                                                                                   ACCEPTED
                                                                               06-14-00101-CV
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                           6/8/2015 4:08:56 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK


                                 ORAL ARGUMENT REQUESTED
               CASE NO. 06-14-00101-CV                        FILED IN
                                                       6th COURT OF APPEALS
                                                         TEXARKANA, TEXAS
                                                       6/8/2015 4:08:56 PM
        IN THE COURT OF APPEALS FOR THE                    DEBBIE AUTREY
       SIXTH APPELLATE DISTRICT OF TEXAS                       Clerk

              AT TEXARKANA, TEXAS

      IN THE MATTER OF THE MARRIAGE                   OF
 EMMA RUTH VINSON AND BEN ANDREW VINSON
  BEN ADREW VINSON, RESPONDENT/APPELLANT
   EMMA RUTH VINSON, PETITIONER/APPELLEE

         On Appeal from the County Court at Law
                    Rusk County, Texas
   The Hon. Robin Sage, Sitting by Assignment, Presiding
             Trial Cause No. 2011-12-590CCL



RESPONSE BRIEF OF APPELLEE EMIVIA RUTH VINSON

                          BEAU T. SINCLAIR
                          SBN: 24029835

                          SINCLAIR LAW OFFICE, PC
                          400   S.   Broadway Ave.,   Suite 102
                          Tyler, Texas    75702
                          (903) 533-1005
                          (903) 533—1379 (fax)
                          e-mail: inf0@sinclairlawtyZer.c0m
                          ATTORNEY FOR THE APPELLEE
                    IDENTITY OF ALL PARTIES AND COUNSEL
         The undersigned counsel of record                   for Appellee certiﬁes that the following


listed   persons have an interest in the outcome of this case. These representations

are   made    so that this Court     may evaluate possible disqualiﬁcations or recusal.
         l.      The Appellant and Respondent below is Andrew Ben Vinson. He

was represented      at trial     and on appeal by Joe Shumate. Appellant’s brieﬁng

attorney on appeal         is   James    J.   Rosenthal. The contact information for Joe

Shumate and James           J.   Rosenthal         is   107 N. Main   St.,   PO Box   1915, Henderson,

Texas 75653.

         2.      Appellee and Petitioner below                 is   Emma Ruth Vinson.        She was

represented at     trial   by Robert Foster,              SBN 07295200, 227 E. Tyler Street,
Longview, Texas 75601. She                    is   represented on appeal      by Christina M. Davis,

SBN 24074115, lead counsel.                   Appellee’s brieﬁng attorney on appeal           is   Beau T.

Sinclair,     SBN 24029835. The contact information for Beau T.                         Sinclair   and

Christina     M. Davis is 400       S.   Broadway Ave.,             Suite 102, Tyler,   TX 75702.
                                          TABLE OF CONTENTS
IDENTITY OF ALL PARTIES AND COUNSEL .................................................                                                  ..   ii



TABLE OF CONTENTS                     .......................................................................................         ..   iii



INDEX OF AUTHORITIES - CASES                               ..................................................................         ..   iv

INDEX OF AUTHORITIES STATUTES AND RULES    —                                               ...................................        ..   iv

ABBREVIATIONS                .................................................................................................         ..   1



STATEMENT OF THE RECORD                              .........................................................................         ..   1



STATEMENT OF THE CASE                          ............................................................................      ..   1-2

RESPONSE TO ISSUE PRESENTED                                ...................................................................         ..   3


STATEMENT OF FACTS                      ......................................................................................         ..   2

SUMMARY OF ARGUMENT                            ............................................................................      ..   3-5

ARGUMENT AND AUTHORITIES                                 ................................................................   ..   5-12

        Response      to Issue Presented:              The trial coun did not abuse its                    discretion in
        dividing the Texas Bank 401k Plan between the parties, nor did it abuse its
        discretion by not conﬁrming certain other portions of the account as
        Appellant's separate property. ....................................................................... .. 6

PRAYER       ...............................................................................................................      ..       12

CERTIFICATE OF COMPLIANCE                                ...................................................................      ..       13

CERTIFICATE OF SERVICE ..............................................................................                             ..       13

APPENDIX         ...........................................................................................................      ..       14
                                           INDEX OF AUTHORITIES
LSLS
Murﬂv.       Murﬂ‘, 615, S.W.2d 696 (Tex. 1981) ......................................................... .. 5

Hedtke      v.   Hedtke, 112 Tex. 404, 248 S.W. 21 (1923)                             ............................................       ..   5

Downer v. Aquamarine                   Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)                                     .... ..        5

Garner v. Garner, 200 S.W.3d 303, 310-11 (Tex.App.~Da11as 2006, no                                                    pet.) 5, 12


Granger v. Granger, 236 S.W.3d 852, 855-56 (Tex.App.—Ty1er 2007,                                                    pet.
Denied)      ....................................................................................................................        ..   5

Licata v. Licata, 11 S.W.3d 269, 272-73 (Tex.App.—-Houston [14th Dis.] 1999,
pet. denied) ..............................................................................................................              ..   6

Feldman          v.   Mar/cs, 960      S.W.2d 613, 614 (Tex. 1996) ........................................                    ..   8,        9

Christiansen           v.   Prezels/a’,    782 S.W.2d 842, 843 (Tex.1990) (per curiam) ............. 8                                   ..




RWL Const., Inc. v. Erickson, 877 S.W.2d 449, 451 (Tex.App. —Houston [1 Dist.]
1994) ........................................................................................................................           ..   9

Texas Dept. ofHealth v. Rocha, 102 S.W.3d 348 (Tex.App.—Co1‘pus Christi-
Edinburg 2003) ........................................................................................................                  ..   9

Mitchison         v.   Houston Independent School Dist., 803 S.W.2d 769, 65 (Tex.App.                                                —
Houston [14            Dist.] 1991) .......................................................................................         ..    10



Statutes     and Rules

Tex. Fam.         Code Ann.          § 7.001     .................................................................................       ..   6

Tex. Fam.         Code Ann.          § 3.001     .................................................................................       ..   6

Tex. Fam.         Code Ann.          § 3.003     .................................................................................       ..   6

                                                                  iv
                                        ABBREVIATIONS
         In this brieﬂ the Reporter’s Record will be abbreviated              “RR.” and cited as

follows: (R.R. vol.      xx   at pg. xx, lines xx—xx.) In this brief, the Clerk’s        Record will

be abbreviated “CR.” and          cited as follows with the pg. numbers: (C.R. xx.)


                               STATEMENT OF THE RECORD
         The clerl<’s record in this case consists of one          (1)   volume. The rep01ter’s

record consists of six (6) volumes of transcripts and exhibits.

                                 STATEMENT OF THE CASE
TO THE HONORABLE SIXTH COURT OF APPEALS:
         NOW COMES EMMA RUTH VINSON, the Appellee, and respectfully
submits    this,   her brief in response to Appellant’s brief. Appellee seeks herein for

this   Court to overrule Appellant’s issue and affirm the judgment of the                    trial   court

or, in   the alternative, if this Court in any   way sustains Appellant’s          issue,     Appellee

requests that this Court       remand   the case to the   trial   court for a just and right

division.


         This appeal    is   taken from the County Court at Law in and for Rusk County,

Texas, the Honorable Robin Sage, Judge presiding by assignment, cause                          number

2011-l2—590CCL, where said Court made a just and right                     division,   which included

the division of a retirement account after a finding that the account                  was

commingled. (C.R. 26-36, 56; R.R.           vol. 4, at pg. 78, lines 10-14.) This is            an appeal
from a Final Decree of Divorce signed on October          14, 2015. (C.R. 36.)           The Final

Decree of Divorce conﬁrmed $243,000.00 of the Texas Bank 401k Plan as the

separate property of Appellant.   (CR.     33.)    The Final Decree of Divorce divided

the remainder of the Texas   Bank 401k Plan as follows: ﬁfty percent (50%) to

Appellant and ﬁfty percent (50%) to Appellee. (C.R. 28, 29.) The appellant,

Andrew Ben Vinson     (hereinafter “Mr. Vinson"),       was the Respondent        in the Trial


Court, and the appellee,   Emma Ruth Vinson (hereinafter “Ms Vinson), was the
Petitioner in the Trial Couit. (C.R. 26.)

      On April 21, 2014, trial commenced, the Trial Court recessed for a ruling on
characterization of property, and concluded on August 13, 2014, the              trial   court held

a bench trial in this matter. (C.R. 56.)   The Trial Court signed           the Final Decree of

Divorce on October   14, 2015. (C.R. 36.)         On October 30, 2014, Mr. Vinson ﬁled a
Request for Findings of Fact and Conclusions of Law. (C.R. 37.)                On November

13, 2014,   Mr. Vinson ﬁled a Motion for New         Trial.   (CR.   39.)    On November 21,
2014, Mr. Vinson ﬁled a Notice of Past      Due Findings of Fact and Conclusions of

Law. (C.R. 43.)   On December 9, 2014, the Court ﬁled its Findings of Fact and
Conclusions of Law. (C.R. 45.)     On December         12, 2014, Notice       of Appeal was

ﬁled by Mr. Vinson. (C.R. 49.)
                         RESPONSE TO ISSUE PRESENTED
      The trial   court did not abuse         its   discretion in dividing the Texas    Bank 40ll<

Plan between the parties, nor did        it   abuse    its   discretion   by not conﬁrming certain

other portions of the account as Appellant's separate property.




                                 STATEMENT OF FACTS
      As previously stated, this is an appeal from a Final Decree of Divorce signed.

on October   14, 2015.   (CR.     36.)   The Final Decree of Divorce conﬁrmed

$243,000.00 of the Texas Bank 401k Plan as the separate property of Appellant.

(C.R. 33.)   The Final Decree of Divorce divided the remainder of the Texas Bank

401k Plan as follows:    fifty   percent (50%) to Appellant and fifty percent (50%) to

Appellee. (C.R. 28, 29.)




                            SUMMARY OF ARGUMENT
      The conﬁrmation of only $234,000.00 and not more of the Texas Bank 401k

Plan as Mr. Vinson’s separate property was appropriate and was not an abuse of

discretion because the Trial Court        was not presented with clear and convincing

evidence that any more than $234,000.00 of the Texas                      Bank 40lk Plan was Mr.

Vinson’s separate property. Further, there was a stipulation regarding the amount

of Mr. Vinson’s separate property in the Texas Bank 401k Plan. The Trial Court’s

                                                       3
division of the remainder of the Texas      Bank 401k Plan was      appropriate and       was

not an abuse of discretion because the funds in the Texas        Bank 401k Plan were

commingled.

        Further, both the Reporter’s    Record and the C1erl<’s Record in this matter are

incomplete.     This Court does not have in either Record a copy of the Agreement

in   Contemplation of Marriage upon which Mr. Vinson bases a large part of his

argument. Given that this document        is   not a part of either Record presented to this

Court, this Court should rely on the information and documents contained in the

Records that are before the Court, which support the Trial Court’s         ruling.


        Finally, both the Trial Court   and the litigants affirmed   that the Trial   Court

commenced     trial in this   matter on April 21, 2014, and recessed    for,   and did make, a

ruling regarding the characterization of the Texas        Bank 401k Plan. The evidence

taken at this hearing and the Trial Court’s ruling that followed support the Trial

Court’s finding that the funds in the Texas       Bank 401k Plan were commingled and

subject to division.

        The Agreement in Contemplation of Marriage supports           the Trial Cou1t’s

ruling that the funds in the Texas     Bank 401k Plan were comrningled          in that   Mr.

Vinson willingly put separate property money into a community account, where                     it



was joined by community property funds and invested together.            Further, there         was
a withdrawal      made from the Texas Bank 401k Plan that was                   not distinguished as

being from either part — separate or community ~ of the Texas Bank 401k Plan.

                                 ARGUMENT AND AUTHORITIES
                             Standard of Review — Court of Appeals

         The Trial Court’s          division of property in a divorce should be corrected on

appeal only when an abuse of discretion has been shown. Murjj’ v.                        Murﬂ 615,
S.W.2d 696 (Tex. 1981); Hedtke                v.   Hedtke, 112 Tex. 404, 248 S.W. 21 (1923).             A
Trial Court abuses         its   discretion   when it acts in an arbitraiy or unreasonable

manner, or when       it   acts without reference to         any guiding    principles.    Downer v.

Aquamarine Operators, Inc, 701 S.W.2d 238, 241-42 (Tex. 1985). “The mere                                 fact


that a trial   Judge decides a matter within his discretionary authority in a different

manner than an appellate court would                 in   a similar circumstance does not

demonstrate that abuse of discretion occurred.” Id.                     A Trial Court is permitted to
base   its   decisions on conﬂicting evidence without              it   being termed an abuse of

discretion.     Garner v. Garner, 200 S.W.3d 303, 3lO~ll (Tex.App.—Da1las 2006,

no pet.). There     is   no abuse of discretion as long as some evidence of a substantive

and probative character exists           to support the trial Court’s decision.           Granger v.

Granger, 236 S.W.3d 852, 855~56 (Tex.App.—Ty1er 2007,                          pet. Denied).


                             Standard of Review —Property Division

        The guiding principle in property division                in a divorce   is   basic: the Court
shall divide property in a just      and right manner, having due regard for the rights of

each party and any children of the marriage. Tex. Farn. Code Ann.                     §   7.001.

        Regarding separate property, the Texas Family Code                 sets out that all


property   owned by a spouse prior to marriage, and all property acquired during

marriage by gift, devise, or descent      is   the separate property of that spouse. Tex.

Fain.   Code Ann.    § 3.001. Despite the      Texas Fmaily Code’s designation of separate

property, the   Code states that there is a presumption upon divorce that                  all   property

owned by the parties is presumed to be community property. Tex. Fam. Code

Ann.    § 3.003. Further, as indicated     by Appellant in his brief,        it is   the burden of the

party claiming separate property to overcome the                community property presumption

by clear and convincing      evidence. Licata         v.   Licata, ll   S.W.3d 269, 272-73

(Tex.App.—I-Iouston [l4th Dis.] 1999,           pet. denied).


Response to Issue Presented:
(Restated)

                                                   in dividing the Texas Bank
        The trial court did not abuse its discretion
        401k Plan between the parties, nor did it abuse its discretion by not
        conﬁrming certain other portions of the account as Appellant's separate
        property.


A.      The Trial Court did not abuse it’s discretion by conﬁrming only

$234,000.00 of the Texas       Bank 401k Plan as Mr. Vinson’s                separate property.

        The trial   cou1t’s ruling regarding the separate property portion of the                  Texas

Bank 401k Plan was       that only   $234,000.00 of the total in the account was Mr.

                                                  6
Vinson’s separate property. (R.R. vol.                   4, at pg. 78, lines 10-14.)            That ruling was

accurately reﬂected in the Final Decree of Divorce. (C.R. 33.)

        The way in which the Trial Court reached the number of $234,000.00                                  for


Mr. Vinson’s separate property was,                   first,   purportedly by stipulation of the parties.

During the second day of the ﬁnal                   trial in this    matter,   August    13,    2014, the Trial

Court stated,       “It’s    my recollection that you all stipulated that the Value that was in
contention at the last hearing as to whether                    it   was community or separate property

was $234,000,”          to   which counsel for Mr. Vinson replied, “That's                      correct. ...”


(R.R. vol. 4 at pg. 63, lines 8-1             1.)    Second, the Trial Court received the number of

$234,000.00 from             Ms Vinson during her testimony on that same date, wherein she
conﬁrmed that exact number to be the amount Mr. Vinson                              “started with” in the


Texas Bank 401k Plan. (R.R.                  vol.   4 at pg.    19, lines 4, 9.) Third,         and ﬁnally, in    its


ruling, the Trial       Court acknowledged that it, “...previously found the $234,000

was    his separate property.” (R.R. vol.               4 at pg. 78, lines l0-l 1.)

        At this point,        it   becomes important to note            that the Reporter’s        Record in this

case   is   not complete, as indicated in Appe1lant’s brief.                    It is   clear   from both the

Trial Court’s docket sheet             and from Appellant’s Brief that the ﬁnal hearing                    in this


matter began on April 21, 2014, and was ﬁnished several months later on August

13, 2014.        (CR.   56.)       Although the extent of what is missing from the Reporter’s

Record      is   not clear, there     is   not a transcript, nor are there any exhibits or any other
item, in the Reporter’s       Record regarding the hearing on April 21, 2014. See

Reporter 19 Record.       When an appellant presents an incomplete Reporter’s Record
on appeal, “the appellate court must presume that the omitted portions are relevant

and support the      trial court's    judgment.” Feldman            v.   Marks, 960 S.W.2d 613, 614

(Tex. 1996); Christicmsen            V.   Prezelski,   782 S.W.2d 842, 843 (Tex.1990) (per

curiam).

      In the record of the hearing held                on August    13, 2014, there are    both

stipulations referenced and a             ﬁnding of separate property referenced           that


purportedly occurred       at   the portion of the       trial   held on April 21, 2014. (R.R. vol, 4

at pg. 63, lines 8-11;     R.R. vol. 4        at pg. 78, lines 10-11.) Further, there is          a

statement by counsel for Ms Vinson that, “[Mr. Vinson] consented and waived any

claim with regard to growth on that separate amount in our                     last   hearing.” (R.R.

vol. 4 at pg. 62, lines 22-24.) This            Court should assume that the omitted portions

of the Reporter’s Record, speciﬁcally the transcript of the portion of the ﬁnal                       trial


held on April 21, 2014, are relevant and that they support the Trial Court’s ruling,

specifically the ruling that the portion           of the Texas Bank 401k Plan that was Mr.

Vinson’s separate property was only $234,000.00.

      The Trial Court appropriately conﬁrmed that the portion of the Texas Bank

401l< Plan that    was Mr. Vinson’s separate property was only $234,000.00 and in

doing so   did_   not abuse   it’s   discretion.
B.    The Trial Court did not abuse it’s discretion by dividing the remaining

portion of the Texas      Bank 401k Plan.

      The Trial Court ordered that any amount of the Texas Bank 401k Plan above

the $234,000.00 set aside as Mr. Vi11son’s separate property to be divided equally

between the parties. (R.R.       vol.   4   at pg. 78, lines 10-1 1.)


      As previously noted, the Reporter’s Record in this matter is not complete,

which enables    this   Court to “presume that the omitted portions are relevant and

support the   trial court's   judgment.” Feldman          v.   Marks   at   614. Appellant spent

signiﬁcant time in his brief arguing that the Agreement in Contemplation of

Marriage was not appropriately adhered             to   by the Trial Court and even cited

portions of the Agreement in Contemplation of Marriage. This document,

however, does not appear        in the Reporter’s       Record volume containing the other

exhibits   from trial, nor does   it   appear in any other place.

      Further, although Appellant claims the              Agreement         in   Contemplation of

Marriage was attached to the       First     Amended Original      Petition for          Divorce in this

matter, neither that pleading nor the          Agreement in Contemplation of Marriage

appears in the Clerl<’s Record in this matter.            On appeal, the Court “must hear and
determine a case on the record as ﬁled, and              may not consider documents             attached

as exhibits to briefs.”    RWL Conszﬁ, Inc.        v.   Erickson, 877 S.W.2d 449, 451

(TeX.App.    —Houston      [1 Dist.]    1994); Texas Dept. ofHealth               v.   Rocha, 102 S.W.3d
348 (Tex.App.—Corpus Christi-Edinburg 2003); Mitchison                         v.   Houston

Independent School Dist, 803 S.W.2d 769, 65 Ed.LaWRep. 1329 (Tex.App.                             —
Houston [14 Dist.] 1991).

       It is   clear   from the record of the August         13,   2014, portion of the ﬁnal     trial


that the “prenuptial       agreement” was entered into evidence             at   some point   for the


Trial Court’s consideration in          its   ruling. (R.R. vol.    4 at pg.   53, lines 9-16.) This


Court should assume that the omitted portions of the Reporter’s Record and the

Clerl<’s   Record, speciﬁcally the Agreement in Contemplation of Marriage, are

relevant and that they support the Trial Court’s ruling, speciﬁcally the ruling that

the portion of the Texas          Bank 401k Plan remaining after deducting the

$234,000.00 of Mr. Vinson’s separate property was commingled and, therefore,

able to be divided between the parties.

       If,   however,     this   Court does consider the Agreement in Contemplation of

Marriage attached to Appellant’s              brief, the   Agreement   in   Contemplation of

Marriage,      itself, still   supports the Trial Court’s ﬁnding that the Texas           Bank 40lk

Plan was “cornmingled.” (R.R. vol. 4 at pg. 78, lines 10-14.) Section 2.04 of the

Agreement       in   Contemplation of Marriage         states as follows:


       “In addition, any separate property deﬁned by 2.01 or 2.02 which a
       party has knowingly invested in community property or has allowed
       to be commingled with community property shall be deemed to have
       become community property and all rights of reimbursement are
       hereby waived unless Ben and Ruthie agree in writing otherwise.”
Mr. Vinson        testified that   he rolled some portion of separate property funds into a

community property account, the Texas Bank 401k Plan,                  into   which additional

community deposits were made. (R.R.                 vol. 4, at pg. R.R. vol. 4 at pg. 62, lines 2-


9.)


          Further in support of the “commingled” ﬁnding, the Texas                  Bank 401k Plan

statement entered into evidence shows on page two of that document under “Your

current investment         mix”    that all funds contained in the   Texas Bank 401k Plan were

divided up into various investments and “funds.” (R.R. vol.                  6,   pg. at pg. 85.)   The

money in the Texas Bank 401k Plan — both the separate property portion and the

community portion — were literally mixed together in investments.

          Finally, in support of the Trial Court’s        “commingled” ﬁnding, the testimony

from Mr. Vinson was          that   he withdrew money from the Texas Bank 401k Plan to

repay a loan. (R.R. vol. 4          at pg. 75, lines 4-6.)    The amount withdrawn by Mr.

Vinson from the Texas Bank 401k Plan was $50,000.00. (R.R.                        vol. 6, pg. at pg.


86.)     There   is   no evidence   that this   amount was particularly drawn from one

portion of the Texas        Bank 401k Plan or another, meaning          it   could have      come from

Mr. Vinson’s separate property amount               in that   account or the community property

in that account.        The Texas Bank 401k Plan was commingled at that point and

there    is   no way to distinguish the source funds for this withdrawal;             it   decreased the

total,   not any portion in particular.


                                                     11
       A Trial Court is permitted to base its decisions on conﬂicting evidence
without     it   being termed an abuse of discretion. Garner      at   310-311. The      money in

the Texas        Bank 401k Plan was “commingled”         for the Trial Court’s purpose,       which

supports the Trial Cou1t’s division of that account.




                                            PRAYER
       WI-IEREFORE, PREMISES CONSIDERED,                       the Appellee asks Court to

overrule Appellant’s issue and afﬁrm the judgment of the               trial   court or, in the

alternative, if this    Court in any   way sustains Appe1lant’s     issue,     Appellee requests

that this   Court remand the case to the tiial court for a just and right division.

Additionally, the Appellee prays for        all   other relief required   by justice.

       Respectfully submitted this 8th day of June, 2015.




                                                        SINCLAIR LAW OFFICE

                                                        By:   £1‘/6/”‘\
                                                        Beau T, Sinclair
                                                        SBN: 24029835
                                                        400 S. Broadway Ave.,        Suite 102
                                                        Tyler, Texas75702
                                                        (903) 533-1005
                                                        (903) 533-1379 (Fax)
                                                        E—mail: beau@sinclairlawlyler.com




                                                   12
                        CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this
brief contains 2,208 words (excluding any caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certiﬁcation, certiﬁcate
of compliance, and appendix). This is a computer-generated document created in
Microsoft Word using l4—pint type for all text, except for footnotes (page
numbers), which are in 12-point type. In making this certiﬁcate of compliance, I
am relying on the word count provided by the software used to prepare the
document.

Date:            ‘Lo;   E.’

                                                Beau T.    Sinclair



                          CERTIFICATE OF SERVICE
       hereby certify that a true and correct copy of this pleading has been
        I

provi ed    accordance with the Texas Rules of Appellate Procedure, on
         In
        ft lb;   §                  ,   to the following individuals:

Mr. Joe Shumate
Mr. James J. Rosenthal
107 N. Main St.
PO Box 1915
Henderson, Texas 75653


                                                 Beau T.   Sinclair
                                       APPENDIX
This appendix contains the following Items:

         1.   The text of any rule,   regulation, statute, constitutional provision or

              other law   upon which the argument is based.
                             Tex. Fam.   Code Ann.     7.001

GENERAL RULE OF PROPERTY DIVISION.                   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 palty


and any children of the marriage.
                            Tex. Fam. Code Ann. § 3.001

SEPARATE PROPERTY. A spouse's separate property consists of:
(1) the property   owned   or claimed   by the spouse before marriage;

(2) the property acquired   by the spouse during marriage by gift,   devise, or descent;

and

(3) the   recovery for personal injuries sustained by the spouse during marriage,

except any recovery for loss of earning capacity during marriage.
                            Tex. Fain. Code Ann. § 3.003




PRESUMPTION OF COMMUNITY PROPERTY.
(a)   Property possessed by either spouse during or on dissolution of marriage        is


presumed to be cominunity property.

(b)   The degree of proof necessary to   establish that property   is   separate property   is


clear and convincing evidence.
