       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00196-CV



                             Thomas Jackson Wilson, II, Appellant

                                                 v.

                              Deborah Fleming Wilson, Appellee



       FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
          NO. 20538, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                            MEMORANDUM OPINION


                Thomas Jackson Wilson, II (Wilson) appeals from the property division in his

divorce from Deborah Fleming Wilson (Fleming).1 Wilson brings two issues on appeal: the trial

court erred by mischaracterizing certain property and erred in its property division because it was

not just and right. We will affirm the trial court’s judgment.


                              Factual and Procedural Background

                Wilson and Fleming were married in October 1993 and ceased living together in

December 2000. There were no children of the marriage. Along with two siblings, Wilson owned

a one-third undivided interest in a 59.60-acre tract of land in Burnet County. After Wilson and




   1
       Deborah Fleming Wilson’s name was restored to Deborah Fleming in the divorce decree.
Fleming married, Wilson’s siblings wanted to sell some of the land to finance a business. Wilson

and his two siblings entered a transaction that resulted in the conveyance to Wilson and Fleming of

42.91 acres (the “ranch property”); they used Fleming’s separate-property cash as a down payment

to finance the purchase of additional acreage, more than what would have constituted Wilson’s one-

third share.2 An existing cottage was on the land they purchased; it was later improved and used as

a bed and breakfast. A new house was later constructed on the tract.

                 During the marriage, Wilson and Fleming also purchased acreage on the Llano River,

known as “Lot 14.” Lot 14’s characterization as community property is not disputed. A second lot

on the Llano River, “Lot 13,” was jointly owned by Wilson and his former wife, Bobbye Wilson.

Wilson and Fleming paid Bobbye Wilson cash for that property, using a combination of Fleming’s

separate property cash and a loan to the community. Wilson disputed the characterization of Lot 13

as community property.

                 Another disputed asset in the property division was a retirement account. Before

marriage, Fleming owned a retirement account from her employment. The funds were rolled over

to open Northwestern Mutual Life Account 12893254 (“the retirement account”) immediately after

Wilson and Fleming were married. The rollover resulted in the acquisition of 5856.05 “units.”3




   2
    The transaction is a little muddled. The parties refer to a “Tract B” and a “Tract C,” which
appeared only to come into existence as a result of this transaction, but both comprised the
conveyance to Wilson and Fleming.
   3
       The parties do not define what constitutes a “unit.”

                                                  2
During the course of the marriage, an additional 8239.90 units were acquired, resulting in a total of

14095.95 units.

                 At trial, Fleming presented both documentary and testimonial evidence, including her

proposed property division. The parties stipulated to the value and characterization of all property,

except for the characterization of these three assets: the ranch property, Lot 13, and the retirement

account. The court’s judgment confirmed all stipulations, characterized all disputed assets as

community property, and awarded the property as requested in Fleming’s proposed property division.

The court made findings of fact and conclusions of law.


                                              Discussion

Standard of Review

                 Findings of fact made in a case tried to the court are of the same force and dignity as

a jury’s verdict upon special issues. Zisblatt v. Zisblatt, 693 S.W.2d 944, 949 (Tex. App.—Fort

Worth 1985, writ dism’d w.o.j.). As the trier of fact in a bench trial, the court determines the

credibility of the witnesses and the weight to be given their testimony, whether to believe or

disbelieve all or any part of the testimony, and how to resolve any inconsistencies in the testimony.

Robbins v. Roberts, 833 S.W.2d 619, 624 (Tex. App.—Amarillo 1992, no writ). We may not

interfere with the fact finder’s resolution of conflicts in the evidence or pass on the weight or

credibility of the witnesses’ testimony. See Benoit v. Wilson, 239 S.W.2d 792, 796-97 (Tex. 1951).

When there is conflicting evidence, the appellate court usually regards the finding of the trier of fact

as conclusive. See Jauregui v. Jones, 695 S.W.2d 258, 263 (Tex. App.—San Antonio 1985, writ

ref’d n.r.e.).

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                  We review the sufficiency of the evidence supporting findings of fact under the same

standards we apply to jury findings. See Zisblatt, 693 S.W.2d at 949. When the burden of proof at

trial is by clear and convincing evidence, we consider all of the evidence and determine whether the

evidence was sufficient to produce in the mind of the fact finder a firm belief or conviction as to the

truth of the allegations sought to be established. Tate v. Tate, 55 S.W.3d 1, 5 (Tex. App.—El Paso

2000, no pet.).


Characterization Disputes

                  In his first issue, Wilson contends that the trial court erred in mischaracterizing the

ranch property as community property because it was his separate property. The court partitioned

the 42.91 acres of the ranch property, awarding a separate 21.45-acre tract to each party. Fleming

received the tract with the new house, Wilson the tract with the cottage.

                  Property possessed by either spouse on dissolution of the marriage is presumed to be

community property. Tex. Fam. Code Ann. § 3.003(a) (West 1998); Ganesan v. Vallabhaneni, 96

S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Kiel v. Brinkman, 668 S.W.2d 926, 929

(Tex. App.—Houston [14th Dist.] 1984, no writ). That presumption can be overcome by clear and

convincing evidence that the asset is one spouse’s separate property. Fam. Code § 3.003(b);

Ganesan, 96 S.W.3d at 354. The spouse claiming separate property must clearly identify the

property claimed to be separate. Ganesan, 96 S.W.3d at 354; Robles v. Robles, 965 S.W.2d 605, 614

(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (citing Cockerham v. Cockerham, 527 S.W.2d

162, 167 (Tex. 1975)).




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                  An undivided possessory interest in property is a tenancy in common. Rittgers v.

Rittgers, 802 S.W.2d 109, 113 (Tex. App.—Corpus Christi 1990, writ denied). Only through

partition can a tenancy in common vest in each owner a sole estate in a specific portion of land.

Dierschke v. Central Nat’l Branch of First Nat’l Bank, 876 S.W.2d 377, 379 (Tex. App.—Austin

1994, no writ).

                  The ranch property was jointly owned by Wilson and his siblings before Wilson and

Fleming’s marriage. There is no deed in the record showing that Wilson had any sole interest in any

specific tract out of the 59.60 acres jointly owned by the siblings. Although Wilson held his tenancy

in common before marriage, there was never a partition by the siblings so Wilson could not claim

an identifiable separate estate in any distinct tract. Wilson and Fleming acquired 42.91 specific acres

after their marriage. No reservation is made in the deed that the property is Wilson’s separate

property. Fleming testified that the intent was to convey the property to the community and to build

a home there. In making this acquisition, Wilson contributed the value of his tenancy in common

and Fleming used her separate funds to make the down payment; the loan was a community debt.

According to Fleming, this arrangement allowed the community to acquire more acreage, resulting

in their ownership of a total of 42.91 acres. Wilson disagreed, testifying that Fleming’s name was

on the deed only as a “formality” to obtain financing.

                  The court was not compelled to believe Wilson’s testimony concerning the intent of

the parties. See Robbins, 833 S.W.2d at 624 (court determines credibility of witnesses). The court

was entitled to resolve conflicts in the evidence. See Benoit, 239 S.W.2d at 797. Thomas did not,

by clear and convincing evidence, overcome the presumption that the property acquired during



                                                  5
marriage in both parties’ names belonged to the community. See Ganeshan, 96 S.W.3d at 354. The

court could consider that both parties contributed separate property to acquire land held in both their

names, on which they intended to build their home. Accordingly, the court did not err in its

characterization of the 42.91 acres as community property.

                 In his second issue, Wilson contends that the property known as Lot 13 was his

separate property.4 The same analysis applies to this property. Wilson owned an undivided interest

in Lot 13 with his former wife. After his marriage to Fleming, the property was conveyed to both

Wilson and Fleming. Again, the transaction involved the contribution by Wilson of an undivided

interest in property, along with Fleming’s contribution of separate property cash, in order to purchase

for the community a particular tract of land. We hold that the court did not err in its characterization

of Lot 13 as community property.

                 In his second issue, Wilson also contends that the trial court mischaracterized the

retirement account as Fleming’s separate property. In fact, neither the court nor Fleming’s proposed

property division characterized all of this account as separate property. Fleming’s proposed property

division stated that this account had commingled funds from pre-marriage and post-marriage.

Fleming’s documentary and testimonial evidence showed, and the trial court found, that the account

started with 5856.05 units that were traced to her separate property, and that 8239.90 units were

added due to Fleming’s employment during the marriage. The court found 5856.05 units to be




   4
       The opinion will first discuss all characterization issues, then address the property division.

                                                   6
Fleming’s separate property; the remainder of the retirement account was characterized as

community property. The total value of the account was $68,940.12. Fleming’s separate property

portion of the account was 41.54% (5856.05/14095.95) and the community property portion of the

account was 58.46% (8239.90/14095.95). Wilson produced no evidence to controvert Fleming’s

tracing and accounting for the amount of the fund’s growth. The court did not err in its

characterization of this account as partially Fleming’s separate property and partially community

property.

               Wilson further argues that Fleming violated her fiduciary duty to him. He contends

that she handled all the books and took advantage of him in these transactions. However, Wilson

testified that he knew the deeds were conveying the property to himself and Fleming. He also

testified that he had a power of attorney from Fleming with regard to the real property transactions.

Wilson did not produce evidence to show fraud or breach of fiduciary duty on Fleming’s part. Cf.

In re Moore, 890 S.W.2d 821, 832 (Tex. App.—Amarillo 1994, no writ) (unauthorized transfer by

one spouse of community property to third parties and to that spouse’s separate property estate). We

overrule appellant’s first issue and those parts of his second issue attacking characterization of the

property.


Just and Right Property Division

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

manner that the court “deems just and right.” Tex. Fam. Code Ann. § 7.001 (West 1998). Although

the trial court does not have to divide the community property equally, its division must be equitable.

Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—Houston [14th Dist.] 1996, no writ); Schuster

                                                  7
v. Schuster, 690 S.W.2d 644, 645 (Tex. App.—Austin 1985, no writ). The trial court’s discretion

is not unlimited, and there must be some reasonable basis for an unequal division of the property.

Zieba, 928 S.W.2d at 790. The trial court, in exercising its discretion, may consider many factors,

including the parties’ earning capacities, education, business opportunities, physical condition,

financial condition, age, size of separate estates, nature of the property, and the benefits that the

spouse who did not cause the breakup of the marriage would have enjoyed had the marriage

continued. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981); Walston v. Walston, 971 S.W.2d

687, 691 (Tex. App.—Waco 1998, pet. denied).

                We review the trial court’s division of property using an abuse of discretion standard.

Murff, 615 S.W.2d at 700; Walston, 971 S.W.2d at 691. Legal and factual sufficiency are not

independent grounds of error but relevant factors in assessing whether the trial court abused its

discretion. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.—Austin 1997, no pet.). To constitute

an abuse of discretion, the property division must be manifestly unfair. See Mann v. Mann, 607

S.W.2d 243, 245 (Tex. 1980).

                In his second issue, Wilson contends that the trial court abused its discretion by

ignoring the great weight and preponderance of the evidence as to what would constitute a just and

right property division. Wilson presents two “scenarios” that depend on manipulating the value of

the property to demonstrate that the trial court erred in its division of property. On the record at trial,

the court found that the parties stipulated to the value and character of the property and debts as set

out in Fleming’s proposed property division, with the exception of the characterization of the ranch

property, Lot 13, and the retirement account. Accordingly, we cannot re-value the property on



                                                    8
appeal, nor consider newly proposed values to conclude that the trial court abused its discretion in

the property division.

               Appellee argues that the court failed to consider certain factors, such as an affair that

Fleming had. The court, as the trier of fact, was entitled to credit the parties’ testimony regarding

this issue as well as the evidence on the issue of abuse.5 Wilson also argues that he had less income

and earning capacity than Fleming. However, the court took that into consideration by assigning

Fleming the major share of the community debts and awarding her the portion of the ranch property

with the larger encumbrance. The trial court could have considered Fleming’s contributions of

separate property funds for the purchase of the real property and her testimony that she had been

servicing all community debt on all property, paying all other community expenses, and paying for

Wilson’s alcohol rehabilitation programs during the marriage. With regard to the ranch property,

Wilson received the tract with a cottage that had been improved and used as a bed-and-breakfast,

having the smaller debt, while Fleming received the newer, larger house with the greater debt. Each

received one lot along the Llano River. Wilson received the larger share of certain personal property,

such as trucks and boats. The final property division of net assets resulted in Fleming receiving

54.14% of the net assets and Wilson receiving 45.86% of the net assets—not a gross disparity.

Ultimately, Wilson has not demonstrated that the court’s property division was manifestly unfair.

See Mann, 607 S.W.2d at 245. Accordingly, he has not shown that the trial court abused its

discretion in the property division. We overrule appellant’s second issue.


  5
     The judgment contains a permanent injunction prohibiting Wilson from causing or threatening
to cause bodily injury to Fleming, communicating with Fleming, or coming within five hundred feet
of her (except within the confines of his real property awarded in the divorce).

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                                          Conclusion

              Having overruled both of appellant’s issues, we affirm the trial court’s judgment.




                                            Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: March 18, 2004




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