not divested of the fee to the separate properties

because they were awarded to him in the division. In such cases, we remand the

entire community estate for a new division only if the trial court’s error materially

affects the trial court’s just and right division of the community estate on the

whole; reversal is not necessary if a mischaracterization of property has only a de

minimis effect on the trial court’s just and right division. See, e.g., Monroe v.

Monroe, 358 S.W.3d 711, 718 (Tex. App.—San Antonio 2011, pet. denied) (“Even

though the jewelry was separate property, we remand the entire community estate

for a new division only if ‘[we] it find[] reversible error in a specific part of the

division that materially affects the trial court’s just and right division of

the entire community estate.’ Reversal is not required if the mischaracterization of

property has only a de minimis effect on the trial court’s just and right division.”)

(quoting Grossnickle v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana

1996, writ denied) (emphasis added)); Graves v. Tomlinson, 329 S.W.3d 128, 153–

                                          16
54 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (reversing and remanding

for new division when trial court’s mischaracterization of $134,000 in community

property as separate property had “more than a de minimis effect on the trial

court’s just and right division” and “materially affected the court’s just and right

property division”).

      Here, the trial court’s findings of fact show that it divided real property

between the parties that had a total value of $455,730. Of this amount, $88,170 of

Curtis’s separate property was erroneously included in the community ($20,000 for

Redding Springs, $56,500 for 692 W. Boundary, and $11,620 for 846 W. Austin).

We cannot say the trial court’s error had a de minimis effect on the trial court’s just

and right division of community property. Therefore, we reverse the trial court’s

property division and remand for a new division that excludes the erroneously

characterized property.

      Curtis also complains that 5 other pieces of real property were erroneously

included in the community because neither he nor Veronica possessed an interest

in those properties, and he contends that two items of property were misvalued.

Because we have already found reversible error in the division, we need not

address these claims and decline to do so. The trial court may consider those

issues on remand as well as any reimbursement claims Veronica may have

regarding the properties we have held to be Curtis’s separate property.

                                          17
      We sustain Curtis’s first issue on appeal.

                                 CHILD SUPPORT

      In his second issue on appeal, Curtis contends the trial court erred in

ordering him to pay periodic child support of $1500 per month. Specifically,

Curtis claims that his gross monthly salary of $8000, plus less than $300 in net

rental income each month, would support a child support award of only $1,273.60

per month.

Standard of Review and Applicable Law

      The purpose of child support is to help a custodial parent maintain an

adequate standard of living for a child. Farish v. Farish, 982 S.W.2d 623, 627

(Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Williams v. Patton, 821

S.W.2d 141, 145 (Tex. 1991)). The determination of the amount of child support to

be paid is left to the discretion of the trial court and will not be disturbed on appeal

absent a clear showing of abuse of discretion. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.—Houston [1st

Dist.] 2003, pet. dism’d). A trial court abuses its discretion when it acts without

reference to any guiding rules and principles. Worford, 801 S.W.2d at

109; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.]

1999, no pet.). Sufficiency challenges are not independent points of error in the

child-support context, but are “incorporated into an abuse of discretion

                                          18
determination.” McGuire, 4 S.W.3d at 387 n.2; see Newberry v. Bohn–

Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

We employ a two-pronged inquiry in such cases: (1) whether the trial court had

sufficient information upon which to exercise its discretion; and (2) whether the

trial court erred in its application of discretion. Moreno v. Perez, 363 S.W.3d 725,

735 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court does not abuse its

discretion when there is some evidence of a substantive and probative character to

support its order. Newberry, 146 S.W .3d at 235.

      In determining a child-support award, section 154.062 of the Texas Family

Code requires a court to calculate “net resources” for the purpose of determining

child-support liability. TEX. FAM. CODE ANN. § 154.062(a). “Courts may calculate

net resources on ‘imprecise information,’ and the trial court has “broad discretion

in setting child support.” Ayala v. Ayala, 387 S.W.3d 721, 727 (Tex. App.—

Houston [1st Dist.] 2011, no pet.). “Net resources” include all wage and salary

income, self-employment income, and all other income received. TEX. FAM. CODE

ANN. § 154.062(b). The obligor is required to furnish information sufficient to

accurately identify his net resources and ability to pay child support. In re

N.T., 335 S.W.3d 660, 666 (Tex. App.—El Paso 2011, no pet.); Garner v.

Garner, 200 S.W.3d 303, 306 (Tex. App.—Dallas 2006, no pet.); see TEX. FAM.

CODE ANN. § 154.063. “‘There must be some evidence of a substantive and

                                        19
probative character of net resources’ in order for the court to discharge its duty

under section 154.062.” Miles v. Peacock, 229 S.W.3d 384, 389 (Tex. App.—

Houston    [1st   Dist.]   2007,   no   pet.) (quoting Newberry, 146    S.W.3d     at

236); Ayala, 387 S.W.3d at 727.

      The trial court is not required to accept the obligor’s evidence of income and

net resources as true. In re N.T., 335 S.W.3d at 666; Hardin v. Hardin, 161 S.W.3d

14, 23 (Tex. App.—Houston [14th Dist.] 2004, no pet.), judgm’t vacated, op. not

withdrawn, No. 14–03–00342–CV, 2005 WL 310076 (Tex. App.—Houston [14th

Dist.] Feb. 10, 2005, no pet.). Instead, the trial court may properly determine that

an obligor has higher net resources based on testimony by the obligee and other

evidence in the record. In re N.T., 335 S.W.3d at 666.

Analysis

      As the obligor, Curtis bore the burden to present sufficient information of his

net resources and ability to pay child support. Curtis’s 2011 W-2 showed that his

gross wages that year were $95,999.49, or approximately $8,000 per month. Curtis

testified that this amount was inflated because he received a one-time bonus of

$5,000, which he claimed he was not eligible to receive again. While there are

documents purporting to be 2012 pay statements in the record that show a monthly

salary of less than $8,000, these statements do not address the issue of whether




                                         20
Curtis was entitled to receive any sort of bonus, and the trial court could have

concluded that Curtis’s W-2 accurately reflected his gross salary.

        Regarding Curtis’s rental incomes, he claimed to have netted only $388.40

per month on his rental properties. In support, he points to his 2010 tax return, in

which he claimed net rental income for the year in the amount of only $288.17 per

month. He bases his insurance, repair, and taxes on the amounts indentified in his

2010 tax return, but was is no other documentary evidence of liabilities and

expenses at the time of trial. There was also testimony that Curtis received $800

per month for the Redding Springs property, $9,600 per year for the apartments at

692 W. Boundary (in another portion of the testimony, Curtis stated he was

receiving $645 per month for each apartment), and $525 per month for the rental of

886 W. West Austin. Curtis was also providing an apartment to his mother rent

free.   Based on the scarcity of documentary evidence regarding income and

expenses of Curtis’s rental properties, the trial court could have disbelieved his

testimony that he earned only $388 per month in net rental income, especially in

light of the trial court’s unchallenged finding that “CURTIS MOORE has not been

forthcoming with full disclosure of financial documents.”        The credibility of

witnesses in a divorce action is solely under the purview of the trial court, not the

appellate court. Zagorsky v. Zagorsky, 116 S.W.3d 309, 318 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied).

                                         21
      Based on this testimony and evidence, the trial court ordered $1500 in

monthly child-support payments, which corresponds to an implied finding that

Curtis had at least $7500 in monthly net resources pursuant to the standard child-

support award schedule. See TEX. FAM. CODE ANN. § 154.125 (providing that the

court shall presumptively order that an obligor pay 20% of monthly net resources

in child support for one child). Because the determination of the child-support

award was supported by the testimony of the parties and the documents introduced

at trial, the trial court’s decision was supported by some evidence of a substantial

and probative character. See In re N.T., 335 S.W.3d at 666–67 (holding that given

appellant’s failure to produce documents of his earnings, the trial court was within

its discretion in basing its net resources determination on the conflicting testimony

of the parties). Accordingly, the trial court did not abuse its discretion in its

determination of the amount of child support.

      We overrule Curtis’s second issue.




                                         22
                                CONCLUSION

      Because we cannot say the trial court’s error in mischaracterizing separate

property had a de minimis effect on the trial court’s just and right division of

community property, we reverse the trial court’s property division and remand for

a new division. We affirm the remaining portions of the judgment.




                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




                                       23
