Affirmed in Part, Reversed and Remanded in Part, and Memorandum
Opinion filed May 24, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00090-CV

IN THE MATTER OF THE MARRIAGE OF SHEILA M. WILLIAMS AND
                    JEFF D. WILLIAMS

                    On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-36599

                  MEMORANDUM OPINION


        Jeff D. Williams appeals from a final decree of divorce dissolving his
marriage to Sheila M. Williams. In a single issue, Jeff contends that the trial court
erred by not recognizing in the final decree that certain funds in his retirement
account were his separate property from prior to the marriage and instead dividing
the funds as community property. We affirm in part and reverse and remand in
part.
                                          Discussion

       All property owned by a spouse before marriage is the separate property of
that spouse. Tex. Const. art XVI, § 15; Tex. Fam. Code § 3.001(1). Courts do not
have discretion to divest one spouse from his or her separate property and award
that property to the other spouse. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142
(Tex. 1977); Graves v. Tomlinson, 329 S.W.3d 128, 156 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied). The law presumes, however, that property owned
by either spouse at the time of the dissolution of the marriage is community
property. Tex. Fam. Code § 3.003(a). This presumption may be overcome, and
the property shown to be separate property, only by clear and convincing evidence.
Id. § 3.003(b).

       As mentioned above, in his sole issue, Jeff asserts the trial court erred by not
recognizing in the decree that his retirement account contained $18,143 in separate
property funds before dividing the contents of that account between the parties as
part of the division of the community estate. Jeff appears to raise two arguments in
support of his position: (1) that the trial court erroneously failed to include a
separate property finding in the decree when the judge in fact made such a finding
in his oral pronouncements at the end of trial,1 and (2) that Jeff established the
separate property nature of the funds by clear and convincing evidence and the trial
court therefore had no discretion to divide the funds as community property.

       We begin by noting that Jeff’s first argument, i.e., that the decree did not
conform to the judge’s oral pronouncements, is not well founded. Jeff does not

       1
          The trial court included Jeff’s retirement account in the section of the decree entitled
“Division of Marital Estate” and did not reference at any point in the decree that any portion of
the account was Jeff’s separate property. In making an oral rendition at the conclusion of the
trial, however, the judge stated that Sheila was to receive a 60-40 split of “the community
portion” of the retirement accounts.

                                                2
cite to any place in the record where he preserved this argument by making it in the
trial court. See Jackson v. Saradjian, No. 01–11–00128–CV, 2013 WL 4680223,
at *2 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (holding
appellant waived argument regarding alleged variance between oral rendition and
written decree when she did not raise it in post-judgment motion or argue
fundamental error); Brooks-Khamisa v. Khamisa, No. 09–09–00430–CV, 2011
WL 3505187, at *1 (Tex. App.—Beaumont Aug. 11, 2011, no pet.) (mem. op.)
(explaining that a timely motion to modify the judgment will preserve the issue);
Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex. App.—Dallas 2006, no pet.)
(holding wife waived any error stemming from variance between oral rendition and
decree when she failed to file a motion for new trial). Although Jeff filed a motion
for new trial, it does not reference any alleged variance between the judge’s oral
rendition and the final decree. Moreover, because a trial court has the power to
modify its judgment at any point during its plenary power, appellate courts
interpret variances between a judge’s oral rendition and the final decree to
effectively be modifications. See Brooks-Khamisa, 2011 WL 3505187, at *1;
Stallworth, 201 S.W.3d at 349; Cook v. Cook, 888 S.W.3d 130, 131-32 (Tex.
App.—Corpus Christi 1994, no writ). Thus, as long as the evidence supports the
trial judge’s decision, the judge did not err in entering a written decree at variance
with the oral pronouncement.

      We therefore turn to Jeff’s second argument, which we interpret as a
challenge to the legal and factual sufficiency of the evidence to support the trial
court’s implied finding that Jeff failed to overcome the community property
presumption in relation to the $18,143 in retirement funds. See Zamarripa v.
Zamarripa, No. 14-08-00083-CV, 2009 WL 1875580, at *4 (Tex. App.—Houston
[14th Dist.] June 30, 2009, pet. denied) (reviewing challenge to trial court’s


                                          3
implied finding that husband failed to rebut the community property presumption).
Because the standard of proof for overcoming the community presumption is a
heightened standard, requiring clear and convincing evidence, the standard of
review on appeal also is heightened. Stavinoha v. Stavinoha, 126 S.W.3d 604,
608-09 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

      A spouse claiming property as separate must trace and clearly identify the
property.     Graves, 329 S.W.3d at 139.            Tracing requires presenting evidence
establishing the time and means by which the spouse obtained the property. Id.
The clear and convincing standard generally will not be not satisfied simply by
testimony that the property is separate property when that testimony is contradicted
or unsupported by documentary evidence. Id.; Zamarripa, 2009 WL 1875580, at
*4. In a legal sufficiency review of a separate property finding, we examine all the
evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its
finding was true. Stavinoha, 126 S.W.3d at 608; (citing In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2003)). In doing so, we assume the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so and disregard all
contrary evidence that a reasonable factfinder could have disbelieved. Id. We can,
however, consider undisputed facts that do not support the finding. Id. We may
only sustain a legal sufficiency challenge when (1) the record discloses a complete
absence of a vital fact, (2) the court is barred by rules of law or evidence from
giving weight to the sole evidence offered to prove a vital fact, (3) the sole
evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of a vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005).2

      2
          Because we hold that the evidence was legally insufficient to support the trial court’s
                                                4
       In this case, all of the evidence at trial relating to Jeff’s Nationwide
Retirement Solutions account indicated that $18,143 of that account was earned as
separate property prior to his marriage to Sheila.                  Both parties presented
inventories representing that amount in that account as Jeff’s separate property.
Sheila acknowledged in her testimony that she did not dispute that Jeff owned the
funds as his separate property from prior to the marriage. In his testimony, Jeff
indicated that when he began employment with the Port of Houston, the job
through which he had the Nationwide retirement account, he rolled $18,143 over
from another retirement account that he owned as separate property from prior to
his marriage with Sheila. Jeff additionally testified that Respondent’s Exhibit 8
illustrated the rollover of this separate property amount. Exhibit 8 is a statement
for Jeff’s Nationwide retirement account. It shows a column and amounts for his
“457(b) Plan” with the Port of Houston as well as a column headed “457(b)
Rollover,” showing a transfer in of $18,143. Sheila does not cite any evidence
suggesting the $18,143 was not Jeff’s separate property but instead leans heavily
on the trial court’s discretion in dividing the marital estate.              The trial court,
however, did not have discretion to divest Jeff of his separate property. See
Eggemeyer, 554 S.W.2d at 142; Graves, 329 S.W.3d at 156.                        Jeff presented
testimonial and documentary evidence conclusively establishing that the $18,143
in his retirement account is his separate property; consequently, the trial court erred
in holding otherwise. We therefore sustain Jeff’s sole issue.

                                         Disposition

       Because only the trial court is authorized to make a just and right division of
community property, we must remand the entire community estate for a new

implied finding, we need not consider whether the evidence was factually sufficient. See
generally Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion . . . that
addresses every issue . . . necessary to final disposition of the appeal.”).

                                               5
division when we find reversible error that materially affects the trial court's
determination. Graves, 329 S.W.3d at 153; Stavinoha, 126 S.W.3d at 608. If the
trial court mischaracterized property with such value that it might affect the just
and right division, then the mischaracterization is harmful and requires us to
remand for a new division of the properly characterized community property.
Graves, 329 S.W.3d at 153; Stavinoha, 126 S.W.3d at 617. If, on the other hand,
the mischaracterized property had only a de minimis effect on the trial court’s just
and right division, then no remand is necessary. Graves, 329 S.W.3d at 153;
Stavinoha, 126 S.W.3d at 617. Here, the trial court essentially overvalued the
marital estate by $18,143 before deriving a just and right division of that estate.
Given the overall value of the estate at issue here, we cannot say that such
overvaluation was de minimis.3

       Accordingly, although we affirm the trial court’s grant of divorce and
dissolution of the marriage, we sever the remainder of the judgment and reverse
and remand for further proceedings in accordance with this opinion.




                                            /s/       Martha Hill Jamison
                                                      Justice




Panel consists of Justices Jamison, Donovan, and Brown.


       3
         Based on values included in Sheila’s inventory, the mischaracterization of the separate
property retirement funds resulted in an approximately 7.5 percent increase in the value of the
marital estate. On remand, the trial court may, but is not required to, consider adjusting the
percentage of the community property awarded to each party.

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