Opinion filed September 30, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-09-00113-CV
                                         __________


                           BRANDON FARLOUGH, Appellant

                                                V.

                            TANJULA FARLOUGH, Appellee



                         On Appeal from the County Court at Law No. 1

                                      Wichita County, Texas

                              Trial Court Cause No. CCL-456-07-E


                             MEMORANDUM OPINION

          This is a dispute over the trial court’s division of property incident to a divorce. We
affirm.
          Tanjula Farlough filed for divorce against Brandon Farlough, and she requested a
disproportionate share of the community estate for several reasons including fault in the breakup
of the marriage. The parties had no children. Their dispute concerned solely the division of
property; but, nonetheless, neither party filed a sworn inventory. The trial court conducted a
bench trial on May 30, 2008. The evidence established that there were several bank and
investment accounts in the name of one or both parties. In some instances, the evidence did not
establish the current value of these accounts but a value from several months previous. The trial
court continued the case and directed both parties to file a current, sworn inventory with account
balances as of May 31, 2008. Brandon filed a sworn inventory, but Tanjula did not. The trial
court resumed the trial on September 3, and it entered a decree that granted the parties a divorce
and divided their property. Brandon filed this appeal, complaining of the trial court’s property
division.
      Brandon complains first that the trial court divested him of his separate property. The
parties purchased a home in Pensacola, Florida, for $230,000, and they made a down payment of
$52,000. Brandon contended at trial that $50,000 of this down payment was his separate
property, and he offered evidence that the down payment came from an American Century
Investments account that was in his name and that was in existence prior to the marriage.
Tanjula agreed that the American Century account was in Brandon’s name and that it existed
prior to the marriage, but she contended that it contained commingled funds. The trial court did
not recognize Brandon’s claim to the down payment because it divided the home’s equity
equally between the parties and ordered them to sell the home.
       Trial courts must order a division of the estate of the parties in a manner that the court
deems just and right. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). However, the trial court
may divide only the parties’ community property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.
1985). Trial courts may not divest a party of its separate property when ordering a division of
property. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977). Brandon did not
request findings of fact or conclusions of law. Consequently, the judgment of the trial court after
a bench trial implies all necessary findings of fact to support itself. Schoeffler v. Denton, 813
S.W.2d 742, 744 (Tex. App.—Houston [14th Dist.] 1991, no writ).             We must affirm that
judgment if it can be justified by any legal theory raised by the evidence. Point Lookout W.,
Inc. v. Whorton, 742 S.W.2d 277, 279 (Tex. 1987).
       Tanjula concedes that the money in the American Century account at the time of the
marriage was Brandon’s separate property, but she contends that he did not trace the house down
payment to these separate funds. We agree. Property possessed by either spouse in the course of
marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (Vernon

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2006). Property owned by a party prior to marriage is separate property. TEX. CONST. art. XVI,
§ 15. To overcome the community property presumption, Brandon’s burden was to trace, by
clear and convincing evidence, the cash used to make the down payment to his separate funds.
Brandon is critical of Tanjula’s testimony that the account contained commingled funds, but the
trial court is the factfinder and we are not allowed to substitute our own credibility assessment.
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). This requires, therefore, that we assume that the
account did in fact contain commingled funds.
       Courts can still trace separate funds through bank accounts containing commingled funds
so long as the separate funds are traced in such a manner that the trial court is able to determine
accurately the interest of each party. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.
1975). Mere testimony that property was purchased with separate funds, without any tracing of
the funds, is insufficient to rebut the community presumption. Boyd v. Boyd, 131 S.W.3d 605,
612 (Tex. App.—Fort Worth 2004, no pet.). Any doubt as to the character of property is
resolved in favor of the community estate. Id.
       Brandon simply failed to offer any evidence with which the trial court could trace the
down payment to his separate property. In his sworn inventory, Brandon identified the home’s
equity as a community property asset. He indicated that the American Century account had a
balance of $39,274 on the date of marriage and a current value of $35,750, and he claimed all of
this as his separate property. Tanjula testified that the American Century account grew during
their marriage and that, at one point, was worth $92,000; that it contained commingled funds;
and that she put income into it. There was no other testimony describing what went into the
account during the marriage or whether the account was used to pay for anything other than the
house down payment. Brandon references us to what he describes as his testimony tracing the
funds, but his reference is not to sworn testimony. Brandon represented himself at trial. During
Tanjula’s direct examination, the trial court asked her counsel a clarification question. In the
ensuing discussion, Brandon stated that ―the records will indicate that $50,000 of the $52,000
that will show up in the purchase came out of a separate account, and that was – the American
Century was never a communal account or a community property account.‖ Brandon offered
copies of the two redemption checks from the American Century account that were used to fund
the down payment, but offered no other documentary evidence concerning the American Century
account. He did not otherwise trace the funds through the testimony. Because the trial court had

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almost no information on how the account was funded or utilized during the marriage, it did not
err when it divided the home’s equity equally between the parties. Issue One is overruled.
       Brandon next complains that the trial court erred by characterizing Tanjula’s IRA and
USAA Money Market account as separate property. The trial court awarded Tanjula the funds in
both accounts, but it did not find that they were separate property. Those funds were, instead,
divided as part of the couples’ community property. Issue Two is overruled.
       Brandon also contends that the trial court erred by awarding Tanjula a disproportionate
share of the marital estate. We review a trial court’s division of the property under an abuse of
discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet.
denied). A trial court abuses its discretion when it acts without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The
mere fact that a trial court may decide a matter within its discretionary authority in a different
manner than an appellate court in a similar circumstance does not demonstrate that an abuse of
discretion has occurred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).
       Because Brandon did not request findings of fact, we do not know what value the trial
court assigned to most of the assets. Without this, it is impossible for us to determine what share
of the marital estate either party received and, therefore, whether the trial court abused its
discretion. See Wells v. Wells, 251 S.W.3d 834, 840-41 (Tex. App.—Eastland 2008, no pet.).
Even if we assume that Tanjula received a disproportionate share of the marital estate, because
there was evidence that Brandon committed adultery, the trial court had the authority to order a
disproportionate division. Ohendalski v. Ohendalski, 203 S.W.3d 910, 914-15 (Tex. App.—
Beaumont 2006, no pet.). Issue Three is overruled.
       Next, Brandon complains that Tanjula committed a fraud upon the estate by taking
money out of a community property account.            This issue has not been preserved because
Brandon did not raise it before the trial court. Brandon did cross-examine Tanjula about the
money she took out of the account, but he did not contend that this was done fraudulently or
otherwise request a disproportionate share of the estate. He may not raise that issue now on
appeal. Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170-71 (Tex. App.—Dallas
2009, no pet.) (to preserve an error for appeal, a party’s argument on appeal must comport with
its argument in the trial court). Issue Four is overruled.



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       Finally, Brandon contends that the trial court erred by allowing both parties to keep the
furniture and fixtures in their possession because this allowed Tanjula to receive an unequal
distribution of the marital assets. As noted previously, because Brandon did not request findings
of fact and because the trial court did not assign any value to the furniture and fixtures, it is
impossible for us to determine whether the trial court abused its discretion. Issue Five is
overruled.
      The judgment of the trial court is affirmed.




                                                     RICK STRANGE
                                                     JUSTICE


September 30, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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