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                                  MEMORANDUM OPINION

                                         No. 04-08-00259-CV

                                           John A. LYONS,
                                              Appellant

                                                   v.

                                           Lauri D. LYONS,
                                               Appellee

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2005-CI-05392
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: January 14, 2009

AFFIRMED

           This appeal arises from a divorce action. John A. Lyons appeals the trial court’s judgment

on three grounds: (1) the trial court abused its discretion in excluding business records; (2) the trial

court erred in the entry of its findings of fact and conclusions of law; and (3) the trial court denied

him due course and due process rights by allowing two separate final trials on the merits. We affirm

the trial court’s judgment.
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                                            BACKGROUND

        John Lyons and Lauri Lyons married on March 29, 1998. Lauri filed the underlying suit for

divorce on April 6, 2005. At the time of the divorce, John and Lauri owned several investment and

retirement accounts. On October 24, 2005, the case was set for a final hearing but was suspended

after the trial court ordered Lauri to hire an accountant to trace the accounts John claimed as his

separate property.    Instead of Lauri hiring an accountant, John agreed to provide her with

authorizations for the release of all of his financial records from any record keeper.

        The case was set for trial on August 15, 2007. During trial, John argued that the investment

and retirement accounts were his separate property because he had owned all of the accounts prior

to the marriage. The trial court, however, ruled that all of the accounts were community property

with the exception of amounts deposited by John into a Verizon savings account prior to March 29,

1998, which was designated as John’s separate property.

        On November 29, 2007, the case was set for hearing on a Motion to Enter Final Decree of

Divorce. At the hearing, John argued that he possessed documents that would support his contention

that he owned all of the investment and retirement accounts prior to the marriage, and he filed a

motion to re-open the evidence. The court granted John’s motion to re-open the evidence, and the

case was set for another hearing on March 14, 2008. At the end of that hearing, the trial court re-

affirmed its August 2007 ruling.

                                         BUSINESS RECORDS

        In his first issue, John contends the trial court abused its discretion in excluding the business

records that accompanied the business records affidavit of Ellen Fong. According to John, during

the March 14, 2008 hearing, the trial court admitted the affidavit of Ellen Fong; however, the court

did not admit the documents that were attached to the affidavit after Lauri objected that the affidavit:

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(1) did not state the number of pages of records that were attached; (2) was not notarized; and (3)

was not prepared by the custodian of records. John contends that the affidavit substantially complied

with the Texas Rules of Evidence; therefore, the trial court should have admitted the documents into

evidence.

       We review a trial court’s admission or exclusion of evidence under an abuse of discretion

standard. Rezaie v. State, 259 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

As long as the trial court’s evidentiary ruling is within the zone of reasonable disagreement, the

ruling may not be disturbed on appeal. Id. Only when a trial court acts without reference to any

guiding rules and principles does it go beyond the zone of reasonable disagreement. Id.

       Rule 902(10)(a) of the Texas Rules of Evidence allows business records to be offered under

Rule 803(6) and admitted into evidence if the records are accompanied by an affidavit at least

fourteen days prior to trial. TEX . R. EVID . 902(10)(a). Rule 902(10)(b) sets out the form of affidavit

to be used when business records are introduced; however, Rule 902(10)(b) also states that the form

provided in the rule is not exclusive, and an affidavit that substantially complies with the sample

affidavit will suffice. TEX . R. EVID . 902(10)(b); see also Kyle v. Countrywide Home Loans, Inc.,

232 S.W.3d 355, 360-61 (Tex. App.—Dallas 2007, pet. denied); Fullick v. City of Baytown, 820

S.W.2d 943, 944 (Tex. App.—Houston [1st Dist.] 1991, no writ).

       Section 312.011(1) of the Texas Government Code defines an affidavit as a “statement in

writing of a fact or facts signed by the party making it, sworn to before an officer authorized to

administer oaths, and officially certified to by the officer under his seal of office.” TEX . GOV ’T

CODE ANN . § 312.011(1) (Vernon 2005). An affidavit without a notary’s seal is not properly

notarized and therefore, is defective. Venable v. State, 113 S.W.3d 797, 800 (Tex. App.—Beaumont



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2003, pet. ref’d); see also Wilie v. Signature Geophysical Services, Inc., 65 S.W.3d 355, 361

(Tex. App.—Houston [14th Dist.] 2001, pet. denied).

         In this case, the affidavit of Ellen Fong offered by John was not properly notarized. The

absence of the notarial seal itself renders the affidavit defective. See Venable, 113 S.W.3d at 800.

Because the affidavit was not notarized, we conclude that the affidavit failed to substantially comply

with the form provided in Rule 902(10)(b). See id. Accordingly, we hold the trial court did not err

in excluding the business records attached to Ellen Fong’s affidavit. John’s first issue is overruled.

                              FINDINGS OF FACT AND CONCLUSIONS OF LAW

         In his second issue, John challenges the sufficiency of evidence to support the trial court’s

finding that the investment and retirement accounts, with the exception of the amounts deposited

prior to March 29, 1998 by him in the Verizon savings account, were community assets.1 John

contends the trial court’s findings regarding the accounts are inconsistent with the evidence adduced

on October 24, 2005, are incomplete, and misstate the procedural history of the case. As such, John

contends this court should remand the case for a new trial.

         “A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the

same legal standards as applied to review jury verdicts for factual sufficiency of the evidence.” Ortiz

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); see also Catalina v. Blasdel, 881 S.W.2d 295, 297

(Tex. 1994). In our review, we weigh all the evidence in the record and overturn findings only if the

evidence is so against the great weight and preponderance of the evidence that the findings are



         1
           … Although John’s brief on this issue also alludes to the trial court awarding less than half of the community
estate to a spouse who wasted or misused community property and John extensively refers to the factors the trial court
must consider in making a just and right division of the community estate, the divorce decree awards one-half of the
property found to be community property to John in addition to the property the trial court found to be his separate
property. Accordingly, we construe the crux of John’s complaint to be the trial court’s characterization of the investment
and retirement accounts as community property.

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clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; see also Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986). In the event we find a finding to be factually insufficient, we must clearly state why

the jury’s finding is factually insufficient or is so against the great weight and preponderance of the

evidence as to be manifestly unjust. See Ortiz, 917 S.W.2d at 772.

       Property possessed by either spouse at the dissolution of the marriage is presumed to be

community property, and a party who contends that property existed prior to marriage must prove

the separate character of the property by clear and convincing evidence. TEX . FAM . CODE ANN .

§ 3.003 (Vernon 2006). Clear and convincing evidence is defined as that “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.” TEX . FAM . CODE ANN . § 101.007 (Vernon 2002); Boyd

v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth 2004, no pet.). “Mere testimony that

property was purchased with separate property funds, without any tracing of the funds, is generally

insufficient to rebut the presumption.”          McElwee v. McElwee, 911 S.W.2d 182, 188

(Tex. App.—Houston [1st Dist.] 1995, pet. denied).

       After reviewing all the evidence, we conclude that the findings of fact are not so against the

great weight and preponderance of the evidence as to be manifestly unjust. See Ortiz, 917 S.W.2d

at 772. At the dissolution of the marriage, John and Lauri possessed several investment and

retirement accounts, and the presumption is these accounts are community property. See TEX . FAM .

CODE ANN . § 3.003. To rebut the presumption of community property, John was required to prove

the separate character of the investment and retirement accounts by clear and convincing evidence.

See id. Other than his testimony, however, John did not present any evidence of the premarital

existence of any of the investment or retirement accounts with the exception of the amounts

deposited by him prior to March 29, 1998 in the Verizon Savings account. While John contends he

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proffered business records to rebut the presumption that the investment and retirement accounts were

community property, we previously held that the trial court did not abuse its discretion in excluding

these records. In addition, Lauri offered financial records showing that the accounts were opened

after the date of the marriage. Acting in her capacity as the fact finder, the trial judge was the sole

judge of the credibility and weight to be given to John’s testimony and Lauri’s proffered evidence,

and as a result, the trial judge was not required to accept John’s testimony as dispositive of the issue.

See In re Marriage of Royal, 107 S.W.3d 846, 851 (Tex. App.—Amarillo 2003, no pet.). Without

any tracing of the funds, we cannot conclude John’s mere testimony rebutted the presumption that

the investment and retirement accounts were community property. See McElwee, 911 S.W.2d at 188.

Accordingly, we conclude the trial court’s findings of fact are not against the great weight and

preponderance of the evidence. See Ortiz, 917 S.W.2d at 772. John’s second issue is overruled.

                             DUE COURSE AND DUE PROCESS RIGHTS

        In his third issue, John contends the trial court denied him due course and due process rights

by allowing two separate final trials to occur. John notes the case was first scheduled for an October

2005 hearing. At that hearing, the trial court ordered Lauri to hire an accountant after she objected

that John failed to adequately respond to discovery requests. John contends the case was then

erroneously scheduled for a second final trial and reassigned to another trial court. John argues that

the two separate trials resulted in the mischaracterization of his separate property as community

property.

        As a preliminary matter, in order to preserve error for appeal, a party must show that a

complaint was made to the trial court by a timely and specific request, objection, or motion with

respect to the alleged error. TEX . R. APP . P. 33.1(a)(1). The record in this case does not establish

that John objected to either the August 15, 2007 trial setting or the March 14, 2008 hearing. While

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John contends he informed the trial court of the October 2005 hearing at the August 15, 2007 trial

setting, he did not make a written or oral objection to the new setting. Accordingly, John failed to

preserve this complaint for our review. See TEX . R. APP . P. 33.1(a)(1). John’s third issue is

overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Phylis J. Speedlin, Justice




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