COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-219-CV
BRADLEY NEAL WILKINSON APPELLANT
V.
SHANNON FLANAGAN–WILKINSON APPELLEE
------------
FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
Appellant Bradley Neal Wilkinson appeals from the trial court’s division of
the marital estate in the final decree entered in his divorce case. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Background Facts
Bradley and Shannon were married in September 2006. They ceased
living together as husband and wife in April 2007. Before the marriage, Bradley
and Shannon shared a joint bank account and purchased a Ford pickup truck
and a home at 4574 Masch Branch Road. 2 During the marriage, in addition to
the Ford, Bradley drove a Dodge pickup truck and a BMW, and Shannon drove
a Ford Expedition. Also during the marriage, the couple applied for and
obtained a construction loan to build a barn next to the home for Shannon’s
horses. At the time of the divorce proceedings, the barn was unfinished and
the loan proceeds had been exhausted.
At the hearing on the final divorce decree, Shannon testified that the
home was worth $225,000 and that they owed $257,000. She presented to
the trial court her proposal for dividing certain items of the marital estate with
some values assigned to particular items. Bradley also presented a proposal for
dividing the estate but did not assign any valuations.
After taking the case under advisement, the trial court entered its final
decree and divided the property, awarding Bradley and Shannon the cash,
household furniture, furnishings, fixtures, goods, art objects, collectibles,
2
… Shannon drew up the contract for the purchase of this residence
before the marriage.
2
appliances, and equipment in their respective possession as well as life
insurance policies on their respective lives. In addition, Shannon was awarded
all the horses that she had owned before or during the marriage, the residence,
the debt on the mortgage, the Ford Expedition and the debt on the Expedition.
Bradley was awarded tools, fencing, a twenty-foot-flatbed trailer, the Dodge
and Ford pickup trucks, the BMW, the debt on those vehicles, and two four-
wheel recreational vehicles.
III. Issues on Appeal
In seven points, Bradley complains that the trial court mischaracterized
the house, three vehicles, and two four-wheelers as community property and
that, as a result, the trial court improperly divested him of his separate property
and failed to make a just and right division of the community property.
IV. Standard of Review
A trial court has broad discretion in making a “just and right” division of
the marital estate and is entitled to every reasonable presumption that it
3
exercised its discretion properly.3 Absent a clear abuse of discretion, we will
not disturb a trial court’s division of the marital estate.4
Property possessed by either spouse at the dissolution of the marriage is
presumed to be community property, and a party who seeks to assert the
separate character of property must prove that character by clear and
convincing evidence. 5 Clear and convincing evidence is an intermediate
standard falling between the preponderance standard of civil proceedings and
the reasonable-doubt standard of criminal proceedings. 6 It is 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 of the allegations sought to be established.7
3
… Murff v. Murff, 615 S.W.2d 696, 697–99 (Tex. 1981); see Tex. Fam.
Code Ann. § 7.001 (Vernon 2006) (“[T]he court shall order a division of the
estate of the parties in a manner that the court deems just and right, having due
regard for the rights of each party. . .”).
4
… Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974); Boyd v. Boyd, 67
S.W.3d 398, 406 (Tex. App.—Fort Worth 2002, no pet.).
5
… Tex. Fam. Code Ann. § 3.003 (Vernon 2006); Stavinoha v. Stavinoha,
126 S.W.3d 604, 608 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
6
… In re G.M., 596 S.W.2d 846, 847 (Tex.1980); State v. Addington,
588 S.W.2d 569, 570 (Tex.1979).
7
… See Tex. Fam. Code Ann. § 101.007 (Vernon 2008); In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31
(Tex. 1994) (op. on reh’g); Stavinoha, 126 S.W.3d at 607.
4
Evidence rebutting the community property presumption must generally
trace and clearly identify the property as separate.8 The clear and convincing
burden is not satisfied when characterizing the property at issue as separate
property requires surmise or speculation by the court.9 Testimony that some
portion of commingled property is separate property, standing alone, is
insufficient to rebut the community property presumption.10
Further, as a general rule, the clear and convincing standard is not
satisfied by testimony that property possessed at the time the marriage is
dissolved is separate property when that testimony is contradicted or
unsupported by documentary evidence tracing the asserted separate nature of
8
… Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.—Houston [14th
Dist.] 2000, no pet.).
9
… See McKinley v. McKinley, 496 S.W.2d 540, 544 (Tex. 1973);
Courtney v. Courtney, No. 14-01-01103-CV, 2002 WL 1732996, at *4 (Tex.
App.—Houston [14th Dist.] July 25, 2002, no pet.) (not designated for
publication).
10
… See Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g).
5
the property.11 We resolve any doubt as to the character of property in favor
of the community estate.12
V. Analysis
A. The House
Bradley contends that the house was his separate property based on
Shannon’s testimony that it was purchased in “August of, gosh, 2005.” It is
undisputed that Shannon and Bradley were married in September 2006.
11
… See, e.g., In re Marriage of Santopadre, No. 05-07-00027-CV, 2008
WL 3844517, at *3 (Tex. App.—Dallas Aug. 19, 2008, no pet.) (mem. op.)
(holding that husband’s failure to produce documentary evidence establishing
the time and means by which he originally obtained possession of
assets—including a pension—precluded trial court from finding that husband
met clear and convincing standard notwithstanding husband’s testimony that
the assets were his separate property); Rogers v. Rogers, No. 14-00-00077-CV,
2001 WL 1013405, at *3 (Tex. App.—Houston [14th Dist.] Sept. 6, 2001,
pet. denied) (mem. op., not designated for publication) (holding that “[wife’s]
contradictory, vague, and equivocal testimony, without more, was insufficient
for a reasonable jury to determine under the clear and convincing standard that
the funds, at their inception, were her separate property” and that evidence
made it “impossible to accurately segregate and identify which portions of the
account belong to whom”); Brehm v. Brehm, No. 14-99-00055-CV, 2000 WL
330076, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 2000, no pet.) (not
designated for publication) (reasoning that husband’s testimony that he
purchased certificate of deposit with separate assets, without documentary
evidence tracing the supposedly separate funds was insufficient to rebut the
community property presumption, notwithstanding wife’s failure to provide
controverting testimony).
12
… Akin v. Akin, 649 S.W.2d 700, 703 (Tex. App.—Fort Worth 1983,
writ ref’d n.r.e.).
6
Shannon’s conclusory testimony that the house was purchased in August
2005 is not sufficient to rebut the community presumption under a clear and
convincing evidence standard. Assuming the house was purchased in August
2005, there is no evidence clearly establishing who owns the house. Although
Shannon testified that she was the one who “actually wrote up the contract”
and that her name is on the deed, she also stated that she and Bradley each
owned half the residence because “Texas is a community property state.”
Neither the contract nor the deed she referred to was offered in evidence.
Bradley testified that the house was bought as a foreclosure in 2004, but he did
not dispute that he and Shannon shared the house equally. To the contrary, he
testified that “[w]e owe 192 [thousand dollars] on the house“ and “we got
quite a bit of equity [in it].”
Because the evidence does not trace and clearly identify the house as
Bradley’s separate property, it does not clearly and convincingly rebut the
community presumption.13
B. The Trucks and the BMW
In addition, Bradley claims that the trial court erred by characterizing the
Dodge truck, the BMW, and the Ford truck as community property and
13
… See Evans, 14 S.W.3d at 346.
7
contends that they are his separate property. Bradley, however, offered no
evidence of ownership of these vehicles other than the following testimony of
Shannon:
Q. And the three vehicles that you mentioned, the 2004 Dodge
truck, 1997 BMW, and the 1995 Ford truck, were those purchased
by Mr. Wilkinson before marriage?
A. The Dodge truck was purchased before marriage, the BMW was
purchased before marriage, and the Ford truck was purchased
before marriage, but not by him.
Q. And who was the Ford truck purchased by?
A. The both of us.
Although this testimony does establish that Shannon and Bradley
purchased the Dodge truck, the BMW, and the Ford truck “before marriage,”
there is no clear and convincing evidence tracing and clearly identifying Bradley
as the owner of the vehicles prior to marriage.
C. The Four-Wheelers
Bradley further contends that the trial court mischaracterized two four-
wheelers as community property. He asserts that one four-wheeler is his
separate property and that the other four-wheeler is his and Shannon’s jointly
owned separate property.
8
The only evidence Bradley points to as establishing ownership of the four-
wheelers is the following testimony of Shannon:
Q. And the two children’s four-wheelers, how were those
purchased?
A. One of those is his daughter’s, and the other one was
purchased before marriage by money in a joint account.
This testimony does not trace and clearly identify by clear and convincing
evidence the ownership of the four wheelers to either Bradley or Shannon
before marriage. Although Shannon mentions that money from a joint account
was used to purchase one of the four wheelers “before marriage,” it does not
specify who purchased it. Her testimony is, therefore, insufficient to rebut the
presumption that the four wheelers possessed during marriage were community
property.
VI. Conclusion
Because Bradley has failed to produce clear and convincing evidence that
rebutted the community property presumption with regard to the property at
issue, the trial court did not abuse its discretion in characterizing the property
as community property and dividing it as part of the community estate. For
9
these reasons, we overrule all of Bradley’s points of error and affirm the trial
court’s judgment.
PER CURIAM
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
WALKER, J. concurs without opinion.
DELIVERED: December 31, 2009
10