AFFIRMED as Modified; Opinion Filed April 14, 2015.




                                          S  In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00872-CV

                          HENRY PHILIP CASTILLON, Appellant
                                        V.
                          MICHELLE MISSY MORGAN, Appellee

                      On Appeal from the 219th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 219-54113-2010

                             MEMORANDUM OPINION
                 Before Chief Justice Wright, Justice Myers, and Justice Evans
                                   Opinion by Justice Myers
       Henry Philip Castillon appeals from the trial court’s division of the parties’ estate in this

suit for dissolution of his marriage with Michelle Missy Morgan. Castillon brings three issues

contending the trial court erred by (1) finding the parties had an informal marriage before their

formal marriage; (2) characterizing certain property as community property instead of Castillon’s

separate property; and (3) failing to include Castillon’s recovery of $3,917 in tax payments in the

final decree. We modify the trial court’s judgment to delete the finding of informal marriage,

and we affirm the judgment as modified.

                                       PRO SE PARTIES

       Castillon is pro se before this Court. We liberally construe pro se pleadings and briefs.

Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). However,

we hold pro se litigants to the same standards as licensed attorneys and require them to comply
with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184–85 (Tex. 1978); Washington, 362 S.W.3d at 854. To do otherwise would give a pro se

litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel

Serv., 4 S.W.3d 46, 53 (Tex. App.—San Antonio 1999, pet. denied).

                                        BACKGROUND

       Before April 2006, the parties were living together, jointly owned a house, and had a

child, but they were not married. According to Morgan, the parties agreed in April 2006 to be

married. On April 23, 2006, Castillon signed a purchase agreement for a house. Included in the

purchase agreement was a “Homebuyer Information Sheet,” which Castillon filled in stating his

“Spouses [sic] Full Name” was “Missy Morgan.” Castillon testified they never had an informal

marriage and that he wrote Morgan’s name on the Homebuyer Information Sheet because they

were engaged at the time and had “the intention of being married and to share—share the home

together.” The parties had a formal marriage ceremony on August 25, 2007.

       In 2010, Morgan filed a petition for divorce, and Castillon later filed a counterpetition.

The parties agreed to the division of property for most items, but they could not reach an

agreement concerning the characterization or division of the house and of certain financial

accounts in Castillon’s name. In a trial before the court, Castillon testified that the house and the

financial accounts were his separate property. Morgan testified Castillon had contributed to the

accounts during the marriage. In a written summary of her testimony of the relief she requested,

which the trial court admitted as an exhibit, Morgan stated the accounts were community

property. The trial court determined that the parties had an informal marriage before their formal

marriage. The court divided the retirement and stock funds equally between the parties.




                                                –2–
                                                  STANDARD OF REVIEW

          An appellate court reviews a trial court’s division of the community estate under an abuse

of discretion standard. Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no

pet.). The trial court is afforded broad discretion in dividing the community estate, and an

appellate court must indulge every reasonable presumption in favor of the trial court’s proper

exercise of its discretion. Id. A trial court does not abuse its discretion if there is some evidence

of a substantive and probative character to support the decision. Id. A trial court abuses its

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

principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). To determine whether the trial court

abused its discretion, an appellate court considers whether the trial court: (1) had sufficient

evidence upon which to exercise its discretion; and (2) erred in its exercise of that discretion.

Reisler, 439 S.W.3d at 619. When deciding whether the trial court abused its discretion, the

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

constitute factors relevant to an appellate court’s assessment of whether the trial court abused its

discretion. Id.

          The parties did not timely request findings of fact and conclusions of law, 1 and the trial

court did not make findings of fact and conclusions of law. When no findings of fact and

conclusions of law were timely requested or filed, it is implied that the trial court made all

findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990) (per curiam); Beck v. Walker, 154 S.W.3d 895, 902 (Tex. App.—Dallas 2005, no pet.).




     1
        A party must request findings of fact and conclusions of law within twenty days after the judgment is signed. TEX. FAM. CODE ANN. §
6.711 (West 2006); TEX. R. CIV. P. 296. In this case, the trial court signed the judgment on May 26, 2013. The twentieth day after May 26, 2013
was June 15, 2013, which was a Saturday. Therefore, Castillon’s request was due the following Monday, June 17, 2013. See TEX. R. CIV. P. 4.
Castillon filed his request on June 18, 2013, which was not timely. Therefore the trial court was not required to make findings of fact and
conclusions of law. See Williams v. Kaufman, 275 S.W.3d 637, 642 (Tex. App.—Beaumont 2009, pet. denied).



                                                                    –3–
The judgment will be upheld on any legal theory that finds support in the evidence. Niskar v.

Niskar, 136 S.W.3d 749, 754 (Tex. App.—Dallas 2004, no pet.).

       We review the implied findings of fact for legal and factual sufficiency, and we review

the trial court’s implied legal conclusions de novo. In re M.P.B., 257 S.W.3d 804, 808 (Tex.

App.—Dallas 2008, no pet.). When addressing a legal sufficiency challenge, we view the

evidence in the light most favorable to the challenged finding, crediting favorable evidence if a

reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a

scintilla of evidence is legally sufficient to support the finding, but evidence that amounts to no

more than a scintilla is legally insufficient to support a finding. Wilson, 168 S.W.3d at 813;

Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.

1998). “More than a scintilla of evidence exists when the evidence rises to a level that would

enable reasonable, fair-minded persons to differ in their conclusions.” King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is ‘so

weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see also Wilson, 168 S.W.3d at 813

(“evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would have to

guess whether a vital fact exists.”). In a factual sufficiency review, we view all the evidence in a

neutral light and set aside the finding only if the finding is so contrary to the overwhelming

weight of the evidence such that the finding is clearly wrong and unjust. Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986) (per curiam); Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838,

842 (Tex. App.—Dallas 2011, no pet.).




                                                –4–
       In a divorce decree, the trial court shall order a division of the parties’ estate in a manner

that the trial court deems just and right, having due regard for the rights of each party. TEX.

FAM. CODE ANN. § 7.001 (West 2006). The property division need not be equal, and the trial

court may consider many factors when exercising its broad discretion to divide the community

estate. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); Reisler, 439 S.W.3d at 620. The party

complaining of the trial court’s division of the property has the burden of showing from the

evidence in the record that the trial court’s division of the community estate was so unjust and

unfair as to constitute an abuse of discretion. Reisler, 439 S.W.3d at 620–21.

                                   INFORMAL MARRIAGE

       In his first issue, Castillon contends the trial court erred by finding in the judgment that

“the parties were informally married prior to their formal marriage on August 25, 2007.”

Castillon asks that we correct the judgment.

       Section 2.401 of the family code provides that a party may prove an informal marriage

“by evidence that . . . the man and woman agreed to be married and after the agreement they

lived together in this state as husband and wife and there represented to others that they were

married.” TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). Whether an informal marriage

exists is a question of fact, and the party seeking to establish the existence of the marriage has

the burden of proving the three elements of an informal marriage. Nguyen v. Nguyen, 355

S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

       Castillon asserts the evidence was legally insufficient to support the trial court’s

determination that the parties held themselves out to others as married. The element of the

couple holding themselves out as married requires more than occasional references to each other

as “wife” and “husband.” Smith v. Deneve, 285 S.W.3d 904, 910 (Tex. App.—Dallas 2009, no

pet.). “The couple’s reputation in the community as being married is a significant factor in


                                                –5–
determining the holding out element.” Id. (quoting Danna v. Danna, No. 05-05-00472-CV, 2006

WL 785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem op.)).

       In this case, Morgan testified the couple held itself out to others as married in 2006

because their joint car insurance showed she was his spouse, and some life insurance policies

listed her as the spouse. She also testified, “We represented ourselves as married,” but she did

not state to whom or how frequently they made the representation. The record contains evidence

indicating the parties were not informally married, including evidence that before their formal

marriage, Morgan used her maiden name, she did not have or wear a wedding ring, she received

an engagement ring in February 2007 (ten months after they supposedly entered into an informal

marriage), and she filed her taxes as a single person in 2006 and 2007. Castillon’s sister testified

she never saw them introduce themselves as married before their formal marriage, but she stated

she saw them only a couple of times a year. Castillon testified he wrote Morgan’s name as his

spouse on the Homebuyer Information Sheet because he had “the intention of being married and

to share—share the home together.”

       In Smith v. Deneve, we concluded there was no more than a scintilla of evidence of the

element of the couple representing to others that they were married when the evidence showed

the woman accepted a ring, they introduced each other as husband and wife and they did not

object when others introduced them as husband and wife (but the record did not show whether

these introductions were common or rare), and they were listed as husband and wife on certain

contracts. Smith, 285 S.W.3d at 909–10. The parties did not present any evidence that they had

a reputation in the community for being married. Id. We stated, “It would be sheer speculation

for us to infer from Smith’s evidence that he and Deneve sufficiently held themselves out to the

community as married to satisfy the third element.” Id.




                                                –6–
       In this case, Morgan did not wear a wedding ring. She testified that she and Castillon

“represented ourselves as married,” but she presented no evidence of the frequency of this

representation. She testified that they were listed as husband and wife on life and auto insurance

policies, and the record shows Castillon listed her as his spouse on the Homebuyer Information

Sheet. However, there was no evidence that anyone in the community saw the insurance forms

or the Homebuyer Information Sheet. Morgan presented no evidence of their reputation in the

community for being married.

       Following our decision in Smith, we must conclude there was not more than a scintilla of

evidence that Morgan and Castillon had an informal marriage. See id. at 909–10; see also Danna

v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1–2 (Tex. App.—Dallas Mar. 29, 2006,

no pet.) (no more than a scintilla of evidence of informal marriage when evidence showed couple

introduced themselves as married four times in two years, man gave woman a Valentine card that

read “For My Wife,” and AARP form listed woman as wife). Accordingly, the evidence was

legally insufficient, and the trial court erred by finding the parties were informally married

before their formal marriage on August 25, 2007. We sustain Castillon’s first issue.

                                   FINANCIAL ACCOUNTS

       In his second issue, Castillon contends the trial court erred by characterizing as

community property the stock and retirement accounts in his name. Castillon asserted the

investments in those accounts were made before the parties married and that they were entirely

his separate property.    Castillon offered the account statements prepared by the financial

institutions into evidence to prove the value of the accounts at the time of the marriage and the

time of the trial, but Morgan objected to the account statements as hearsay, and the trial court

sustained the objection. Castillon then testified to the accounts’ value on the date of their formal

marriage and at the time of the trial. Castillon asserted the entire amounts in the accounts were


                                                –7–
separate property, and he made no attempt to isolate any separate property from any community

property that might be in the accounts.

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

to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). Property owned

before marriage, or acquired during marriage by gift, devise, or descent, is separate property. Id.

§ 3.001. The degree of proof necessary to establish that property is separate property is clear and

convincing evidence. Id. § 3.003(b). The party seeking to establish the separate character of

property must trace and clearly identify the property in question as separate by clear and

convincing evidence. Pearson v. Pilgrim, 332 S.W.3d 361, 363 (Tex. 2011).

       When the burden of proof is clear and convincing evidence, we review the legal

sufficiency of the evidence by considering all the evidence in the light most favorable to the

finding and determining whether a reasonable juror could have formed a firm belief or

conviction that the finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We

assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder

could do so, and we disregard all contrary evidence that a reasonable fact finder could have

disbelieved or found to be incredible. Id.

       In reviewing challenges to the factual sufficiency of the evidence, we give due

consideration to evidence that the factfinder could reasonably have found to be clear and

convincing.   Id.   We determine whether the evidence is such that the trier of fact could

reasonably form a firm belief or conviction as to the truth of the allegations sought to be

established. Id. When there is disputed evidence, we must consider whether it is such that a

reasonable fact finder could not have reconciled the disputed evidence in favor of its finding. Id.




                                               –8–
                                           Admission of the Account Statements

           To determine whether the trial court erred in its characterization of the accounts, we must

first decide Castillon’s contention that the trial court erred by sustaining Morgan’s hearsay

objections to the account statements created by the financial institutions for the accounts,

Respondent’s Exhibits 9, 10, 71, 72, 73, and 74. Castillon sought admission of the account

statements to establish the value of the accounts near the date of the marriage and the date of

trial.

           Evidentiary rulings are committed to the trial court’s sound discretion.                                               Bay Area

Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). We review a trial

court’s decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180

S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without reference to

any guiding rules and principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.

2012). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the

ruling. Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex.

2012) (quoting Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

           “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID.

801(d) (amended Apr. 1, 2015). 2 Hearsay is not admissible in evidence unless a rule or statute

authorizes its admission. TEX. R. EVID. 802. Records of a regularly conducted activity are

hearsay, but they are admissible in evidence if a qualified witness testifies (1) the documents

were made and kept in the course of a regularly conducted business activity, (2) it was the

regular practice of the business activity to make the documents, (3) the documents were made at

or near the time of the event that it recorded, and (4) the documents were made by a person with
     2
      The Texas Rules of Evidence were amended effective April 1, 2015. The amendments were part of a restyling project and changed the
wording, although not the substance, of the rules cited in this opinion. However, we apply the version of the rules in place at the time of trial.


                                                                      –9–
knowledge who was acting in the regular course of business. TEX. R. EVID. 803(6); Powell v.

Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.).

The witness laying the predicate for admission of the records need not be the creator of the

evidence or have personal knowledge of the records’ contents; but the witness must have

personal knowledge of the manner in which the records were prepared. Riddle v. Unifund CCR

Partners, 298 S.W.3d 780, 783 (Tex. App.—El Paso 2009, no pet.). Documents received from

another entity are not admissible under rule 803(6) if the witness is not qualified to testify about

the entity’s record keeping. Id.; Powell v. Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d

762, 765 (Tex. App.—Dallas 2004, no pet.). In this case, Castillon received the documents from

other entities, the financial companies, but he presented no evidence that he had personal

knowledge of the manner in which the financial companies prepared the account statements.

       However, courts have held that documents received by a party from another entity may

constitute admissible business records upon proof by the party that (1) the records are

incorporated and kept in the course of the party’s business, (2) the party typically relies upon the

accuracy of the records’ contents, and (3) the circumstances otherwise indicate the documents’

trustworthiness. Nat’l Health Resources Corp. v. TBF Fin. LLC, 429 S.W.3d 125, 130 (Tex.

App.—Dallas 2014, no pet.); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240–41 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

       Even if the trial court erred by denying admission of the exhibits, we cannot reverse

unless the record shows the error probably caused the rendition of an improper judgment. TEX.

R. APP. P. 44.1(a)(1). Castillon testified that Respondent’s Exhibit 10 was account statements

for an individual retirement account containing funds rolled over from other 401K retirement

accounts, Respondent’s Exhibits 71 through 74.         The account statements for Respondent’s

Exhibit 73 and 74 predate the marriage; the account statements in Respondent’s Exhibits 71 and

                                               –10–
72 include periods after the parties’ marriage. Respondent’s Exhibit 9 is account statements

from a retirement savings plan from August 1, 2007 through February 28, 2013. Statements for

each of the accounts for periods after the marriage show cash dividends, interest, or “investment

income” was paid on the accounts during the marriage. These payments constituted community

property. See Fischer-Stoker v. Stoker, 174 S.W.3d 272, 279 (Tex. App.—Houston [1st Dist.]

2005, pet. denied). Castillon had the burden to trace the separate-property portions of the

accounts and to isolate them from the community property commingled in the accounts. He

made no attempt to do so. Instead, Castillon testified, contrary to the account statements, that the

only growth in the accounts was due to appreciation, not interest. Because the excluded exhibits

did not support Castillon’s assertion that the accounts consisted solely of his separate property,

we conclude the denial of admission of the account statements did not probably cause the

rendition of an improper judgment. Accordingly, any error from the denial of admission of the

account statements is not reversible.

                      Testimony about Characterization of the Accounts

       Castillon testified that after the marriage, he made no further contributions to the

financial accounts. He testified to the value of each fund on or around August 25, 2007 and to

the current value of each fund. He testified that any growth in the value of the funds was due to

“appreciation” and not from payments of interest. Morgan testified that Castillon contributed to

the funds during the marriage.

       The trial court, as the trier of fact, was the judge of the witnesses’ credibility and the

weight of their testimony.       The court could have concluded that Castillon’s testimony,

contradicted by Morgan’s testimony, was insufficient to provide a firm belief or conviction that

the accounts contained only separate property.




                                               –11–
       We conclude Castillon has failed to show the trial court erred by characterizing the

financial accounts as community property. We overrule Castillon’s second issue.

                                   TAX REIMBURSEMENT

       In his third issue, Castillon contends the trial court erred by not including in the judgment

the court’s ruling that Morgan pay half of the $7,834 of taxes due from the early withdrawal

from a 401K to pay the parties’ attorney’s fees.

       At the conclusion of the trial, the court issued a memorandum detailing its decision. The

court listed the division of assets and liabilities in exhibits to the memorandum. In one of those

exhibits, the court stated that Morgan would pay half the $7,834 of taxes due as a result of the

early withdrawal of a 401K account. In the final judgment, the trial court did not order Morgan

to pay half of those taxes. Castillon filed a motion for judgment nunc pro tunc and to reform the

judgment complaining of the omission, but that motion was filed thirty-one days after the

judgment was signed, the trial court had lost plenary power, and the court declined to rule on the

motion. See TEX. R. CIV. P. 329b(d) (trial court has plenary jurisdiction for thirty days after

judgment is signed).

       On appeal, Castillon argues the trial court erred by failing to include in the judgment the

requirement that Morgan pay half the taxes. Castillon cites no authority in support of his

argument. Rule of appellate procedure 38.1(i) states that a party’s arguments must contain

“appropriate citations to authorities.” TEX. R. APP. P. 38.1(i). Morgan asserts in her appellee’s

brief that Castillon’s failure to cite any authority waived the issue on appeal. Castillon filed a

reply brief but again failed to include any citations to authorities in support of this issue. We

conclude this issue is not properly briefed and presents nothing for review. See In re B.A.B., 124

S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.). We overrule Castillon’s third issue.




                                               –12–
                                        CONCLUSION

       We modify the judgment to delete the trial court’s finding that the parties had an informal

marriage prior to their formal marriage on August 25, 2007, and we affirm the trial court’s

judgment as modified.




                                                  /Lana Myers/
                                                  LANA MYERS
130872F.P05                                       JUSTICE




                                              –13–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

Henry Philip Castillon, Appellant                     On Appeal from the 219th Judicial District
                                                      Court, Collin County, Texas
No. 05-13-00872-CV          V.                        Trial Court Cause No. 219-54113-2010.
                                                      Opinion delivered by Justice Myers. Chief
Michelle Missy Morgan, Appellee                       Justice Wright and Justice Evans
                                                      participating.

         In accordance with this Court’s opinion of this date, we MODIFY the judgment of the
trial court by deleting the statement, “The Court finds the parties were informally married prior
to their formal marriage on August 25, 2007,” and we AFFIRM the judgment of the trial court
as modified.

       It is ORDERED that appellee Michelle Missy Morgan recover her costs of this appeal
from appellant Henry Philip Castillon.


Judgment entered this 14th day of April, 2015.




                                               –14–
