Opinion issued March 17, 2016




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-15-00618-CV
                             ———————————
                       JOSE ROMULO LOPEZ, Appellant
                                           V.
                      ANITA MICHELLE LOPEZ, Appellee


                     On Appeal from the 308th District Court
                              Harris County, Texas
                        Trial Court Case No. 2014-20490


                           MEMORANDUM OPINION

      Jose Romulo Lopez appeals a decree of divorce, in which the trial court

dissolved his marriage to Anita Michelle Lopez and divided the marital estate. On

appeal, Jose contends that the trial court erred in (1) characterizing a partial interest
in their home as Anita’s separate property; and (2) awarding Anita $10,000 in

attorney’s fees. We affirm.

                                  BACKGROUND

      Jose and Anita married on April 18, 1985. During the marriage, the Lopezes

moved into a house located at 222 Twickenham Trail in Houston (the “Twickenham

house”). Anita’s mother owned the home.

      Anita sued for divorce in April 2014, contending that Jose was at fault in the

breakup of the marriage. The trial court held a bench trial, in which Jose, Anita, and

Anita’s sister testified. The issues at trial included the division of marital property.

      Anita received an inheritance from her father’s estate in 2004. At the time of

his death, Anita’s father owned real property. Two of Anita’s siblings purchased

Anita’s interest in the property, each writing a check to Anita individually for

$31,566.67. Anita deposited her brother’s check into a certificate of deposit; she did

not claim this money as separate property in the divorce. Anita endorsed her sister’s

check to her mother’s order, meant as payment toward the purchase of the

Twickenham house, and she claimed this amount as her separate property in the

divorce. Upon receiving Anita’s check in May 2004, Anita’s mother deeded the

Twickenham house to Anita, in her name individually. The trial court admitted the

canceled check from Anita’s sister into evidence without objection. Anita’s sister




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corroborated Anita’s testimony about the inheritance, endorsement, and deed

transfer.

      The trial court’s findings of fact adopted the uncontested valuation figures

from Anita’s inventory and appraisal. In its findings, the trial court determined that

the $31,566.67 of the value of the Twickenham home was Anita’s separate property.

The trial court found that the testimony and evidence supporting the separate

property characterization went unchallenged by Jose. The trial court awarded the

couple’s ongoing businesses and the community debt to Jose and the community

investment in the Twickenham house to Anita as part of its just and right division of

assets. The trial court also awarded $10,000 to Anita for attorney’s fees, an amount

that the parties stipulated was reasonable and necessary.

      Jose moved for a new trial. The trial court vacated its original divorce decree

and issued an amended decree in its place. The amended decree did not, however,

alter the original decree’s award of attorney’s fees or its finding that part of the

Twickenham house was Anita’s separate property. Jose again moved for a new trial,

and the trial court overruled the motion.




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                                       DISCUSSION

      I.     Property Division

      Jose first contends that the trial court erred in characterizing part of the

Twickenham house as Anita’s separate property and further erred in denying his

motion for new trial on this basis.

      A.     Standard of Review

      We review a trial court’s division of property under an abuse of discretion

standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet.

denied) (citing LaFrensen v. LaFrensen, 106 S.W.3d 876, 878 (Tex. App.—Dallas

2003, no pet.)). To determine whether the trial court abused its discretion because

the evidence is legally or factually insufficient to support the trial court’s decision,

we consider whether (1) the trial court had sufficient evidence upon which to

exercise its discretion, and (2) whether it erred in its application of that discretion.

Moroch, 174 S.W.3d at 857.

      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). To overcome the community property presumption, a party claiming separate

property must prove the claim with clear and convincing evidence. Id. § 3.003(b).

Clear and convincing evidence is defined as that “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


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of the allegations sought to be established.” Id. § 101.007 (West 2014); see also In

re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). When the trial court has acted as

factfinder, it determines the credibility of the witnesses and the weight to be given

their testimony. Woods v. Woods, 193 S.W.3d 720, 726 (Tex. App.—Beaumont

2006, pet. denied).

      Findings of fact in a case tried to the court have the same force and dignity as

a jury’s verdict. Leax v. Leax, 305 S.W.3d 22, 28 (Tex. App.―Houston [1st Dist.]

2009, pet. denied) (citing City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395

(Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.)). The trial court’s

findings of fact are not conclusive when, as here, we have a complete reporter’s

record. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.—

Houston [14th Dist.]), writ ref’d n.r.e., 699 S.W.2d 199 (Tex. 1985). We review the

trial court’s findings of fact for legal and factual sufficiency of the evidence using

the same standards we apply in reviewing the sufficiency of the evidence underlying

jury findings. Vannerson v. Vannerson, 857 S.W.2d 659, 667 (Tex. App.—Houston

[1st Dist.] 1993, writ denied). We review a trial court’s conclusions of law de novo.

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Leax,

305 S.W.3d at 28.




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      B.     Analysis

      The trial court found:

             [Anita]’s mother purchased [the Twickenham house]
             during the Parties’ marriage. [Anita] and [Jose] resided in
             Twickenham and made payments on the home to retire the
             debt on the home to [Anita’s mother]. [Anita] inherited a
             one-fifth interest in land from her father. [Anita] sold her
             one-fifth inherited interest to her brother and sister.
             [Anita’s] sister . . . paid to [Anita] $31,566.67 by check for
             a portion of [Anita’s] inheritance in the land. [Anita]
             endorsed the $31,566.67 check received from her sister to
             her mother in payment of the balance of the debt owed on
             Twickenham. [Anita’s mother] then put Twickenham in
             [Anita’s] name.

Based on these findings, the trial court concluded that Anita owned as her separate

property a $31,566.67 interest in the Twickenham house.

      In a divorce decree, the trial court must “order a division of the estate of the

parties in a manner that the court deems just and right.” TEX. FAM. CODE ANN.

§ 7.001 (West 2006). However, the court may only divide the parties’ community

property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). The parties’ separate

property is not subject to division. See id. (“The trial court has wide discretion in

dividing the ‘estate of the parties,’ but must confine itself to the community

property.”). Separate property includes “property acquired by the spouse during

marriage by gift, devise, or descent.” TEX. FAM. CODE ANN. § 3.001. Under the

inception of title rule, the characterization of property as separate or community is

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determined by its character at inception. Leax, 305 S.W.3d at 33; McClary v.

Thompson, 65 S.W.3d 829, 834 (Tex. App.—Fort Worth 2002, pet. denied).

Inception of title occurs at the time at which a party first has a right of claim to the

property by virtue of which title is finally vested. Smith v. Smith, 22 S.W.3d 140,

145 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Strong v. Garrett, 224

S.W.2d 471, 474 (Tex. 1949)).

      When real property is acquired under a contract for deed or installment

contract, the inception of title occurs when the contract was executed, not when legal

title is conveyed.     In re Marriage of Morris, 123 S.W.3d 864, 871 (Tex.

App.―Texarkana 2003, no pet.) (citing Wilkerson v. Wilkerson, 992 S.W.2d 719,

722 (Tex. App.—Austin 1999, no pet.)). Property purchased on credit during

marriage is presumed to be acquired on community credit. See Wierzchula v.

Wierzchula, 623 S.W.2d 730, 732 (Tex. Civ. App.—Houston [1st Dist.] 1981, no

writ) (citing Gleich v. Bongio, 99 S.W.2d 882 (Tex. 1937)). In this case, the parties

proffered no evidence that the Lopezes had executed a written contract for deed or a

written installment contract in connection with the purchase of the Twickenham

house. See TEX. BUS. & COM. CODE ANN. § 26.01 (West 2015) (requiring that a

promise to answer for the debt of another or a contract for the sale of real estate be

in writing). There was evidence, however, that the Lopezes had made payments

from the community estate to Anita’s mother while they resided in the house to pay


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off the debt associated with it and that Anita’s mother had purchased the house “for

them.” It is undisputed that Anita’s mother ultimately conveyed title to the home to

Anita during the marriage. Applying the inception of title rule and the statutory

presumption that assets gained during the marriage are community assets, we

conclude that the Twickenham house is presumptively a community asset of the

marital estate.

      Thus, we next examine whether legally sufficient evidence supports the trial

court’s finding that a portion of that asset is Anita’s separate property or otherwise

properly subject to reimbursement to Anita as Anita’s separate property. In general,

testimony that property is separate property, without any tracing, is insufficient to

rebut the community presumption. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied). Tracing involves establishing the

separate origin of the property through evidence showing the time and means by

which the spouse originally obtained possession of the property. Smith, 22 S.W.3d

at 144. When an asset is purchased during marriage with funds traceable solely to a

spouse’s separate estate, the asset may appropriately be characterized as separate

property. Phillips v. Phillips, 296 S.W.3d 656, 674 (Tex. App.—El Paso 2009, pet.

denied). Property acquired partly with community property funds and partly with

separate property funds is separate property to the extent and in the proportion that

it was purchased with separate property funds. Cook v. Cook, 679 S.W.2d 581, 583


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(Tex. App.—San Antonio 1984, no writ).

      The trial court’s fact findings that the final payment to Anita’s mother was

made with separate funds were supported by the evidence adduced at trial. Anita

testified that she received a $31,566.67 check from her sister for her share of their

father’s inheritance, and that she endorsed the check to their mother’s order as partial

payment for the Twickenham house. Anita’s sister testified that she recognized the

check as the one she wrote to Anita for her share of the inheritance, and she

confirmed that Anita endorsed the check to their mother “to pay the house off.”1 In

his testimony, Jose did not contradict any of these assertions. Undisputed testimony

is sufficient to establish the separate character of property. See Chavez v. Chavez,

269 S.W.3d 763, 767 (Tex. App.—Dallas 2008, no pet.) (citing Vannerson, 857

S.W.2d at 668).

      We hold that the trial court did not err in finding that Anita’s payment to her

mother of $31,566.67 toward the purchase of the house was traceable as her separate

property, either in cancellation of a community debt or in purchase of the asset, thus

overcoming the presumption of community property for that amount. See Broussard

v. Tian, 295 S.W.2d 405, 406 (1956) (“The fact that the actual payment of all or



1
      Jose contends that the check was unauthenticated and inadmissible as hearsay, but
      the trial court admitted it into evidence without objection. Thus, his complaint is
      not preserved for appellate review. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d
      221, 234 (Tex. 2011) (citing TEX. R. APP. P. 33.1 and TEX. R. EVID. 103).

                                           9
some of the installments of the note were later made out of separate funds of the

husband would not affect the community ownership, but would merely give rise to

a debt or charge in favor of his estate against the community . . . .”); TEX. FAM. CODE

ANN. § 3.404(b) (West 2006 & Supp. 2015) (“A claim for reimbursement under this

subchapter does not create an ownership interest in property, but does create a claim

against the property of the benefited estate by the contributing estate.”).

Accordingly, we hold that the trial court did not abuse its discretion by considering

this payment to be separate property in determining the just and right division of the

marital estate and by denying Jose’s motion for new trial, which raised the same

contention.

      II.     Attorney’s Fees

      Jose next complains also that the trial court erred by awarding $10,000 in

attorney’s fees against him. Attorney’s fee awards in divorce cases are reviewed for

an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) (citing

Carle v. Carle, 234 S.W.2d 1002, 1005 (Tex. 1950)). A trial court abuses its

discretion in awarding attorney’s fees if the resulting division is “manifestly unfair.”

Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).

      At trial, Jose stipulated that $10,000 was a reasonable and necessary amount

for Anita’s attorney’s fees. But he contends that insufficient evidence supported the

trial court’s award of the attorney’s fees as part of its division of the marital estate.


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      The trial court heard evidence, however, that the parties relied on Jose’s

businesses, which were community property, for their living. The court awarded

those business assets to Jose in the divorce. Anita testified that Jose maintained

complete control over the businesses and all of the other marital assets during the

marriage, including the Twickenham home, which Anita moved out of upon their

separation. After their separation, Anita testified that she received none of the

income from the businesses. She introduced Moneygrams and photographs in

support of her testimony that, during their marriage, Jose had diverted some of the

business income to his family and to another woman, who was Jose’s girlfriend and

lived with his parents in Honduras. Anita testified that Jose sent the money more

often after she requested the divorce and the parties had separated. We hold that the

evidence supports the trial court’s division of the marital estate favoring Anita,

including its award of attorney’s fees. See Murff, 615 S.W.2d at 699; Mann, 607

S.W.2d at 245; In re Marriage of C.A.S. & D.P.S., 405 S.W.3d at 384 (Tex.

App.―Dallas 2013, no pet.).




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                                  CONCLUSION
      We conclude that legally sufficient evidence supports the trial court’s division

of the marital estate. We therefore affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Bland, Brown, and Lloyd.




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