                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-18-00050-CV


             IN THE MATTER OF THE MARRIAGE OF ANGIE DOUTHIT
                         AND CHARLEY L. DOUTHIT

                          On Appeal from the 223rd District Court
                                    Gray County, Texas
              Trial Court No. 38,821, Honorable Phil N. Vanderpool, Presiding

                                     April 15, 2019

                                       OPINION
                      Before CAMPBELL and PIRTLE and PARKER, JJ.


      Appellant, Angie Douthit, appeals the trial court’s characterization of an asset and

denial of her reimbursement claim incident to her divorce from appellee, Charley L.

Douthit. We affirm.


                                       Background


      Charley and Angie were married in 2010. Angie filed a petition for divorce from

Charley in 2017. A final decree of divorce was filed on February 1, 2018, following a

bench trial. In this appeal, Angie challenges the trial court’s determinations that (1) the

parties’ residence, located at 1900 Hamilton in Pampa, is Charley’s separate property,
and (2) the community estate is not entitled to reimbursement for improvements to

another tract of Charley’s separate property.


                                     Standard of Review


       A trial court’s division of a marital estate is reviewed for abuse of discretion. Murff

v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court abuses its discretion when it acts

arbitrarily or unreasonably, without reference to guiding rules and principles. Iliff v. Iliff,

339 S.W.3d 74, 78 (Tex. 2011). However, the mere fact that a trial judge may decide a

matter within its discretionary authority in a different manner than an appellate judge

would in a similar situation does not demonstrate that an abuse of discretion has occurred.

Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965) (citing Jones v. Strayhorn,

321 S.W.2d 290, 295 (1959)).


       When we review a family law case under the abuse of discretion standard,

challenges to the sufficiency of the evidence do not constitute independent grounds of

error but are relevant factors in determining whether the trial court abused its discretion.

Van Hooff v. Anderson, No. 07-14-00080-CV, 2016 Tex. App. LEXIS 466, at *8 (Tex.

App.—Amarillo Jan. 14, 2016, no pet.) (mem. op.) (citing Boyd v. Boyd, 131 S.W.3d 605,

611 (Tex. App.—Fort Worth 2004, no pet.)). In determining whether the trial court abused

its discretion by deciding an issue without sufficient evidentiary support, “we engage in a

two-pronged inquiry: (1) did the trial court have sufficient evidence upon which to exercise

its discretion, and (2) did the trial court err in its application of that discretion?” Boyd, 131

S.W.3d at 611.




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                                        Analysis


Characterization as Separate Property


      Angie’s first issue challenges the trial court’s determination that the parties’

residence, located at 1900 Hamilton in Pampa, is Charley’s separate property. The 1900

Hamilton property was conveyed from Jerry and Traci Douthit (Charley’s son and

daughter-in-law) to Charley and Angie by warranty deed dated October 29, 2014. Both

Charley and Angie testified that the property was acquired in a trade with Charley’s son,

Jerry, and that no other consideration was given. Charley testified that he traded a ten-

acre tract of land he owned before marriage in exchange for the 1900 Hamilton property.

Angie, however, contends that the residence cannot be traced back to Charley’s separate

property, because the evidence failed to establish Charley’s ownership of the ten-acre

tract which was traded for the residence.


      Under Texas law, property possessed by either spouse during or on dissolution of

the marriage is presumed to be community property, in the absence of clear and

convincing evidence to the contrary. TEX. FAM. CODE ANN. § 3.003 (West 2006). To

overcome the community presumption, the spouse claiming certain property as separate

property has the burden to trace and clearly identify the property claimed to be separate.

Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987). A spouse’s separate

property consists of, inter alia, “the property owned or claimed by the spouse before

marriage.” TEX. FAM. CODE ANN. § 3.001 (West 2006) (emphasis added). And, as is

relevant here, “[p]roperty acquired in exchange for separate property becomes the

separate property of the spouse who exchanged the property.” Ridgell v. Ridgell, 960



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S.W.2d 144, 148 (Tex. App.—Corpus Christi 1997, no pet.) (citing Dixon v. Sanderson,

10 S.W. 535, 536 (Tex. 1888)).


       Angie’s position fails to account for the full statutory definition of separate property.

Although Charley did not produce a deed or other documentation reflecting his ownership

of the ten-acre tract that was traded for the 1900 Hamilton property, he did present

evidence that he claimed the tract before marriage, even though he had not yet obtained

the legal title or evidence of title. Charley testified that he purchased the tract from his

brother Bob years before his marriage to Angie. At the time of Bob’s death, he had not

yet transferred title to Charley. Charley paid the taxes on the property for years, and both

he and Bob’s widow, Gwen, understood that Charley owned the property. When Charley

decided to trade the property to his son Jerry in exchange for the 1900 Hamilton property,

Gwen agreed to simply convey the tract directly to Jerry. Thus, Charley’s evidence

showed that the ten-acre tract was property that he claimed before marriage. See

Sauvage v. Wauhop, 143 S.W. 259, 263 (Tex. Civ. App.—Texarkana 1912, no writ) (“The

words ‘owned or claimed’ were manifestly used in the statute, we think, to signify a legal

or equitable ownership or legal or equitable right of demand of the land”).


       Moreover, Angie’s own testimony corroborated Charley’s ownership of the ten-

acre tract. Angie agreed that the 1900 Hamilton property was acquired in an exchange:


       Q: That wasn’t a house that was his prior to marriage, was it?

       A: No.

       Q: Now, that was a trade from certain property that [Charley] had south of
       town, it was kind of a direct trade; is that right?

       A: He traded, yes.


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       Q: Okay. Did you put any money into that trade or was it just a trade, as
       far as you know?

       A: As far as I know it was just a trade.


Angie also testified that the ten-acre tract used in the exchange was property Charley had

prior to their marriage:


       Q: Charley had 20 acres of land before marriage[,] correct?

       A: Correct.

       Q: And a half of that plus the improvements on it were traded for the house
       at 1900 Hamilton?

       A: Yes.


Angie further testified that no other property or funds were used to acquire the 1900

Hamilton property.


       Given Angie’s admission that Charley had the ten-acre tract before their marriage,

she cannot now, on appeal, be heard to complain that he did not establish this fact with

sufficient evidence. See, e.g., Gana v. Gana, No. 14-05-00601-CV, 2007 Tex. App.

LEXIS 3094, at *15 (Tex. App.—Houston [14th Dist.] Apr. 24, 2007, no pet.) (mem. op.)

(where wife admitted in testimony that husband owned real property before marriage, her

testimony constituted a judicial admission; her admission and husband’s testimony

constituted sufficient evidence to overcome community property presumption and to

demonstrate husband’s separate ownership).


       The evidence was uncontroverted that the only consideration given for the

residence at 1900 Hamilton was the exchange of property Charley owned or claimed

before marriage. This is clear and convincing evidence that the 1900 Hamilton residence


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was traceable to Charley’s separate assets. See Celso v. Celso, 864 S.W.2d 652, 655

(Tex. App.—Tyler 1993, no writ) (where evidence was uncontroverted that husband’s

separate property assets were used to purchase house, then evidence was clear and

convincing that husband traced purchase of house to his separate property assets); see

also Pace v. Pace, 160 S.W.3d 706, 712 (Tex. App.—Dallas 2005, pet. denied) (wife’s

uncorroborated and uncontroverted testimony was sufficient to constitute clear and

convincing evidence of separate property nature of asset).


        We therefore conclude that the trial court did not abuse its discretion in determining

that Charley met his burden of proving and tracing his separate property. We overrule

Angie’s first issue.1


Reimbursement Claim


        In her second issue, Angie contends the trial court erred in rejecting her claim for

reimbursement to the community estate. Angie alleged that the community expended

approximately $20,000 to improve another ten-acre tract of property owned by Charley.

The trial court found that the tract was not enhanced for reimbursement purposes and

that the community received the use, benefit, and enjoyment of any expenditures made.


        A right of reimbursement arises when the funds 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). “[I]t also arises when community time, talent[,] and labor


          1 In a passing reference, Angie claims that because the 1900 Hamilton property cannot be traced

back to Charley’s separate property, it must be presumed to be either community property or a gift. In the
event that Angie asserts that the trial court erred in failing to find that Charley intended to make a gift of one
half of the interest in the 1900 Hamilton property to Angie, she has not briefed this issue. Issues not briefed
are waived. Employers’ Nat’l Life Ins. Co. v. Willits, 436 S.W.2d 918, 923 (Tex. Civ. App.—Amarillo 1968,
writ ref’d n.r.e.) (and cases cited therein).

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are utilized to benefit and enhance a spouse’s separate estate, beyond whatever care,

attention, and expenditure are necessary for the proper maintenance and preservation of

the separate estate, without the community receiving adequate compensation.” Id. Such

claims are governed by section 3.402 of the Texas Family Code. TEX. FAM. CODE ANN.

§ 3.402 (West Supp. 2018). The party seeking reimbursement has the burden of pleading

and proving that the expenditures and improvements were made and that they are

reimbursable. Vallone, 644 S.W.2d at 459. A trial court has “great latitude” in evaluating

claims for reimbursement. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988).


       There was no dispute that this ten-acre tract was Charley’s separate property. The

evidence showed that Charley purchased the tract for $10,000 in 1999. Charley started

making improvements to it after his marriage to Angie. He spent approximately 200 hours

building a barn from materials that were located on the property. He testified that he

spent $11,064.15 on the improvements, and these funds came from his separate property

account. Charley estimated that, considering both materials and labor, $20,000 was

spent improving the ten-acre property. When asked if the property was now worth

$50,000, with the barn on it, he answered, “Today maybe, yeah.”


       Angie testified that the property was worth more now than it was before, but there

was no testimony as to the value of the tract at the time the parties married in 2010. There

was also no testimony about the value of any enhancements to the tract.


       The party seeking reimbursement must prove the enhanced value, if any,

attributable to community expenditures. McCann v. McCann, 22 S.W.3d 21, 24 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied). Even if community assets were expended



                                             7
improving Charley’s property, it was Angie’s burden to show the enhanced value to

Charley’s estate. In her brief, Angie alleges simply that the property was purchased for

$10,000 and now has a value of $50,000, so the community was entitled to a portion of

the $40,000 difference. This argument fails to account for the value of the property at the

time of marriage and the enhanced value attributable to community expenditures.

Without such evidence, the trial court was justified in denying Angie’s claim for

reimbursement. See Zagorski v. Zagorski, 116 S.W.3d 309, 322 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (op. on reh’g).


       We conclude the trial court did not abuse its discretion in declining to award

reimbursement to Angie as part of its just and right division of the community estate.

Angie’s second issue is overruled.


                                        Conclusion


       We affirm the judgment of the trial court.




                                                        Judy C. Parker
                                                           Justice




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