                                MEMORANDUM OPINION
                                       No. 04-11-00775-CV

                             Norris J. DEVOLL and Paulette DeVoll,
                                          Appellants

                                                  v.

                      Rebecca DEMONBREUN and William Bruce Dowds,
                                     Appellees

                    From the 131st Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-10538
                         Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: November 21, 2012

AFFIRMED

           Appellees, Rebecca Demonbreun and William Dowds, sued appellant, Norris DeVoll

(“Norris”), for damages allegedly incurred as a result of the purchase of a house. Judgment in

favor of Demonbreun and Dowds was entered and they recovered $96,540.12 in actual damages

and $47,461.64 in attorneys’ fees. Subsequently, Demonbreun and Dowds filed an Application

for Turnover Relief, seeking to have Norris turn over his community property interests in RWI,

Inc., the Two-O-Six Camedia Partnership, and income from the 3 K’s and J Land Trust. Paulette
                                                                                    04-11-00775-CV


DeVoll (“Paulette”), wife of Norris, filed an intervention in the turnover lawsuit in order to

protect her rights in the contested properties. Following a hearing, the trial court ruled: (1) the

stock of RWI, Inc. is the separate property of Paulette, but the net business income of the

corporation is the community property of Paulette and Norris; (2) the partnership interest in the

name of Paulette in the Two-O-Six Camedia Partnership is the community property of Paulette

and Norris and income from the partnership is also community property; and (3) the 3 K’s & J

Land Trust and its income are the separate property of Paulette. Lastly, the trial court ruled that

all cash in bank accounts in which Norris owned an interest should be turned over and that the

Turnover Order was continuing in effect—thus, Norris had a continuing duty to turn over all

community property described in the Order.

       In an opinion and judgment dated September 12, 2012, we affirmed the trial court’s

judgment. Appellants filed a motion for rehearing. We deny the motion, but we withdraw our

opinion and judgment of September 12, 2012, and issue this opinion and judgment in their place

for the purpose of clarifying our conclusion regarding the property known as RWI, Inc.

                                         DISCUSSION

       In three issues on appeal, the DeVolls contend the trial court erred by failing to enforce

the provisions of their Agreement to Keep Property Separate (“Agreement”), which was entered

into shortly after their marriage and years prior to Demonbreun and Dowds’ lawsuit. First, the

DeVolls assert the trial court abused its discretion when it found the net income from RWI, Inc.

was community property and subject to the Turnover Order. Second, the DeVolls contend the

trial court abused its discretion when it found that Paulette’s interest in the Two-O-Six Camedia

Partnership was community property and subject to the Turnover Order. Last, the DeVolls argue




                                               -2-
                                                                                      04-11-00775-CV


the trial court abused its discretion when it extended the Turnover Order to cover property in

which Norris does not, at this time, own any present or future interest.

       An appellate court reviews an issuance of a turnover order for an abuse of discretion. See

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Abuse of discretion occurs

when a trial court acts without reference to any guiding rules or principles, or acts in an arbitrary

or unreasonable manner. Id. “In the context of turnover orders, it has been held that a trial

court’s issuance of a turnover order, even if predicated on an erroneous conclusion of law, will

not be reversed for abuse of discretion if the judgment is sustainable for any reason.” Id. (citing

Buttles v. Navarro, 766 S.W.2d 893, 894–95 (Tex. App.—San Antonio 1989, no writ)).

       All property acquired by either spouse during marriage belongs to the marital estate, with

the exception of property acquired by gift, devise, or descent. TEX. CONST. art. XVI, § 15; TEX.

FAM. CODE ANN. § 3.002 (West 2006). However, the Texas Constitution recognizes the right of

couples to enter into premarital or marital agreements for the purpose of altering the

classification of spousal or community property. TEX. CONST. art. XVI, § 15. Additionally,

public policy indicates that premarital and marital agreements should be enforced. See Beck v.

Beck, 814 S.W.2d 745, 749 (Tex. 1991). As a result, agreements entered into between parties

both before and during marriage are presumptively enforceable.

       A party claiming separate property has the burden of rebutting the community property

presumption by clear and convincing evidence. Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex.

App.—San Antonio 1998, no pet.). Clear and convincing evidence is another way of stating that

the evidence supporting separate property must be factually sufficient. Id. To overcome the

community property presumption, the party generally must trace and clearly identify property

claimed as separate property. Id. Whether property is separate or community is determined by



                                                -3-
                                                                                       04-11-00775-CV


the facts that give character to the property, according to the rules of law. Id. “Mere testimony

that property was purchased with separate property funds, without any tracing of the funds, is

generally insufficient to rebut the presumption.” Id. (quoting McElwee v. McElwee, 911 S.W.2d

182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied)).

A. RWI, Inc.

       Paulette and Norris, along with Norris’s brother, Gene DeVoll (“Gene”), each acquired a

one-third interest in RWI, Inc. when the corporation was initially set up in 1993. In 1994, Norris

transferred his one-third interest to Paulette. In 1995, Gene transferred his one-third interest

back to the corporation. Thus, Paulette became the sole owner of RWI, Inc. The trial court took

notice of this when it held that the stock in RWI, Inc. was Paulette’s separate property.

However, the trial court determined that the net income from RWI, Inc. was Paulette and

Norris’s community property.

       At the hearing, Paulette and Norris testified as to the establishment of RWI, Inc. and that,

pursuant to the Agreement, the income generated from the corporation was Paulette’s separate

property. The pertinent provisions of the Agreement on which the DeVolls rely state that “All

properties, both real and personal . . . are declared to be the separate property of that party. . . .

In addition, all future income from and increases in kind or in value of each party’s separate

property will constitute the separate property of that party.”

       However, the Agreement also states that “For the purpose of segregating the parties’

properties, the parties will establish and maintain accounting procedures and records and bank

accounts to preserve the separate character of their respective separate funds as is further

provided in this Agreement.” Notably, upon cross-examination, neither Paulette nor Norris

could produce any documentary evidence tracing the income generated from the corporation,



                                                 -4-
                                                                                           04-11-00775-CV


since 1994, back to Paulette’s separate accounts. No bank documents were produced before

January 2010 to show how Paulette kept the income separate from her accounts with Norris.

When questioned on cross-examination, Norris admitted that he failed to produce any evidence

tracing the income:

        Q: And you haven’t produced any documents showing to whom those payments
        were made from RWI, correct?

        A. No. I have not.

        Thus, although the Agreement states that income derived from separate property will

remain separate property, the Agreement also states that the DeVolls must establish and maintain

accounting practices to account for their separate property. Here, the only evidence that the

income was Paulette’s separate property was Paulette and Norris’s testimony. See Bahr, 980

S.W.2d at 728–30 (noting that mere testimony concerning the nature of separate property is not

sufficient to overcome the community property presumption). The DeVolls failed to provide any

bank records or accounting evidence tracing the income solely to Paulette’s separate accounts.

Any person claiming property is separate has the burden to prove it by clear and convincing

evidence. Id. at 728. Here, because the DeVolls did not provide evidence of the “accounting

procedures and records and bank accounts to preserve the separate character of their respective

separate funds” required in their agreement, we cannot say the trial court abused its discretion in

concluding the income was community property. 1

B. Two-O-Six Camedia Partnership

        The Two-O-Six Camedia Partnership was created in 2002, with Paulette and Gene as the

general partners. Gene had a 50.1% interest and Paulette had a 49.9% interest. The purpose of

the partnership was to acquire a piece of property owned by Norris and located at 466 Adrian, in

1
  Our conclusion should not be read as holding that all properly segregated future income from RWI, Inc. is
community property.

                                                   -5-
                                                                                    04-11-00775-CV


San Antonio. The property was in foreclosure and the Two-O-Six Camedia Partnership bought

the property.

       At the hearing on the turnover, Paulette claimed she used her separate property to

purchase her interest in the partnership. She testified that she used the funds derived from a 1996

settlement of a lawsuit involving her father. She stated that she deposited the funds into a money

market account she owned prior to her marriage to Norris and that the funds had remained in that

account until the purchase of the property at 466 Adrian. She testified that Norris never made

any deposits into this account and that, other than the settlement proceeds, she had never made a

deposit into this account during her marriage to Norris. However, Paulette could not produce

any documents showing the amount of the settlement or any documents tracing the funds used to

purchase the partnership property to a prior settlement:

       Q: Okay. So you don’t have any bank account documents. You haven’t
       produced any documents showing—[Counsel for Norris and Paulette] said that
       you had obtained a settlement, and that settlement money was what was used to
       buy the 466 Adrian property, right?

       A: That’s correct.

       Q: But you haven’t produced any documents showing the amount of the
       settlement, have you?

       A: I don’t even think I have any of that any more.

       Further testimony revealed that the exact amount of the settlement, the name of the bank

into which the settlement funds were deposited, and the source of other funds in that account

could not be determined. Accordingly, we cannot say the trial court abused its discretion in

determining the Two-O-Six Camedia Partnership was the DeVoll’s community property and not

Paulette’s separate property.    See id. at 728–30 (determining that wife’s testimony was

insufficient to meet clear and convincing evidence standard that property was separate because



                                               -6-
                                                                                         04-11-00775-CV


the evidence offered did not show date account was opened, running balance of account, or

identity of party receiving wire transfer for asserted purchase of property at issue).

C. Turnover Order

       In their last issue on appeal, the DeVolls contend the trial court erred because the

Turnover Order requires Norris to turn over property that he presently does not own and in which

he has no future interest. Thus, the DeVolls complain the Turnover Order is beyond the scope of

the turnover statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002(a) (West 2008).

       Contrary to the DeVoll’s interpretation, our review of the Turnover Order indicates the

trial court did not order Norris to turn over property in which he does not presently own or have

an interest. Instead, the Turnover Order requires Norris to turnover “[c]ash . . . on hand and in

any bank account in which Norris J. DeVoll has an ownership interest.” The Order also lists the

property in which Norris has a community property interest and orders that he has “a continuing

duty to turn over all community property described [in the paragraphs] above.” Thus, we

conclude the trial court did not abuse its discretion in ordering the specified property to be turned

over and ordering that Norris has a continuing duty to turn over all community property

described in the Order.

                                          CONCLUSION

       We overrule the DeVoll’s issues on appeal and affirm the judgment of the trial court.


                                                  Sandee Bryan Marion, Justice




                                                 -7-
