                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-18-00208-CV
                          _______________________

                      KAITLYN E. OLIVER, Appellant

                                       V.

                     PHILIP DAVID OLIVER, Appellee



                   On Appeal from the 410th District Court
                        Montgomery County, Texas
                      Trial Cause No. 17-07-08677-CV


                         MEMORANDUM OPINION

      Appellant Kaitlyn E. Oliver (“Kaitlyn”) appeals from the trial court’s Final

Decree of Divorce. Kaitlyn argues the trial court erred in finding she committed

adultery and in failing to find her ex-husband Philip David Oliver (“David”) also

committed adultery. Kaitlyn also argues the trial court erred in its division of

property.




                                        1
      Kaitlyn and David were married on October 18, 2014. The couple ceased to

live together in April 2017. David filed an original petition for divorce and Kaitlyn

filed a counterpetition, and both parties subsequently filed amended pleadings. In

their original pleadings, both David and Kaitlyn alleged that the marriage was

insupportable as grounds for divorce. In the amended pleadings that were the live

pleadings at the time of trial, both David and Kaitlyn alleged the marriage was

insupportable and that the other party had committed adultery as grounds for

divorce. The matter was tried to the bench in March 2018. The trial court granted

the divorce “on the grounds of insupportability and adultery by Kaitlyn” and ordered

the following division of property:

      • David was awarded the marital residence at 1912 Foxtail Place, funds in a
        Capital One bank account, an IRA E*Trade account, a Dynamic Risk
        401(k) account other than $55,792.82 awarded to Kaitlyn, and all personal
        property in his possession.

      • Kaitlyn was awarded funds in two Capital One bank accounts (different
        from the account awarded to David), a BOK Financial account, $55,792.82
        to be paid from the Dynamic Risk 401(k), a 2015 Jeep Grand Cherokee,
        and all personal property in her possession.

      • David was ordered to pay the balance of $152,000 on the promissory note
        on 1912 Foxtail Place, debts on two bank accounts, and any debts incurred
        solely by him since April 18, 2017.




                                         2
      • Kaitlyn was ordered to pay the promissory note on the Jeep Grand
        Cherokee, the debt on a bank account, and any debts incurred solely by her
        since April 18, 2017.

      • The following property was decreed as David’s separate property: a
        Subaru, $29,584.30 from the Dynamic Risk 401(k), his wedding ring, and
        “$37,680.00 of separate property interest claim” in the marital home at
        1912 Foxtail Place.

      • The following property was decreed as Kaitlyn’s separate property: two
        Capital One bank accounts, $4,908 in her BOK Financial 401(k) account,
        her wedding and engagement rings, and “$28,560.00 of separate property
        interest claim” in the marital home at 1912 Foxtail Place.

      • Each party was ordered to be responsible for his or her own attorney’s fees.

Kaitlyn appealed.

David’s Testimony and Evidence

      David testified that the marriage came to an end because he and Kaitlyn were

no longer compatible. According to David, the couple separated in April 2017 and

Kaitlyn “voluntarily moved out of the house[]” at that time, and they decided to

divorce in May. David testified that he believed Kaitlyn committed adultery before

they agreed to the divorce. He further testified that he found out who Kaitlyn was

dating when that man helped her move items out of the house. According to David,

because he was aware Kaitlyn was dating someone else, he thought it would be okay

if he also dated other people. David testified that he had been dating a woman since



                                         3
the summer before trial, and he agreed that he had committed adultery “[p]ost-

divorce, mutual divorce agreement between us two[.]”

      David testified that he and Kaitlyn bought the house at 1912 Foxtail Place

(“the Foxtail house”) together from Kaitlyn’s grandmother’s estate and the purchase

price was below the appraised value of the house. According to David, Kaitlyn’s

grandmother died on October 11, 2014, about a week before he and Kaitlyn got

married, and the grandmother “transferred” the house to Kaitlyn’s mother and uncle.

David testified that he and Kaitlyn paid $160,000 for the Foxtail house, which

appraised at $210,000 at the time of purchase. A copy of the sales contract was

admitted into evidence, showing a sales price of $160,000. David explained that one

reason the sales price was so much lower than the appraised value could have been

due to extensive termite damage or because the discounted price was a gift to him

and Kaitlyn as a couple. According to David, there was “nothing in writing to

indicate that there was some sort of separate gift to Katie.”

      He further testified that the warranty deed was issued in both their names, that

the mortgage was in both names, and that the deed listed Kaitlyn’s mother and uncle

as the sellers. David testified that the deposit of $8,400 on the purchase of the Foxtail

house was made from his personal account. He also testified that he paid $2,800 for

a fence at the house in October 2014.

                                           4
      David testified that he understood Kaitlyn was completely moving out of the

Foxtail house, that he and Kaitlyn had talked about the house, and that he understood

they had agreed that David would continue to live in the house and would pay

Kaitlyn “whatever amount we deemed fair to stay in the house.” David was surprised

that Kaitlyn wanted to return to the house, and he testified that he did not believe

there was any documentation to back up Kaitlyn’s $60,000 separate property claim

on the house.

      David testified that he put in “countless hours” remodeling the Foxtail house

and making improvements:

             I helped renovate the kitchen and laundry room. I tiled the floor in
      the kitchen and laundry room. I tiled the backsplash. Installed the garbage
      disposal. Installed a new dishwasher, microwave oven. I have wired
      lights in the kitchen. I have retextured and painted the walls in the
      kitchen. I tiled the backsplash in the laundry room. I replaced the water
      heater myself in the laundry room. I have -- I remodeled the master
      bathroom in [] the master bedroom. I tore out the old shower and had to
      repair extensive termite damage in the corner of the house, and I tiled the
      master shower and installed a door. Installed two toilets in the house. I
      have recently repainted the hall bathroom and replaced all the hardware
      in that bathroom and installed the new light fixture. I have hung a ceiling
      fan in the master bedroom. I sodded the back yard. I have maintained all
      the outside of the house. Installed the new garage door and installed two
      new windows in the house.

      ...

             [Since Kaitlyn moved out,] I painted the hall bathroom. I put all
      new hardware in that bathroom, and I hung a new light fixture. I have --
      I had to replace the garage door, and then I replaced two windows in the
                                          5
      formal living room and I -- I have also painted a few other things,
      touching up and patching holes in walls.

      ...

            . . . The garage door broke, and I had to have it replaced and that
      was about $725. And I -- recently a couple windows got broken in the
      formal living room. Dog jumped on a chair, fell into the window, and it
      broke. So I had to replace those. That was $684. And I have done other
      improvements, such as I planted the flowerbed in the back yard and spent
      around $200 on plants with that. And I also -- I kind of renovated the hall
      bathroom and bought supplies to paint, and I changed out the hardware
      and changed out the lighting fixture which, all told, that was around $200
      as well.

According to David, he paid for the repairs to the house from his “personal account.”

David testified that the taxes on the Foxtail house had been paid but that Kaitlyn had

not paid any of the taxes. David also testified that, since Kaitlyn had moved out, he

had paid 100% of the mortgage payments, for a total of about $13,000, and he asked

the court for reimbursement for those payments.

      An October 2014 appraisal of the property was admitted into evidence,

reflecting the house had an appraised value of $210,000. Another appraisal of the

property dated September 2017 was also admitted into evidence, reflecting a value

for the house of $240,000. A document titled “Itemization of Amount Financed”

dated October 22, 2014, was admitted, reflecting an amount financed of

$149,798.92. David testified that he wanted to have the Foxtail house awarded to

him and take on all the debt associated with the house. He testified that there was
                                        6
about $100,000 equity in the Foxtail house. According to David, Kaitlyn could be

“compensated fairly[]” as to the house with a cash payment.

      David testified that there were three retirement accounts: an E*Trade IRA

with a balance of about $100, a BOK 401(k) that Kaitlyn had prior to the marriage

that had about $5,000, and a Dynamic Risk 401(k) he had prior to and during the

marriage. According to David, prior to the marriage, the balance of the Dynamic

Risk account was $29,584.30, and he agreed that an additional amount of about

$88,000 in the account was community property.

      David testified that he bought the house at 3114 Snowbird Meadow Drive

prior to his marriage to Kaitlyn. According to David, he was requesting

reimbursement of $15,998.37 that represented the proceeds from the sale of that

house and testified that he had used the money for improvements to the Foxtail

house. David agreed that he was also requesting reimbursement of $15,000 that was

an inheritance from his grandmother that he used to renovate the Foxtail house.

David’s mother also testified that she wrote him a check for $15,000 in November

2014 that was his inheritance from his grandmother.

      David testified that at the time of the marriage, he owned a vehicle that was

completely paid off and that Kaitlyn owned a Jeep Cherokee, and he agreed that

Kaitlyn’s claim of reimbursement of $3,000 for the Cherokee was “totally fair.”

                                        7
David agreed that Kaitlyn’s Tiffany engagement ring, valued at about $15,000, and

her wedding band, valued at “a couple thousand[,]” were her separate property.

David testified that he was asking the court to award him his wedding band, which

had a purchase price of about $300, as his separate property.

Kaitlyn’s Testimony and Evidence

      Kaitlyn agreed that she was unfaithful to David with two men. She agreed that

one relationship began in 2016, before she moved out of the couple’s home. She

agreed there were nights that she did not come home. Kaitlyn testified that she

became unhappy in the marriage, she felt their relationship was “dependent on the

idea that David was very superior” to her, and she believed David was controlling

and believed he was “entitled[.]” According to Kaitlyn, at some point during the

pendency of the divorce, David changed the locks on the house and did not allow

her to enter. Kaitlyn testified that she and David had a discussion wherein they

recognized the relationship was not going to continue and they were both

comfortable that they could date other people. She agreed she amended her divorce

petition to make an adultery claim against David because “he attacked [her] first[.]”

      Kaitlyn testified that she wished to continue living in the Foxtail house

because “it was definitely a gift” from her mother to her, and it was part of her

mother’s inheritance that her mother wanted to pass on to Kaitlyn. Kaitlyn did not

                                         8
believe that David would have benefited from the $50,000 discounted price if he was

not marrying her:

      [Counsel for Kaitlyn]: . . . [H]ow close was it from the time your
      grandmother died to the time your mother got the property to the time
      that it was given to you?

      [Kaitlyn]: It was all within a month-and-a-half. My grandmother passed
      the week before our wedding, and we closed on the Foxtail home in
      December. So --

      [Counsel for Kaitlyn]: Did your mother make it clear to you that she
      was selling the house at a deeply discounted rate?

      [Kaitlyn]: Definitely.

      [Counsel for Kaitlyn]: Did she make it clear to you that this was as a
      wedding gift?

      [Kaitlyn]: It was not a wedding [g]ift, no.

      [Counsel for Kaitlyn]: What was it?

      [Kaitlyn]: It was a gift to me, to keep it in the family.

      [Counsel for Kaitlyn]: So you would put it more like an inheritance?

      [Kaitlyn]: I would, and I think all that she could do within her means
      was gift me $50,000. But that’s where David and I came in and agreed
      to purchase it for 160.

Kaitlyn disagreed that only David had put in time and effort into making upgrades

and additions to the house, and she testified that she painted and made “other

additions” to increase the value of the home. According to Kaitlyn, her mother also

                                           9
continued to give the couple gifts for the house. Kaitlyn agreed that the warranty

deed for the house shows that her mother and uncle sold the house to both of them

and the deed has no reference to a gift to her.

      Kaitlyn testified that at the time of the marriage, she owned a 2006 Mazda that

she later sold, and she applied the proceeds to the purchase of another vehicle. She

also testified that she had a retirement account before marriage.

Testimony of Susan Hayes

      Kaitlyn’s mother, Susan Hayes, testified that the Foxtail house had been in

her family for many years. Susan testified that although her mother was in hospice

care for the last year of her life and not in the home, the family wanted to keep the

house in the family and decided not to sell it. According to Susan, she and her mother

decided to give the house to Kaitlyn after talking about it “quite a bit.” Susan testified

that Susan and her brother inherited the house when their mother died. Susan further

testified that when the house was transferred over to David and Kaitlyn, “[t]he gift

had already been made[]” to Kaitlyn and “[t]he portion that wasn’t a gift was then

sold to them.” When asked why there was nothing written about a gift to Kaitlyn,

Susan replied “[t]he gift was before the sale of the house. They are two separate

things.” Susan agreed that Kaitlyn and David “equally purchased[]” the house. Susan

did not remember saying anything to David about her intent for Kaitlyn to have a

                                           10
portion of the house as a gift. Susan testified “David is not my son. Katie is my

daughter. Of course[,] the gift was to my daughter. It is not to anybody else.” Susan

also testified that both David and Kaitlyn got the house at a discounted price. Susan

agreed that the proceeds of the sale went to her and her brother and that both Kaitlyn

and David were getting the house at a reduced price. Susan recalled that Kaitlyn and

David purchased the house about three weeks after they got married.

                                       Issues

      Appellant raises five issues on appeal:

        I.   The Trial Court’s $37,680 Award to Husband From the
             Community Property House as Separate Property
             Reimbursement Was Supported Only by Oral Testimony That
             Could Not Meet the Required “Clear and Convincing” Standard.

       II.   The Trial Court’s $37,680 Award to Husband From the
             Community Property House as “Reimbursement” Was
             Erroneous Because Husband Failed to Properly Prove Up His
             Claim Pursuant to Texas Family Code Sec. 3.402.

      III.   The Trial Court’s Finding That $29,584.30 in Husband’s 401(k)
             Was Separate Property Was Supported Only by Oral Testimony
             That Could Not Meet the Required “Clear and Convincing”
             Standard.

      IV.    The Trial Court Erred in Finding “Adultery” Only Against Wife
             When Husband Admitted Committing Multiple Acts of
             Adultery.

       V.    The Trial Court Erred by Awarding Wife’s 13.6% Separate
             Property Interest to Husband in Violation of Texas Constitution
             Article XVI, Sections 15 & 50.
                                        11
                                 Standard of Review

      A trial court is charged with dividing the community estate in a “just and

right[]” manner, considering the rights of both parties. Tex. Fam. Code Ann. § 7.001.

The party complaining of the trial court’s division of property must demonstrate

from evidence in the record that the division was so unjust that the trial court abused

its discretion. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999,

pet. denied). Under an abuse of discretion standard, legal and factual sufficiency are

relevant factors in assessing whether the trial court abused its discretion. Beaumont

Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). They are not independent grounds

of error. Ditraglia v. Romano, 33 S.W.3d 886, 889 (Tex. App.—Austin 2000, no

pet.); Crawford v. Hope, 898 S.W.2d 937, 940 (Tex. App.—Amarillo 1995, writ

denied). If there is any reasonable basis for doing so, we must presume that the trial

court exercised its discretion properly. Pletcher, 9 S.W.3d at 446. We presume that

the trial court made all the necessary findings to support its judgment, and if the

implied findings are supported by the evidence, we must uphold the judgment on

any theory of law applicable to the case. See BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789, 795 (Tex. 2002); Garcia v. Garcia, 170 S.W.3d 644, 652 (Tex.

App.—El Paso 2005, no pet.). We will not disturb the trial court’s division unless

the record demonstrates “that the division was clearly the result of an abuse of

                                          12
discretion.” Pletcher, 9 S.W.3d at 446. That is, we will not reverse unless the record

clearly shows that the trial court was acting arbitrarily or unreasonably. See Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An abuse of

discretion does not occur where the trial court bases its decisions on conflicting

evidence and some evidence supports its decision. See In re Barber, 982 S.W.2d

364, 366 (Tex. 1998) (orig. proceeding).

                                  Applicable Law

Characterization of Property

      Property possessed by either spouse during or at the dissolution of the

marriage is presumed to be community property, but the presumption may be

rebutted by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003;

Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). Any doubt as to the

character of property should be resolved in favor of the community estate. Sink v.

Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.). In the context of a

divorce proceeding, characterizing property as separate or community depends on

the character of the property when it was acquired and the circumstances of its

acquisition. See Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001); Rivera v.

Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied). Separate

property consists of all the spouse’s property, both real and personal, that is owned

                                           13
or claimed before marriage, and that is acquired after marriage by gift, devise, or

descent. Tex. Const. art. XVI, § 15; Tex. Fam. Code § 3.001(1), (2). Community

property consists of property, other than separate property, acquired by either spouse

during marriage. Tex. Fam. Code Ann. § 3.002. The party who asserts that property

is his or her separate property bears the burden of proof to establish that property is

separate property and must do so by “clear and convincing evidence.” Id. § 3.003(b).

Clear and convincing evidence means “the 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.” Id. § 101.007. To properly support an

assertion that property is separate property, the proponent must introduce

documentary evidence sufficient to overcome the community presumption. See

Graves v. Tomlinson, 329 S.W.3d 128, 140 (Tex. App.—Houston [14th Dist.] 2010,

pet. denied) (explaining that testimony unsupported by documentary evidence does

not meet the clear and convincing standard and does not overcome the community

property presumption).

      “When reviewing an alleged property characterization error, we must

determine whether the trial court’s finding is supported by clear and convincing

evidence and whether the characterization error, if established, was an abuse of

discretion.” Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007,

                                          14
pet. denied). “While the proof must weigh heavier than merely the greater weight of

the credible evidence, there is no requirement that the evidence be unequivocal or

undisputed.” Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no

pet.).

Reimbursement Claims

         A trial court has discretion to award a claim for reimbursement. See Vallone

v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). When separate property is used to

enhance the value of the community estate, including the reduction of community

debt, the spouse whose separate property was used to enhance the value of the

community estate has an equitable right of reimbursement. Tex. Fam. Code Ann.

§ 3.402; Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988). The measure of

reimbursement when one marital estate expends funds or assets to make capital

improvements to the property of another marital estate is the enhancement in value

to the receiving estate. Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex. 1985);

Cook v. Cook, 693 S.W.2d 785, 786 (Tex. App.—Fort Worth 1985, no writ). This

enhancement is the difference between the fair market value before any

improvements and the fair market value after the improvements made during the

marriage, not the actual cost of improvements. Sharp v. Stacy, 535 S.W.2d 345, 351

(Tex. 1976); Anderson, 684 S.W.2d at 675. The party claiming reimbursement bears

                                          15
the burden of establishing the net benefit to the payee estate. Vallone, 644 S.W.2d at

459; Zieba v. Martin, 928 S.W.2d 782, 789 (Tex. App.—Houston [14th Dist.] 1996,

no writ).

      Because of the equitable nature of a reimbursement claim, a trial court must

look at all the facts and circumstances to determine what is just and fair. Penick, 783

S.W.2d at 197. Great latitude is accorded the trial court in applying equitable

principles to value a reimbursement claim. Id. at 198. Such a claim is not merely a

balancing of the ledgers between the marital estates; rather, the discretion to be

exercised in evaluating a reimbursement claim is equally as broad as the discretion

subsequently exercised by the trial court in making a just and right division of the

community estate. Id. The burden of proving the claim rests with the claimant.

Vallone, 644 S.W.2d at 459. The burden of securing a finding also rests with the

claimant. Id. When a reimbursement award does not appear to be unjust, there is no

abuse of discretion. Bigelow v. Stephens, 286 S.W.3d 619, 623 (Tex. App.—

Beaumont 2009, no pet.).

                      The Trial Court’s Award to David of a
                    “$37,680 Separate Property Interest Claim”
                             in the Marital Residence

      In two issues, Kaitlyn challenges the trial court’s finding awarding David a

“$37,680.00 of separate property interest claim” on the marital residence. In her first

                                          16
issue she argues that the trial court erred in making this separate property

reimbursement because it was supported only by oral testimony that could not meet

the “clear and convincing” standard. Kaitlyn argues that the trial court erred in

characterizing David’s reimbursement claim for repairs to the Foxtail house as

separate property. In her second issue, she argues this award was in error because

David failed to properly prove up his claim pursuant to section 3.402 of the Family

Code and “[t]here was absolutely no indication of how any amount spent actually

improved the value of the home.”

      It is undisputed that the evidence shows the marital residence was appraised

at $210,000 in October 2014 and appraised at $240,000 in September 2017—an

increase in value of $30,000. David made a reimbursement claim for the following

expenses he alleged he incurred towards purchase, repair, and upgrading the Foxtail

house:

         Earnest money                                     $1,000.00
         Down payment                                      $8,400.00
         Fence                                             $2,838.75
         Gift from David’s parents                        $15,000.00
         Garage door repair                                 $725.00
         Window replacement                                 $685.00
         Other “minor” home repairs                         $259.00
         Proceeds from sale of David’s prior house        $15,998.37
         applied to improvements to Foxtail house
                                            Subtotal      $44,906.12


                                        17
David also sought $15,455 reimbursement for “[p]ayments towards the house

(includes taxes/insurance) after separation[,]” and the total amount David sought in

reimbursement was $60,361.12.

      Of the amounts listed above, David and his mother both testified that $15,000

was an inheritance from David’s grandparents, and as either a gift or inheritance, the

$15,000 would have been David’s separate property. See Tex. Fam. Code Ann.

§ 3.001(2). Another $9,400 represents payments made towards the purchase of the

home from David’s separate property bank account before marriage. See id. David

also alleges that he owned a home prior to the marriage and when that house sold,

he applied the proceeds to improvements of the Foxtail house. See id. § 3.402(a)(6)

(a spouse may claim reimbursement for capital improvements to community

property paid for by separate property).

      We agree with Kaitlyn that the cost of improvements 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 (and none were requested). Thus, there was no express

finding the trial court meant for the $37,680 reimbursement award to represent the

cost of the improvements claimed by David. Instead, we imply the trial court made

all findings of fact necessary to support the judgment, and we will uphold those

                                           18
findings if supported by sufficient evidence. See Marchand, 83 S.W.3d at 795.

Kaitlyn argues that David failed to meet his burden of proof to establish by clear and

convincing evidence that the alleged expenditures he made to the marital residence

were from his separate property and that the improvements enhanced the value of

the marital residence. On this record, we cannot say that the trial court erred in

awarding David a reimbursement claim of $37,680 because the trial court could have

believed the testimony of David and his mother that $15,000 was David’s separate

property gift from his family, and another $9,400 was from David’s separate

property prior to marriage, and the trial court could have concluded that David

expended the amounts on the home. The trial court also could have believed from

the testimony presented and the increased value to the property as reflected by the

comparison of the 2014 and 2017 appraisals that the repairs David testified that he

made from his separate property enhanced the value of the property in an amount

equal to the amount awarded to David. See, e.g., Zamiatowski v. Zamiatowski, No.

14-12-00478-CV, 2013 Tex. App. LEXIS 5272, at **5-6 (Tex. App.—Houston

[14th Dist.] Apr. 30, 2013, no pet.) (mem. op.) (applying Marchand, the trial court

could have concluded that the amount awarded as a reimbursement claim equaled

the enhanced value of the property).



                                         19
      Kaitlyn argues the trial court erred in characterizing David’s reimbursement

claim for repairs as separate property, but nothing in the order states the basis for the

trial court’s confirmation of separate property to David “of $37,680.00 of separate

property interest claim on the Marital Residence.” Neither party requested findings

of fact and conclusions of law or a clarification of the court’s decree. Because the

trial court’s order awarding David $37,680 as a separate property interest claim is

supported by clear and convincing evidence, we need not address Kaitlyn’s issue

regarding whether the trial court characterized the $37,680 as separate property or,

if it did, whether such characterization was error. See Tex. R. App. P. 47.1;

Marchand, 83 S.W.3d at 795; Garcia, 170 S.W.3d at 652 (if the implied findings are

supported by the evidence, we must uphold the judgment on any theory of law

applicable to the case). We overrule Kaitlyn’s first and second issues.

                                    David’s 401(k)

      Kaitlyn’s third issue argues that the trial court erred in finding that $29,584.30

in the 401(k) account through David’s employer was David’s separate property.

According to Kaitlyn, the “only evidence” at trial rebutting the community property

presumption for 401(k) contributions made during the marriage was David’s own

testimony, and such oral testimony is legally insufficient to overcome the

community property presumption.

                                           20
      Kaitlyn testified at trial that, before the marriage, David had a balance in his

401(k) through his employer Dynamic Risk of $29,954:

      [Counsel for David]: . . . [W]as David working prior to being married
      -- not when you were engaged -- with the company he is still working
      at?

      [Kaitlyn]: Correct.

      [Counsel for David]: And you are aware that he had retirement
      investments at that time. Correct?

      [Kaitlyn]: Yes, ma’am.

      [Counsel for David]: And, as a matter of fact, you know the exact
      number, which is $29,954. Correct?

      [Kaitlyn]: Yes.

On appeal, David argues that this portion of Kaitlyn’s testimony is an admission

against interest and constitutes a “stipulation” to David’s separate property interest

in the 401(k). David testified at trial that, prior to the marriage, the balance of the

Dynamic Risk account was $29,584.30.

      To preserve error, a party’s argument on appeal must comport with its

argument in the trial court. See Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40

(Tex. App.—Houston [14th Dist.] 2005, pet. denied). In addition, a party’s

testimonial declarations that are contrary to his position are quasi-admissions that

are “some evidence[]” but not conclusive upon the admitter. Mendoza v. Fid. &

                                          21
Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). A judicial

admission “results when a party makes a statement of fact which conclusively

disproves a right of recovery or defense currently asserted.” Louviere v. Hearst

Corp., 269 S.W.3d 750, 755 (Tex. App.—Beaumont 2008, no pet.).

      To be treated as a judicial admission, a party’s statement must meet five
      requirements: (1) the statement relied on is made during the course of
      a judicial proceeding; (2) the statement is contrary to an essential fact
      embraced in the theory of recovery or defense asserted by the person
      making the statement; (3) the statement is deliberate, clear, and
      unequivocal; (4) giving conclusive effect to the statement will be
      consistent with the policy on which the judicial admission rule is based;
      and (5) the statement is not also destructive of the opposing party’s
      theory of recovery.

Id. at 754-55. On this record, the trial court could have regarded Kaitlyn’s testimony

as a judicial admission about David’s separate property interest in his Dynamic Risk

401(k). See id. At trial, Kaitlyn did not present any argument to the trial court

indicating she disagreed with the amount David claimed was his separate property

in his 401(k). Kaitlyn had the burden to preserve error in the trial court on this issue.

See Tex. R. App. P. 33.1(a).

      But even assuming Kaitlyn preserved error and did not make a judicial

admission that prevents her appellate argument on this issue, the record includes

testimony and documentary evidence that supports the trial court’s finding.

Respondent’s Exhibit 3B was admitted into evidence without objection. It was titled

                                           22
“Retirement Savings Plan Statement For the period October 1, 2014 - December 31,

2014” for “Phillip D Oliver” with a hire date of July 7, 2014. The document reflects

a rollover contribution during this period in the amount of $27,275.37, which, after

earnings and market value change, resulted in a rollover balance of $28,088.28. In

addition, Kaitlyn and David’s residential loan application was admitted as

Respondent’s Exhibit 14A, and it shows a vested interest in a retirement fund of

$29,028. In consideration of all of the evidence that was before the trial court, we

cannot say that the trial court abused its discretion in concluding that clear and

convincing documentary evidence supported a finding that $29,584.30 in the

Dynamic Risk 401(k) was acquired prior to the marriage and was David’s separate

property. See Tex. Fam. Code Ann. § 3.001(1); Magness, 241 S.W.3d at 912. We

overrule Kaitlyn’s third issue.

                                  Grounds for Divorce

      Kaitlyn’s fourth issue argues that the trial court erred in finding adultery only

against her when David “admitted committing multiple acts of adultery.” According

to Kaitlyn, both she and David admitted to having sexual relations with others during

the marriage and the trial court erred by decreeing only Kaitlyn’s adultery.1 Kaitlyn



      1
          Kaitlyn does not argue that the trial court made a disproportionate
distribution of the marital estate based on a finding that she committed adultery.
                                          23
argues that the trial court could have decided not to reference the adultery as grounds

for the divorce and that under the evidence before the trial court where both parties

agree they have committed adultery during the marriage, “the effect of the trial

court’s recognizing only the adultery of Kaitlyn appears arbitrary, capricious, unfair

and an abuse of discretion requiring reversal.”

      In its ruling from the bench, the trial court stated, “I am granting the divorce

on the grounds of insupportability and, also, adultery by the wife.” In the Final

Decree of Divorce, the trial court ordered and decreed that Kaitlyn and David “are

divorced and that the marriage between them is dissolved on the grounds of

insupportability and adultery by Kaitlyn[.]”

      The Family Code assigns the determination of grounds for divorce to the

discretion of the trial court. See Applewhite v. Applewhite, No. 02-12-00445-CV,

2014 Tex. App. LEXIS 2306, at **3-4 (Tex. App.—Fort Worth Feb. 27, 2014, no

pet.) (mem. op.) (citing Tex. Fam. Code Ann. §§ 6.001, 6.003). A trial court “may

grant a divorce in favor of one spouse if the other spouse has committed adultery.”

Tex. Fam. Code Ann. § 6.003 (emphasis added); see also In re S.A.A., 279 S.W.3d

853, 856 (Tex. App.—Dallas 2009, no pet.) (Adultery means the “voluntary sexual

intercourse of a married person with one not the spouse.”). Adultery is not limited

to actions committed before the parties separated. In re C.A.S., 405 S.W.3d 373, 383

                                          24
(Tex. App.—Dallas 2013, no pet.). Adultery can be shown by direct or

circumstantial evidence. Id. A trial court is not required to grant a divorce on the

basis of adultery where there is evidence of adultery. See Applewhite, 2014 Tex.

App. LEXIS 2306, at **3-4 (where husband admitted to having had two affairs

during the marriage, the trial court did not abuse its discretion in granting the wife a

divorce on grounds other than adultery); see also In re Hashimi, No. 14-17-00488-

CV, 2018 Tex. App. LEXIS 7071, at **16-17 (Tex. App.—Houston [14th Dist.]

Aug. 30, 2018, no pet.) (mem. op.) (“[E]ven if sufficient evidence of adultery existed

in this case, the trial court did not abuse its discretion by granting the divorce solely

on the basis of insupportability.”).

      Although both David and Kaitlyn admitted they dated other people during the

pendency of the divorce proceeding, Kaitlyn testified that she was unfaithful to

David in 2016 and prior to the time the parties separated and decided to divorce in

2017. Based on the testimony from David and Kaitlyn at trial, the trial court could

have believed that David’s relationship with another woman did not begin until after

his separation and after the parties decided to divorce, and thus the trial court could

have concluded that David’s adultery was not a ground for the dissolution of the

marriage. See Martel v. Martel, No. 05-99-00177-CV, 2001 Tex. App. LEXIS 6025,

at *7 (Tex. App.—Dallas Aug. 31, 2001, no pet.) (op. on reh’g) (a spouse cannot be

                                           25
faulted for the breakup of a marriage based on adultery where that spouse’s adultery

did not occur until after the separation) (citing Winkle v. Winkle, 951 S.W.2d 80, 90-

91 (Tex. App.—Corpus Christi 1997, writ denied)). On the record before us, we

cannot say that the trial court abused its discretion in finding Kaitlyn’s adultery and

not finding David’s adultery to be a ground for the dissolution of the marriage. We

overrule Kaitlyn’s fourth issue.

             Kaitlyn’s “Separate Property Interest Claim” in the House

      Kaitlyn’s fifth issue argues that she had a 13.6% separate property interest in

the family house and the trial court erred in awarding that separate property interest

to David. According to Kaitlyn, her 13.6% separate property interest in the family

house was a gift from her mother.2 Kaitlyn argues that the trial court correctly

determined her separate property interest in the house, but it then awarded the house

to David which violated article XVI of the Texas Constitution, and it is an

unconstitutional taking. 3 Kaitlyn further argues that the trial court should have either


      2
       Kaitlyn’s appellate brief also argues that her mother gave her approximately
15% of the family house and sold the remaining 85% to David and Kaitlyn.
      3
         Article XVI, section 50(a)(3) of the Texas Constitution provides in relevant
part that
       (a) The homestead of a family, or of a single adult person, shall be, and is
hereby protected from forced sale, for the payment of all debts except for: (3) an
owelty of partition imposed against the entirety of the property by a court order or
by a written agreement of the parties to the partition, including a debt of one spouse
                                          26
awarded Kaitlyn full possession and ownership of the house (with an appropriate

offset to David) or it should have ordered a public sale of the property with Kaitlyn

and David to divide the proceeds. David argues that the decretal language of the

Final Decree of Divorce did not find that Kaitlyn had a separate property interest in

the house, but rather it awarded an equitable reimbursement claim of $28,560 to

Kaitlyn.

        Central to Kaitlyn’s argument is her contention that she received a separate

property interest in the Foxtail house as a result of a gift from her family. She argues

that the house was sold to Kaitlyn and David for a reduced purchase price and the

reduction (approximately $60,000) was a gift to her as her separate property. In

support of her contention that the reduction in the sales price of the home was a gift




in favor of the other spouse resulting from a division or an award of a family
homestead in a divorce proceeding[.]

        Article XVI, section 15 of the Texas Constitution provides in relevant part
that:
      All property, both real and personal, of a spouse owned or claimed
      before marriage, and that acquired afterward by gift, devise or descent,
      shall be the separate property of that spouse; and laws shall be passed
      more clearly defining the rights of the spouses, in relation to separate
      and community property[.]
Tex. Const. art. XVI, §§ 15, 50(a)(3).

                                          27
to her from her mother and uncle, she testified, and her mother testified that the

purchase price was reduced because Kaitlyn’s family gave the reduction to Kaitlyn.

      The appellate record provides evidence of only one conveyance of the Foxtail

house—a sale to both David and Kaitlyn. 4 The evidence was uncontroverted that the

marital residence was previously Kaitlyn’s grandmother’s home, that Kaitlyn and

David entered into a real estate sales contract to purchase the home from the

grandmother or her estate before Kaitlyn and David married, that the sales price for

the home was agreed to be $160,000, that the home appraised for approximately

$210,000, that Kaitlyn and David then closed on the home and received a deed to

the home after they married, and that in 2017 the home appraised for $240,000.

Kaitlyn and her mother testified that the reduced sales price was intended to be a gift

to Kaitlyn only. David disagreed with that testimony. The appellate record includes

no evidence of an actual conveyance of any separate interest in the home to Kaitlyn

nor was there evidence of a divestiture of ownership in the home by Kaitlyn’s

mother, uncle, or grandmother prior to the closing and transfer of the home to

Kaitlyn and David after they married. David and Kaitlyn purchased the home

(financed in part by a joint mortgage). Based on the record before us, we cannot say



      4
        Neither party introduced into evidence the deed to the Foxtail house, but
both agreed that the deed was in both of their names.
                                         28
that the trial court abused its discretion in failing to find that Kaitlyn held a separate

property interest in the marital residence because the trial court could have

reasonably concluded that Kaitlyn did not meet her burden of proof to establish by

clear and convincing evidence that the reduced price was a gift to her (and not to her

and David) from her family or that any portion of the Foxtail house was otherwise

gifted to her separately, and she failed to overcome the community property

presumption. See Tex. Fam. Code Ann. § 3.003; In re Marriage of Royal, 107

S.W.3d 846, 850-53 (Tex. App.—Amarillo 2003, no pet.); see also Lopez v. Lopez,

271 S.W.3d 780, 788 (Tex. App.—Waco 2008, no pet.) (a conveyance for

consideration cannot be a gratuitous gift).

      The trial court did not make a finding of a separate property gift to Kaitlyn. In

announcing its ruling from the bench, the trial court stated “the wife has the

following sum of interest as her separate property in the marital residence. That sum

being $28,560.” The Final Decree of Divorce states that “the following described

property is confirmed as the separate property of Kaitlyn E. Oliver: . . . A finding of

$28,560.00 of separate property interest claim on the Marital Residence . . . 1912

Foxtail Place[.]”

      While we agree that a court cannot divest an owner of separate property, there

is no divestiture of separate property when a party has not met the burden to

                                           29
overcome the presumption of community property and the court characterizes the

property at issue as community. See Pearson v. Fillingim, 332 S.W.3d 361, 364

(Tex. 2011) (where husband in a divorce proceeding failed to prove mineral deeds

were received as gifts, he failed to overcome the community property presumption).

We may affirm the divorce decree’s order that Kaitlyn had a $28,560 claim on the

Foxtail house by applying the section 3.402 statutory right of reimbursement to the

value of the house. See id.; see also Tex. Fam. Code Ann. § 3.402. Therefore, the

trial court did not err because it could have concluded that Kaitlyn failed to overcome

the community property presumption regarding the Foxtail house and the award of

$28,560 could have been based upon the trial court’s conclusion that Kaitlyn is

entitled to an equitable reimbursement claim. See Pearson, 332 S.W.3d at 364;

Garcia, 170 S.W.3d at 652.

      Additionally, we reject Kaitlyn’s contention that the trial court awarded her

separate property to David. The trial court did not find that the marital residence was

Kaitlyn’s separate property, nor did the trial court find it was David’s separate

property. The trial court could have reasonably concluded that the marital residence,

which was acquired by deed after the marriage, and which is presumed to be part of

the community estate, was part of the community estate. The trial court then awarded

the marital residence to David, but imposed a separate property claim against the

                                          30
residence in favor of David in the amount of $37,680 and in favor of Kaitlyn in the

amount of $28,560.

      There is evidence in the record showing that the claims in the divorce included

a claim for reimbursement, and the court was authorized to enforce an owelty lien

against the property. Generally, Article XVI, section 50 of the Texas Constitution

protects individuals from being forced to sell a homestead, but the section has many

exceptions. One of the exceptions is for “an owelty of partition imposed against the

entirety of the property by a court order or by a written agreement of the parties to

the partition, including a debt of one spouse in favor of the other spouse resulting

from a division or an award of a family homestead in a divorce proceeding[.]” Tex.

Const. art. XVI, § 50(a)(3). That exception applies under the circumstances that were

shown here. See Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex. 1992) (citing Tex.

Const. art. XVI, § 50).

      Appellant also contends that this case is controlled by Eggemeyer v.

Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977). In Eggemeyer, the Supreme Court

affirmed the court of appeals’ reversal of the trial court’s divorce decree. Id. at 142.

The divorce decree had divested Homer Eggemeyer of his separate property

undivided one-third interest in a farm that he had received as a gift and transferred

title to Virginia Eggemeyer. Id. at 138. The trial court had also named Virginia

                                          31
conservator of the couple’s four minor children. Id. On appeal, Virginia argued that,

notwithstanding article 4639a’s prohibition against divesting a spouse of separate

property, section 3.63 of the Family Code did authorize divestiture of Homer’s

separate realty and vesting it with her because the trial court can make such an order

when it is “just and right.” 5 Id. at 138-39. In affirming reversal of the trial court’s

decree, the Supreme Court explained that, while an interim administration of a

spouse’s property was authorized to assure the payment of child support, section

3.63 did not authorize divestiture of separate property. Id. at 139. The Court

explained that the trial court’s discretion to divide marital property does not extend

to taking separate property from one spouse and giving it to the other, even though

a parent’s child support duty may be enforced against the parent as well as his

separate property. Id. at 142.


      5
       Former Article 4638 provided that:
             The court pronouncing a decree of divorce shall also decree and
      order a division of the estate of the parties in such a way as the court
      shall deem just and right, having due regard to the rights of each party
      and their children, if any. Nothing herein shall be construed to compel
      either party to divest himself or herself of the title to real estate.

      Former section 3.63 provided that:
             In a decree of divorce or annulment the 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.
See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 n.1 & 2 (Tex. 1977).
                                           32
      We find Eggemeyer inapposite to the present case. Not only does this case

involve no child support obligations, but as we have explained herein, the trial court

did not make a finding that the marital residence was Kaitlyn’s separate property and

it did not “divest” her of separate property ownership. Therefore, there is no

constitutional infirmity. We overrule Kaitlyn’s fifth issue.

      Having overruled all Appellant’s issues, we affirm the trial court’s divorce

decree.

      AFFIRMED.



                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice


Submitted on October 31, 2019
Opinion Delivered March 12, 2020

Before McKeithen, C.J., Horton and Johnson, JJ.




                                         33
