Opinion issued October 22, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00547-CV
                            ———————————
                          RANDY MOORE, Appellant
                                         V.
                      SANDRA FAYE JORDAN, Appellee


                    On Appeal from the 311th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-78225


                          MEMORANDUM OPINION

      Appellant, Randy Moore, contests the division of property contained in the

final decree of divorce dissolving his marriage to Sandra Faye Jordan. In three issues

on appeal, Moore contends the trial court abused its discretion by: (1) characterizing
certain property as community property rather than as his separate property, (2)

denying his motion for new trial, and (3) awarding a disproportionate share of the

community estate to Jordan. We affirm.

                                 BACKGROUND

      Moore and Jordan were married for over 10 years when Jordan filed for

divorce. There were no children of the marriage. Jordan requested that she be

awarded a disproportionate share of the community estate based upon Moore’s fault

in the breakup of the marriage. Moore filed a counterpetition, alleging that the

marriage was insupportable and that Jordan had committed adultery.

      The trial court held a bench trial, at which both parties testified. Jordan was

represented by counsel; Moore represented himself pro se.

      1. Grounds for the Divorce and Moore’s Separate Property

      After hearing evidence from both parties, the trial court (1) granted the divorce

based on insupportability and Moore’s infidelity and cruel treatment toward Jordan,

and (2) found that Jordan was entitled to a disproportionate share of the community

property. The trial court also confirmed as Moore’s separate property 100% of his

retirement account earned prior to the date of the marriage and real property located

at 2055 Nora Street, Beaumont, TX and 7605 Glass Street, Houston, TX.

      2. The Division of Community Property

      The trial court divided the community property as follows:


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      Assets to Jordan: (1) personal effects in her possession, (2) cash in her

possession or subject to her sole control, (3) a vehicle, (4) 100% of her retirement

accounts, (5) 50% of Moore’s retirement accounts accruing after the date of their

marriage, and (6) 100% of the marital home located at 7825 and 7829 Pointer Street,

Houston, TX.

      Debts to Jordan: (1) all debts incurred by her unless otherwise specified, (2)

all credit card debt in her name solely, and (3) the mortgage and taxes associated

with the marital residence located at 7825 and 7829 Pointer Street, Houston, TX.

      Assets to Moore: (1) personal effects in his possession, (2) cash in his

possession or subject to his sole control, (3) five vehicles, (4) 50% of his retirement

accounts accruing after the date of the marriage, (5) Lots 1 & 2 on Levander Street

and a lot on Tampico Street.

      Debts to Moore: (1) all debts incurred by him unless otherwise specified, (2)

all credit card debt in his name only, (3) the mortgage and taxes associated with lots

1 & 2 on Levander Street and the lot on Tampico Street.

      3. Motion for New Trial

      Dissatisfied with the judgment, Moore hired counsel to file a motion for new

trial. His motion requested that the trial court “grant a new trial in the interest of

justice and fairness” so that he could “relitigate the issue of the court’s rendition and

awarding Sandra Faye Jordan the properties located at 7829 Pointer Street and 7825


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Pointer Street, Houston, Texas 77016.” Moore attached an affidavit to his motion

for new trial in which he claimed that the Pointer Street properties were his separate

property because he entered into an earnest money contract for their purchase before

the date of the marriage. His affidavit requested “that [the] Court grant me a new

trial in the interest of justice, so that I may present the proper evidence to rebut any

presumption that the property located at 7829 Pointer St. and 7825 Pointer St.,

Houston, Texas 77016 is community property[.]”

      The trial court held a hearing on the motion for new trial, at which both Moore

and Jordan testified. Moore also introduced an earnest money contract for the

Pointer Street properties, which he claimed showed that inception of title occurred

before the date of the marriage.

      The trial court denied Moore’s motion for new trial and this appeal followed.

                    CHARACTERIZATION OF PROPERTY

      In his first issue on appeal, Moore contends that “the trial court abuse[d] its

discretion in characterizing the properties located at 7825 and 7829 Pointer St. as

community property.”

   1. Standard of Review and Applicable Law

      “We review a trial court’s division of property under an abuse of discretion

standard.” Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet.

denied) (citing LaFrensen v. LaFrensen, 106 S.W.3d 876, 878 (Tex. App.—Dallas


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2003, no pet.)). “[I]n family law cases, the abuse of discretion standard of review

overlaps with the traditional sufficiency standard of review; as a result, legal and

factual insufficiency are not independent grounds of reversible error, but instead

constitute factors relevant to our assessment of whether the trial court abused its

discretion.” Moroch, 174 S.W.3d at 857 (citing Boyd v. Boyd, 131 S.W.3d 605, 611

(Tex. App.—Fort Worth 2004, no pet.); Beaumont Bank N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991)). Thus, to determine whether the trial court abused its

discretion because the evidence is legally or factually insufficient to support the trial

court’s decision, we engage in a two-pronged inquiry: (1) did the trial court have

sufficient evidence upon which to exercise its discretion, and (2) did the trial court

err in its application of that discretion. Moroch, 174 S.W.3d at 857. “The applicable

sufficiency review comes into play with regard to the first question.” Id. (citing

Boyd, 131 S.W.3d at 611). We must then determine whether, based on the evidence,

the trial court made a reasonable decision. Id. Stated another way, the party

challenging the trial court’s characterization must first establish error by challenging

the legal or factual sufficiency of the evidence to support the property’s

characterization and must then show that because of the mischaracterization, the trial

court abused its discretion. See Viera v. Viera, 331 S.W.3d 195, 207 (Tex. App.—

El Paso 2011, no pet.).




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

presumed to be community property. TEX. FAM. CODE § 3.003(a)). To overcome the

community property assumption, a party claiming marital property as separate

property must prove the claim with clear and convincing evidence. Id. § 3.003(b).

Clear and convincing evidence is defined as that “measure or degree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations sought to be established.” TEX. FAM. CODE § 101.007; see also

Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.—San Antonio 2006, no pet.).

      Under the inception-of-title rule, the characterization of property as separate

or community is determined by its character at inception. See Leax v. Leax, 305

S.W.3d 22, 33 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); McClary v.

Thompson, 65 S.W.3d 829, 834 (Tex. App.—Fort Worth 2002, pet. denied).

Inception of title is the time at which a party first has a right of claim to the property

by virtue of which title is finally vested. Smith v. Smith, 22 S.W.3d 140, 145 (Tex.

App.—Houston [14th Dist.] 2000, no pet.) (citing Strong v. Garrett, 224 S.W.2d

471, 474 (Tex. 1949)).

   2. Analysis

      At trial, Jordan testified that Exhibit 9, her Proposed Requested Relief and

Division of Property, included all the property that she and Moore had acquired

during the marriage. Included on Exhibit 9 were the properties located at 7825 and


                                            6
7829 Pointer Street. Exhibit 7, Jordan’s Inventory and Appraisal, also included the

properties located at 7825 and 7829 Pointer Street, and Jordan testified that Exhibit

7 “is a description of all of the property that [she] and Mr. Moore acquired during

[their] marriage.” Thus, there was evidence, which is undisputed, that the properties

at 7825 and 7829 Pointer Street were in the parties’ possession during or on

dissolution of their marriage, thereby giving rise to a presumption that those

properties were community property. See TEX. FAM. CODE § 3.003(a)).

      Moore argues that “[n]either party establishes the characterization of 7825 and

7829 Pointer St.,” and points out that neither Exhibit 7 nor Exhibit 9 specifically

referred to the properties as “community property,” even though Jordan asked that

they be included in the property division. However, Jordan had no burden to prove

the properties were community; the community-property presumption did that.1

      The application of that presumption shifted the burden to Moore to show by

clear and convincing evidence that those properties were, in fact, his separate

property under the inception-of-title rule. See id. § 3.003(b); Cockerham v.




1
      A presumption is a procedural device by which the existence of one fact is assumed
      from evidence of the existence of another fact. See Empire Gas & Fuel Co. v.
      Muegge, 143 S.W.2d 763, 767–68 (1940). If a presumed fact is not rebutted by
      contradictory evidence, the trier of fact is required to reach a particular conclusion.
      Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995). The
      opponent has to produce evidence in rebuttal to support a finding of the
      nonexistence of the presumed fact, at which time the presumed fact disappears. Id.
                                             7
Cockerham, 527 S.W.2d 162, 167 (Tex. 1975) (holding party can rebut community-

property presumption by tracing and identifying separate property).

      However, in his appellate brief, Moore “concedes he didn’t establish during

trial that 7829 [&] 7825 Pointer St. Houston, Texas was his separate property.” And,

in fact, a review of the record shows that Moore did not attempt to introduce any

evidence at trial to establish that inception of title to these properties occurred before

the marriage. Because there was no evidence, clear-and-convincing or otherwise, to

rebut the community-property presumption, the trial court did not abuse its

discretion in classifying the 7835 and 7839 Pointer Street properties as community

property.

      Accordingly, we overrule issue one.

                           MOTION FOR NEW TRIAL

      In his second issue on appeal, Moore contends that the trial court erred in

denying his motion for new trial. Specifically, he asserts that the trial court should

have granted him a new trial so that he could present evidence that the Pointer Street

properties were his separate property.

      1. Background

      After the trial court classified the Pointer Street properties as community

property and included it in the property division, Moore obtained counsel and filed

a Motion for New Trial. In his motion, Moore asked the court to “grant a new trial


                                            8
in the interest of justice and fairness,” asserting that “[t]he properties awarded to

Sandra Faye Jordan are not community property but the separate property of Randy

David Moore.” In the motion, Moore stated, “Respondent-Movant does recognize

that he did not provide this Court with not only enough but probably any information

which could have produced a different outcome.” Attached to his motion was his

own affidavit, in which he stated: “Sandra Faye Jordan and I married on or about

March 12, 2006. Prior to our marriage, I had paid the earnest money to Wells Fargo

to purchase the home located at 7829 Pointer St. and 7825 Pointer St., Houston,

Texas 77016, which was in foreclosure.” Moore further stated, “I am requesting that

this Court grant me a new trial in the interest of justice, so that I may present the

proper evidence to rebut any presumption that the property located at 7829 Pointer

St. and 7825 Pointer St., Houston, Texas 77016 is community property of both

myself and Sandra Faye Jordan.”

      During a hearing on Moore’s motion, he introduced an earnest money

contract, which he alleged established that inception of title for those properties

occurred before the date of his marriage.

     The trial court denied his motion for new trial.

     2. Standard of Review

      We review a trial court’s ruling on a motion for new trial under an abuse of

discretion standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.


                                            9
2010); see Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). To

determine whether the trial court abused its discretion, we must decide “whether the

trial court acted without reference to any guiding rules or principles; in other words,

whether the act was arbitrary or unreasonable.” Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990). We view the evidence submitted to the trial court in the light

most favorable to the court’s ruling, draw all legitimate inferences from the

evidence, and defer to the trial court’s resolution of conflicting evidence.

Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.3d 887, 892 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). A trial court does not abuse its discretion

about factual matters so long as some evidence reasonably supports its decision.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

      3. Analysis

      Moore claims that he presented uncontroverted evidence, via his affidavit in

support of his motion for new trial, that inception of title for the Pointer Street

properties occurred on February 13, 2006, which was before the date of their March

12, 2006 marriage. There are instances in which the date of an earnest money

contract may be sufficient to establish inception of title.2 However, Moore’s proof

in this case falls short.


2
       See e.g., Carter v. Carter, 736 S.W.2d 775, 779–80 (Tex. App.—Houston [14th
       Dist.] 1987, no writ); Wierzchula v. Wierzchula, 623 S.W.2d 730, 732 (Tex. Civ.
       App.—Houston [1st Dist.] 1981, no writ).
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     At the hearing on the motion for new trial, Moore introduced copies of the

earnest money contract for the Pointer Street properties. He also elicited testimony

from Jordan that there was a February 13, 2006 date on the document, and that she

was married approximately a month later, on March 12, 2006. Moore also testified

that he entered the earnest money contract on the Pointer Street properties on

February 13, 2006.

     However, the earnest money contract itself, which was admitted as Exhibit 1

at the Motion for New Trial Hearing, shows that it was executed and had an effective

date of August 2, 2006, after the date of the marriage. Likewise, the contract and

earnest money receipt also shows that the earnest money was tendered to the title

company on August 2, 2006. The earnest money contract shows a closing date of

August 25, 2006. The only place that the February 13, 2006 date appears on the

earnest money contract is in the top right corner of the each page, indicating that the

Texas Real Estate Commission promulgated the form used for the contract on that

date. The August 2, 2006 signing date and receipt for the earnest money is “some

evidence” that reasonably supports the trial court’s conclusion that appellant did not

present clear and convincing evidence to rebut the community-property

presumption.

     As such, the trial court did not abuse its discretion in denying Moore’s motion

for new trial. We overrule issue two.


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                        DISPROPORTIONATE AWARD

     In issue three, Moore contends the trial court erred in awarding a

disproportionate share of the community estate to Jordan. He claims that because

Jordan was awarded 100% of the most valuable property—the marital home on the

Pointer Street properties—the resulting split of the community was 80% to Jordan

and 20% to him and was “a punishment instead of a just and fair division.”

     1. Standard of Review and Applicable Law

     We review a trial court’s division of marital property for an abuse of discretion.

See Barras v. Barras, 396 S.W.3d 154, 164 (Tex. App.—Houston [14th Dist.] 2013,

pet. denied). The trial court has broad discretion when dividing the marital estate at

divorce, and we must indulge every reasonable presumption in favor of the trial

court’s proper exercise of its discretion. See Murff v. Murff, 615 S.W.2d 696, 698

(Tex. 1981). “To disturb a trial court’s division of property, a party must show that

the court clearly abused its discretion by a division or an order that is manifestly

unjust or unfair.” Barras, 396 S.W.3d at 164. A trial court abuses its discretion when

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

principles. See Worford, 801 S.W.2d at 109. Each spouse has the burden to present

sufficient evidence of the value of the community estate to enable the trial court to

make a just and right division. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—

Houston [1st Dist.] 1992, no writ).


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      If the evidence demonstrates a reasonable basis for doing so, a trial court may

order a disproportionate division of the community property. Murff, 615 S.W.2d at

698–99. Various factors are relevant and may properly be considered in dividing the

community-property estate under Family Code section 7.001. See id. at 699. These

non-exclusive Murff factors include: (1) the nature of the property; (2) the disparity

of incomes or earning capacities; (3) the parties’ business opportunities; (4) the

parties’ relative financial condition and obligations; (5) the parties’ education and

physical condition; (6) the disparity in ages; (7) fault in the break-up of the marriage;

(8) the benefit the innocent spouse would have received had the marriage continued;

(9) the size of any separate estates; and (10) the probable need for future support.

See id. The value of a community asset on which there is disputed evidence is a

question of fact. See TEX. FAM. CODE § 6.711(a).

      A trial court may also take fault into consideration when dividing an estate.

Nowzaradan v. Nowzaradan, No. 01–05–00094–CV, 2007 WL 441709, at *7 (Tex.

App.—Houston [1st Dist.] Feb. 8, 2007, no pet.) (mem. op.) (citing Murff, 615

S.W.2d at 698). In a fault-based divorce, the trial court may consider the conduct of

the errant spouse when making a disproportionate distribution of the marital estate.

See In re Marriage of C.A.S., 405 S.W.3d 373, 384 (Tex. App.—Dallas 2013, no

pet.); see, e.g., In re K.R.C., No. 05–13–01419–CV, 2015 WL 7731784, at *4 (Tex.




                                           13
App.—Dallas Dec. 1, 2015, pet. denied) (mem. op.) (affirming trial court’s

disproportionate division of community property based on adultery finding).

     To determine whether the assets of the community estate were divided in a

“just and right” manner, an appellate court must have the trial court’s findings on

the value of those assets. Brown v. Wokocha, 526 S.W.3d 504, 507 (Tex. App.—

Houston [1st Dist.] 2017, no pet.); Vasudevan v. Vasudevan, No. 14-14-00765-CV,

2015 WL 4774569, at *4 (Tex. App.—Houston [14th Dist.] Aug. 13, 2015, no pet.)

(mem. op.) (citing Wells v. Wells, 251 S.W.3d 834, 840–41 (Tex. App.—Eastland

2008, no pet.)). Without findings of fact, the appellate court does not know the basis

for the division, the values assigned to the community assets, or the percentage of

the marital estate that each party received. Brown, 526 S.W.3d at 507; Wells, 251

S.W.3d at 840–41. Property inventories filed by the parties cannot serve as a

substitute for findings of fact by the trial court. Brown, 526 S.W.3d at 507. In the

absence of trial court findings, we presume the trial court made all the necessary

findings to support its judgment. Id. Thus, if a party does not request findings of fact

from the trial court, a party cannot establish whether the trial court intended the

division to be equal or disproportionate, and if disproportionate, what factors the

trial court found to warrant an unequal distribution if one was intended. Id. at 507–

08; Wade v. Wade, No. 01-13-00912-CV, 2014 WL 3398393, at *4 (Tex. App.—




                                          14
Houston [1st Dist.] July 10, 2014, no pet.) (mem. op.) (citing Tate v. Tate, 55 S.W.3d

1, 10 (Tex. App.—El Paso, 2000, no pet.)).

      2. Analysis

      Here, Moore did not request, and the trial court did not file, findings of fact

regarding the values attached to the community properties or debts assigned to each

party. Without findings of fact, it is impossible for us to determine that the trial court

abused its discretion in its division of the community property. Brown, 526 S.W.3d

at 508; Vasudevan, 2015 WL 4774569, at *4. Because we do not know what value

the trial court assigned to the community property assets or debts, or the percentage

of the marital estate awarded to each party, we cannot conclude that the trial court

abused its discretion in dividing the marital estate. Brown, 526 S.W.3d at 508; see

Vasudevan, 2015 WL 4774569, at *4 (rejecting appellate complaint about

disproportionate division of marital estate because appellant did not request findings

of fact showing value trial court assigned to community assets or percentage of

marital estate awarded to each party); Hallum, 2010 WL 4910232, at *6 (holding

same).

      We also note that the trial court relied on several of the Murff factors when it

determined that Jordan was entitled to a disproportionate share of the community

property.   Specifically, the trial court’s judgment notes that “the marriage is

dissolved on fault grounds of Respondent RANDY DAVID MOORE’S infidelity


                                           15
and cruel treatment toward’s [sic] Petitioner SANDRA FAYE JORDAN[,]” and that

“Petitioner SANDRA FAY JORDAN is entitled to a disproportionate share of the

parties’ estate due to fault in the breakup in the marriage, benefits the innocent

spouse may be derived from the continuation of the marriage; the disparity of the

earning power of the spouses and their ability to support themselves; and earning

power, business opportunities, capacities, and abilities of spouses.”

     Moore does not challenge any of the Murff factors or the infidelity finding in

the judgment. See In re K.R.C., 2015 WL 7731784, at *4 (holding finding of

adultery can support disproportionate distribution of community property); see also

Christensen v. Christensen, No. 01-16-00735-CV, 2018 WL 1747260, at *8 (Tex.

App.—Houston [1st Dist.] Apr. 12, 2018, no pet.) (noting same).

     Accordingly, we overrule issue three.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Goodman.




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