                                  NO. 07-02-0034-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                 NOVEMBER 19, 2003

                         ______________________________


                           WILLIE F. HENRY, APPELLANT

                                           v.

                           SYLVIA J. HENRY, APPELLEE
                       _________________________________

           FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

              NO. 34,359-01-06; HONORABLE PAUL E. WHITE, JUDGE

                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Willie Frank Henry appeals from a divorce decree following a non-jury trial. On

appeal, he contends the trial court erred by (1) awarding property to Sylvia Henry as

separate property when there was not sufficient evidence to rebut the presumption the

property was community property; (2) mischaracterizing community property assets leading

to an unequal division of the marital estate; and (3) dividing community property in a

disproportionate manner absent factors to support such a ruling. As the three issues deal
with whether the court was correct in its designation and division of marital property, they

will be addressed together.


       The parties were married on April 6, 1998. They ceased to live together on or about

May 3, 1999. There were no children of the marriage. Appellant was incarcerated when

appellee filed for divorce on the ground of insupportability on June 5, 2001. A final hearing

was held September 27-28, 2001. Appellee was present and testified at the hearing.

Appellant, still incarcerated, participated and testified by conference call on September 28.

Neither party was represented by counsel during the divorce proceedings.


       Appellee’s petition alleged that, to her knowledge, there was no community property

“of any significant value” except personal effects that had been divided to the satisfaction

of the parties. Attached to a motion he filed with the trial court, appellant submitted a

numbered list of twenty items he claimed to be community property of the marriage. During

the hearing, the court and both parties referred to items on the list by number. The court

referred to the items of property by number in his letter to the parties announcing his ruling

following the hearing, and again in his final decree of divorce. The court also attached a

copy of the list as an exhibit to the final decree.


       On the list of items appellant submitted, he had assigned a value to each item. The

trial court allowed each party to testify regarding the value of each item of property on the

list and whether items should be classified as community or separate property.           The

testimony of the parties conflicted as to the value of individual items, when items had been




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acquired and even whether items still, or ever had, existed. The only evidence presented

to the trial court was the testimony of appellant and appellee.


       The final decree awarded appellee all property, with the exception of a toolbox and

tools that both sides agreed were the separate property of appellant. The assets awarded

appellee included two residences which were community property, along with any

indebtedness on the properties. One of the residences was a mobile home purchased for

$60,000 on lots purchased for about $30,000. According to the testimony of appellee, the

mobile home had been lost through foreclosure prior to the final hearing. She also testified

that foreclosure proceedings were about to be initiated on the other residence, valued at

$14,000.


       Appellant does not assert that he was divested of any separate property by the trial

court’s judgment. He contends, though, that five items of community property, a television,

living room furniture, bedroom furniture, a stove and a refrigerator, valued on his list at a

combined value of $8,975, were mischaracterized by the trial court as the separate

property of appellee, and that the mischaracterization of those assets lead to an unjustly

unequal division of the community property.


       At the outset, we note our disagreement with appellant’s contention that the

inclusion of the list of items as an exhibit to the divorce decree indicates that the trial court

found all the items on the list to be in existence or found that any of the items had the

values listed. We view the exhibit simply as the trial court’s method of identifying the items




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by their number on the list, in the same manner as the items were referred to by number

during both parties’ testimony.


       Appellant’s first issue presumes that the trial court found the five disputed items to

have been appellee’s separate property. Appellee argues that the final decree also can be

construed simply as awarding the disputed items to her, thereafter to be her separate

property. Although the language of the final decree is unclear, and appellee’s reading of

it is not unreasonable, for purposes of this opinion we will assume that appellant is correct

that the trial court determined the five disputed items were appellee’s separate property

and not the community property of her marriage to appellant.


       Neither party requested findings of facts and conclusions of law following the trial

court’s decision. In a non-jury trial, where no findings of fact or conclusions of law are filed

or requested, it is implied that the trial court made all the necessary findings to support its

judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). When, however, as

here, a reporter’s record is provided, the sufficiency of the evidence to support implied

findings of fact may be challenged. Id.; In re Williams, 998 S.W. 2d 724, 729

(Tex.App.–Amarillo 1999, no pet.). A judgment based on implied findings that are

supported by sufficient evidence is to be affirmed on any applicable theory of law. See

Point Lookout West, Inc. v. Whorton, 742 S.W. 2d 277, 278 (Tex. 1987).


       Community property consists of all property, other than separate property, acquired

by either spouse during the marriage. Tex. Fam. Code Ann. § 3.002 (Vernon 1998).

Property in the possession of either spouse during or on dissolution of marriage is


                                               4
presumed to be community property. Tex. Fam. Code Ann. § 3.003(a). This presumption

may be rebutted with clear and convincing evidence the property is separate property. Tex.

Fam. Code Ann. § 3.003(b).


       We construe appellant’s first issue, in which he argues that appellee’s testimony

alone was not sufficient to rebut the presumption that the disputed items were community

property, as a challenge to the factual sufficiency of the evidence. Clear and convincing

evidence is that degree of proof sufficient to produce in the mind of the factfinder a firm

belief or conviction as to the truth of the allegations sought to be established. Tex. Fam.

Code Ann. § 101.007 (Vernon 2002).            In considering appellant’s factual sufficiency

challenge, we consider all the evidence, In re Williams, 998 S.W. 2d at 729, and sustain

his challenge if the trial court’s finding is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Id.; Hill v. Hill, 971 S.W. 2d 153, 158

(Tex.App.–Amarillo 1998, no pet.).1


       In support of his argument, appellant cites Tarver v. Tarver, 394 S.W. 2d 780 (Tex.

1965), McElwee v. McElwee, 911 S.W. 2d 182 (Tex.App.–Houston [1st Dist.] 1995, writ

denied) and Mortenson v. Trammell, 604 S.W. 2d 269 (Tex.App.–Corpus Christi 1980, writ



       1
        Some courts of appeals have applied a more stringent standard of review in cases
involving factual sufficiency of evidence to meet the “clear and convincing” burden of proof.
See, e.g., In Interest of G.B.R., 953 S.W. 2d 391 (Tex.App.–El Paso 1997, no writ). We
apply the traditional standard here, following this court’s opinion in Hill v. Hill, 971 S.W. 2d
153, 158 (Tex.App.–Amarillo 1998, no pet.). We would affirm the trial court’s finding
concerning the separate property nature of the five disputed items, though, even under the
more stringent standard of review, being unable to say that the trial court could not
reasonably have found it to be established by clear and convincing evidence. See G.B.R.,
953 S.W. 2d at 396.

                                               5
ref’d n.r.e.) for the proposition that some manner of tracing of the origin of the disputed

items was required. Appellant’s reliance on those cases is misplaced. Each of those cases

involved efforts to identify the source of funds used for the acquisition of assets during a

marriage. No issue requiring tracing is presented in this case.


       Appellant testified that each of the five disputed items was acquired during the

marriage. Appellee testified that she owned three of the five disputed items (the television

and the bedroom and living room furniture) before her marriage to appellant. She also

testified that appellant had sold the television. Her testimony about the stove and

refrigerator was more ambivalent. She stated that both items were her separate property,

and in the context of the trial court’s questioning of her, it would not be unreasonable to

construe the statement as one that she owned the items before the marriage. At another

point, she stated that the stove and refrigerator were contained in the mobile home that

was repossessed which, since that mobile home was acquired during the marriage, may

suggest that the appliances were also. Appellant also testified that the refrigerator was

located in the mobile home, but stated that the stove he was describing was located in the

other residence. He asserted that both items should still be on hand. Although the clear

and convincing evidence standard requires proof weighing heavier than merely the greater

weight of the credible evidence, there is no requirement that the evidence be unequivocal

or undisputed. G.B.R., 953 S.W.2d at 396, citing State v. Addington, 588 S.W.2d 569, 570

(Tex. 1979). It was the task of the trial court to evaluate the credibility of the witnesses and

resolve conflicts in testimony. On this record, we are unwilling to say a conclusion that the

five disputed items were owned by appellee before the marriage and were therefore her


                                               6
separate property is so contrary to the overwhelming weight of the evidence as to be

clearly wrong.


       Even if the trial court was guilty of mischaracterizing the community or separate

property character of one or more of the disputed items, the mischaracterization did not

necessarily have a significant effect on the division of the parties’ community property.

Appellee’s testimony was to the effect that the five disputed items had minimal value, and

to the effect that three of the five items were no longer available for division between them,

having been sold or repossessed. The record supports a conclusion, then, that the effect

of any mischaracterization of those assets was de minimis. McElwee v. McElwee, 911

S.W.2d at 189. We overrule appellant’s first and second issues.


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

in a manner that the court deems just and right, having due regard for the rights of each

party and any children of the marriage.” Tex. Fam. Code Ann. § 7.001. A trial court has

broad discretion in making the division of community property, and its division is to be

affirmed unless the court has abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698

(Tex. 1981); see Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). “In exercising

its discretion the trial court may consider many factors and it is presumed that the trial court

exercised its discretion properly.” Murff, 615 S.W.2d at 698. The “just and right” division

of the community estate need not be equal. Schlueter, 975 S.W.2d at 588; Forgason v.

Forgason, 911 S.W.2d 893, 896 (Tex.App.–Amarillo 1995, writ denied).




                                               7
       A court may abuse its discretion by ruling arbitrarily, unreasonably or without

reference to any guiding rules and principles, or without supporting evidence. Bocquet v.

Herring, 972 S.W. 2d 19, 21 (Tex. 1998); Morrow v. H.E.B., Inc. , 714 S.W. 2d 297, 298

(Tex. 1986). When determining whether the court has abused its discretion, we must view

the evidence in the light most favorable to the trial court’s actions and indulge in every legal

presumption in favor of the judgment.           Tucker v. Tucker, 908 S.W.2d 530, 532

(Tex.App.–San Antonio 1995, writ denied).


       When questioned by the court during the hearing, appellant admitted that six items

he had identified as community property were in fact appellee’s separate property.

Appellant also testified that law books he listed at $5,500 actually had been purchased for

$850, a freezer listed at a value of $750 had been destroyed and an automobile he valued

at $3,300 had been purchased for $500.


       Appellee testified she had acquired most of the property that appellant claimed to

be community property prior to her marriage to appellant, that some of the items appellant

listed did not exist and others had been repossessed. Appellee also testified that

appliances and other items belonging to the community estate had been taken and sold

by appellant prior to his incarceration, and that he was responsible for the loss of other

assets. Appellee testified that she had no place to live.


       Appellant, relying on the factors referenced in Murff, 615 S.W.2d at 699, contends

there were no factors to support a disproportionate division of community property. The

factors a court may consider in making a just and right division of property are not limited


                                               8
to those identified in Murff. See Abernathy v. Fehlis, 911 S.W.2d 845, 848

(Tex.App.–Austin    1995,    no   writ). Phillips    v.   Phillips,   75   S.W.3d   564,   573

(Tex.App.–Beaumont 2002, no pet.), cited by appellant, does not stand for a contrary rule.

The circumstances of each marriage dictate what factors should be considered in the

division of property upon divorce. Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980).


       A spouse may recover an appropriate share not only of property existing in the

community at the time of divorce, but also that which her spouse improperly depleted from

the community estate. Schlueter, 975 S.W.2d at 589. The trial court also may consider

whether one of the parties to the marriage has wasted community assets. Phillips, 75

S.W.3d at 573; see Schlueter, 975 S.W.2d at 589; Beard v. Beard, 49 S.W.3d 40, 66

(Tex.App.–Waco 2001, pet. denied).


       On this record, and in the absence of findings concerning the values of any of the

assets of the community estate, we presume that the trial court properly considered the

entire circumstances of the parties, including the brief duration of their time together, and

correctly exercised its discretion in dividing their property. We cannot say that the court

acted arbitrarily or without evidence to support its decision. Appellant’s third issue is

overruled. The judgment of the trial court is affirmed.




                                                    James T. Campbell
                                                        Justice




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