                         NUMBER 13-16-00349-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROBERT MICHELENA,                                                          Appellant,

                                          v.

MONICA MICHELENA,                                                           Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      This appeal stems from the divorce between appellant Robert Michelena and

appellee Monica Michelena. By six issues, Robert contends that the trial court erred by:

(1) not abiding by the couple’s prenuptial agreement and characterizing two separate

assets as community property; (2) failing to assess the value of the community estate as
of the time of the divorce; (3) granting prejudgment interest not requested in the pleadings;

(4) awarding 100% of any undisclosed assets of the parties to the party not in possession

or control of the asset; (5) granting Monica a judgment of $197,853.98 to equalize the

division of community property; and (6) granting a disproportionate share of the

community property to Monica. We affirm as modified in part and reverse and render in

part.

                                   I.     BACKGROUND

        Monica and Robert signed an “Agreement in Contemplation of Marriage” on

August 23, 1994. They married on August 27, 1994. Monica filed for divorce on March

18, 2005, and Robert countersued shortly thereafter. The divorce was considered by a

jury and a verdict was returned on November 15, 2006. The decree was issued on July

23, 2009.

        This is the fifth time this case has come before our Court. In Michelena v.

Michelena, No. 13-09-00588-CV, 2012 WL 3012642 (Tex. App.—Corpus Christi–

Edinburg June 15, 2012, no pet.) (mem. op.) (“Michelena I”), we considered issues related

to separate and community property designations, as well as child custody. In that

opinion, we affirmed the divorce decree in part, but reversed the division of certain assets

and remanded for a partial new trial. Id. at *10–20. In In re Michelena, No. 13-14-00052-

CV, 2014 WL 2462851 (Tex. App.—Corpus Christi–Edinburg Mar. 17, 2014, orig.

proceeding), we denied a petition for writ of mandamus that contended the trial court

abused its discretion in denying a plea of abatement based on dominant jurisdiction. Id.

at *1. In Michelena v. Michelena, No. 13-13-00036-CV, 2015 WL 525182 (Tex. App.—


                                             2
Corpus Christi–Edinburg Jan. 8, 2015, no pet.) (mem. op.) (“Michelena II”), we considered

legal challenges to an enforcement order concerning educational and medical expenses

for the parties’ minor child. And most recently, in Michelena v. Michelena, No. 13-17-

00572-CV, 2017 WL 6379834 (Tex. App.—Corpus Christi–Edinburg Dec. 14, 2017, no

pet.) (mem. op.), we dismissed the appeal because it was not taken from a final,

appealable order. Id. at *1.

        The appeal at hand deals with the trial on remand from Michelena I. The trial court

held a new trial without a jury on December 14, 2015 and January 25, 2016. On June 1,

2016, the court issued a “Judgment on New Trial for Property Division,” which Robert now

appeals. The court later issued Findings of Fact and Conclusions of Law on August 3,

2016.

                               II.   PRENUPTIAL AGREEMENT

        By his first issue, Robert asserts that the trial court committed reversible error by

not enforcing the “Agreement in Contemplation of Marriage” regarding two assets: Texas

State Bank account number 602 (TSB 602) and a $40,000 legal settlement. Robert

argues that the prenuptial agreement provided that “any property held in the individual

name of either party to this agreement shall be presumed to be the separate property of

that party,” and that both assets met this condition.

A.      Applicable Law

        A prenuptial agreement is an agreement made between prospective spouses in

contemplation of marriage which becomes effective on marriage. TEX. FAM. CODE ANN.

§ 4.001(1). Here, the parties mutually agreed that assets held in the individual name of


                                              3
either spouse would be presumed separate property.

       “Property possessed by either spouse during or on dissolution of marriage is

presumed to be community property.” TEX. FAM. CODE ANN. § 3.003(a). “The degree of

proof necessary to establish that property is separate property is clear and convincing

evidence. Id. § 3.003(b). “Clear and convincing evidence” means the “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.” Id. § 101.007. Separate property will

retain its character though a series of financial exchanges “so long as the party asserting

separate ownership can overcome the community presumption by tracing the assets on

hand during the marriage back to property that, because of its time and manner of

acquisition, is separate in character.” Irvin v. Parker, 139 S.W.3d 703, 708 (Tex. App.—

Fort Worth 2004, no pet.) (citing Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.

1975)). “On the other hand, if the evidence shows that separate and community property

have become so commingled as to defy resegregation and identification, the community

presumption prevails.” Id. (citing Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort

Worth 2004, no pet.)). In general, testimony alone that property was purchased with

separate funds, without any tracing of the funds, is insufficient to rebut the community

presumption. Id.

       Findings of fact from a bench trial have the same “force and dignity” as a jury’s

verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). We review fact findings in a bench trial for legal and factual sufficiency of the

evidence by the same standards used in reviewing the evidence supporting a jury’s


                                               4
verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). And “[a] trial court

may properly disregard a jury’s finding of fact where the evidence supporting the finding

is legally insufficient.” Bufkin v. Bufkin, 259 S.W.3d 343, 353 (Tex. App.—Dallas 2008,

pet. denied) (citing Toles v. Toles, 45 S.W.3d 252, 259 (Tex. App.—Dallas 2001, pet.

denied); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990)). When a party

attacks the legal sufficiency of the evidence supporting an adverse finding on an issue on

which he had the burden of proof, he must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). We first examine the record for evidence that

supports the finding; if there is none, we examine the entire record to determine if the

contrary proposition is established as a matter of law. Id. The challenge will be sustained

only if the contrary proposition is conclusively established. Id. When a party attacks the

factual sufficiency of an adverse finding on an issue on which he had the burden of proof,

he must demonstrate on appeal that the adverse finding is against the great weight and

preponderance of the evidence. Id. at 242. We must consider and weigh all of the

evidence and will set aside a verdict only if the evidence is so weak or if the finding is so

against the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id.

       When a party raises a legal sufficiency challenge to an adverse finding on an issue

on which the opposite party had the burden of proof by clear and convincing evidence,

we look at all the evidence in the light most favorable to the judgment to determine if the

trier of fact could reasonably have formed a firm belief or conviction that its finding was


                                             5
true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We presume that the trier of fact

resolved disputed facts in favor of its findings if a reasonable trier of fact could do so, and

we disregard any contrary evidence if a reasonable trier of fact could do so, but we do not

disregard undisputed facts. Id. When a party raises a factual sufficiency challenge to an

adverse finding on an issue on which the opposite party had the burden of proof by clear

and convincing evidence, we consider and weigh all of the evidence, including disputed

or conflicting evidence. Id. If, in light of the entire record, the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so significant that

a factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient. Id.

B.     Texas State Bank Account 602

       TSB 602 is in Robert’s name only. Robert contends the court erred when it claimed

that he “failed to offer clear and convincing evidence tracing any funds to a separate

account with respect to the disputed accounts.”

       In Michelena I, we previously held that there was more than a scintilla of evidence

suggesting that community funds had been commingled in TSB 602. We explained as

follows:

       As to the number 602 account, in particular, Monica points us to evidence
       from trial that community funds were commingled with the number 602
       account. First, Monica points us to evidence—namely, a series of cleared
       checks—that she deposited community funds in the 602 account. Second,
       Monica points us to evidence that Robert took out a $40,000 loan during the
       marriage that he deposited into the 602 account; the record includes bank
       documents and testimony by Robert substantiating this fact, as well.
       Because any loan taken out during the marriage is presumed to be
       community property, Robert commingled community funds with the 602
       account when he deposited the loan into that account. Finally, Monica

                                              6
       points us to testimony by herself and Robert that Robert deposited wages
       from various jobs he held during the marriage into the 602 account.

       ....

       With regard to the number 602 account, although there was evidence at trial
       that the funds in the account originated from the sale of property listed in
       the prenuptial agreement, we believe the record contains more than a
       scintilla of evidence that community funds were commingled with the
       account, as well. As such, the evidence created a fact issue as to whether
       the number 602 account retained its separate character, and the trial court
       erred in granting Robert’s directed verdict as to this account and not
       submitting the account to the jury for characterization.

Michelena I, 2012 WL 3012642, at *11–12 (internal citations omitted). We remanded the

case to the trial court to consider, among other things, the proper characterization of TSB

602.

       After the bench trial on remand, the trial court made the following findings of fact

regarding the TSB 602 account:

       11.    The Court finds that there is substantial evidence of the
              com[m]ingling of community funds into the Texas State Bank (TSB)
              602 account.

       12.    The Court finds Respondent Robert Michelena offered no
              documentary evidence, and no clear and convincing evidence,
              tracing separate funds into the Texas State Bank (TSB) 602 account
              as required by law.

       13.    Therefore, the Court finds that the Texas State Bank (TSB) 602
              account is a community asset of the parties.

       14.    The Court further finds that TSB 602 account contained
              $498,366.00, (as the Court of Appeals found to be in TSB 602
              account), as of the date of the filing of the divorce.

       15.    The Court finds that Petitioner Monica Michelena should be awarded
              50% community share of the funds contained in the TSB 602
              account, as of the date of the filing of the divorce.


                                            7
        16.     The Court finds that Respondent Robert Michelena should be
                awarded 50% community share of the funds contained in the TSB
                602 account, as of the date of the filing of the divorce.

        Here, Monica and Robert’s prenuptial agreement provided that “any property held

in the individual name of either party to this agreement shall be presumed to be the

separate property of that party.” 1 According to the record, however, this “presumption”

was rebutted with evidence that the funds already in TSB 602 had been commingled with

community property funds. See id. at *11. Because the presumption that TSB 602 was

separate property had been rebutted, it was Robert’s burden to provide clear and

convincing evidence that he could trace all of the deposits into TSB 602 to separate funds.

See TEX. FAM. CODE ANN. § 3.003(b).

        The trial court concluded that Robert did not meet this burden. It held that there

was “no documentary evidence, and no clear and convincing evidence, tracing separate

funds into the Texas State Bank (TSB) 602 account as required by law.” On the other

hand, the court heard from Monica’s accounting expert, Billy Bradford, who testified

through his report as follows:

        It should be noted that: (1) all earnings of Robert Michelena from the date
        of their marriage in 1994 until the time of their divorce in 2006 were
        deposited into this Account; (2) Monica acknowledged it as the primary
        Account for handling community affairs; and (3) interest earned on the
        Account holdings remained in this account.

        The facts in this case demonstrate that Robert has so hopelessly mixed his
        separate assets with community property assets that tracing of Account
        #602 has become impossible. Therefore, it is my opinion that the entire
        account balance at the time of the divorce decree ($498,366) should be
        considered community property.

        1 We note that the “assumption” in the parties’ prenuptial agreement clearly contradicts family code

§ 3.003(a), but neither party argues that the agreement is invalid for this reason.

                                                     8
      Robert relies heavily on Fischer-Stoker v. Stoker for the proposition that the trial

court erred in not honoring the parties’ prenuptial agreement. 174 S.W.3d 272 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). However, Fischer-Stoker is distinguishable.

In that case, Dianne Fischer-Stoker and Ronnie Stoker had a premarital agreement that

identified their separate properties. Id. at 275-76. At issue in that case were Dianne’s

retirement accounts: one account was valued at approximately $500,000 at the time of

divorce while the other was valued at $60,000. Id. at 275. In the parties’ agreement, they

had specific language that provided as follows:

      Any right of reimbursement that may arise during our marriage for payments
      or contributions made to the other's separate estate to the extent any
      payment is made by one for the benefit of the other shall be presumed to
      be a gift to the other party's separate estate.

Id. at 278 (emphasis added). In light of this language, the court characterized Dianne’s

retirement accounts as her separate property. Id. at 281–82. Robert and Monica did not

have this analogous language in their prenuptial agreement. Accordingly, any “payments

or contributions” made to “any property held in the individual name of either party”

constituted commingling and defeated the separate property presumption initially

afforded by their premarital agreement.

      Under our standard of review, we must defer to the trial court’s findings of fact if

they are supported by the record. Ortiz, 917 S.W.2d at 772. Because the record shows

evidence of commingling and Robert failed to conclusively rebut the community property

presumption with clear and convincing evidence, we conclude that the trial court did not

err in determining that TSB 602 is community property. See TEX. FAM. CODE ANN.


                                            9
§ 3.003(b).

C.     Legal Settlement

       Robert also complains by his first issue about the trial court’s characterization of a

$40,000 legal settlement as community property. The record shows Robert filed the

lawsuit in his own name after the parties filed for divorce, but while the parties were still

married. Robert claims that this asset is his separate property.

       It is undisputed, however, that Robert did not disclose this asset during the original

divorce proceedings. In the original decree of divorce signed on July 23, 2009, the trial

court ordered “that any undisclosed asset of the parties is awarded to the party not in

possession or control of the asset.” Accordingly, the trial court did not err by failing to

characterize this asset as Robert’s separate property. See infra section IV (addressing

Robert’s challenges to the “undisclosed assets” provision of the 2009 decree). We

overrule Robert’s first issue.

                     III.    THE VALUATION OF THE COMMUNITY ESTATE

       By his second issue, Robert complains that the trial court erred when it failed to

value the community estate at the time of divorce. He specifically complains about the

court’s property valuations of TSB 602, AG Edwards account 4544-5675, and Compass

Bank CD #3222000.

A.     Applicable Law

       A trial court is required to divide the community property in a just and right

manner. TEX. FAM. CODE ANN. § 7.001; Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—

Houston [1st Dist.] 1992, no writ). “It is the responsibility of the parties to provide the trial


                                               10
judge with a basis upon which to make the division.” Finch, 825 S.W.2d at 221. “One who

complains of the way the trial court divided the properties must be able to show from the

evidence in the record that the division is so unjust and unfair as to constitute an abuse

of discretion.” Id.; see also LeBlanc v. LeBlanc, 761 S.W.2d 450, 453 (Tex. App.—Corpus

Christi–Edinburg 1988), aff’d, 778 S.W.2d 865, 865 (Tex. 1989).

       Generally, property should be valued as of the date of the divorce. See Handley v.

Handley, 122 S.W.3d 904, 908 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.); Mata

v. Mata, 710 S.W.2d 756, 759 (Tex. App.—Corpus Christi–Edinburg 1986, no writ).

However, whether an appraisal is near enough in time to the date of the divorce to be

considered in determining value for purpose of the property division is generally left to the

discretion of the trial court. See Grossnickle v. Grossnickle, 935 S.W.2d 830, 839 (Tex.

App.—Texarkana 1996, writ denied) (citing Finch v. Finch, 825 S.W.2d 218 (Tex. App.—

Houston [1st Dist.] 1992, no writ)); see also O’Carolan v. Hopper, 414 S.W.3d 288, 311

(Tex. App.—Austin 2013, no pet.) (holding that, in some cases, the determination of when

to value property at a different time than the divorce “is in fact so specific that it should be

left to the discretion of the trial judge to avoid the inequities that could result by making a

bright-line rule.” (quoting Parker v. Parker, 897 S.W.2d 918, 932 (Tex. App.—Fort Worth

1995, writ denied))).

B.     Texas State Bank 602

       In its judgment, the trial court concluded that the “substantial evidence” of

commingling of community funds in TSB 602 characterized it as a community asset. The

court also found that TSB 602 contained $498,366.21 as of the date of the filing of the


                                              11
divorce suit. Accordingly, in dividing the asset in half, the court awarded Monica

$249,183.11 as her share of the TSB 602 account.

       Robert complains that the court should have divided TSB 602 according to its value

as of the date of divorce, not the date of the filing of the divorce action. See Handley, 122

S.W.3d at 908; Mata, 710 S.W.2d at 759. Robert, however, points to no evidence

establishing the value of TSB 602 at the exact time of divorce. In fact, the record shows

that Robert refused to provide any information about TSB 602 during the divorce

discovery process. During her direct examination at the trial on remand, Monica testified

as follows:

       Q:     You made a request for production to Mr. Michelena asking him to
              give you all the bank documents regarding the 602 account; is that
              correct?

       A.     Yes, it is.

       Q.     Okay. And did he provide you that?

       A.     No, he did not.

       Q.     What did he do instead?

       A.     He said, "go out and get them yourself."

       Q.     And he gave you a release?

       A.     And he had to sign a release, yes.

       Q.     And so you went and requested all these documents from all the
              banks that ever had anything to do with this 602 account?

       A.     That’s correct.

       Monica confirmed that the bank statement from April 15, 2003 “was the only



                                             12
statement that [she] had that reflected any information on [that] account.”2 Robert, as the

party who is complaining about the valuation and consequent division of this asset, bears

the burden to “show from the evidence in the record that the division is so unjust and

unfair as to constitute an abuse of discretion.” Finch, 825 S.W.2d at 221; LeBlanc, 761

S.W.2d at 453. He has not done so. “Appellant did not avail himself of the opportunity to

provide values on any of the property to the trial court.” LeBlanc, 761 S.W.2d at 453; see

also Mata, 710 S.W.2d at 758. “He cannot now complain of the court’s lack of complete

information.” LeBlanc, 761 S.W.2d at 453; see also Mata, 710 S.W.2d at 758.

        It appears the trial court valued TSB 602 according to the only bank statement it

had for that account. In consideration of this fact, we cannot say it abused its discretion

in a manner that was unjust or unfair when it appraised the property at $498,366.21 and

awarded Monica half of that. See Grossnickle, 935 S.W.2d at 839; see also Mata, 710

S.W.2d at 758 (concluding that “where the uncontested evidence establishes only one

value, the trial court cannot draw a different inference.”). Accordingly, we reject this

argument.

C.      AG Edwards Account 4544-5675

        Robert also complains that the trial court’s valuation of AG Edwards Accounts

4544-5675 was from the date of filing of the divorce, not the date of divorce. See Handley,

122 S.W.3d at 908. The record shows that these accounts were opened during the

parties’ marriage under Robert’s name along with his mother, Loretta Michelena, on



        2 The record includes bank account statements for TSB 602 from after the parties’ divorce, but we

consider this irrelevant to the inquiry at hand.

                                                   13
March 20, 2001. Monica testified that on April 29, 2005, these accounts were worth

$117,744.87. There is no other valuation evidence in the record for this asset. Again, in

light of these circumstances, we cannot say the trial court abused its discretion when it

valued this asset at $117,744.87, when Monica filed for divorce, when Robert provided

no evidence of its worth at the time of divorce. See Mata, 710 S.W.2d at 758. We reject

this argument.

D.    Compass Bank CD #3222000

      Robert finally complains about the court’s valuation of Compass Bank CD

#3222000, which was awarded in its entirety to Monica. Monica testified that Robert

opened this account with his mother Loretta during the marriage with a deposit of

$150,000 from TSB 602 on May 7, 2003. According to Monica’s testimony, this CD had

a value of $157,141.71 on November 7, 2005, and was closed on August 2, 2007 with a

withdrawal of $154,126.80.

      During trial, Robert did not provide any valuation information for this asset at the

time of divorce. See LeBlanc, 761 S.W.2d at 453; see also Mata, 710 S.W.2d at 758.

Monica’s information is the only valuation evidence. The trial court on remand ultimately

valued this account at $157,141.71. However, the value closest to the date of divorce was

$154,126.80. We conclude that the trial court abused its discretion when it failed to use

the valuation evidence of Compass Bank CD #3222000 closest to the date of divorce, or

$154,126.80. See Mata, 710 S.W.2d at 759.

E.    Conclusion

      We sustain Robert’s second issue in part, concluding that the trial court abused its


                                           14
discretion when it valued Compass Bank CD #3222000 without reference to the valuation

evidence closest to the date of divorce. We overrule the remainder of Robert’s second

issue.

                            IV.    PREJUDGMENT INTEREST

         By his third issue, Robert complains of the prejudgment interest award to Monica

on certain assets.

A.       Applicable Law

         A party may recover prejudgment interest where it is provided for in a contract, by

an enabling statute, or through common law. De la Garza v. De la Garza, 185 S.W.3d

924, 927 (Tex. App.—Dallas 2006, no pet.); see Banker v. Banker, 517 S.W.3d 863, 881

(Tex. App.—Corpus Christi–Edinburg 2017, pet. denied) (“As a general rule, parties are

required to plead for pre-judgment interest sought at common law as an element of

damages, whereas statutory or contractual interest may be predicated on a prayer for

general relief.”); Bufkin, 259 S.W.3d at 357. Prejudgment interest is “compensation

allowed by law as additional damages for lost use of the money due as damages during

the lapse of time between the accrual of the claim and the date of judgment.” Johnson v.

Ventling, 462 S.W.3d 92, 97 (Tex. App.—Corpus Christi–Edinburg 2013), rev’d in part on

other grounds, 466 S.W.3d 143 (Tex. 2015).

         “The statute now governing prejudgment interest is the Texas Finance Code.”

Bufkin, 259 S.W.3d at 357. The finance code provides for the recovery of prejudgment

interest in cases involving extensions of credit, wrongful death, personal injury, property

damage, or condemnation. See TEX. FIN. CODE ANN. §§ 302.002, 304.101, 304.201. If,


                                             15
however, there is no recovery of prejudgment interest under statute, it may only be

awarded if it is provided by contract or requested through proper pleadings. Bufkin, 259

S.W.3d at 357.

      We review a trial court’s award of prejudgment interest under an abuse of

discretion standard. Ventling, 462 S.W.3d at, 97; Morales v. Morales, 98 S.W.3d 343, 348

(Tex. App.—Corpus Christi–Edinburg 2003, pet. denied). To determine if there was an

abuse of discretion, we must decide if the lower court acted without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985). “Courts do have the equitable power to award prejudgment interest.”

Bufkin, 259 S.W.3d at 358.

B.    Analysis

      The court granted prejudgment interest to Monica on the following seven assets:

(1) $33,715.89 for AG Edwards accounts #5657 and #5621; (2) $82,366.66 for TSB 602;

(3) $65,400.23 on the couple’s community property division; (4) $13,221.92 for the TSB

lawsuit; (5) $39,031.17 for AG Edwards account 4544-5675; (6) $51,942.87 for the

Compass Bank CD; and (7) $6,610.96 for Monica’s heirloom ring. In sum, the trial court

granted Monica $292,289.50 in prejudgment interest.

      We first analyze whether the Texas Finance Code authorizes the assessment of

prejudgment interest upon the recovery of any of the assets. We note that none of the

assets deal with wrongful death, personal injury, property damage, or condemnation. See

TEX. FIN. CODE ANN. §§ 304.101, 304.201. We further note that none of the financial

accounts (AG Edwards accounts #5657 and #5621, TSB 602, AG Edwards accounts


                                          16
4544-5675, and the Compass Bank CD) appear to be “extensions of credit” as

contemplated by the finance code. See id. § 302.002 (providing that “if a creditor has not

agreed with an obligor to charge the obligor any interest, the creditor may charge and

receive from the obligor legal interest . . . .”). AG Edwards, TSB, and Compass Bank are

not “creditors” and Robert and Monica are not “obligors” within the meaning of § 302.002.

See id.; see also id. § 301.001(a)(3) (defining a “creditor” as “a person who loans money

or otherwise extends credit”), § 301.001(a)(13) (defining an “obligor” as “a person to

whom money is loaned or credit is otherwise extended”). Accordingly, we conclude there

is no statute authorizing prejudgment interest for these assets.

        We now look to the common law to determine if prejudgment interest is warranted. 3

See Banker, 517 S.W.3d at 881. Monica’s “Second Supplemental Amended Original

Petition for Divorce” specifically requested “post-judgment interest as allowed by law.”

Her prayer asked for “attorney’s fees, expenses, costs, and interest and for general relief.”

This language does not meet the specific pleading requirements for prejudgment interest

as set forth in Texas case law. “[W]here prejudgment interest is sought at common law

as an element of the damages, a plaintiff must plead for it.” Bufkin, 259 S.W.3d at 358.

“A prayer for general relief does not suffice.” Id. And a “prayer for general relief will not

authorize prejudgment interest where there is a prayer for interest on the judgment

followed by a prayer for general relief.” Tex. Indus., Inc. v. Lucas, 715 S.W.2d 683, 687


        3 It is undisputed that the parties did not have a contract authorizing prejudgment interest on any
assets. See De la Garza v. De la Garza, 185 S.W.3d 924, 927 (Tex. App.—Dallas 2006, no pet.). “We
recognize that as a general rule[,] plaintiffs are required to plead for prejudgment interest sought at common
law as an element of damages, whereas statutory or contractual interest may be predicated on a prayer for
general relief.” Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex. 1987).


                                                     17
(Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). Monica’s petition explicitly asked

for “post-judgment interest” and then generally prayed for “interest” but did not specifically

request “pre-judgment interest.” See Bufkin, 259 S.W.3d at 358 (holding no prejudgment

interest was requested where it was not listed specifically and the party generally prayed

for “such other and further relief, general or special, legal or equitable, to which she may

show herself justly entitled to receive”); Tex. Indus., 715 S.W.2d at 687 (denying

prejudgment interest where the plaintiff prayed for “interest on the amount of the judgment

at the legal rate until paid”); Tenn. Life Ins. v. Nelson, 459 S.W.2d 450, 454 (Tex. App.—

Houston [14th Dist.] 1970, no writ) (denying prejudgment interest when the plaintiff

requested general relief “together with interest on the amount of the judgment at the legal

rate until paid”); see also Acad. Corp. v. Hansen, No. 01-00-00219-CV, 2002 WL 356492,

at *9 (Tex. App.—Houston [1st Dist.] Mar. 7, 2002, pet. denied) (mem. op., not designated

for publication) (denying prejudgment relief on a trespass claim when the plaintiff only

specifically requested prejudgment interest on an ad valorem claim); but see B. A. Mortg.

Co. v. McCullough, 590 S.W.2d 955, 958–59 (Tex. App.—Fort Worth 1979, no writ) (“A

general prayer for relief may be sufficient to allow prejudgment interest if all that is

requested is ‘interest’, with no further identification of the rate, amount on which it is to be

based, and so forth, but merely requesting ‘such other and further relief’ to which plaintiff

feels justly entitled is too general to support an interest award.”). Accordingly, we

conclude that Monica did not establish a right to recover prejudgment interest under the

common law, either. 4


       4  We find Monica’s argument that Robert should have filed special exceptions on the question of
interest unpersuasive. The relevant case law sets forth that the burden of pleading was hers. Bufkin v.
                                                  18
        In sum, none of the assets at issue were covered by a statute warranting

prejudgment interest, there was no contract between the parties outlining the recovery of

prejudgment interest, and Monica’s general prayer for “interest” did not meet case law

standards for the award of such interest. See Banker, 517 S.W.3d at 881; Tex. Indus.,

715 S.W.2d at 687; Tenn. Life Ins., 459 S.W.2d at 454; see also Acad. Corp., 2002 WL

356492, at *9. Because the trial court did not rely on guiding rules or principles when

awarding Monica prejudgment interest, its award thereof constituted an abuse of

discretion. See Downer, 701 S.W.2d at 241-42. We sustain Robert’s third issue.

                        V.      DISTRIBUTION OF THE UNDISCLOSED ASSETS

        By his fourth issue, Robert argues that the trial court improperly gave Monica 100%

of two assets which the trial court found were undisclosed at the time of the decree: the

AG Edwards account 4544-5675 valued at $117,774.87 and the Compass Bank CD

#3222000 valued at $157,141.171. 5

        In the original decree of divorce signed on July 23, 2009, the trial court ordered,

consistent with the parties’ agreement, “that any undisclosed asset of the parties is

awarded to the party not in possession or control of the asset.” This portion of the order

was not challenged in Michelena I or Michelena II. In fact, in Michelena I, our disposition

was as follows:

        We reverse the trial court’s division of property and remand this case to the
        trial court for a new trial as to the number 602 account, in particular, and a

Bufkin, 259 S.W.3d 343, 358 (Tex. App.—Dallas 2008, pet. denied). Further, we conclude that Monica’s
reliance on Anderson v. Anderson, 707 S.W.2d 166, 170 (Tex. App.—Corpus Christi–Edinburg 1986, writ
ref’d n.r.e.) is misplaced because, in Anderson, the appellant specifically pleaded for prejudgment interest.
See id. at 170-171.
        5As previously concluded, the correct valuation for the Compass Bank CD was actually
$154,126.80.
                                                    19
       new division of the estate after the new trial and in light of the holdings in
       this case. We affirm the remainder of the divorce decree.

2012 WL 3012642, at *20 (emphasis added).

       Robert’s AG Edwards account 4544-5675 and Compass Bank CD #3222000 were

first disclosed in the trial on remand held on December 14, 2015 and January 25, 2016.

The record shows the AG Edwards account was originally opened in Robert’s name,

along with his mother Loretta, in March of 2001 while Robert and Monica were still

married. This account is now in Robert’s sole possession because his mother passed

away, making him the sole owner. The Compass Bank CD was opened in May of 2003

in Loretta Michelena’s name while Monica and Robert were still married, as well. The

evidence from the trial on remand shows that the Compass Bank CD was opened with

funds that were originally in the TSB 602 account.

       Accordingly, under the terms of the original divorce decree, the trial court awarded

these assets to Monica as her separate property because they were previously

undisclosed. We disagree with Robert that these two accounts should be considered in

the trial court’s new division of community property, as we ordered the court to do in

Michelena I. Because Robert failed to disclose these accounts in the original divorce, the

trial court awarded them to Monica as her separate property in the trial on remand, per

the terms of the original divorce decree. We cannot conclude that the trial court abused

its discretion in doing so. See Downer, 701 S.W.2d at 241–42. We overrule Robert’s

fourth issue.

            VI.    MONICA’S AWARD OF $197,853.98 FOR EXHIBIT C PROPERTY

       By his fifth issue, Robert asserts that the trial court committed reversible error by

                                            20
rendering a judgment of $197,853.98 against Robert in favor of Monica “as her share of

the property listed in Exhibit C.” The judgment provided as follows:

        A Judgment against Respondent ROBERT MICHELENA in the amount of
        $197,853.98 is awarded to MONICA MICHELENA as her share of the
        Exhibit C Community Property, which the Court of Appeals ordered to be
        divided equally[,] plus pre-judgment interest at 5%, $65,400.23, for a total
        judgment of $263,254.21, for which let execution issue.

        The original divorce decree had five exhibits: Exhibits A, B, C, D, and E. Exhibits

A, B, and C all characterized the parties’ non-bank account community property. Exhibit

A listed community property to be awarded to Monica, Exhibit B listed community property

to be awarded to Robert, and Exhibit C listed all of the community property ordered to be

sold, the profits of which would be split evenly between the parties. Exhibit D to the decree

listed the bank accounts which were community property, and Exhibit E listed the

community debts.

        Robert points out that the value of the community property in Exhibit C is

$267,707.95. This fact is undisputed. Accordingly, he asserts that Monica’s award should

be half of that sum, or $133,853.98. Instead, the trial court awarded Monica that amount

($133,853.98) plus $64,000, and prejudgment interest of $65,400.23, 6 for a total of

$263,254.21.

        Monica encourages us to take a different analysis: she suggests we take the total

value of the community property, which the trial court found to be $479,707.95, divide that

sum in half for a result of $239,853.98, and then subtract $42,000. She suggested the

trial court subtracted $42,000 because in Michelina I, we concluded that Monica had


        6  We have already concluded that Monica is not entitled to prejudgment interest. See supra Part
IV of this opinion.
                                                  21
already received $42,000 of community property. See 2012 WL 3012642, at *2 (noting

that the original divorce decree set forth that Monica received “personal property from the

community estate valued at approximately $42,000”). This approach leads us to the sum

of $197,853.98, which is precisely the amount of the judgment at issue, before interest.

       From the language in its most recent order and its related findings of fact, it seems

that the trial court intended to divide the community property assets equally. It appears,

though, that the inclusion of the phrase “Exhibit C” led to confusion about the community

property award. Accordingly, we sustain Robert’s fifth issue in part and reform this part of

the judgment to provide that, “A Judgment against Respondent ROBERT MICHELENA

in the amount of $197,853.98 is awarded to MONICA MICHELENA as her share of the

Community Property, which the Court of Appeals ordered to be divided equally, for which

let execution issue.” See TEX. R. APP. P. 43.6 (“The court of appeals may make any other

appropriate order that the law and the nature of the case require.”).

               VII.   DISPROPORTIONATE SHARE OF COMMUNITY PROPERTY

       In his sixth and final issue, Robert contends that the “overall division of property in

the Judgment on New Trial for Property Division” is so disproportionate as to be an abuse

of discretion and requires reversal of the property division and remand for a new division.

A.     Standard of Review and Applicable Law

       In a decree of divorce, the court shall order a division of the community estate in a

manner that the court deems just and right, having due regard for the rights of each

party. TEX. FAM. CODE ANN. § 7.001. In effecting a just and right division of the community

estate, § 7.001 of the Texas Family Code vests the trial court with broad discretion that


                                             22
will not be reversed on appeal unless the complaining party shows that the trial court

clearly abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). The test of

whether the trial court abused its discretion is whether the court acted arbitrarily or

unreasonably, and without reference to any guiding principles. Downer, 701 S.W.2d at

241–42.

B.      Analysis

        Robert’s entire argument concerning this issue is as follows:

        Monica Michelena’s attorney Gilberto Hinojosa stated at the start of the trial
        on remand that this Appellate Court had remanded this case because, after
        valuing the community property at $750,000.00, the Appellate Court had
        found the division to amount to a 75/25 division, Michelena v. Michelena,
        13-09-00588-CV, 2012 WL 3012642 (Tex. App.—Corpus Christi[–
        Edinburg] June 15, 2012, no pet.). In the case at bar, the adding up the
        individual awards reveals that the current Judgment on New Trial for
        Property Division awards a judgment against Robert Michelena of close to
        a million dollars. If the Appellate Court’s earlier estimate was correct, this
        division is more disproportionate by an order of magnitude.

        Robert provides no specific citations to the record or any meaningful legal analysis

to support this issue. Accordingly, we overrule Robert’s sixth issue for inadequate briefing.

See TEX. R. APP. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins., 881 S.W.2d 279,

283 (Tex. 1994) (holding that it has never been a part of an appellate court’s duties to

search the record for factual assertions or order re-briefing).

                                            VIII.   CONCLUSION

        We reverse the portions of the judgment granting any prejudgment interest. 7


         7 Although this point has not been disputed in the briefs, we also clarify that any postjudgment

interest should run from the date of the original divorce decree, which is July 23, 2009. See TEX. FIN. CODE
ANN. § 304.005 (“[P]ost[-]judgment interest on a money judgment of a court in this state accrues during the
period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied.”).

                                                    23
          We also reverse the trial court’s judgment with regard to the valuation of Compass

Bank CD #3222000. We render judgment that the proper valuation of this asset is

$154,126.80, which is supported by valuation evidence closest to the date of divorce.

          We modify the language regarding Monica’s community property award to provide

that, “A Judgment against Respondent ROBERT MICHELENA in the amount of

$197,853.98 is awarded to MONICA MICHELENA as her share of the Community

Property, which the Court of Appeals ordered to be divided equally, for which let execution

issue.”

          We affirm the remainder of the judgment as modified.



                                                                 LETICIA HINOJOSA
                                                                 Justice

Delivered and filed the
19th day of March, 2020.




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