                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-13-00537-CV
                              ____________________

                       DANIEL G. JOHNSON, Appellant

                                         V.

                 ANNA MAINES JOHNSON, Appellee
_________________________________       ______________________

             On Appeal from the County Court at Law No. 2
                        Orange County, Texas
                     Trial Cause No. E-120748-D
____________________________________________              ____________

                          MEMORANDUM OPINION

      Anna Maines Johnson filed for divorce from Daniel G. Johnson. After a

bench trial, the trial court entered a Final Decree of Divorce and issued Findings of

Fact and Conclusions of Law. In three stated appellate issues, Daniel challenges

the trial court’s refusal to grant his reimbursement claim. Daniel contends that: (1)

the trial court divested him of his “separate property” contrary to the Texas

Constitution article I, section fifteen and article XVI, section fifteen; (2) the

evidence is legally and factually insufficient to support the trial court’s finding of

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fact number eleven; and (3) the trial court’s conclusion of law number four is

erroneous. We affirm the trial court’s judgment.

      At the time Anna and Daniel married in April of 2005, they each owned

separate property. Anna’s home, “the Buccaneer property,” was awarded to her in

a prior divorce. Daniel owned a home located on Maplewood, “the Maplewood

property.”

      On June 28, 2013, the trial court held a bench trial. At trial, Anna testified

that she is disabled and cannot work. She testified that she acquired the “Buccaneer

property” during a prior marriage. Daniel testified that, three days before his

marriage to Anna, he paid approximately $70,000 to pay off the mortgage on the

“Buccaneer property.” Anna admitted that Daniel paid off a loan on the

“Buccaneer property,” but she also testified that she used her retirement funds to

pay off a lien on the “Maplewood property” and to pay taxes and upkeep on both

the “Buccaneer property” and the “Maplewood property.”

      Prior to the final hearing, Anna and Daniel agreed to sell the “Buccaneer

property” to Anna’s daughter and son-in-law, and the transaction closed. The

money from the sale of the “Buccaneer property,” $85,000.00 (less certain

amounts), was placed into an escrow account. Daniel requested that he be

reimbursed for the $70,000.00 he used to pay off the “Buccaneer property.” Anna

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argued that she should be allowed to retain all of the proceeds from the sale of the

“Buccaneer property.” Anna requested reimbursement for the funds she spent.

Anna claimed that she depleted her retirement of approximately one hundred

thousand dollars on items paid for both the “Buccaneer property” and the

“Maplewood property.” Anna also claimed that she had documentation or records

to show her claim but Daniel would not give her access to the records.

      The trial court awarded the proceeds from the sale of the “Buccaneer

property” solely to Anna and did not order the reimbursement requested by Daniel.

The trial court awarded the “Maplewood property” solely to Daniel. The trial court

did not award any reimbursement to Anna for the amounts she stated she paid

toward the lien on that property. In finding of fact number eleven, the trial court

found that “Each party made reimbursement claims regarding the home owned by

the other. [Anna] states that [Daniel] would not give her access to the records that

would prove her claims. [Daniel] stated that he paid $70,000 toward the loan on

[Anna’s] home but did not offer any documentation to support his claims.” The

trial court concluded in conclusion of law number four that “[Daniel] failed to meet

his required burden of proof regarding his reimbursement claims against [Anna’s]

separate property.”




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      We review appealable issues in a family law case regarding property

division incident to divorce under an abuse of discretion standard. Garcia v.

Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso 2005, no pet.). The test for an

abuse of discretion is “whether the court acted without reference to any guiding

rules and principles.” Id. at 649; Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). A trial court is afforded broad discretion in its

division of marital property upon divorce. See Murff v. Murff, 615 S.W.2d 696, 698

(Tex. 1981); see also Tex. Fam. Code Ann. § 7.001 (West 2006) (“the court shall

order a division of the estate of the parties in a manner that the court deems just

and right”). In reviewing a trial court’s division of a marital estate, we presume

that the trial court properly exercised its discretion. Burney v. Burney, 225 S.W.3d

208, 215 (Tex. App.—El Paso 2006, no pet.). The party challenging the division

bears the burden of demonstrating from the evidence in the record that the trial

court’s division was “so unjust and unfair as to constitute an abuse of discretion.”

Id. at 472-73; Chafino v. Chafino, 228 S.W.3d 467, 472 (Tex. App.—El Paso

2007, no pet.).

      A claim for reimbursement includes a payment made by one marital estate

of the unsecured liabilities of another marital estate. Tex. Fam. Code Ann. §

3.402(a) (West Supp. 2014); Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982).

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The party claiming a right of reimbursement must prove that the expenditures were

made and are reimbursable. Vallone, 644 S.W.2d at 459. “Reimbursement is not

available as a matter of law, but lies within the discretion of the court.” Id. We will

not disturb the trial court’s ruling on a claim for reimbursement absent a clear

abuse of discretion. Id. at 460.

      During his testimony, Daniel indicated that he had documentation to support

his investments. However, other than Daniel’s own testimony, the record contains

no such documentation establishing the amount of any funds Daniel claims he

expended on the “Buccaneer property.” The absence of corroborating

documentation would be something the trial court could have considered when

determining the credibility and the weight to be given Daniel’s testimony. See

Sheikh v. Sheikh, No. 01-05-00218-CV, 2007 Tex. App. LEXIS 8757, at *20 (Tex.

App.—Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op.). As factfinder, the

trial court was entitled to reject Daniel’s testimony and conclude that Daniel failed

to meet his burden of proving a right to reimbursement. See In the Interest of

M.G.M., 163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no pet.) (“The trier of

fact is the sole judge of the credibility of the witnesses and the weight to be given

to their testimony.”). Notably, the trial court also rejected the reimbursement claim

made by Anna for the amounts she claimed she paid toward Daniel’s separate

                                          5
property. We cannot reweigh the evidence or substitute our judgment for that of

the trial court. See id. Accordingly, we conclude that the trial court did not abuse

its discretion by denying Daniel’s claim for reimbursement. See Vallone, 644

S.W.2d at 459-60. We further conclude that there was legally and factually

sufficient evidence to support the trial court’s finding of fact number eleven, and

that the trial court did not err in reaching conclusion of law number four, that

Daniel failed to meet his required burden of proof regarding his reimbursement

claim.

         Daniel also argues that by rejecting his reimbursement claim the trial court

“divest[ed] [Daniel] of his separate property in the divorce decree contrary to

[article I, section 15 of] the Texas Constitution[,]” citing to Langston v. Langston,

82 S.W.3d 686 (Tex. App.—Eastland 2002, no pet.). We disagree. In Langston, the

trial court found the real property to be the separate property of the husband and

then in the final judgment expressly divested the husband of his separate property

and awarded the real property to the wife, along with the indebtedness on the real

property. Id. at 688. The Eastland Court of Appeals concluded that the trial court

abused its discretion because the trial court cannot divest separate property from

one spouse and award it to the other spouse. Id. In the case at bar, the trial court

found that the “Buccaneer property” was Anna’s separate property. The trial court

                                           6
did not divest Daniel of his separate real property and then award it to Anna.

Rather, the trial court concluded that Daniel failed to meet his burden of proof on

his reimbursement claim. Accordingly, we overrule Daniel’s issues and affirm the

trial court’s judgment.

      AFFIRMED.




                                              ________________________________
                                                      LEANNE JOHNSON
                                                           Justice

Submitted on October 13, 2014
Opinion Delivered November 13, 2014

Before Kreger, Horton, and Johnson, JJ.




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