                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-213-CV


KEELY DENISE BALL                                                  APPELLANT

                                        V.

THOMAS MICHAEL RONEY                                                 APPELLEE

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           FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Keely Denise Ball brings this restricted appeal from her divorce

decree complaining that there is no evidence that the trial court’s division of

property and debts is just and right. Because we hold that there was no clear

and convincing evidence that the parties possessed no community property and

that there was no evidence presented to the trial court concerning the value of


      1
          … See Tex. R. App. P. 47.4.
the assets or the amount of the liabilities, we are required to reverse and

remand.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Appellee Thomas Michael Roney and Ball married in 1986, and Roney

filed for divorce on October 26, 2007. Ball did not file an answer. The trial

court heard testimony from Roney and signed the final decree of divorce on

December 12, 2007.

      The trial court awarded Roney all household furniture, furnishings,

fixtures, goods, art objects, collectibles, appliances, and equipment in his

possession or subject to his control; all clothing, jewelry, and personal effects

in his possession or subject to his control; the funds on deposit, together with

accrued but unpaid interest, in banks, savings institutions, or other financial

institutions in his name or in Thomas Roney, LLC; all stock, interest, and assets

in Thomas Roney, LLC; and the 2006 Honda Civic. The trial court ordered

Roney to pay all debt on the Honda Civic lease; the debt in his name that was

owed to any institution, credit card, or bank; and all debts and liabilities of

Thomas Roney, LLC.

      Ball received all deposits on the property known as 4021 Caldwell

Avenue, The Colony, Texas; all household furniture, furnishings, fixtures,

goods, art objects, collectibles, appliances, and equipment in her possession or

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subject to her sole control; all clothing, jewelry, and other personal effects in

her possession or subject to her sole control; the funds on deposit, together

with accrued but unpaid interest, in banks, savings institutions, or other

financial institutions in her name; the sums, whether matured or unmatured,

accrued or unaccrued, vested or otherwise, together with all increases thereof,

the proceeds therefrom, and any other rights related to any profit-sharing plan,

retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k)

plan, employee savings plan, accrued unpaid bonuses, disability plan, or other

benefits existing by reason of her past, present, or future employment; and the

vehicle in her possession. The trial court ordered Ball to pay all debt incurred

to any institution, credit card, or bank in her name.

      Ball filed her notice of appeal within six months after the judgment was

signed and stated that she did not participate in the decision-making event that

produced the final judgment; that she did not timely file a postjudgment motion,

a request for findings of fact, or a notice of ordinary appeal; and that error is

apparent on the face of the record. Ball therefore has met the requirements for

a restricted appeal.   See Tex. R. App. P. 30; Norman Commc’ns v. Tex.

Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).




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    III. N O C LEAR A ND C ONVINCING E VIDENCE T O R EBUT C OMMUNITY P ROPERTY
     P RESUMPTION AND N O E VIDENCE OF THE V ALUE OF THE A SSETS AND D EBTS
                             D IVIDED B Y D IVORCE D ECREE

      Ball argues in her second issue 2 that the trial court abused its discretion

by dividing the parties’ marital estate because there is no evidence that the

division of property and debts is just and right.      Roney responds that his

statement at trial—that there was no “attributable community property” to be

divided—is sufficient evidence for the trial court to divide the property as it did

in the final decree.

      A. Standard of Review

      Most of the appealable issues in a family law case are evaluated against

an abuse of discretion standard, be it the issue of property division incident to

divorce or partition, conservatorship, visitation, or child support. Sandone v.

Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.—El Paso 2003, no pet.).

While the appellant may challenge the sufficiency of the evidence to support

findings of fact, in most circumstances, that is not enough. Id. at 205–06. If,

for example, an appellant is challenging the sufficiency of the evidence to

support the court’s valuation of a particular asset, she must also contend that




      2
      … Ball’s first issue sets forth her compliance with Texas Rule of
Appellate Procedure 30, showing that she is entitled to file a restricted appeal.
See Tex. R. App. P. 30.

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the erroneous valuation caused the court to abuse its discretion in the overall

division of the community estate. Id. at 206. Because these issues implicate

two different appellate standards of review, we must address both of them.

      In considering a legal sufficiency or “no evidence” point, an appellate

court considers only the evidence which tends to support the jury’s findings and

disregards all evidence and inferences to the contrary. Garza v. Alviar, 395

S.W.2d 821, 823 (Tex. 1965); Sandone, 116 S.W.3d at 206. If any probative

evidence supports the factfinder’s determination, it must be upheld.       In re

King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661–62 (1951); Neily v. Aaron,

724 S.W.2d 908, 913 (Tex. App.—Fort Worth 1987, no writ).

      The test for an abuse of discretion is not whether, in the opinion of the

reviewing court, the facts present an appropriate case for the trial court’s

action, but whether the court acted without reference to any guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985), cert. denied, 476 U.S. 1159 (1986). The mere fact that a trial judge

may decide a matter within his discretionary authority in a different manner

than an appellate judge in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Sw. Bell Telephone Co. v. Johnson, 389

S.W.2d 645, 648 (Tex. 1965).




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      Where sufficiency review overlaps the abuse of discretion standard, we

engage in a two pronged inquiry:       (1) Did the trial court have sufficient

information upon which to exercise its discretion; and (2) did the trial court err

in its application of discretion? Sandone, 116 S.W.3d at 206. The traditional

sufficiency review comes into play with regard to the first question; however,

our inquiry cannot stop there. Id. We must proceed to determine whether,

based on the elicited evidence, the trial court made a reasonable decision. Id.

Stated inversely, we must conclude that the trial court’s decision was neither

arbitrary nor unreasonable. Id.

      B. Property Division and Valuation Evidence

      Property owned before marriage or acquired during marriage by gift,

devise, or descent is separate property. Tex. Fam. Code Ann. § 3.001 (Vernon

2006).   Community property consists of all property, other than separate

property, acquired by either spouse during marriage. Id. § 3.002. All property

on hand at the dissolution of marriage is presumed to be community property.

Id. § 3.003(a). This, however, is a rebuttable presumption, requiring a spouse

claiming assets as separate property to establish the separate character by clear

and convincing evidence usually through tracing. Id. § 3.003(b); Boyd v. Boyd,

131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.). Any doubt as

to the character of property should be resolved in favor of the community

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estate. Id. § 3.003(a). A trial court is charged with dividing the community

estate in a “just and right” manner, considering the rights of both parties. Id.

§ 7.001.

      Although the trial court is not required to divide the community estate

equally, its division must be equitable. Zieba v. Martin, 928 S.W.2d 782, 790

(Tex. App.—Houston [14th Dist.] 1996, no writ); Schuster v. Schuster, 690

S.W.2d 644, 645 (Tex. App.—Austin 1985, no writ).             The trial court’s

discretion is not unlimited, and there must be some reasonable basis for an

unequal division. Zieba, 928 S.W .2d at 790. Courts are vested with wide

discretionary powers in suits for divorce, but the division of property must be

just and right. Massey v. Massey, 807 S.W.2d 391, 405 (Tex. App.—Houston

[1st Dist.] 1991, writ denied).

      A petition for divorce may not be taken as confessed if the respondent

does not file an answer. Tex. Fam. Code Ann. § 6.701 (Vernon 1998). The

statute requires the petitioner to present proof to support the material

allegations in the petition despite a respondent’s failure to answer. Sandone,

116 S.W.3d at 207.

      Here, Roney was the only witness to testify, and his entire testimony

consists of two pages of the record. The only evidence regarding the property

of the parties is recited here verbatim:

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     Q.     And you have not come to an agreement on the division of
     property, but you propose a division of property which includes
     that she has all the possessions in her -- has all items in her
     possession, bank accounts and you have all items in your
     possession, bank accounts and does the marriage have any
     attributable community property?

     A.    No.

     Q.     And she has her car and you have your car and she’s a CPA;
     is that correct?

     A.    That’s correct.

     Q.    And she works and has worked in Dallas in the past, correct?

     A.    Yes.

     Q.     And you’ve divided up any debts between the parties and
     this is strictly what you put on your credit card and what she’s put
     on her credit card?

     A.    Yes.

No exhibits were introduced into evidence.

     The first issue that we must address is whether Roney’s monosyllabic

response to a compound question provides clear and convincing evidence

establishing the parties’ separate property and rebutting the community

property presumption. At the tail end of the compound question, the attorney

questioning Roney asked if the marriage produced any attributable community

property, to which Roney answered, “No.”       If we begin with the required

statutory presumption that all the couples’ assets were community property,

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then Roney’s monosyllabic response fails to overcome that presumption

because Roney did not trace any of the assets from the marriage back in time

to prove their separate character. See Mock v. Mock, 216 S.W.3d 370, 373

(Tex. App.—Eastland 2006, pet. denied) (citing Boyd, 131 S.W.3d at 612, and

stating general rule that testimony that funds are separate property without any

tracing of the funds is insufficient to rebut the community presumption).

Because Roney failed to trace any of the assets, he did not meet his burden of

establishing by clear and convincing evidence that no community property

existed at the dissolution of the marriage. See id. (holding that appellant failed

to trace assets in savings account listed in her name and absence of such

tracing meant that appellant did not meet her burden of establishing by clear

and evidence that the balance in the account was her separate property).

      Having analyzed the character of the property, we now turn to the

valuation of the property.    The facts before us are very similar to those in

O’Neal v. O’Neal. 69 S.W.3d 347 (Tex. App.—Eastland 2002, no pet.). Mr.

O’Neal was the only witness at the hearing, and his testimony was quite brief.

Id. at 348. The trial court divided the parties’ personal property, cash, bank

accounts, retirement accounts, IRA accounts, stocks, bonds, and securities,

although there was no evidence of value. Id. at 349–50. Based upon the lack




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of evidence, the appellate court concluded that the trial court had abused its

discretion in the division of the estate. Id. at 350.

      Here, there is a complete absence of evidence to support the division of

property. We find no pleadings or proof to establish the value of the assets and

debts. Without the ability to determine the size of the community pie, we can

make no determination that the slices awarded to each spouse were just and

right. Because there is no evidence of value, there is no evidence to support

the judgment. Consequently, we hold that the trial court abused its discretion

in the division of property. See Sandone, 116 S.W.3d at 208 (holding that trial

court abused its discretion in making property division where there was no

evidence of values); O’Neal, 69 S.W .3d at 350 (same).       We sustain Ball’s

second issue.

                                IV. C ONCLUSION

      Having sustained Ball’s second issue, we reverse and remand.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED: November 6, 2008




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