                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                           Nos. 07-19-00291-CV


     IN THE MATTER OF THE MARRIAGE OF HEATHER MAY WILLIAMS AND
                      ARTHUR ALBERT WILLIAMS, II

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
    Trial Court No. 2017-411,528,333, Honorable John J. “Trey” McClendon, III, Presiding

                                              March 4, 2020

                                   MEMORANDUM OPINION
                         Before QUINN, C.J., and PIRTLE and PARKER, JJ.

      Heather May Williams appeals from a decree divorcing her from Arthur Albert

Williams, II. The sole issue before us concerns the trial court’s characterization of the

69th Street house, which house was bought during the marriage. It ultimately awarded

the house to Heather after characterizing it to be a community asset.                                  That

characterization amounted to an instance of abused discretion, in her view.1 We affirm.

      The characterization of property is determined as of the inception of title. Attaguile

v. Attaguile, 584 S.W.3d 163, 173 (Tex. App.—El Paso 2018, no pet.). If bought before



      1   Williams filed neither an appellee’s brief nor a motion to extend the time for filing one.
marriage, then it is presumed to be the separate property of the acquiring party. Id. If

acquired during the marriage, it is presumed to be community property. Id. Yet, property

acquired during marriage may be characterized as separate property when the evidence

clearly demonstrates that it was purchased with separate property funds. Id.

       Several other presumptions come into play when acquisition of the asset is

financed. For instance, debt acquired by either spouse during marriage is presumed to

be community debt, and an asset purchased with borrowed funds is presumptively a

community asset. Richardson v. Richardson, 424 S.W.3d 691, 697 (Tex. App—El Paso

2014, no pet.); accord Attaguile, 584 S.W.3d at 174 (explaining that an asset is so

characterized because it is presumed that credit was extended to the community for the

purchase). Yet, like all presumptions, these too may be rebutted through clear and

convincing evidence illustrating the property’s actual characterization. Attaguile, 584

S.W.3d at 174.

       Here, Heather contends that the 69th Street house has a “mixed property

characterization” because the down payment came from her separate property.

Therefore, her “separate estate owns equitable title to the 69th Street house and the

community estate may own some interest in the property.” Yet, that was not what she

argued below. She said nothing of having equitable title to some percentage of the

property due to her down payment. See In re Perkins, No. 07-02-0419-CV, 2004 Tex.

App. LEXIS 713, at *5 (Tex. App.—Amarillo Jan. 23, 2004, pet. denied) (mem. op.)

(stating that “if separate property is used to acquire community property, the estate

making the separate property contribution has equitable title in the community property

to the extent of the contribution”). Instead, she asserted to the trial court that “as a matter



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of law, the house titled solely in [her] name on 69th Street . . . is her sole and separate

property.” Yet, the court noted that the situation before it was not one where the entire

purchase price was paid with separate funds, only the down payment. It also alluded to

the balance being financed.

        If nothing else, the commentary from the trial court reflected its concern about one

of the aforementioned presumptions. The presumption is that characterizing an asset as

community when purchased during marriage on borrowed funds.                                   Rebutting that

presumption may have allowed the trial court to characterize the entirety of the house to

be Heather’s separate property, and the trial court was concerned about whether the

presumption was rebutted. Indeed, it also voiced that concern in its additional findings of

fact and conclusions of law.2

        Heather wanted all the house to be characterized as her separate property at trial,

not simply a portion of it. In denying that request, the trial court implicitly concluded that

she had not proffered sufficient evidence to rebut those presumptions characterizing the

home as a community asset, and it stated as much in an email to counsel explaining its

decision.3 Furthermore, no effort was made on appeal to illustrate that the evidence

actually was sufficient to rebut the presumptions. Instead, Heather changed tact and

posited a new theory on appeal. Because that theory for recovery was not urged below,

we do not consider it now. Cecil v. Frost, 14 S.W.3d 414, 417 (Tex. App.—Houston [14th


        2   Per “additional conclusions of law” number 9, the trial court stated “that property purchased on
credit during a marriage is community property unless there is an express agreement on the part[ ] of the
seller to look solely to the separate estate of the purchasing spouse for satisfaction of the indebtedness.”

          3 In the email, a copy of which Heather attached to her request for additional findings, the trial court

said: “[Counsel for Heather] presented evidence that the house was deeded to [Heather] in her name alone
and the note for the house was solely in her name as well. While I agree that this could be considered as
some evidence of the property being separate, I do not believe this evidence is conclusive as to the issue
of it being her separate property.”

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Dist.] 2000, no pet.) (stating that an “appellant is limited to the theories on which the case

was tried and may not appeal the case on new or different theories”). And, this is

especially appropriate given that the trial court ultimately awarded the house to her when

dividing the community estate.

       We overrule the issue and affirm the trial court’s judgment.



                                                                 Brian Quinn
                                                                 Chief Justice




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