                     In The
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana
         ______________________________

               No. 06-10-00019-CV
         ______________________________


     IN THE MATTER OF THE MARRIAGE OF
SAM MARION ROBBINS AND DONNA KAROL ROBBINS




    On Appeal from the 102nd Judicial District Court
                 Bowie County, Texas
           Trial Court No. 08-D-0739-102




      Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Moseley
                                        MEMORANDUM OPINION

         In the divorce of Sam Marion and Donna Karol Robbins, the characterization of Edward

Jones Account number 23307411816 (Jones account) as to whether it was the separate property of

Sam or whether it was community property was a bone of contention. The trial court determined

that the Jones account was partly Sam’s separate property, but that the larger part was community

property, prompting this appeal by Sam––who maintains that the Jones account is entirely his

separate property and estate. A special master appointed by the trial court rendered findings

regarding the Jones account and the trial court’s findings track those of the special master. In

addition to challenging the characterization of the property, Sam argues that he was entitled to a

trial de novo on this matter upon his objection to the master’s report and maintains that he was not

awarded a de novo hearing of the issue. Because we find the property was properly characterized,

an issue dispositive of this appeal, we affirm the trial court’s judgment.

I.       Factual and Procedural History

         The trial court appointed special master James B. Cranford, Jr., to hear evidence of which

assets were acquired prior to the marriage. Cranford’s report stated that “[t]here was . . .

conflicting testimony concerning [the Jones account] which has a value, as of June 22, 2009, of

$260,324.00.” Sam testified that sums distributed from a separate property trust 1 and life

insurance policy acquired before marriage were first deposited into an account at BancorpSouth,


1
 The trust “spins off” about “eighteen . . . thousand bucks every quarter,” but “[n]ow it’s down to less than half of
that.”

                                                         2
and then transferred to the Jones account. Therefore, he argued that all of the money in the Jones

account was his separate property. Donna testified that the BancorpSouth account was a joint

account, carried in both her name and in Sam’s name, and that she had written checks on that

account. Thus, she argued that Sam’s separate property had been commingled when deposits

were made into the BancorpSouth account containing community funds. The special master

found:

            There was no . . . clear and convincing evidence to show that all of such [Jones
            account] funds could in fact be traced back to [Sam’s] separate accounts or the
            nature of the funds distributed from the original separate accounts. Such funds
            were placed into a joint account which joint account had had other community
            funds placed into it during the marriage.
                   Further, there was no testimony as to the distributions from such trust or
            separate accounts as to whether such were in fact principal or interest or based upon
            earnings of the trust during the time of the marriage.

Because $40,000.00 was in the Jones account as of the date of Sam and Donna’s marriage, the

master concluded that only that portion of the Jones account was separate property, but that the

remaining $220,000.002 was community property.

            Sam filed an objection to Cranford’s report challenging the findings with respect to the

Jones account and asked for the trial court to conduct “a de novo hearing on this matter.” The

court held a hearing on the objection to Cranford’s report and stated, “I’m going to go ahead and

let you make a record on that specific point today,” after which both parties had an opportunity to

present evidence concerning the status of the Jones account.

2
    There is a $324.00 discrepancy in the property division.

                                                               3
         The trial to the court produced testimony from Sam that the BancorpSouth account had

been his separate account prior to marriage and that he added Donna’s name to the account after

marriage. Sam introduced exhibits reflecting activity from the Jones account. He claims that all

the money in the account came from a trust account which he had prior to marriage. Sam did not

introduce any exhibits relating to the BancorpSouth account. Reference was made that these

documents were included in the hearing in front of Cranford and that the hearing had been

transcribed. The trial court told the parties that it wished to see the exhibits and transcription from

the master’s hearing, at which point Sam’s counsel objected and argued that the hearing to the

court was to be de novo.

         The trial court stated, “If it’s de novo, I’m going to go with what I have today. If it’s

transcription, I’ll go by what the transcription is.” The trial court adopted Cranford’s report, took

into consideration evidence presented during the master’s hearing, and divided the community

property accordingly.3

         On appeal, Sam argues that he was entitled to trial de novo “and the Court should have only

considered evidence presented at the trial de novo when characterizing the . . . Jones Account.”

Sam continues that “[b]ecause the Court considered evidence presented to the Master when

characterizing the . . . Jones Account, Appellant was denied his right to a trial de novo.” Yet, in


3
Sam requested findings of fact and conclusions of law from the trial court. The trial court’s findings mirrored
Cranford’s report. “Since the evidence must be heard anew on issues concerning which objections are made, and the
master’s findings are conclusive on other issues, the court has no occasion to inquire into the evidence heard by the
master.” Cameron v. Cameron, 601 S.W.2d 814, 815 (Tex. Civ. App.––Dallas 1980, no writ).

                                                         4
his brief, Sam cites to the hearing presented to Cranford, the record of which is not before this

Court, and to evidence presented during that hearing in an attempt to establish that the Jones

account was conclusively established to be his separate property. Because we find that Sam

failed to establish the property as his separate property, an issue dispositive of this appeal, we

affirm the trial court’s findings.

II.     Standard of Review

        The trial court in this case was authorized to “confirm, modify, correct, reject, reverse or

recommit [Cranford’s] report . . . [if deemed] proper and necessary in the particular circumstances

of the case.” TEX. R. CIV. P. 171; Martin v. Martin, 797 S.W.2d 347, 350 (Tex. App.––Texarkana

1990, no writ). Modifications or corrections by the trial court could not be made without “having

some basis in evidence upon which to make these modifications and corrections.” Martin, 797

S.W.2d at 350. Cranford’s report was conclusive on issues to which no objection was properly

raised, but was without force concerning characterization of the Jones account. Id. (citing

Cameron, 601 S.W.2d 814). Because issues of fact objected to “must be heard anew,” “this Court

is not reviewing the master’s findings to determine if they are supported by evidence. We are

reviewing the trial court’s findings.” Id. The trial court’s division of property is only corrected

when it “clearly abused its discretion by a division that is manifestly unjust and unfair.” Id. at 351

(citing McKnight v. McKnight, 543 S.W.2d 863 (Tex. 1976)). There is a presumption on appeal

that the trial court properly exercised its discretion in dividing property in a divorce proceeding.



                                                  5
Id. Thus, Sam bears the burden to show from the record that the division was so disproportionate

as to be manifestly unfair.

III.    Sam Failed to Meet His Burden to Prove the Jones Account Was His Separate
        Property

        One fact must be established from the outset. Cranford found that the BancorpSouth

account was a “joint account [which] had had other community funds placed into it during the

marriage.” Since this finding was unchallenged, it became conclusive. Id. at 350. The Jones

account increased in value by approximately $220,000.00. Property acquired during marriage is

presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (Vernon 2006). To

rebut this presumption, Sam (who sought to prove the Jones account’s separate character and had

the burden to do so), must have done so by clear and convincing evidence that would “produc[e] in

the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” In re Marriage of Born, No. 06-08-00066-CV, 2009 WL 1010876, at *2 (Tex.

App.––Texarkana Apr. 16, 2009, no pet.) (mem. op.) (citing In re C.H., 89 S.W.3d 17, 25 (Tex.

2002)); see TEX. FAM. CODE ANN. § 3.003(b) (Vernon 2006).

        In order to meet his burden, Sam was required to trace the assets on hand during the

marriage back to his separate property. Born, 2009 WL 1010876, at *2 (citing Cockerham v.

Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)). This could be done even if funds in the

BancorpSouth account were commingled as “[c]ourts have no difficulty in following separate

funds through bank accounts” where the funds are traced in such a manner that “the trial court is


                                                   6
able to determine accurately the interest of each party.” Id. at *3 (citing Holloway v. Holloway,

671 S.W.2d 51, 60 (Tex. App.––Dallas 1983, writ dism’d)). “The burden of tracing is a difficult,

but not impossible, burden to sustain.”               Id. at *2.      However, “[i]f separate property and

community property have been so commingled as to defy resegregation and identification, the

statutory presumption of community property prevails.” Id. (citing In re Estate of Hanau, 730

S.W.2d 663, 667 (Tex. 1987)). Accordingly, we resolve any doubt as to the character of property

in favor of the community estate. Id.

           The master found that the BancorpSouth account was a joint account that contained

community funds.4 Yet, Sam failed to produce records from BancorpSouth in either hearing,

save one document demonstrating that Donna’s name was on the account and that transfers to or

from unspecified trusts occurred on September 27, 2004.5 The Jones account documents Sam

produced did nothing to demonstrate that there was no taint of the separate property character of

the assets with community property funds while they were in the BancorpSouth account. Further,

the records indicated that certain sums were classified as income, and Sam’s counsel agreed that

“[t]he vast majority of the money or all of the money in [the Jones] account came from your trust

that you established prior to marriage or the growth of the stock from there.” Interest earned on



4
 The trial court heard that a transfer of money acquired from the sale of inherited property was placed into the Jones
account. The parties were married on September 9, 1999. From the record exhibits, it is unclear whether the
inherited stock was sold prior to or after the date of marriage.
5
    The account was closed in 2006.

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separate property during the marriage is community property. McElwee v. McElwee, 911 S.W.2d

182, 188–89 (Tex. App.––Houston [1st Dist.] 1995, writ denied).

       In sum, we find that Sam failed to prove the separate character of the Jones account after

his marriage to Donna by clear and convincing evidence. In the absence of evidence that the trial

court clearly abused its discretion by creating a manifestly unjust and unfair division of property,

we may not reverse its judgment.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        August 3, 2010
Date Decided:          August 12, 2010




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