AFFIRM; Opinion issued December 13, 2012




                                                in   The
                                  G!tinrt rif Apprahi
                          Fifti! itrirt rf xas at 1a11a
                                        No. 05-11 -00648-CV


                                    KAY MOTLEY, Appellant

                                                     V.

                                THOMAS D. MOTLEY, Appellee


                        On Appeal from the 429th .Judicial District Court
                                     Collin County, Texas
                            Trial Court Cause No. 429-52578-2010


                                            OPINION
                            Before Justices Morris. Francis, and Murphy
                                     Opinion By Justice Morris

        This is an appeal from ajudgment making a property division incident to the divorce of Kay

Motley and Thomas 1). Motley. Appellant Kay Motley challenges the trial court’s judgment

claiming the trial court abused its discretion in making its award. Concluding that appellant failed

to establish reversible error on the part of the trial court, we affirm the trial court’s judgment.



       Appellant and appellee married in January 2005. It is undisputed that. before the marriage.

appellant owned real property in Farmersville, Texas as her separate property. A few months after

the marriage, appellant attempted to refinance the Farmersville property. When appellant was unable

to complete the transaction on her own, appellee agreed to sign the note. Appellant acknowledged
executing a deed that granted appellee an undivided one—halt interest in the Farmersville property

as part of the rcflnaiicing transaction.   1 he deed was recorded in the property records of (‘ohm

(‘ountv Appellant testified, however, that she did not understand appellee was getting an interest
        .




in the Farmersville property as part ol the refinancing transaction and that she would not have

relinanced had she known he was going to receive an interest in the property. She also denied giving

him an interest in the property.

        During the marriage, the parties purchased real property in Merit, Texas on which they

operated an organic farming business. Appellee apparently used some cash from the sale of his

separate real property to close the purchase of this property. The couple lived, however, on the

Farmersville property during the marriage. Appellant tiled for divorce in May 2010.

        On June 1 8. 201 0, the parties appeared fbr a hearing. At that time. appellants attorney

represented that although the parties had reached a Rule I I agreement. it had not yet been signed.

The trial court then heard evidence on temporary spousal support and attorney’s fees. The trial court

ordered appellee to pay appellant $250 per week for 9() days, but denied her request for attorney’s

fees. Later that day, the parties signed the Rule 11 agreement. Among other things, the Rule 11

agreement provided that the Farmersville house and property be listed for sale with a licensed realtor

mutually agreed upon by the parties. In August of 2010, appellant moved to set aside the Rule 11

agreement. Appellee filed a motion to compel compliance with the Rule 11 agreement. After a

hearing on December 10, 2010. the trial court denied appellant’s motion to set aside the Rule 11

agreement. granted appellee’s motion to compel compliance with the agreement, and ordered the

matter to proceed to trial.

        The case was tried before the court without a jury in February 2011. After hearing the

evidence, the trial court signed a final divorce decree that included an order for sale of the
Farmersville property. 1 he trial   court   awarded appellant sixty—live percent of the net proceeds of

that sale and appellee the remaining thirty—five percent. The trial court also ordered the sale of the

Merit property, awarded appellee $11,760.44 as reimbursement for his separate property

contributions to the property, and awarded each party fifty percent of the net sale proceeds. The trial

court further awarded appellee all retirement accounts, employee pensions. annuities, and variable

annuity Ii Ic insurance benefits held in his name.

        The trial court filed findings of fact and conclusions of law. Notably, the trial court found

that although appellant acquired and owned the Farmersville property before the marriage as her

separate property. she knowingly and intentionally conve ed to appellee an undivided one-half

interest in the property as a gift during the marriage. The trial court further found that appellee

accepted the conveyance of the interest in the Farmersville property and that the deed evidencing

the conveyance was recorded in the real property records of Collin County. Additionally, the trial

court found that appellant benefitted in conveying an undivided one-half interest in the Farmersville

property to appellee by being able to refinance the mortgage on the property and substantially lower

the monthly payment. Noting the Farmcrsville property was the separate property ofboth parties,

the trial court further found the only remedy available to the court was to order its sale “thereby

converting the property from undivided separate real property to cash to be divided as the separate

property of the parties pursuant to the formula set forth in the decree.”

       The trial court also made fact findings relating to the parties’ Rule 11 agreement including:

(1) the parties voluntarily entered into the agreement to sell the Farmersville property and intended

the agreement to be irrevocable; (2) the agreement was enforceable as a contract and this issue was

tried by consent; and (3) the trial court would have ordered the sale of the Farmersville property

regardless of the existence or enforceability of the Rule 11 agreement.
        Relevant to appcllee’s retirement account. the trial court found that although community

contributions were made to his retircn ent fund with the Dallas County Community College District.

appellee withdrew at least $5 1,977 tiom his retirement funds to support the lifestyle of the parties

and improve the Merit property.        Ihe trial court further found that this withdrawal amount iar

exceeded ihe amount of community contributions to the retirement fund and that applying the

communi ly-out- first presumption. there were no community funds remaining in appellee’ s

retirement account. Moreover. to the extent any community funds remained in appellees retirement

fund. appellee should receive one hundred percent of such funds as a just and right division of the

community estate. Additionally, the trial court found: (1) appellee’s retirement account on the date

of marriage was valued at $688,913: (2) the retirement account was worth $703,396 on the date of

divorce: (3) the account increased in value $1 4.483 during the marriage: (4) the total value of the

community contribution withheld from the paychecks of appellec and applied to the retirement

account during the marriage was about $25,000; and (5) the total value of the community

contribution remaining in the     retirement account      was   zero   due to the withdrawal of more than

$95,997 of appellee’s retirement savings during the       marriage.


        Appellant timely appealed and, in eight issues, generally argues that the trial court abused

its discretion in: (1) ordering the sale of real property that was her separate property; (2) ordering that

the proceeds from the sale be used to pay general community creditors; (3) undervaluing appellee’s

retirement account and awarding him the retirement account’s entire community interest; and (4)

awarding appellee a reimbursement claim in favor of his separate estate for a down payment on real

property purchased by the parties during the marriage.

                                                    II.

        We begin our analysis with appellant’s challenges to the trial court’s characterization and




                                                   —4—
disposition   of the 1armersville property. Appellant contends that the Earmersville property was her

separate propert\ entirely, that appellee had no interest in it. and the trial court erred by   ordering   the

properly sold. When reviewing an alleged property characterization error, we must determine

whether the trial courts linding is supported by clear and convincing evidence. See Trx. FAr’.i.

CODE   ANN.    3.003(1)) (West 2006) (degree ol proof necessary to establish separate property is “clear

and convincing”). ha characterization error is established, we determine whether the error caused

the trial court to abuse its discretion.         Magness v. Magness, 241 S.W 3d 910, 912 (Tex.

App.—Dallas 2007, pet. denied). In conducting our analysis, we give due consideration to evidence

that the finder of fact could have reasonably found to be clear and convincing and then determine

whether, based   Ofl   the entire record, a fact finder could form a firm conviction or belief that the fact

was proven, hi. There is no abuse of discretion if there is some substantive and l)rObative evidence

to support the finding, Id. A deed for property from one spouse as grantor to the other spouse as

grantee creates a presumption that the grantee spouse received the property as separate property by

gift. Id. The presumption may be rebutted by Proof the deed was procured by fraud, accident, or

mistake. Id. at 912—13.

        The facts and issue before us are very similar to those in Magness. See Id. Appellant

contends the Farmersville property was her separate property but does not dispute that she signed

a deed transferring an undivided one-half interest in the Farmersville property to appellee. The deed,

with her signature. was admitted as an exhibit at trial. However, appellant testified that she did not

understand appellee was getting an interest in the Farmersville property as part of the refinancing

transaction and that she would not have refinanced had she known he was going to receive an

interest in the property’. She also denied giving him an interest in the property. As fact finder.

however, the trial court was free to disbelieve any or all of appellant’s testimony and conclude that
appellant failed to the rebut the gift presumption. Id. at 913. Based on the record before us. the trial

court did not abuse its discretion in awarding appellee an undivided one-half interest in the

Farmersville property. See itt at 913. We resolve appellant’s fifth issue against her.

        Having concluded that the trial court did not err in finding each party owned an undivided

one-half interest in the Farmersville property, we now turn to appellant’s contention that the trial

court erred in ordering the sale of the property. In her second issue, appellant claims that because

she revoked her consent to the Rule 11 agreement, and she did not otherwise agree or consent, the

trial court was without authority to order the sale. Appellant argues specifically that even if each

party owns a one-halfseparate property interest in the Fannersville property, the trial court could not

order its sale because the community had no interest in the property. To preserve a complaint for

appeal, the record must show the complaint was made with sufficient specificity to make the trial

court aware ofthe complaint. TEx. R. An. P.33.1(a). In the trial court, appellant complained about

the order for sale of the Fannersville property asserting it was entirely her separate property. She

did not challenge the order for sale on the grounds she now raises on appeal. Accordingly, she has

not preserved this issue for appellate review. See itt

       Even if we assume the issue was properly preserved below, we are not persuaded that

appellant has shown any reversible error in connection with her complaint. In support of her

position, appellant cites Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982); Eggemeyer v.

Eemeyer. 554 S.W.2d 137 (Tex. 1977); Mogfordv. Mogford. 616 S.W.2d 936 (Ta. App.—San

Antonio 1981. writ ref’dn.r.e.); and Germani i’. Gerami. 666 S.W.2d 241 (Tex. App.—Houston th
                                                                                           14
                                                                                           [


Dist] 1984, no writ). After reviewing the cases cited, we conclude they do not support appellant’s

position. Mogford stands for the proposition that an order ofsale ofproperty in which the appellant

held a one-half separate property interest and the community held a one-halfinterest did not divest



                                                 -6-
appellant of title hut merck changed the flrm of his separate property from realty to personalty. Id.

at 945. (ie,unIi, unlike here, involved the order or sale ola homestead that was husband’s properly

in which the wi li did not own any interest whatsoever. Id. at 24 1 —242 .Si in ilarlv. Eggeinever and

( uniei’on are inapp site in that both of these cases address the unconstitutionality of the trial court’s

action in divesting a spouse of his or her separate property and transferring title to the other spouse.

See Eggerneyer. 554 S.W.2d at 138 (separate real property); camerni, 641 S.W2d at 213—220

(separate personal property).

        The issue before us is whether the trial court can order the sale of property in which each

spouse owns an undivided one-half interest. The trial court found that the mortgage was solely in

appellee’s name, that appellant was unable to qualify to assume the note or refinance the note in her

own name, and had insufficient income to pa the mortgage. taxes, and insurance on the Farmersville

property. To the extent appellant argues that the sale was improper because the community has no

interest in the property. appellant has cited no legal authority for her position         .   Although a

partitioning of separate property is not part ofa divorce proceeding, it can he done concurrently with

the divorce proceeding. See Halamka v. Hahi,nku, 799 S.W.2d 351, 354 (Tex. App.—Texarkana

1990, no writ) (in divorce action where parties held property as joint owners, it was appropriate for

trial court to apply partition principles and ultimately order the sale of the property and a division

of the proceeds). Because appellant has failed to show the trial court abused its discretion in

ordering the sale of the Farmersville property based on each party’s ownership of an undivided one-

half interest in the property. we need not address appellant’s first, third, and fourth issues in which

she challenges the Rule 11 agreement, the trial court’s alternative basis for its order for sale.

       In her sixth issue, appellant contends that the trial court abused its discretion in ordering

unsecured general community liabilities be paid out of the proceeds of the sale of her separate
property   interest in   the larmersville   property.   ‘1 he divorce decree provided that the Iarmersville

property   be sold and the net sales proceeds (defined in the decree        as   the gross sales price less costs

of sale and full payment olany mortgage indebtedness or liens on the property) be distributed first

to certain unpaid community debts       and   then sixty—five percent to appellant and thirty —five percent

to appellee.

        in three paragraphs, appellant summarily argues with no analysis that Texas law prohibits

a court from divesting a spouse of title by awarding          it   to the other spouse: that a lien cannot be

placed on separate property to secure the just and right division of the community estate; and the

proceeds from the sale of a homestead may not be used to pay unsecured creditors. As noted above.

we have already concluded that the trial court did not divest appellant of her title to the Farmersville

property. Likewise. appellant has cited to no place in the record where the trial court placed a lien

on her separate property. Finally, our review of the record indicates that the issue of whether the

Farmersville property was appellant’s homestead was not raised or established at trial and that the

trial court macIc no finding with respect to whether the property was appellant’s homestead. See

Mcintyre v.Mc In! yre. 722 S.W.2d 533. 538 (Tex. App.—San Antonio 1986. no writ) (party must

assert and prove existence of homestead exemption). At best, the record indicates that she was

currently living on the property and had been since 1987. Based on the record and the trial court

findings, we cannot conclude the Farmersville property was appellant’s homestead. Accordingly.

her homestead objection to unsecured community liabilities being paid from the Farmersville sale

proceeds is not well-taken. We resolve appellant’s sixth issue against her.

       In her seventh issue, appellant complains that the trial court erred in awarding appellee the
 entire community contribution to his retirement account.                                      Under this issue. appellant asserts that

 there was insufficient evidence to support the trial court’s finding that the community interest in the

account was $1 4.484 and argues that the community interest in the account was actually $50.000.

 In support other position. appellant cites appellecs trial testimony that the approximate value of his

retirement as of the date of the marriage was about ‘650                                 —-—   something like that.”

            Appellant also challenges the factual sufficiency ol the evidence supporting the fullowing

trial court findings: (1) applying the community-out-first presumption, the only funds remaining in

the account were appellee’s separate property; (2) appellee’s withdrawals from his retirement funds

during the marriage far exceeded the amount of community contributions; and (3) to the extent any

community funds remain in his retirement funds, appellee should be awarded one hundred percent

of those hinds as a just and right division of the community estate. Appellant asserts that the account

in question was a defined contribution account from which appehlee could not make any withdrawals

until he retired.

            In a divorce proceeding. trial courts are afforded broad discretion in dividing the community

estate and we nnist indulge every reasonable presumption in favor of the trial court’s proper exercise

of its discretion. See Mantle/I v. MuncIe/i, 310 S.W.3d 531, 538—39 (Tex. App.—Fort Worth 2010,

pet. denied). We may reverse the trial court’s division of marital property only if. after reviewing

the record, it is clear that the trial court’s decision is an abuse of discretion or is manifestly unjust

and unfair. Stavinoha v. Stavinoha, 126 S.W.3d 604, 607—08 (Tex. App.—Houston [14th Dist.]

2004. no pet.). Appellee’s financial statement dated May 2005 was admitted into evidence and

showed various investment assets totaling $688,913.                                            Appellee testified that although he


         Althouuh appellant directs her challenge to a pectticretirernent account, the evidence reveals that appellce had several retirement savings
or i n\-estlnent accounts. ,\lthouah sonic accounts weredepleted at the time of trial, the trial court I und the value of’ appellce’s retirement account
on the date ut trial was $703396. The trial court appears to ha’e valued appellee’s retirement funds in various accounts collectielv rather than
separately.
accumulated i’otihlv $5000 per rear in retirement contributions during the marriage, he had taken

about twice that or more to par toxvards the Merit propert>. In its findings of tact, the trial court

found that appellee withdrew at least $5 1 ,977 from his retirement funds to support the parties’

lifestyle and improve the Merit property: Additionally, the trial court found that appellant sold

community assets (a flat bed trailer and horse trailer) worth $1 3.E00 without the consent ofappellee

or permission 1mm the court. The trial court Further Found that there were insufficient comrnumtv

proceeds to satisfy all community debts and that it would have ordered the proceeds from the flat bed

trailer and horse trailer to be applied toward community debts. Because appellant does not challenge

these findings, they are binding unless the contrary is established as a matter of law or there is no

evidence to support the finding. See McGalliard i Auh/munn, 722 S.W.2d 694. 696 (Tex. I 986).

             Even if we assume the community interest in appellees retirement account was $50.000.

based on the record before us appellant has not established the trial court abused its discretion in its

division of community assets.
                      4 As noted above, the trial court found appellee withdrew over $5 1 .997

from his retirement funds to support the parties’ lifestyle and make improvements to the Merit

property. Appellant has cited no authority that would prohibit the trial court                                                   from     taking this

evidence into consideration in dividing any existing community interest in appellee’s remaining

retirement funds. Because appellant has not established the trial court abused its discretion in its

division of the marital property. we resolve appellant’s seventh issue against her.




    2
        This amount was changed from the trial courts original finding that appelice withdrew 595,977 from his retirement funds during the marriage


       Although appellant argues that appellee was not entitled to reimhursemerttof’retiremcnt funds used to support the lifestylesofthe parties, we
do not view the trial court’s division of the community interest ofappellee’s retirement fund as a reimbursement. Moreover, neither the trial court
nor appellant identify what amount of the $5l,977 was used solely to support the lifest les of the parties


       Under issue sesen. appellanthas a single sentence asserting the trial court abused its discretion in tsiIing to grant her motion for new trial based
on appelleestestimonv at the hearing tbrthe motion trnew trial. Because appellant has thiled to provide any legal authorit or analysis with respect
to this issue, she has w aived it on appeal .S’e’ lEx. fr APP. P 38. l( if




                                                                         —1
       Appellants brief also contains an issue asserting the trial court abused its discretion in

awardiii appellee S I I 7644 as a reimbursement claim. At oral argument. appellants counsel

abandoned this issue. Accordingly. we do not address it.

       We affirm the trial courts judgment.



                                          I                                   9


                                            LOFPlI B MORRIS
                                         -4IJ STI CE

II 0648F.P05




                                              —1 1
                                   Gtiitrt  Api.ictk
                                             t1f
                        Fift1i t)i&ürirt nf   xa at htI1a

                                        JUDGMENT
KAY MOTLEY. Appellant                              Appeal from the 429
                                                                     th
                                                                         Judicial District Court
                                                   of Collin County. Texas. (Tr.C’t.No. 429—
No. 05-I I-00648-CV          V                     52578-2010).
                                                   Opinion delivered by Justice Morris,
THOMAS D. MOTLEY. Appellee                         Justices Francis and Murphy participating.


       In accordance with this CourEs opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDEREI) that appellee Thomas D. Motley recover his costs of this appeal
from appellant Kay Motley.


.Judgment entered I)ecember 13. 2012.




                                                   JOSEPJ(B MtRR1S
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