                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-456-CV


KEITH E. BECKNER                                                     APPELLANT

                                        V.

GWENDYLLYN A. BECKNER                                                   APPELLEE

                                    ------------

          FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION 1

                                    ------------

     Keith E. Beckner appeals from the final decree divorcing him from

Gwendyllyn A. Beckner. We modify the final decree and affirm it as modified.

                                Reimbursement

     In his first issue, Keith argues that the trial court abused its discretion by

awarding reimbursement in favor of Gwendyllyn’s separate estate because the



     1
         … See Tex. R. App. P. 47.4.
evidence was legally and factually insufficient to overcome the community

property presumption. We agree.

      Gwendyllyn’s reimbursement claim concerned a rental house known as

the Delta Court property, which the parties purchased for cash in 1995. Both

parties identified Delta Court as community property in their inventories.

Gwendyllyn testified that she withdrew approximately $35,000 from her 401(k)

account and used that money to fund part of Delta court’s $47,000 purchase

price. She said that Delta Court was worth $99,000 at the time of trial and

asked for ”at least $35,0000 of that to go back to [her] separate estate.”

      Keith testified that he withdrew $28,000 from his 401(k) account to

partially fund the Delta Court purchase, and that after taxes the amounts he

and Gwendyllyn removed from their respective 401(k) accounts equaled Delta

Court’s purchase price. He agreed that Gwendyllyn had withdrawn $35,000

from her 401(k) account to fund the Delta Court purchase, and his only

comment on her reimbursement claim was, “I disagree with that claim. It looks

to me like she’s claiming it twice in her inventory.”

      The jury returned an advisory verdict of $34,952.05 on Gwendyllyn’s

reimbursement claim. The trial court’s final decree ordered the parties to sell

Delta Court and ordered the community estate to reimburse Gwendyllyn’s

separate estate $34,952.05, with each party to bear half of the reimbursement.



                                       2
The trial court also awarded Keith’s separate estate $9,967.00 from the

community, again with each party to bear half of the reimbursement. Thus, the

decree awarded net reimbursement to Gwendyllyn’s separate estate of

$12,492.53, and the trial court rendered judgment in Gwendyllyn’s favor for

that amount.2

      Property possessed by either spouse during or on dissolution of marriage

is presumed to be community property.        Tex. Fam. Code Ann. § 3.003(a)

(Vernon 2006). A party seeking reimbursement for a benefit conferred on the

community estate by the party’s separate estate must prove that the benefit

arose from a separate estate by clear and convincing evidence.           See id.

§ 3.003(b) (“The degree of proof necessary to establish that property is

separate property is clear and convincing evidence.”); Williams v. Williams, No.

02-04-00230-CV, 2005 WL 1244678, at *2 (Tex. App.—Fort Worth May 26,

2005, no pet.) (holding trial court erred by awarding reimbursement for real

property allegedly purchased with funds husband withdrew from 401(k)

account because husband did not demonstrate by clear and convincing

evidence that 401(k) funds were separate property). Claims for reimbursement

are equitable claims falling within the discretion of the trial court. Vallone v.

Vallone, 644 S.W.2d 455, 459 (Tex.1982); Zeptner v. Zeptner, 111 S.W.3d


      2
     … The decree actually grants a judgment in Gwendyllyn’s favor for
$12,492.50, a difference of three cents.

                                       3
727, 735 (Tex. App.—Fort Worth 2003, no pet.) (op. on reh’g). An abuse of

discretion does not occur as long as some evidence of substantive and

probative character exists to support the trial court’s decision. Butnaru v. Ford

Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

      There is no evidence in the record before us that the funds Gwendyllyn

withdrew from her 401(k) account were and remained her separate property.

The only thing that comes close is her single statement that she wanted

$35,000 “to go back to [her] separate estate.” She presented no evidence to

show that the 401(k) account was itself her separate property or to trace the

funds after she withdrew       them.       In Williams, the husband      seeking

reimbursement offered significantly more evidence tracing the funds he claimed

were separate property, yet we held that he failed to overcome the community

property presumption by clear and convincing evidence. Williams, 2005 WL

1244678, at *2–3. In light of the record in this case, we hold that Gwendyllyn

failed to overcome the community property presumption by clear and

convincing evidence; therefore, the trial court abused its discretion by awarding

reimbursement to her separate estate. See id. We sustain Keith’s first issue.

      Having sustained Keith’s first issue, we need not reach his second issue,

in which he argues that Gwendyllyn’s reimbursement claim fails as a matter of




                                       4
law even if she overcame the community property presumption. See Tex. R.

App. P. 47.1.




                                   5
                                  Child Support

      In his second issue, Keith argues that the trial court’s final written decree

ordered Keith to pay child support in an amount different from the amount the

trial court orally pronounced at the conclusion of trial.

      At the conclusion of trial on November 15, 2005, the trial court orally

pronounced on the record that Keith’s support obligation for the parties’ two

minor children was set at $1,450 per month, which is consistent with the

standard support guidelines for someone with a monthly net income of $5,828,

which the trial court stated was Keith’s net income. See Tex. Fam. Code Ann.

§§ 154.061, 154.125 (Vernon 2008). On October 16, 2006, the trial court

signed a final decree of divorce finding that Keith’s monthly net income was

$6,000 and ordering him to pay $1,500 per month in child support, which

again is consistent with the statutory guidelines for a person with $6,000 in net

income.

      On November 10, 2006, Keith filed a motion to modify, correct, or reform

the judgment, asserting that the decree contained several errors, but he did not

identify the inconsistent net-income finding and child support order as

erroneous. The trial court signed a modified final decree on September 12,




                                        6
2007.3 As in the original decree, in the corrected decree the trial court found

that Keith’s net income was $6,000 per month and ordered him to pay $1,500

per month in child support.

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint

is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

      From the partial record before us, it does not appear that Keith ever

brought to the trial court’s attention by request, objection, or motion the

discrepancy between the trial court’s oral pronouncement on child support and

the amount it ordered Keith to pay in both the original and corrected decrees.

We therefore hold that Keith waived the alleged error. Moreover, Keith does

not challenge the trial court’s explicit finding recited in both the original and

corrected decree that his monthly net income is $6,000. Under the family code

guidelines, $1,500 is standard child support for someone who has two children

and who’s net income is $6,000 per month.           See Tex. Fam. Code Ann.



      3
       … The judge who signed the corrected decree (Hon. Nancy Berger) was
not the same judge who presided at trial and signed the original decree and the
order granting the motion to correct the decree (Hon. Frank Sullivan).

                                        7
§ 154.125(b) (setting child support for two children at 25% of obligor’s net

resources). We overrule Keith’s third issue.

                                 Conclusion

      Having sustained Keith’s first issue and overruled his third issue, we

modify the corrected final decree of divorce to delete the reimbursement award

and judgment in favor of Gwendyllyn’s separate estate for $12,492.50 and add

a judgment in favor of Keith for $4,983.50, and we affirm the decree as

modified. See Tex. R. App. P. 43.2(b).




                                          ANNE GARDNER
                                          JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DELIVERED: February 5, 2009




                                      8
