Affirmed and Opinion filed May 6, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00283-CV


     IN THE MATTER OF THE MARRIAGE OF VALERIE DELAINE
             O’BRIEN AND RICHARD ELDON O’BRIEN


                   On Appeal from the 413th District Court
                           Johnson County, Texas
                     Trial Court Cause No. D201006032

                                OPINION


      Appellant Valerie O’Brien contests the division of property contained in the
final decree of divorce dissolving her marriage to appellee Richard O’Brien. In
four issues, Valerie contends the trial court erred in (1) assigning a $32,000
community debt entirely to Valerie, (2) denying Valerie credit for the community
estate’s payment of storage fees related to Richard’s separate property during the
marriage, (3) denying Valerie credit for payment of Richard’s share of a
community land debt during the 28-month pendency of the litigation, and (4)
characterizing Valerie’s separate property business as community property. We
affirm.1

                                         Background

       The trial court rendered its final decree in the O’Briens’ divorce on
December 6, 2012. The court subsequently issued findings of fact and conclusions
of law. Among its findings of fact, the court stated that during the marriage, the
parties acquired certain community property, including an interest in real property
situated in Somervell County, Texas; “[m]iscellaneous personal property which
had either negligible value or was divided equally between the parties”; and “[a]
business known as Valerie’s Music, which was awarded in its entirety to” Valerie.
The court further found that the parties held as a community liability a line of
credit in Valerie’s name with J.P. Morgan Chase. Regarding separate property, the
court found that Valerie owned certain real property (where the couple resided
during the marriage), and that Richard had used $24,965.51 of his separate
property to pay Valerie’s debt on her separate property. Accordingly, the court
granted Richard a $24,965.51 reimbursement claim for the payment of Valerie’s
debt. The court further noted that the parties had stipulated to the fact and amount
of Richard’s payment. Lastly, the court stated that it was denying Valerie’s request
for a credit against the reimbursement claim, saying it was “contrary to the law and
the stipulation.”

       In its conclusions of law, the court stated that the divorce was granted on
grounds of insupportability, all of the property belonged to the community estate
except Valerie’s real property, and “[t]he division of the property . . . is just and

       1
          By order of the Texas Supreme Court, this case was transferred to this court’s docket
from the Tenth Court of Appeals. See Tex. Gov’t Code § 73.001. To the extent there is any
conflict between the precedent of the two courts, we are required to apply the transferor court’s
precedent. Tex. R. App. P. 41.3.

                                               2
right . . . irrespective of the characterization of any item of property as community
or separate.” The court further noted Richard’s reimbursement claim was part of a
just and right division of assets and liabilities of the marriage and again stated
Valerie was not entitled to any offset “because community property funds were
used to pay community property expenses.”

      In its decree, the court awarded each party one-half of the couples’ interest
in the Somervell County real property.        The court further awarded each side
numerous personal property items in their individual possession or control, as well
as the cash and financial and retirement accounts in their control. Regarding the
business known as Valerie’s Music, the court awarded “any and all interest in the
business” to Valerie. Concerning debts, the court ordered Richard to pay all debts
incurred in his name as well as all taxes and other charges on any real or personal
property awarded to him. The court also ordered Valerie to pay all debts incurred
in her name, “including but not limited to the JP Morgan Chase line of credit.”
The Court additionally confirmed the real property that belonged to Valerie as her
separate property and ordered her to pay Richard $24,965.51, with a lien in his
favor for that amount being placed on Valerie’s separate real property.

                                Standards of Review

      In dividing marital property upon divorce, a trial court must order a division
in a manner that the court deems just and right, having due regard for the rights of
each party. Tex. Fam. Code § 7.001. The property division need not be equal, but
it must be equitable, and a trial court may consider numerous factors when
exercising its broad discretion to divide the marital property, including the relative
earning capacity and business opportunities of the parties, the parties’ relative
financial condition and obligations, the parties’ education, the size of the separate
estates, and the probable need for future support. Murff v. Murff, 615 S.W.2d 696,

                                          3
699 (Tex. 1981).      A disproportionate division must be supported by some
reasonable basis. Alonso v. Alvarez, 409 S.W.3d 754, 758-59 (Tex. App.—San
Antonio 2013, pet. denied).

      We presume the trial court properly exercised its discretion and will correct
the trial court’s division of marital property only when an abuse of discretion has
been shown. Murff, 615 S.W.2d at 698. The test for abuse of discretion is not
whether, in the opinion of the reviewing court, the facts present an appropriate case
for the trial court’s action, but rather, whether the court acted arbitrarily or
unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). We indulge every reasonable presumption in favor of finding the trial
court properly exercised its discretion in dividing the community estate.
Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.]
1993, writ denied). To prevail on a complaint about the division of property, an
appellant has the burden of demonstrating based on evidence in the record that the
division was so unjust and unfair as to constitute an abuse of discretion. Mohindra
v. Mohindra, No. 14-06-00056-CV, 2007 WL 3072057, at *2 (Tex. App.—
Houston [14th Dist.] Oct. 23, 2007, no pet.) (mem. op.); Vannerson, 857 S.W.2d.
at 672; Posey v. Posey, 561 S.W.2d 602, 606 (Tex. App.—Waco 1978, writ
dism’d). When the complaining party does not provide values of the property to
the trial court, that party cannot complain on appeal of the trial court’s property
division. Monroe v. Monroe, 358 S.W.3d 711, 718 (Tex. App.—San Antonio
2011, pet. denied) (citing Vannerson, 857 S.W.2d. at 670). Under the abuse of
discretion standard, sufficiency of the evidence is not an independent ground of
error but rather is a relevant factor in assessing whether the trial court abused its
discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.]
2002, no pet.); Walston v. Walston, 971 S.W.2d 687, 691-92 (Tex. App.—Waco


                                         4
1998, pet. denied).

      Reimbursement is an equitable right that arises when the funds or assets of
one estate are used to benefit and enhance another estate without the first estate
receiving some benefit. Willmore v. Quigley, No. 14–12–00060–CV, 2013 WL
2296187, at *3 (Tex. App.—Houston [14th Dist.] May 23, 2013, no pet.) (mem.
op.); see also Beard v. Beard, 49 S.W.3d 40, 56-57 (Tex. App.—Waco 2001, pet.
denied). Reimbursement is not available as a matter of law but lies within the trial
court’s broad discretion. Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982);
Zamiatowski v. Zamiatowski, No. 14–12–00478–CV, 2013 WL 1803604, at *1
(Tex. App.—Houston [14th Dist.] April 30, 2013, no pet.) (mem. op.). The trial
court’s discretion in evaluating a claim for reimbursement is as broad as its
discretion to effect a just and proper division of the community estate. Willmore,
2013 WL 2296187, at *3; see also Penick v. Penick, 783 S.W.2d 194, 198 (Tex.
1988) (“In the final analysis, great latitude must be given to the trial court in
applying equitable principles to value a claim for reimbursement.”).

      In considering a claim for reimbursement, a court must take into account all
the relative circumstances of the spouses, determine the rights of both spouses,
apply equitable principles to determine whether to recognize the claim, and order a
division of the claim for reimbursement, if appropriate, in a manner that the court
considers just and right, having due regard for the rights of each party. Willmore,
2013 WL 2296187, at *3. A party claiming a right of reimbursement must plead
and prove that expenditures were made and that they are reimbursable. Vallone,
644 S.W.2d at 458–59; Willmore, 2013 WL 2296187, at *3; Beard, 49 S.W.3d at
56-57. Claims for reimbursement may be offset against each other if the court
determines that is appropriate. Willmore, 2013 WL 2296187, at *3.



                                         5
                                          Line of Credit

      In her first issue, Valerie contends that the court erred in assigning the JP
Morgan Chase line of credit—a community debt—entirely to her.2 At trial, Valerie
requested that Richard be assigned some of that debt or that she be given an offset
for Richard’s share of the debt against the $24,965.51 reimbursement judgment she
was ordered to pay. In her appellate briefing, Valerie neither expressly states a
basis—legal or otherwise—for her contention that the trial court erred in assigning
this debt to her, nor cites any authority supporting her assertion that the trial court
erred. This issue is therefore inadequately briefed. See Tex. R. App. P. 38.1(i)
(requiring that an appellant’s brief “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”); In
re S.A.H., 420 S.W.3d 911, 929 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(declining to craft appellant’s argument for him).

      Moreover, Valerie offers no contentions, analysis, or values regarding the
cash and financial and retirement accounts or the other debts the trial court divided
between the parties. Without such information, it is impossible to determine
whether the trial court reached an equitable, just, and right division of the marital
estate as a whole. See Tex. Fam. Code § 7.001; Murff, 615 S.W.2d at 699. As
discussed above, to prevail on a complaint about the division of property, an
appellant has the burden of demonstrating based on evidence in the record that the
division was so unjust and unfair as to constitute an abuse of discretion. See
Mohindra, 2007 WL 3072057, at *2; Vannerson, 857 S.W.2d. at 672; Posey, 561
S.W.2d at 606. Valerie has not met her burden of demonstrating the trial court
abused its discretion in the division of property in this case.3 Accordingly, we

      2
          Valerie asserts that the amount of this debt at the time of trial was around $32,000.
      3
          In his appellee’s brief, Richard offers several possible reasons why the trial court may
                                                  6
overrule her first issue.

                                         Storage Fees

       In issue two, Valerie argues that the court erred in failing to credit her for the
community estate’s payment of $8,395, an amount representing the aggregate sum
of monthly rental fees related to a storage unit Richard had rented beginning before
the marriage and which contained his separate property. Valerie specifically seeks
an offset for one-half of the fees against the $24,965.51 reimbursement judgment
against her. At trial, Valerie testified that Richard had rented the storage unit
before their marriage began, that it only ever held his property, and that she paid
the monthly charge with community funds. The trial court, however, clearly
rejected her characterization of the rental payments as Richard’s separate property
debt, stating in its findings of fact that her reimbursement claim was “contrary to
the law” and in its conclusions of law that Valerie was not entitled to any offset
“because community property funds were used to pay community property
expenses.”

       On appeal, Valerie argues that she was entitled to reimbursement under
Family Code section 3.402(a)(1) because the storage fee payments constituted
“payment by one marital estate of the unsecured liabilities of another marital
estate.” Tex. Fam. Code § 3.402(a)(1). A claim for reimbursement arises when
the funds or assets of one estate are used to benefit and enhance another estate
without itself receiving some benefit; it is generally a matter of discretion for the
trial court. Vallone, 644 S.W.2d at 459; Willmore, 2013 WL 2296187, at *3. The
party claiming reimbursement bears the burden of establishing the net benefit to


have decided to assign all of the line-of-credit debt to Valerie; however, since the burden was not
on Richard to support the trial court’s division but on Valerie to contest it and she has failed to
properly do so, we need not address Richard’s contentions.

                                                7
the payee estate.      See Vallone, 644 S.W.2d at 458–59; Willmore, 2013 WL
2296187, at *3.

       Here, Valerie does not provide any authority or analysis supporting her
assertion that monthly storage fees paid to house separate property during marriage
is an “unsecured liability” of Richard’s separate estate or that such storage did not
benefit the community as well. Consequently, she has not met her burden on her
reimbursement claim. See Tex. Fam. Code § 3.402(a)(1); Vallone, 644 S.W.2d at
459; Willmore, 2013 WL 2296187, at *3; see also Tex. R. App. P. 38.1(i); In re
S.A.H., 420 S.W.3d at 929. Moreover, as finder of fact, the trial court was free to
disbelieve Valerie’s testimony regarding payment for the storage unit and the
nature of the storage unit’s contents. See, e.g., Mays v. Pierce, 203 S.W.3d 564
578 n.20 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding trial court
was free to disbelieve witness’s testimony that remediation work had been
performed particularly where that testimony was the only evidence presented in
support of the contention).4 We overrule Valerie’s second issue.

                                    Property Payments

       In her third issue, Valerie asserts the trial court erred in refusing to grant her
a credit for the fact she continued to make the couples’ monthly land payments for
the Somervell County property during the 28-months that the divorce proceedings
were pending.      Valerie states that she is entitled to the offset “[b]ecause her
separate funds were used to benefit [Richard’s] separate estate,” again citing
Family Code section 3.402(a)(1). She does not, however, cite to any evidence
supporting her suggestions that either (1) she used her separate funds to make the


       4
           At the hearing on Valerie’s motion for new trial, the trial court treated Valerie’s
contentions regarding the storage unit as challenging the sufficiency of the evidence to support
the trial court’s ruling on this issue.

                                               8
payments, or (2) the payments benefitted Richard’s separate estate. In another
place in her brief, Valerie states that the payments came from “her individual
earnings.”     Although the record citation she provides does not support this
statement, even if it did, earnings during marriage, even during the pendency of
divorce proceedings, are community property. See, e.g., Williams v. Williams, 246
S.W.3d 207, 211 n.2 (Tex. App.—Houston [14th Dist.] 2007, no pet.). There was
also testimony from both Valerie and Richard establishing that the property on
which the payments were made was community property at the time the payments
were made. Valerie was not entitled to an offset “because community property
funds were used to pay community property expenses.”5 See Willmore, 2013 WL
2296187, at *3 (explaining that reimbursement is available when the debt of one
estate is paid with the funds or assets of another estate without receiving a benefit).
Consequently, we overrule Valerie’s third issue.

                                      Valerie’s Business

       In her fourth issue, Valerie contends the trial court erred in characterizing
her music instruction business, Valerie’s Music, as community property.6 She
insists that the record contains no testimony or evidence that Richard had or
claimed any interest in the business. She further states that the “business [was] not
mentioned in pretrial pleadings or at trial, but appears as if out of thin air” in
Richard’s proposed final decree and the final decree entered by the court.

       The business was actually mentioned several times in pretrial pleadings and


       5
         It is unclear from this record whether the trial court took Valerie’s payments into
account in making a just and right division of the community property.
       6
        As stated above, although the court characterized the business as community property, it
awarded all interests in the business to Valerie. Valerie’s concern appears to be that if the court
mischaracterized the business, it may have impacted the court’s division of the community
estate.

                                                9
orders as well as during trial. Valerie mentions it in her original petition, calling it
“her” business but not expressly representing it was her separate property. It is
also listed in a temporary restraining order and a subsequent agreed temporary
restraining order signed by the judge. Each of these orders gave Valerie exclusive
use of the business and restrained Richard from any use. Valerie also filed a sworn
inventory listing the business as her separate property, but it does not appear that
this inventory was introduced into evidence at trial. The business was further
mentioned at least twice during trial, once when Valerie discussed a studio on her
property that she described as “my business where I teach,” and additionally in
regards to a bank account in Valerie’s name “d/b/a Valerie’s Music.” Although the
business was certainly not discussed in detail at trial or in the pleadings, it did not
appear “as if out of thin air” in the judgment as Valerie suggests.

      Valerie is correct that the trial record contains no testimony or other
evidence that Richard had or claimed any interest in the business, but the record
also does not contain any evidence that the business was Valerie’s separate
property.     “Property possessed by either spouse during or on dissolution of
marriage is presumed to be community property.” Tex. Fam. Code § 3.003(a). A
party claiming certain property as her separate property must overcome the burden
of rebutting the community property presumption by tracing and clearly
identifying the property in question as separate by clear and convincing evidence.
Pearson v. Fillingim, 332 S.W.3d 361, 363-64 (Tex. 2011). Because Valerie failed
to present any evidence at trial regarding characterization of the music instruction
business, she did not overcome her burden of rebutting the community-property
presumption.       See id. (holding husband did not meet burden of overcoming
community-property presumption).7 Accordingly, the trial court did not err in

      7
          Valerie additionally points to evidence she filed in connection with her motion for new
                                               10
characterizing the business as community property.

       Having overruled each of Valerie’s appellate issues, we affirm the trial
court’s judgment.




                                             /s/    Martha Hill Jamison
                                                    Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.




trial as demonstrating that the business was her separate property. At the hearing on the motion
for new trial, however, the court clearly declined to reopen the case or consider any new
evidence but instead treated the evidentiary proceedings as closed. See generally Tex. R. Civ. P.
270 (“When it clearly appears to be necessary to the due administration of justice, the court may
permit additional evidence to be offered at any time . . . .”); Hammer v. Wood, No. 14-07-01081-
CV, 2009 WL 2589432, at *3 (Tex. App.—Houston [14th Dist.] Aug. 25, 2009, no pet.) (mem.
op.) (explaining appellate court would not consider evidence offered post-trial and post-rendition
of judgment where trial court did not permit reopening of evidence or grant a new trial based on
newly discovered evidence).

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