Opinion filed August 21, 2014




                                             In The


           Eleventh Court of Appeals
                                          __________

                                   No. 11-12-00085-CV
                                          __________

           MARIANO OCTAVIO CASTELNUOVO, Appellant
                                                V.
                            SANDRA FAIETA, Appellee


                       On Appeal from the County Court at Law
                                    Brown County, Texas
                           Trial Court Cause No. DV1103062


                        MEMORANDUM OPINION
       This appeal arises from a divorce proceeding. In two issues, Appellant,
Mariano Octavio Castelnuovo,1 challenges the trial court’s characterization and
award of a bank account in the amount of $566,252.49 to Appellee, Sandra Faieta,
as her separate property. We affirm.

       1
       It is noted that Appellant’s name is also spelled as “Mariano Octario Castelnuovo” on several
documents in the record.
                                        Background Facts
        Appellant and Appellee are citizens of Ecuador.                          They moved to
Brownwood in 2008 when Appellee got a job in Texas as an engineer. Appellee
filed for divorce in March 2011 from Appellant, a clinical psychologist, after they
had been married for twenty-three years. The principal disagreement between the
parties at trial concerned a $600,000 wire transfer that Appellee received in
January 2011 from representatives of Guillermo Vasquez Astudillo (“Vasquez”), a
deceased individual from Ecuador. This transfer occurred two months before
Appellee filed for divorce.2
        Vasquez died in 2009. Appellee testified that Vasquez was her “godfather”
and that he was “most probably” her biological father. Appellee described the wire
transfer as a “legacy” from Vasquez. In support of her contention, Appellee
offered a document prepared by Vasquez’s attorney in Ecuador and the attorney’s
responses to a deposition on written questions detailing that Vasquez bequeathed
the sum of $600,000 in U.S. dollars to Appellee. The attorney stated in the
deposition that the wire transfer was made by the representatives of Vasquez’s
estate. Appellant objected to the admission of many of the deposition responses of
Vasquez’s attorney on the grounds that Vasquez’s instructions to the attorney
constituted hearsay.
        Appellee deposited the $600,000 wire transfer into an account that she
established in January 2011 at a bank in Brownwood. She set up the account so
that she was the only person with access to it. Appellee testified that “[i]t was only
under my name, because I was the only--the sole owner of that inheritance.” At
the time of the final hearing, Appellee had not made any additional deposits into



        2
         Appellee alleged that she and Appellant ceased to live together as husband and wife in October
2010.


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the account. However, the balance of the account at that time was $566,252.99
because of withdrawals made by Appellee.
                                       Analysis
         Characterization of property is determined by the time and circumstances of
its acquisition. Leighton v. Leighton, 921 S.W.2d 365, 367 (Tex. App.—Houston
[1st Dist.] 1996, no writ). This doctrine, known as “inception of title,” arises when
a party first has right of claim to the property by virtue of which title is finally
vested. Scott v. Estate of Scott, 973 S.W.2d 694 (Tex. App.—El Paso 1998, no
pet.).
         Property possessed by either spouse during or on dissolution of the marriage
is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West
2006). Property of a spouse owned before marriage, and that acquired afterward
by gift, devise, or descent, is the separate property of that spouse. TEX. CONST. art.
XVI, § 15; see also FAM. § 3.001(2). The trial court may not divest a party of his
or her separate property.       Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142
(Tex. 1977); see Dutton v. Dutton, 18 S.W.3d 849, 852 (Tex. App.—Eastland
2000, pet. denied). The party asserting that a certain piece of property is actually
separate property must establish the separate character of the property by clear and
convincing evidence. FAM. § 3.003(b). Clear and convincing evidence is 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.
TEX. FAM. CODE ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d 17, 25 (Tex.
2002).
         “The statutory presumption that property possessed by either spouse upon
dissolution of the marriage is community is a rebuttable presumption and is
overcome by evidence that a specified item of property is the separate property of
one spouse or the other.” Moroch v. Collins, 174 S.W.3d 849, 856 (Tex. App.—

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Dallas 2005, pet. denied). To satisfy this burden, the spouse must trace “the
separate origin of the property through evidence showing the time and means by
which the spouse originally obtained possession of the property.” Id. at 856–57;
see also Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).
      When reviewing an alleged property characterization error, we must
determine whether the trial court’s finding is supported by clear and convincing
evidence and whether the characterization error, if established, was an abuse of
discretion. Murff v. Murff, 615 S.W.2d 696, 698–99 (Tex. 1981); Magness v.
Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet. denied); Wells v.
Wells, 251 S.W.3d 834, 838 (Tex. App.—Eastland 2008, no pet.). A trial court
abuses its discretion when it acts without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). The mere fact that a trial court may decide a matter within its discretionary
authority in a different manner than an appellate court in a similar circumstance
does not demonstrate that an abuse of discretion has occurred. Sw. Bell Tel. Co. v.
Johnson, 389 S.W.2d 645, 648 (Tex. 1965). We must indulge every reasonable
presumption in favor of the trial court’s proper exercise of its discretion in dividing
marital property. See Chavez v. Chavez, 269 S.W.3d 763, 766 (Tex. App.—Dallas
2008, no pet.); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth 2004,
no pet.).   We will reverse the ruling of the trial court only if the record
demonstrates that the trial court clearly abused its discretion and that the error
materially affected the just and right division of the community estate. Chavez,
269 S.W.3d at 766.
      When an appellant challenges the trial court’s characterization of marital
property on legal or factual sufficiency grounds, we do not treat these as
independent grounds of reversible error but, instead, consider them as factors
relevant to our assessment of whether the trial court abused its discretion. Wells,

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251 S.W.3d at 838 (citing Boyd, 131 S.W.3d at 611). To determine whether the
trial court abused its discretion because the evidence is legally or factually
insufficient, we consider whether the court (1) had sufficient evidence upon which
to exercise its discretion and (2) erred in the application of that discretion. Id.
(citing Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no
pet.)).
          When the burden of proof at trial is clear and convincing evidence, as when
a party attempts to rebut the “community presumption,” we apply a higher standard
of legal and factual sufficiency review. See In re J.F.C., 96 S.W.3d 256, 265–66
(Tex. 2002); In re C.H., 89 S.W.3d at 25–26; Moroch, 174 S.W.3d at 857. Clear
and convincing evidence is defined as “that measure or degree of proof which 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.” Moroch, 174 S.W.3d at 857; see also
FAM. § 101.007. To meet the clear and convincing burden, the proof must “weigh
more heavily than merely the greater weight of the credible evidence, but the
evidence need not be unequivocal or undisputed.” Moroch, 174 S.W.3d at 857–58.
          In his initial brief, Appellant argues that Appellee failed to overcome the
community property presumption to establish that the $600,000 wire transfer
constituted her separate property. Appellant asserts in his first issue that the trial
court erred in overruling his hearsay objections to some of the deposition responses
of Vasquez’s attorney and documents prepared by the attorney and Vasquez. In
reliance upon his first issue, Appellant asserts in his second issue that the
remaining evidence was insufficient to establish the separate nature of the wire
transfer by clear and convincing evidence. In his reply brief, Appellant presents a
claim for alternative relief to the effect that the $600,000 wire transfer was one-
half his separate property as a gift to both him and Appellee.



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       We will initially address the sufficiency of the evidence supporting the trial
court’s characterization of the $600,000 wire transfer as Appellee’s separate
property without considering the evidence that Appellant contends was hearsay. In
doing so, we assume without deciding that the following evidence constituted
inadmissible hearsay that Appellant properly objected to 3 at trial:
        •    A document from Vasquez’s attorney stating that Vasquez bequeathed
             $600,000 to Appellee;

        •    A memorandum from Vasquez to his executor directing him to give
             $600,000 to Appellee after his death;

        •    A deposition response from Vasquez’s attorney stating that Vasquez
             instructed him to transfer $600,000 to Appellee after his death; and

        •    A deposition response from Vasquez’s attorney denying that Vasquez
             instructed him to give anything to Appellant after his death.

See Marshall v. Telecomms. Specialists, Inc., 806 S.W.2d 904, 907 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (refusing to consider inadmissible hearsay in
determining sufficiency of evidence on appeal). The remaining evidence consisted
of Appellee’s testimony that she received the $600,000 wire transfer as a bequest
from Vasquez, a man she described as her godfather and probable biological
father.     Additionally, Appellant did not object to a deposition response from
Vasquez’s attorney that the $600,000 wire transfer “was made by the executors
appointed by [Vasquez] before he died.”
        We also have Appellant’s own testimony regarding the $600,000 wire
transfer. He testified that it was a gift. In this regard, he believed it was a gift to
both him and Appellee. He based this position on the fact that Vasquez had given
money to him and Appellee previously. Appellee estimated the previous gifts of
       3TEX.  R. EVID. 802 provides that “[i]nadmissible hearsay admitted without objection shall not be
denied probative value merely because it is hearsay” (emphasis added).


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money from Vasquez to be $200,000 and stated that the money was deposited into
a joint account held by her and Appellant and used for their living expenses. A gift
is a “voluntary transfer of property to another made gratuitously and without
consideration.” Wells, 251 S.W.3d at 839 (citing Hilley v. Hilley, 342 S.W.2d 565,
569 (Tex. 1961)). There is no dispute in this case that the wire transfer was made
voluntarily and without consideration. For the purposes of this appeal, there is no
meaningful distinction between a gift and a bequest of the $600,000 wire transfer
because the legal effect of either one would be the same.
      Appellant’s characterization of the $600,000 wire transfer as a gift is
significant because it defeats his contention that the funds were community
property at inception. Property that is given as a gift, regardless of whether it is
given to one person or to multiple people, is separate property. Bush v. Bush, 336
S.W.3d 722, 743 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (dealing with
horses that were undisputedly given as gifts to either one of the spouses or their
family); see also Roosth v. Roosth, 889 S.W.2d 445, 457 (Tex. App.—Houston
[14th Dist.] 1994, writ denied) (holding attempted gift by third party to community
estate vests each spouse with one-half undivided interest in property as his or her
separate property). Documentary evidence of tracing is not required to establish
the separate nature of gifts. Bush, 336 S.W.3d at 743. Accordingly, there is clear
and convincing evidence supporting the trial court’s characterization of the
$600,000 wire transfer as separate property.
      As was the case in Bush, the trial court was required to determine if the
$600,000 wire transfer was a gift solely to Appellee or to both Appellee and
Appellant. The burden to prove a gift is on the party who claims it. Powell v.
Powell, 822 S.W.2d 181, 183 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
Accordingly, Appellee had the burden to establish that the $600,000 wire transfer



                                         7
was solely a gift to her while Appellant had the burden to establish that the
$600,000 wire transfer was a gift to both him and Appellee.
      Ordinarily, the donative intent of the grantor at the time of the conveyance is
a controlling factor in determining the character of property given as a gift.
See Bush, 336 S.W.3d at 744; Rusk v. Rusk, 5 S.W.3d 299, 303 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied). The evidence that Appellant challenges
as hearsay focuses on Vasquez’s donative intent. Even without this evidence, we
conclude that clear and convincing evidence supports the trial court’s
determination that the $600,000 wire transfer was solely Appellee’s separate
property.
      There is no evidence that either Vasquez or the representatives of his estate
had a donative intent to give a portion of the $600,000 wire transfer to Appellant.
Furthermore, the money was transferred by representatives of Vasquez’s estate
solely to Appellee without Appellant’s knowledge or participation after the date
she alleged that they had ceased to live together as husband and wife. Acceptance
by the donee is an element in establishing the existence of a gift. See Wells, 251
S.W.3d at 839 (citing Long v. Long, 234 S.W.3d 34, 40 (Tex. App.—El Paso 2007,
pet. denied)).   In the absence of evidence of either a donative intent to give a
portion of the $600,000 to Appellant or his acceptance of the gift, the trial court did
not abuse its discretion by characterizing the money as solely Appellee’s separate
property. These are elements that Appellant had the burden to prove in order to
establish a joint gift, and the trial court could have reasonably concluded that
Appellant failed to meet that burden.
      For the reasons set out above, we overrule Appellant’s second issue
challenging the sufficiency of the evidence to support the trial court’s
determination that the $600,000 wire transfer constituted Appellee’s separate



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property. We do not reach Appellant’s first issue because it is not dispositive of
this appeal. See TEX. R. APP. P. 47.1.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   JOHN M. BAILEY
                                                   JUSTICE


August 21, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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