                                      NO. 07-06-0106-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                    MARCH 19, 2008
                            ______________________________

                          IN THE MATTER OF THE MARRIAGE OF

                     PAULA BETH LANG AND RONALD TERRY LANG
                        _________________________________

              FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 55,695-C; HONORABLE PATRICK PIRTLE, JUDGE
                          _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                  MEMORANDUM OPINION


       Appellant Ronald Terry Lang appeals the trial court’s judgment in his divorce from

appellee Paula Beth Lang. Via his sole point of error, Ronald1 challenges the trial court’s

property award in two respects. Finding no error, we affirm the trial court’s judgment.


                                          Background


       There were no children of the marriage. The parties were married in December

2000 and ceased living together as husband and wife in February 2005. Paula filed a



       1
           For clarity and convenience, we will refer to the parties by their first names.
petition for divorce later that month. Pretrial efforts to reach agreement on confirmation of

the parties’ separate property and division of the community property proved unsuccessful,

and those issues were submitted to the court. After a hearing in November 2005, the trial

court entered the judgment from which Ronald appeals.


       Both parties testified at the hearing. With respect to the engagement ring, their

testimony was in agreement that, on the evening they separated, Paula removed her

engagement ring from her finger, and Ronald took off his wedding ring. The testimony was

consistent also that Ronald had the engagement ring in his possession after that evening.

Otherwise, however, their testimony about the removal and exchange of rings differed

significantly. Paula testified the rings changed hands during a conversation that became

angry. She said:


       And he took his wedding ring off and basically threw it on - - threw it on the coffee

table and said “You’re right2 and I want you out of my house.”


       And I said, “That’s it? We’re done?”


       And he said, “Yeah, and I want my ring, too.”


       And I said, “Okay, whatever,” because at that moment, I just - - I couldn’t believe

that he was asking me to leave.”




       2
        An apparent response to her statement that neither of them was happy in the
marriage and “we need to do something.”

                                              2
       She was later asked, “When you gave him back that . . . ring, were you intending

to give that back to him as a gift?” She responded in the negative and added, “It was given

in anger. I mean, he threw his at me . . . .” Paula agreed with her lawyer that the two were

“flinging rings at each other[.]”


       Ronald described the ring exchange as a calmer scene. He said after Paula told

him she wanted a divorce, “I took my ring off, placed it on the coffee table. She took her

ring off and placed it on the coffee table. There was no throwing or any of that such. It was

civil. It was not an emotional outburst.” He said when Paula left the house, she took his

wedding ring with her.


       Under cross-examination, Ronald twice summarized his view of the exchange. He

testified, “We agreed to get divorced. We gave each other’s rings back to each other. That

was all that was said.” He later said, “I took my ring off and I said, ‘Here’s your ring back.’

I put it on the table. She took hers off and put it on the table and said, ‘Here’s your ring

back. We’re getting divorced.’”


       Paula testified she later asked for the return of her engagement ring, but Ronald

refused.


       At trial, each party testified concerning the community property and the party’s

preferred division of it. At the conclusion of trial, the court announced its division of the

marital property. It awarded the engagement ring to Paula, and declined to recognize a

reimbursement claim in favor of the community based on payment during the marriage of



                                              3
debt Paula incurred before the marriage. It later signed a judgment to the same effect.

Ronald’s issue on appeal complains of those two aspects of the property division.


                                          Analysis


Engagement Ring


       Ronald bases his objection to the trial court’s award of Paula’s engagement ring to

her on the contention she made a completed gift of the ring to Ronald when she returned

it to him on the night they separated. Ronald bore the burden at trial of proving the

occurrence of the gift. Powell v. Powell, 822 S.W.2d 181, 183 (Tex.App.–Houston [1st

Dist.] 1992, writ denied); Forbes v. Forbes, 430 S.W.2d 947, 948 (Tex.Civ.App.–Amarillo

1968, no writ). No findings of fact were made or requested. Thus, it is implied that the trial

court made all findings necessary to support its judgment. Roberson v. Robinson, 768

S.W.2d 280, 281 (Tex. 1989) (per curiam).


       We will review Ronald’s complaint on appeal as a challenge to the legal and factual

sufficiency of the evidence supporting the court’s implied adverse finding on the issue on

which Ronald bore the burden of proof. To prevail in a legal sufficiency challenge on

appeal, Ronald must show the evidence establishes, as a matter of law, all vital facts in

support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per

curiam). For a successful factual sufficiency challenge, Ronald must demonstrate the

adverse finding is against the great weight and preponderance of the evidence. Id.




                                              4
       The law requires three elements to establish the existence of a gift: (1) intent to

make a gift; (2) delivery of the property, and (3) acceptance of the property. Powell, 822

S.W.2d at 183; accord, In re Marriage of Royal, 107 S.W.3d 846 (Tex.App.–Amarillo 2003,

no pet.). The donative intent is to be evaluated at the time of the delivery of the property.

See Rusk v. Rusk, 5 S.W.3d 299, 303 (Tex.App.–Houston [14th Dist.] 1999, pet. denied),

citing Ellebracht v. Ellebracht, 735 S.W.2d 658, 659 (Tex.App.–Austin 1987, no writ)

(noting donative intent of the grantor at the time of the conveyance as a “controlling factor”

in proof of a gift). At the trial of the divorce action to the bench, it was the role of the trial

court, not this appellate court, to pass on the weight and credibility of the parties’ testimony

and to resolve conflicts in the evidence. See Zagorski v. Zagorski, 116 S.W.3d 309, 318

(Tex.App.–Houston [14th Dist.] 2003, pet. denied) (citing, inter alia, Bailey v. Bailey, 295

S.W.2d 438, 439 (Tex.Civ.App.–Amarillo 1956, no writ)).


       Among the “vital facts,” Dow Chem., 46 S.W.3d at 241, Ronald must show as a

matter of law that Paula’s delivery of her engagement ring to him was accompanied by the

intent to make a gift. By Paula’s testimony, she returned the ring to Ronald “in anger,” after

he “threw his [ring] at me,” and in the course of a conversation in which he told her he

wanted her out of his house that night. She denied she intended to make him a gift of the

ring. This testimony, which supports the trial court’s adverse finding on Ronald’s issue,

requires that we reject his legal sufficiency challenge to the evidence. Dow Chem., 46

S.W.3d at 241. The only evidence bearing on the issue was the parties’ testimony.

Considering and weighing all the evidence, we cannot say the adverse finding is supported

by evidence so weak or is so against the great weight and preponderance of the evidence


                                                5
that it is clearly wrong and unjust. Id. Accordingly, we conclude also that factually

sufficient evidence supports the trial court’s failure to find Paula made a gift of the ring to

Ronald.3


Ronald’s Reimbursement Requests


       Ronald also contends the trial court abused its discretion by denying his request for

reimbursement to the community estate for debts that Paula owed at the time of the

marriage and were paid with community funds. Paula testified that at the time of the

marriage, she owed a $7000 credit card debt, and a $30,000 bank debt from a failed

business. It is undisputed both debts were paid during the marriage. Ronald argues the

court’s failure to require reimbursement to the community estate caused an inequitably

disproportionate division of the community, thus demonstrating the court abused its

discretion in the property division. We cannot agree.


       Here again, it is implied in this case that the trial court made all the necessary

findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

A judgment based on implied findings that are supported by sufficient evidence is to be

affirmed on any applicable theory of law. See Point Lookout West, Inc. v. Whorton, 742

S.W. 2d 277, 278 (Tex. 1987).




       3
        Paula also cites § 3.003(b) of the Family Code, contending that Ronald must
support his position with clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b)
(Vernon 1997). We do not find it necessary to reach this contention.

                                              6
       The Family Code requires the court, in a divorce, to order a division of the estate of

the parties in a manner that the court deems just and right, having due regard for the rights

of each party. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The phrase “estate of the

parties” there means the parties’ community property. Wilson v. Wilson, 44 S.W.3d 597,

600 (Tex.App.–Fort Worth 2001, no pet.), citing Cameron v. Cameron, 641 S.W.2d 210,

214-15 (Tex. 1982). The trial court has broad discretion in dividing the community estate

of the parties. Powell, 822 S.W.2d at 184. The “just and right” division of the community

estate need not be equal. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998);

Forgason v. Forgason, 911 S.W.2d 893, 896 (Tex.App.–Amarillo 1995, writ denied). “In

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

the trial court exercised its discretion properly.” Murff v. Murff, 615 S.W.2d 696, 698 (Tex.

1981) (citation omitted). Its decision will not be disturbed unless a clear abuse of that

discretion is shown. Murff, 615 S.W.2d at 698; Marriage of Royal, 107 S.W.3d at 849.

When determining whether the court has abused its discretion, we must view the evidence

in the light most favorable to the trial court’s actions and indulge in every legal presumption

in favor of the judgment. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.–San Antonio

1995, writ denied).


       Sections 3.408 and 3.409 of the Family Code address claims for reimbursement.

Tex. Fam. Code Ann. § 3.408 (Vernon Supp. 2007); Tex. Fam. Code Ann. § 3.409 (Vernon

2006). The Family Code also provides that in a divorce decree, the court is to determine

the rights of both spouses in a claim for reimbursement as provided by Subchapter E,




                                              7
Chapter 3 of the Code,4 and is to apply equitable principles to determine whether to

recognize the claim after taking into account all the relative circumstances of the spouses,

and order a division of the claim, if appropriate, in the manner that the court considers just

and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.007

(Vernon 2006).


       In response to Ronald’s contention, Paula argues the record does not enable

Ronald to sustain his burden of demonstrating an abuse of discretion in the division of the

community estate. She notes the record does not contain evidence showing the values

of the entire community estate or the values of all the property awarded to each party. We

must agree, and find that when the evidence is viewed in the light most favorable to the

trial court’s judgment, Ronald cannot demonstrate that its division of the property was

inequitably disproportionate.


       Moreover, assuming the existence of a reimbursement claim in favor of the

community arising from the payment of Paula’s pre-marriage debt does not show the court

abused its discretion in the property division. Paula’s testimony about the debt included

the following: “I did have a lot of debt that I had two choices: I could have filed bankruptcy

or [sic] I chose to work three jobs and pay it off as I could. And that’s what I did.” If it had

recognized a reimbursement claim in favor of the community, the court could have relied

on Paula’s uncontradicted testimony that she worked three jobs to pay the debt as reason




       4
           Tex. Fam. Code Ann. § 3.401, et seq. (Vernon 2006 and Supp. 2007).

                                               8
to allocate a disproportionate amount of the reimbursement claim to her. See Tex. Fam.

Code Ann. § 7.007(b)(2) (Vernon 2006).


      We overrule Ronald’s appellate issue, and affirm the trial court’s judgment.




                                               James T. Campbell
                                                   Justice




                                           9
