                            Fourth Court of Appeals
                                   San Antonio, Texas

                                          OPINION
                                      No. 04-11-00554-CV

                                     Martin E. ROBERTS,
                                           Appellant

                                                  v.

                                    Margaret D. ROBERTS,
                                           Appellee

                   From the 57th Judicial District Court, Bexar County, Texas
                                Trial Court No. 2009-CI-09297
                         Honorable Antonia Arteaga, Judge Presiding

              OPINION ON APPELLEE’S MOTION FOR EN BANC RECONSIDERATION

Opinion by:        Patricia O. Alvarez, Justice

Sitting en banc:   Catherine Stone, Chief Justice
                   Karen A. Angelini, Justice
                   Sandee Bryan Marion, Justice
                   Marialyn Barnard, Justice
                   Rebeca C. Martinez, Justice
                   Patricia O. Alvarez, Justice
                   Luz Elena D. Chapa, Justice

Delivered and Filed: May 1, 2013

AFFIRMED IN PART, REVERSED IN PART, REMANDED

       On the court’s own motion, we withdraw the panel opinion and judgment of December

19, 2012, and substitute this en banc opinion and judgment. Appellee’s motion for en banc

reconsideration is denied. See TEX. R. APP. P. 49.7.
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          Martin Roberts appeals from a divorce decree dissolving the marriage between Martin

and Margaret Roberts signed on July 15, 2011. On appeal, Martin complains of the trial court’s

award to Margaret of (1) reimbursement of separate property funds expended towards the

mortgage on the marital residence, and (2) spousal maintenance. Although both parents were

designated as joint managing conservators, Martin complains the divorce decree (1) violates the

Establishment Clause of the First Amendment to the United States Constitution by requiring him

to surrender the children to Margaret during his periods of possession so they may attend

religious instruction; and (2) violates the Equal Protection Clause of the Fourteenth Amendment

to the Constitution by imposing a morality clause solely against Martin on the basis of his

gender.

                                         BACKGROUND

          Martin and Margaret married on March 8, 1997, and had two children together. Martin

worked as a civilian for the U.S. Army and was also in the Navy Reserves. It is undisputed that

for several years prior to separation, Martin’s income was the family’s sole source of income.

          Martin filed for divorce in 2009. The case went to trial before a jury in 2011 on a

geographical restriction sought by Martin that is not at issue in this appeal. The trial court heard

the remaining non-jury issues including possession of and access to the children, characterization

and division of property, and spousal maintenance. Pertinent to this appeal, the trial court

ordered a disproportionate division of the marital estate and confirmed Margaret’s separate

property reimbursement claim in the amount of $41,000, represented by equity in the marital

residence that was awarded to Margaret. At the time of divorce, the marital residence was

valued at $140,000 and unencumbered by a mortgage. The trial court ordered Martin to pay

spousal maintenance in the amount of $1,550 per month for thirty-six months and $1,000 per



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month for an indefinite period thereafter. Although Martin requested findings of fact and filed a

notice of past due filings, the trial court issued none. 1

                   CHARACTERIZATION OF SEPARATE PROPERTY AND REIMBURSEMENT

            In his first point of error, Martin challenges the legal sufficiency of the evidence to

support Margaret’s reimbursement award. Specifically, he asserts Margaret did not sufficiently

trace her allegedly separate property, and therefore did not overcome the presumption of

community property. In other words, Martin complains the trial court abused its discretion when

it confirmed $41,000 as reimbursement to Margaret’s separate property estate.

A.          Standard of Review

            Martin complains there is no evidence to support Margaret’s separate property

reimbursement claim. Trial courts are afforded broad discretion in dividing marital property

upon divorce, and absent an abuse of discretion we will not disturb the property division. Padon

v. Padon, 670 S.W.2d 354, 358 (Tex. App.—San Antonio 1984, no writ); Moroch v. Collins, 174

S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). A trial court abuses its discretion

“when it acts arbitrarily or unreasonably, or without any reference to guiding rules and

principles.” Tellez v. Tellez, 345 S.W.3d 689, 690 (Tex. App.—Dallas 2011, 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.” Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San

Antonio 2006, no pet.). Legal sufficiency is a relevant factor in our assessment of whether the

trial court abused its discretion, but it does not constitute an independent ground of reversible

error. Id.

            When, as in this case, the trial court does not issue findings of fact and conclusions of

law, we must presume “the trial court made all the findings necessary to support its judgment.”
1
    Martin did raise the failure of the trial court to issue findings of fact.

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Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the evidence supports the trial court’s

implied findings, “we must uphold the judgment on any theory of law applicable to the case.”

Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso 2005, no pet.).

B.      Reimbursement

        A claim for reimbursement is an equitable claim arising upon dissolution of a marriage

when funds from one marital estate have been expended to benefit another marital estate. See id.

at 650; Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). A spouse seeking reimbursement

must establish that the contribution was made by one marital estate to another, that the

contribution was reimbursable, and the value of the contribution. See Vallone, 664 S.W.2d at

457–59. In our review of the trial court’s actions, we presume the trial court properly exercised

its discretion. Id. at 460.

C.      Characterization

        The character of marital property is determined by the inception of title rule. TEX. FAM.

CODE ANN. § 3.006 (West 2011). Separate property includes property owned by a spouse before

marriage and acquired by a spouse during marriage by gift, devise, or descent. Id. § 3.001; TEX.

CONST. art. XVI, § 15. Community property is property acquired by either spouse during the

marriage that is not separate property. TEX. FAM. CODE ANN. § 3.002. On dissolution of a

marriage, all property possessed by either spouse is presumed to be community property. Id.

§ 3.003(a). To overcome this presumption, a spouse must generally trace and identify, by clear

and convincing evidence, the property it claims is separate property. Bahr v. Kohr, 980 S.W.2d

723, 728 (Tex. App.—San Antonio 1998, no pet.); TEX. FAM. CODE ANN. § 3.003(b). “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



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S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.). The clear and convincing evidence

standard is generally “not satisfied by testimony that property . . . is separate property when that

testimony is contradicted or unsupported by documentary evidence tracing the asserted separate

nature of the property.” Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th

Dist.] 2010, pet. denied).

       We recognize the trial court’s mischaracterization of property upon dissolution of a

marriage is not an automatic ground for reversal. See Garza, 217 S.W.3d at 549. The trial court

abuses its discretion, and reversal is warranted, only when the error materially affects the just

and right division of the community estate. See id. A de minimis effect does not require

reversal. Id.

D.     Analysis

       Because a reimbursement claim may arise when separate property is used to pay a

community debt, we begin our analysis by determining whether there is some evidence to

support the trial court’s implied finding that $41,000 constituted Margaret’s separate property.

See Vallone, 644 S.W.2d at 459.

       1.       Characterization of Property as Separate Property

       At the dissolution of the marriage, all of Martin and Margaret’s property was presumed to

be community property. See TEX. FAM. CODE ANN. § 3.003(a). To rebut this presumption,

Margaret was required to prove the separate character of the various funds she claimed to be her

separate funds by clear and convincing evidence. See id. § 3.003(b); Graves, 329 S.W.3d at 139.

It appears the trial court arrived at $41,000 by considering the following funds: $9,000 Margaret

received as a bequest from her aunt during the marriage, $20,000 in two certificates of deposit

(CDs), $10,000 in a savings account, and $2,000 in a brokerage account that Margaret owned



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prior to the marriage. 2 With regard to the $9,000, Margaret introduced a photocopy of the check

and a letter from her father describing the bequest. As to the remaining accounts, Margaret

testified that they constituted her separate property. She produced statements of account for two

share certificate/IRA accounts she claimed as her separate CDs.                   She introduced no other

documentary evidence tracing the separate origin of the funds in these accounts.

        Margaret’s testimony and documentary evidence in the form of a photocopy of the check

and a letter from her father sufficiently traced the separate nature of the $9,000.                       These

documents established the separate origin of the funds by showing the time and means by which

Margaret originally obtained possession of them. See Boyd, 131 S.W.3d at 612. The statements

of account for the two CDs reflected account balances during the marriage. Thus, the documents

failed to establish the separate origin of the funds because they did not show the time and means

by which Margaret originally obtained possession of them. See id. Although Margaret testified

she came into the marriage with the CDs, her testimony was contradicted by Martin’s testimony

that the CDs were created by monies obtained during the marriage. 3 See Graves, 329 S.W.3d at

139.    Because Margaret’s testimony was contradicted and “unsupported by documentary

evidence tracing the asserted separate nature of the property,” it was insufficient to trace the

separate origin of the CDs. See id. As to the remaining accounts, Margaret introduced no

documentary evidence establishing their separate nature. Therefore, Margaret did not clearly and

convincingly establish the separate nature of the funds in the CDs, and savings and brokerage

accounts, and thus failed to overcome the presumption of community property. See id.



2
  The record on appeal is unclear as to exactly what comprised the $41,000 that Margaret claims is her separate
property. In oral argument, Margaret’s counsel could not identify the specific separate property components that
formed the basis of the reimbursement award.
3
  Margaret’s testimony was also inconsistent as to the amounts in the certificate of deposit accounts. At various
points in the record, Margaret agreed that the CDs contained $20,000. However, the court asked if both accounts
contained $10,000. Margaret responded “No. No. One is $18,378.55. The other is $16,311.39.”

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       Having determined that Margaret established the $9,000 was her separate property, we

next examine whether the trial court’s error in characterizing the property is of the magnitude to

require reversal. See Garza, 217 S.W.3d at 549.

       2.      Harm Analysis

       Martin argues that the mischaracterization of $41,000 as separate property resulted in an

80/20 division of property, instead of the 60/40 division represented in the court’s order, which

requires reversal. We have held that $32,000 of the $41,000 was improperly characterized, and

thus look to see if that affected the just and right division of the community estate.

       The marital residence, valued at $140,000 and unencumbered by a mortgage, formed the

bulk of the marital estate. According to the assets inventoried in the decree and the values set

forth in the record, the marital estate contained assets worth approximately $225,000 and

community debts totaling approximately $58,000—bringing the total value of the marital estate

to roughly $167,000. Thus, $32,000 represents nearly 20% of the overall estate.

       Therefore, we conclude that the mischaracterization of $32,000 had more than a de

minimis effect on the trial court’s just and right division of marital property. See Monroe v.

Monroe, 358 S.W.3d 711, 718–19 (Tex. App.—San Antonio, pet. denied) (holding that a

mischaracterization of property constituting less than 2% of the value of the entire estate had

only a de minimis effect on the just and right division of the estate); McElwee v. McElwee, 911

S.W.2d 182 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (concluding that a

mischaracterization of property valued at $45,000, and that resulted in a 64/36 division of

property instead of the 61/39 division intended by the court, had more than a de minimis effect).

Accordingly, we remand the cause for a just and right division. See Jacobs v. Jacobs, 687

S.W.2d 731, 733 (Tex. 1985). Because the case is being remanded for a just and right division,



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we do not reach the issue of whether the trial court abused its discretion in ordering

reimbursement from the community estate.

                                        SPOUSAL MAINTENANCE

        In his second, third, and fourth points of error, Martin challenges the trial court’s award

of spousal maintenance. 4 Specifically, Martin contends the trial court abused its discretion by

awarding maintenance because Margaret failed to rebut the presumption against spousal

maintenance. He further asserts that the court failed to make a finding that Margaret suffered

from a debilitating mental or physical disability, which is required for an award of spousal

maintenance for an indefinite term.

        Section 8.052 of the Texas Family Code states that once a trial court determines a spouse

is eligible to receive spousal maintenance, it “shall determine the nature, amount, duration, and

manner of periodic payments by considering all relevant factors, including: (1) each spouse’s

ability to provide for that spouse’s minimum reasonable needs independently, considering that

spouse’s financial resources on dissolution of the marriage.” TEX. FAM. CODE ANN. § 8.052(1).

        Because the trial court cannot make a proper maintenance determination without

considering the financial resources of each spouse upon dissolution of the marriage, and we are

remanding the cause for a just and right division of the marital estate—which will affect the

parties’ financial resources—we reverse the portion of the trial court’s order awarding spousal

maintenance. Therefore, we do not address Martin’s points of error pertaining to the spousal

maintenance awards.




4
 At trial, when asked whether he was opposed to paying Margaret spousal maintenance, Martin replied that he was
not opposed to paying maintenance, but that he was opposed to paying maintenance for more than three years.

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                                 RELIGIOUS INSTRUCTION CLAUSE

       Martin contends the trial court violated the Establishment Clause of the First Amendment

to the United States Constitution, which provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof,” by granting Margaret the right

to take the children to religious education on Sunday mornings during weekends when Martin

otherwise has possession of the children. See U.S. CONST. amend. I. Under the decree, Margaret

may “pick up the children no earlier than 30 minutes before the religious education begins and

shall return the children to Martin . . . no later than 30 minutes after the religious education

ends.” Martin asserts the decree favors Margaret’s religious beliefs over his, thus violating the

Constitution.

A.     Standard of Review

       The primary consideration in determining managing conservatorship, possession, and

support of and access to a child is what is in the best interest of the child. TEX. FAM. CODE ANN.

§ 153.002.      “[B]ecause the trial court is in the best position to observe the demeanor and

personalities of the witnesses and can feel forces, powers, and influences that cannot be

discerned by merely reading the record,” the trial court has broad discretion in determining what

is in the child’s best interest. E.C., Jr., ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex.

App.—Corpus Christi 2000, no pet.). This determination will be reversed only if the trial court

abused its discretion. See id.

B.     Analysis

       The final divorce decree provides that both parents, as joint managing conservators, have

the right to direct the children’s moral and religious training during their times of possession. It

also contains a “Religious Education” clause that gives Margaret the right to pick the children up

from Martin on Sunday mornings during weekends that he otherwise has possession to take the

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children to religious classes.   The clause further provides that on those Sundays, Martin’s

possession extends to 9:00 p.m. Martin contends this clause favors Margaret’s religious beliefs

by allowing Margaret to take the children to religious education during his times of possession.

        Martin relies on Rosenstein v. Rosenstein to support his position.          Rosenstein v.

Rosenstein, 2011 WL 3546592, at *1 (Tex. App.—Fort Worth, Aug. 11, 2011) (mem. op.).

Rosenstein involved the dissolution of a marriage and the possession order for the couple’s two

children. Id. The children’s mother claimed the trial court abused its discretion and violated the

Establishment Clause by awarding the children’s father holiday possession based upon his

Jewish religion. Id. at *8. The possession order granted the father possession of the children on

Wednesday evenings and Sunday mornings from 8:30 a.m. to 1:00 p.m. so that he could take

them to religious classes. Id. at *12–13. The order’s “Provisions for Jewish Religious Holidays”

provided that “[t]o the extent Jewish Religious Holidays conflict in any manner with other

holidays or possession orders addressed herein, the following Jewish Religious Holiday

possession order prevails.” Id. This order gave the father exclusive periods of possession on the

Jewish religious holidays of Rosh Hashanah, Yom Kippur, Hanukkah, and Passover. Id. at *13.

The court noted that Christmas and Hanukkah celebrations, as well as Passover and Easter, often

overlap, and held that the possession order violated the mother’s rights under the Establishment

Clause “[g]iven the total absence of evidence that [the mother’s] religious preferences or

preferences for no religion are illegal or immoral or otherwise present a danger to the children.”

Id. at *14.

        The current case is distinguishable from Rosenstein. In Rosenstein, other than Easter and

Christmas, the mother was given “no Sunday mornings, no Wednesday nights, and less than fifty

percent of Sunday afternoons and nights, and all her periods of possession are subject to [the



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father’s] superior right of possession during four Jewish holidays, the extent of which [was] not

made clear in the decree.” Id. Thus, unlike the decree in Rosenstein, which deprived the mother

of significant periods of possession, ultimately favoring the father’s religious schedule over the

mother’s visitation times, the decree between Martin and Margaret does not favor either spouse’s

religious preference or preference for no religion, and gives Martin additional time to

compensate for the periods when the children attend their religious classes.

        Just as the court has discretion to mold the decree to accommodate activities such as

soccer games and music lessons if it finds them in the child’s best interest, it may accommodate

a parent’s desire for the children’s religious education, provided that it does not favor one

parent’s religion over another or over a preference for no religion. Martin has not directed us to,

nor have we located, any evidence in the record that the court’s decreed visitation schedule,

accommodating, inter alia, the children’s current religious education, in any way favors

Margaret’s religion. Both parents are given the right to direct the children’s religious education.

Martin has additional time on Sundays to compensate for the time the children spend in religious

studies on Sundays during his possession period. Therefore, the court did not abuse its discretion

in crafting this visitation schedule and did not run afoul of the Constitution. Accordingly, we

affirm the trial court’s inclusion of the religious instruction clause.

                                         MORALITY CLAUSE

        Martin contends the trial court violated the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution by imposing a morality clause on the basis of

gender. The divorce decree contains a “Morality Clause” in which the court orders that “no

unrelated adult with whom Martin E. Roberts has a romantic relationship with shall be present in

his home during the hours of 8:00 p.m. and 8:00 a.m. while he is in possession of the children.”



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       The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. At its core, it

guarantees the equal treatment of similarly situated parties. City of Cleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985). “Because the Amendment is directed at the States, it can

be violated only by conduct that may be fairly characterized as ‘state action.’”           Lugar v.

Edmondson Oil Co., 457 U.S. 922, 924 (1982). A party asserting an equal protection claim must

establish that: “(1) the party was treated differently than other similarly situated parties; and (2)

the party was treated differently without a rational basis by the government.” Downs v. State,

244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d).

       Trial courts possess broad discretion “in fashioning restrictions on a parent’s possession

and access that are in the best interest of the children.” Moreno v. Perez, 363 S.W.3d 725, 739

(Tex. App.—Houston [1st Dist.] 2011, no pet.).           Texas Rule of Appellate Procedure 38.1

provides that the appellant’s brief “must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(h). If the

appellant contends the trial court abused its discretion, it is his burden to demonstrate in what

manner the trial court acted arbitrary or unreasonably. In re A.J.G., 131 S.W.3d 687, 691 (Tex.

App.—Corpus Christi 2004, pet. denied).

       The entirety of Martin’s “argument” on this point of error is that imposing a morality

clause on him without imposing the same on Margaret violates the Equal Protection Clause.

Martin does not inform us and we cannot discern how the Equal Protection Clause is implicated.

Because Martin fails to provide a clear and concise argument on this point of error and cites no

authority to support his argument that the trial court’s inclusion of a morality clause violated his




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equal protection rights, Martin has waived his challenge on this ground. See id. at 691–92; TEX.

R. APP. P. 38.1(h).

                                            CONCLUSION

       We reverse the portions of the trial court’s order confirming and ordering reimbursement

for $41,000 of Margaret’s separate property and ordering spousal maintenance, and remand the

cause for a just and right division and a proper spousal maintenance determination. We affirm

the remainder of the trial court’s order.


                                                  Patricia O. Alvarez, Justice




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