Affirmed as Modified and Memorandum Opinion filed April 30, 2013.




                                      In The


                    Fourteenth Court of Appeals

                              NO. 14-12-00478-CV


                     CRAIG ZAMIATOWSKI, Appellant

                                        V.

                      PATTY ZAMIATOWSKI, Appellee


                   On Appeal from the 328th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 10-DCV-179061


                      MEMORANDUM OPINION

      Appellant, Craig Zamiatowski (“Craig”), appeals the portion of a divorce
decree granting reimbursement claims asserted by appellee, Patty Zamiatowski
(“Patty”), awarding Patty a monetary judgment based on the reimbursement
claims, and imposing a lien against Craig’s separate real property relative to that
judgment. We modify the decree to reduce the amount of the lien and affirm as
modified.

                                 I. BACKGROUND

      Before the parties’ marriage, Craig purchased real property located on
Whitewing Street in Richmond, Texas (“the Whitewing property”), on which he
operated his business, Masterblast Sales & Service (“Masterblast”), and residential
real property located on Marion Drive in Richmond (“the Marion Drive property”).
During the marriage, the parties used funds in a joint account to pay for (1)
construction of a warehouse on the Whitewing property, (2) taxes on the
Whitewing property, and (3) homeowner’s insurance on the Marion Drive
property.

      Craig incurred a federal income-tax debt of $42,448 before the marriage.
During the marriage, he made a $22,000 payment towards the tax debt with funds
withdrawn from his IRA and replenished the IRA two months later with funds
from Masterblast.

      The trial court conducted a bench trial on issues concerning the marital
estate. On February 3, 2012, the trial court signed a divorce decree. Relevant to
this appeal, the trial court included a section ordering relief on Patty’s
reimbursement claims as follows: (1) awarding Patty a judgment of $85,729 “in
order to equalize the marital estate in this Court’s just and right division of the
estate;” (2) awarding reimbursement claims to the community estate for $55,675
expended to construct the warehouse on the Whitewing property, $1,386 for
property taxes paid on the Whitewing property, and $4,900 for homeowner’s
insurance paid on the Marion Drive property; (3) awarding a reimbursement claim
to Patty’s separate estate for the payments of $42,448 made to retire Craig’s

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separate income-tax debt; and (4) requiring Craig to execute and deliver to Patty’s
counsel a real estate lien note in the amount of $85,729 and a deed of trust for the
Whitewing property. Craig filed a motion for new trial, which was denied.

                                   II. ANALYSIS

      Reimbursement is an equitable right that “arises when the funds or assets of
one estate are used to benefit and enhance another estate without itself receiving
some benefit.”     Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982).
Reimbursement claims are governed by section 3.402 of the Texas Family Code
and can arise from a variety of expenditures or contributions. See Tex. Fam. Code
Ann. § 3.402 (West Supp. 2012).        In a divorce decree, the trial court shall
determine the rights of both spouses in a claim for reimbursement and apply
equitable principles to (1) determine whether to recognize the claim after
considering the parties’ relative circumstances and (2) order a division of the
claim, if appropriate, in a “just and right” manner. Id. § 7.007 (West Supp. 2012);
see id. § 3.402(b). The party claiming the right of reimbursement has the burden
of pleading and proving the expenditures and improvements were made and they
are reimbursable. Vallone, 644 S.W.2d at 459. Reimbursement is not available as
a matter of law but lies within the broad discretion of the trial court. Id.; see
Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988).

A.    Reimbursement to Community Estate

      In his first issue, Craig contends the trial court erred by awarding
reimbursement to the community estate for the funds expended to construct the
warehouse on the Whitewing property (Craig’s separate estate).                Craig
acknowledges section 3.402 permits a claim for reimbursement for capital
improvements made by the community estate to a spouse’s separate estate. See

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Tex. Fam. Code Ann. § 3.402(a)(8).           Additionally, Craig does not dispute
community funds were expended to construct the warehouse. However, Craig
argues Patty presented no evidence regarding the enhanced value of the property as
a result of the improvement—the proper measure of reimbursement when funds
have been expended by one marital estate for improvements to another marital
estate. See id. § 3.402(d); Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.
1985).

      Under the abuse of discretion standard, legal sufficiency of the evidence is
not an independent ground of error but is merely a relevant factor in assessing
whether an abuse of discretion has occurred. Knight v. Knight, 301 S.W.3d 723,
728 (Tex. App.—Houston [14th Dist.] 2009, no pet.). A trial court does not abuse
its discretion if there is some evidence of a substantive and probative character to
support the decision. Id. When reviewing legal sufficiency of the evidence, we
review the evidence in the light most favorable to the challenged finding and
indulge every reasonable inference that would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable
fact finder could and disregard contrary evidence unless a reasonable fact finder
could not. Id. at 827. The evidence is legally sufficient if it would enable a
reasonable and fair-minded person to reach the finding under review. Id.

      As Craig asserts, the amount awarded for reimbursement of community
funds expended to construct the warehouse was $55,675, which equaled the cost of
the improvement. We agree with Craig that the cost of the improvement is not the
correct measure for the reimbursement claim. See Tex. Fam. Code Ann. §
3.402(d); Anderson, 684 S.W.2d at 675. However, the trial court did not issue
findings of fact and conclusions of law. Thus, there was no express finding the
trial court meant for the $55,675 reimbursement award to represent the cost of the
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improvement. Instead, we imply the trial court made all findings of fact necessary
to support the judgment, and we will uphold those findings if supported by
sufficient evidence. See BMC Software Belg., N.V., v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002). Accordingly, although the $55,675 award equaled the cost of the
improvement, we cannot foreclose the possibility the trial court found $55,675 was
also the enhanced value of the property.

      Alternatively, a trial court does not abuse its discretion if it reaches the right
result even for the wrong reason. Chenault v. Banks, 296 S.W.3d 186, 190 (Tex.
App.—Houston [14th Dist.] 2009, no pet.). As discussed below, Patty presented
evidence that the enhanced value after the improvement was an amount greater
than $55,675. Therefore, whether we imply the trial court found $55,675 was the
enhanced value or the trial court incorrectly awarded $55,675 as the cost of the
improvement, we nonetheless uphold the judgment because some probative
evidence supports an enhanced value in an even greater amount.

      The warehouse was constructed in June 2008. With respect to the pre-
improvement value of the property, an estimated 2008 property tax statement
reflects a 2007 value of $76,400. With respect to the post-improvement value, the
trial court admitted into evidence Craig’s sworn “Inventory and Appraisement,” on
which he listed the Whitewing property as “Current fair market value (as of July 7,
2010): $175,000.00.” See Aduli v. Aduli, 368 S.W.3d 805, 820 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (recognizing sworn inventory as evidence
relevant to division of marital property when offered and admitted into evidence);
Hailey v. Hailey, 176 S.W.3d 374, 385 (Tex. App.—Houston [1st Dist.] 2004, no
pet.) (considering spouse’s “trial inventory and appraisement” listing amounts
expended on certain marital property and admitted into evidence as sufficient to
support trial court’s corresponding findings relative to those amounts).
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      In summary, the trial court heard some probative evidence of a difference in
fair market value of $98,600 before and after the improvement. Accordingly, we
hold the trial court did not abuse its discretion by awarding reimbursement to the
community estate in the amount of $55,675. We overrule Craig’s first issue.

B.    Reimbursement to Patty’s Separate Estate

      In his second issue, Craig contends the trial court erred by awarding
reimbursement to Patty’s separate estate for payments of $42,448 made to retire
Craig’s separate income tax debt. Craig contends there is no evidence Patty’s
separate estate made such payments. As Craig asserts, Patty testified the parties
withdrew funds from Craig’s IRA to pay the income tax debt and then replenished
the IRA with funds from the Masterblast account. In her appellate brief, Patty
concedes the trial court mischaracterized this reimbursement claim as belonging to
Patty’s separate estate rather than the community estate. Therefore, we conclude
the trial court abused its discretion by awarding this reimbursement claim to
Patty’s separate estate. However, relative to Craig’s third issue, discussed below,
we conclude the error was not reversible.

C.    Amount of the Judgment

      In his third issue, Craig challenges the amount of the judgment rendered in
favor of Patty relative to the reimbursement claims. First, Craig contends the trial
court erred by including any amount for Patty’s just and right share of the $55,675
reimbursement claim awarded to the community estate for improvements to the
Whitewing property because there was no evidence of enhanced value. Because
we have rejected Craig’s no-evidence point relative to the Whitewing property, we
also reject his contention that the $55,675 improperly factored into the just and
right division of the reimbursement claims.
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      Next, Craig argues the amount of the judgment is improper because of the
trial court’s error in awarding Patty’s separate estate a reimbursement claim for
payments made to retire Craig’s separate income tax debt. Craig suggests the
$85,729 judgment consists of the entire $42,448 reimbursement claim awarded,
albeit incorrectly, to Patty’s separate estate, plus $43,281, which the trial court
determined constitutes Patty’s just and right share of the total $61,961
reimbursement claim awarded to the community estate.            Consequently, Craig
suggests the amount of the judgment would be reduced if the trial court correctly
characterized the $42,448 reimbursement claim as belonging to the community
estate and then also performed a just and right division of that amount.

      Patty contends the mischaracterization is not reversible error because it had
no effect on the trial court’s just and right division of the marital estate. See
Stavinoha v. Stavinoha, 126 S.W.3d 604, 617 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (recognizing that, when trial court mischaracterizes community
property as separate property, the error does not require reversal unless it had more
than a de minimis effect on the trial court’s just and right division of the property).
We agree.

      Although the trial court incorrectly recited that the reimbursement claim was
awarded to Patty’s separate estate, it is clear from the entire record that the trial
court nevertheless treated the reimbursement claim as belonging to the community
estate when rendering the $85,729 judgment in favor of Patty. Specifically, before
signing the divorce decree, the trial court made a written property-division ruling.
In that ruling, the trial court recited it was awarding Patty a judgment of $85,729
relative to the reimbursement claims; and, as Craig acknowledges on appeal, the
trial court treated all reimbursement claims as belonging to the community estate
and then performed a just and right division of those awards to reach the $85,729
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judgment. The judgment for $85,729 in the divorce decree is wholly consistent
with the earlier property-division ruling.           Thus, the record demonstrates that,
despite reciting in the decree that the $42,448 was a reimbursement award to
Patty’s separate estate, the trial court determined that a judgment to Patty for
$85,729 represented a just and right division of all reimbursement claims as
belonging to the community estate.1

       Accordingly, the trial court did not abuse its discretion by rendering
judgment of $85,729 in Patty’s favor. We overrule Craig’s second and third
issues.

D.     Lien Against Craig’s Separate Property

       In his fourth issue, Craig contends the trial court erred by imposing a lien
against Craig’s separate property or alternatively, the amount of the lien is
incorrect. Craig argues the lien was impermissibly imposed to secure a just and
right division of the marital estate. Craig correctly cites Heggen v. Pemelton, 836
S.W.2d 145, 146–48 (Tex. 1992) for the proposition that a court may not impose a
lien on a spouse’s separate real property simply to ensure a just and right division
of the marital estate. However, the Heggen court also recognized a court may
impose a lien on separate real property to secure the other spouse’s right of
reimbursement for certain community improvements to the property. See id.


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         Craig notes the difference between the written ruling and subsequent decree shows the
court, within its plenary power, modified the earlier written ruling when signing the decree.
Although the trial court modified the portion of the earlier ruling awarding the reimbursement
claim to the community estate, the written ruling remains pertinent to the analysis of whether the
mischaracterization in the decree is reversible error. The written ruling demonstrates there is no
reason to remand for the trial court to perform a just and right division of the reimbursement
claim as belonging to the community estate. The trial court has already ruled that $85,729 would
constitute Patty’s just and right share of all reimbursement claims when properly characterized as
belonging to the community estate.
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         In this case, the trial court did not impose the lien to secure a just and right
division of the marital estate. Instead, the trial court imposed the lien to secure the
reimbursement claims awarded to the community estate against Craig’s separate
estate. Specifically, the order imposing a lien is included only within the section
awarding the reimbursement claims. The trial court recited the lien was imposed
to secure the judgment awarded to Patty relative to the reimbursement claims.

         However, Patty concedes in her appellate brief that the amount of the lien is
incorrect.    As Craig asserts, the $85,729 lien against the Whitewing property
represents reimbursement claims other than those made for payments on behalf of
that property. Accordingly, we agree with Craig that the lien amount must be
limited to $57,061, consistent with the reimbursement award for community
improvements to the Whitewing property. We sustain, in part, Craig’s fourth
issue.

         We modify the trial court’s divorce decree to order that Craig execute and
deliver to Patty’s counsel a Real Estate Lien Note in the amount of $57,061, rather
than $85,729, and we affirm the decree as modified.



                                                 /s/   John Donovan
                                                       Justice


Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.




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