in the Interest of J.Y.O., a Child

Affirm and Opinion Filed June 9, 2022

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00987-CV

IN THE INTEREST OF J.Y.O., A CHILD

On Appeal from the 469th Judicial District Court
Collin County, Texas
Trial Court Cause No. 469-53096-2017

MEMORANDUM OPINION
Before Justices Carlyle, Smith, and Garcia
Opinion by Justice Smith
This appeal involves the trial court’s Final Decree of Divorce signed on

August 17, 2020 in which the trial court characterized and divided several marital

assets. Wife raises five issues on appeal. She challenges the trial court’s

characterization and award of the marital residence, Husband’s performance bonus

she alleges he earned during marriage, and their 401(k) retirement accounts. Wife

also challenges whether the trial court failed to consider $140,000 in debt when

dividing the marital estate resulting in a grossly disproportionate division in

Husband’s favor.

We reverse the trial court’s judgment awarding Husband a one hundred

percent separate property interest in the marital residence and render judgment
awarding the marital residence to Husband and Wife as tenants in common with each

owning an undivided one-half interest in the marital residence as their separate

property. We reverse the trial court’s judgment awarding Husband $311,788.24 as

his separate property interest in his Bank of America 401(k) retirement account

because the trial court mischaracterized the property, and we remand to the trial court

for reconsideration of a just and right division of the marital estate in accordance

with this opinion. In all other respects, we affirm the trial court’s final judgment.

Background

Husband and Wife married on September 18, 2010. Husband owned the

marital residence as his separate property prior to marriage; however, they later

executed a deed in which they both became owners. Wife claims that Husband gifted

her a one half interest as separate property.

During the marriage, Husband worked for Bank of America, and Wife worked

for the City of Dallas. Both contributed to retirement plans during their employment.

Husband also received a yearly discretionary bonus as part of his compensation

package. Wife challenges the separate property characterization of Husband’s

discretionary bonus that he received post-divorce and portions of his Bank of

America 401(k) retirement account.

After the birth of their son, Wife chose to stay home, and Husband became

the sole earner. Wife cashed out her City of Dallas retirement plan to pay some of

their debts, including Husband’s student loans.

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 For reasons unnecessary to disposition of this appeal, Husband and Wife

became discontented in their marriage. During their separation, Wife returned to

work for the City of Dallas. The parties dispute whether she contributed to a

retirement plan upon her return.

On June 1, 2017, Wife filed an original petition for divorce indicating the

marriage was insupportable, in part, because of discord or conflict of personalities.

Wife requested the court award her a disproportionate share of the estate because of

various reasons, including a disparity of earning power. She further requested

confirmation of certain separate property.

Husband filed his counterpetition alleging the marriage had become

insupportable due to discord and conflict of personalities. He likewise requested

confirmation of certain separate property. Both parties filed subsequent amended

petitions and inventories for their requested division of assets.

Following a bench trial, the trial court rendered the divorce on December 9,

2019. The trial court signed the final divorce decree on August 17, 2020. Relevant

to this appeal, it found that the marital residence, Husband’s discretionary

performance bonus, and a portion of the Bank of America 401(k) held with Merrill

Lynch was Husband’s separate property. The court found that Wife’s City of Dallas

401(k) plan, totaling $64,683.69, was her separate property. Each party was

responsible for their own attorney’s fees, expenses, and costs. Wife filed this appeal.

Standard of Review

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 When reviewing an alleged property characterization error, we must

determine whether a trial court’s finding of separate property is supported by clear

and convincing evidence and whether the characterization error, if established, was

an abuse of discretion. Sink v. Sink, 364 S.W.3d 340, 343–44 (Tex. App.—Dallas

2012, no pet.); Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007,

pet. denied). 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 of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007.

A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner or when it acts without reference to any guiding principles. Sink, 364

S.W.3d at 343 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985)). We must indulge every reasonable presumption in favor of the trial

court’s proper exercise of its discretion in dividing marital property. Id. We will

reverse the trial court’s ruling only if the record demonstrates that the trial court

clearly abused its discretion, and the error materially affected the just and right

division of the community estate. Id.

In family law cases, the traditional sufficiency standard of review overlaps

with the abuse of discretion standard of review; therefore, legal and factual

insufficiency are not independent grounds of error but are relevant factors in our

assessment of whether the trial court abused its discretion. Id. In reviewing the

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evidence for legal sufficiency, we consider all the evidence, in the light most

favorable to the judgment, to determine if the trier of fact could reasonably have

formed a firm belief or conviction that its finding was true. See Sink, 364 S.W.3d at

344. We must assume that the factfinder resolved disputed facts in favor of its

finding if a reasonable factfinder could do so. Id. In reviewing the evidence for

factual sufficiency, we must give due consideration to evidence that the factfinder

could reasonably have found to be clear and convincing and then determine whether,

based on the record, a factfinder could reasonably form a firm conviction or belief

that the allegations were proven. Id.

Marital Residence

Wife contends the trial court abused its discretion by awarding Husband a one

hundred percent separate property interest in the marital residence because the

evidence indicated he gifted her a fifty-percent interest as her separate property.

Husband responds the evidence was sufficient to support the trial court’s

characterization of the marital residence such that there was no abuse of discretion.

Under the family code there is a presumption that property possessed by either

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

TEX. FAM. CODE ANN. § 3.003(a). Only community property is subject to the trial

court’s just and right division. Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.

App.—Fort Worth 2004, pet. denied).

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 The party who seeks to assert that property is his separate property must prove

its separate character by clear and convincing evidence. TEX. FAM. CODE ANN.

3.003(b). “Clear and convincing evidence must outweigh evidence that would

satisfy the preponderance standard, but it need not be unequivocal or undisputed.”

Lee v. Lee, No. 02-18-00006-CV, 2019 WL 3024478, at *4 (Tex. App.—Fort Worth

July 11, 2019, no pet.) (mem. op.). A trial court has no discretion to divest a spouse

of his separate property. Barnard, 133 S.W.3d at 789.

The characterization of property as either community or separate is

determined by the inception of title to the property. Boyd v. Boyd, 131 S.W.3d 605,

612 (Tex. App.—Fort Worth 2004, no pet.). Inception of title occurs “when a party

first has a right of claim to the property by virtue of which title is finally vested.” Id.

The major consideration in determining the characterization of property as

community or separate is the intention of the spouses by the circumstances

surrounding the inception of title. Id.

To overcome the community presumption, the burden is on the spouse

claiming certain property as separate to trace and clearly identify the property

claimed to be separate. Id. However, real property gifted by one spouse to another

during marriage is the recipient spouse’s separate property. TEX. CONST. art. 16,

§ 15. A gift is a voluntary transfer of property to another made gratuitously and

without consideration. Magness, 241 S.W.3d at 912. The elements of a gift are (1)

the intent to make a gift; (2) delivery of the property; and (3) acceptance of the

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property. A deed for property from one spouse as grantor to the other spouse as

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

property by gift. Id.

The parties disagree as to whether parol evidence may be introduced to rebut

the presumption. Wife contends that because the deed was unambiguous on its face

and Husband did not plead ambiguity or that it was procured by accident, mistake,

or fraud, the trial court abused its discretion by not construing the unambiguous deed

as transferring an undivided one-half interest to her as separate property. See, e.g.,

Raymond v. Raymond, 190 S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (concluding parol evidence is not admissible to vary the terms of an

unambiguous document). Husband responds the presumption can be rebutted by

evidence of the absence of intent to make a gift. See, e.g., Cockerham v. Cockerham,

527 S.W.2d 162, 168 (Tex. 1975) (stating presumption can be rebutted by evidence

clearly establishing there was no intention to make a gift); Rivers v. Rivers, No. 03-

17-00690-CV, 2018 WL 6626718, at *1 (Tex. App.—Austin Dec. 19, 2018, no pet.)

(mem. op.).

Here, Husband testified he bought the marital residence five years before

marriage and refinanced it twice: 2008 and during the marriage in 2016. Although

Wife was listed as grantor and grantee on the 2016 deed, Husband testified she was

never an owner and he thought it was “strange” she was listed as a grantor. He did

not know how she was listed on the deed, and it caused him concern that there may

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have been confusion at the title office. While Husband expressed reservations about

the deed, he never testified that he did not intend to gift Wife an interest in the marital

property.

In contrast, Wife testified that she had conversations with Husband that she

“wanted to feel like the home was ours.” Her preference was to buy another home

to own jointly, but Husband preferred not to move. She testified Husband assured

her he would take care of the situation and make sure she knew the home was also

hers. Per the deed, Wife did not provide any consideration because “It was a gift.”

Husband put her name on the deed “just to give [her] that security.”

Acting as the factfinder, the trial court had the right to determine the

credibility of the witnesses and the weight that it wished to give to their testimony.

See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The trial court was

also entitled to resolve any conflicts in the testimony by deciding to believe some or

all of a witness’s testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex. 1986). However, here there was no conflict in evidence to resolve because

Husband failed to present any evidence rebutting the presumption he gifted one half

of the marital residence to Wife. He never asserted his lack of intent to gift her the

property, only that it was “strange” she was on the deed. Thus, the evidence

Husband did present was not “of a substantive and probative character to support the

decision.” See In re Marriage of C.A.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas

2013, no pet.).

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 Because the trial court had insufficient evidence upon which to exercise its

discretion, it erred in its application of that discretion. Id.; see also Sink, 364 S.W.3d

at 344 (considering the evidence in the light most favorable to the judgment could

the factfinder reasonably form a firm believe or conviction its finding was true).

Thus, the trial court abused its discretion by awarding Husband one hundred percent

of the marital residence as his separate property. We sustain Wife’s first issue.

Discretionary Bonus

Wife argues the trial court abused its discretion by awarding Husband a 2019

discretionary bonus as his separate property because the evidence conclusively

established he earned the bonus during marriage even though he received it post-

divorce. Husband responds controlling case law is to the contrary; therefore, the

trial court did not abuse its discretion by awarding him the discretionary bonus.

During the divorce hearing, Wife asked the court to award her half of

Husband’s anticipated bonus as community property. Husband objected that he had

yet to receive the bonus, and the court “cannot divest separate property money he

received in years after the divorce.” Other than stating that Husband typically

received a yearly bonus in February, neither party provided additional evidence

about the anticipated bonus. The trial court did not rule on its characterization and

division.

On February 12, 2020, the trial court held a hearing in which Wife asked the

trial court to order Husband to tender to the court’s registry any bonus money he

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received pending the court’s ruling on the characterization of the bonus. Wife

anticipated Husband would receive a bonus, if any, on February 15, 2020.

Andrea Laporta, the compensation executive for the consumer and small

business banking organization, testified during the hearing. She confirmed that

Husband would receive a $140,000 bonus from Bank of America on February 15,

2020 “as long as he remains an active employee.” However, if Husband was no

longer an employee as of the date of the distribution, regardless of resignation or

firing, then he was not entitled to receive it. She confirmed that the board determined

the bonus amount, if any, in mid to late November 2019 based on work Husband

performed during the 2019 fiscal year; however, the board did not approve it until

January 2020.

Laporta explained that Husband’s incentive plan indicated that disbursement

of the bonus was at the sole discretion of Bank of America. It was not tied to any

commissioned work, and until the bonus was received, it was an “expectancy,” not

an entitlement. The court ultimately awarded the February 14, 2020 bonus as

Husband’s separate property.

In a decree of divorce or annulment, the court shall determine the rights of

both spouses in a pension, retirement plan, annuity, and bonus, among other things.

See TEX. FAM. CODE ANN. § 7.003. Generally, personal earnings are community

property if earned during marriage. See Williams v. Williams, 246 S.W.3d 207, 215

(Tex. App.—Houston [14th Dist.] 2007, no pet.).

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 Both parties rely on Loya v. Loya, 473 S.W.3d 362, 364 (Tex. App.—Houston

[14th Dist.] 2015), rev’d on other grounds, 526 S.W.3d 448 (Tex. 2017), which is

the most recent Texas Supreme Court opinion discussing a discretionary bonus

received by a spouse post-divorce.

In Loya, the appellate court considered whether the husband’s bonus, which

he received post-divorce, was community property because he provided some of the

services giving rise to the bonus during marriage. 473 S.W.3d at 379. Based on the

summary judgment evidence presented, the appellate court concluded that the wife

raised a genuine issue of material fact concerning whether some portion of the bonus

was based on services he provided during the marriage thereby making a portion of

the bonus community property. Id. A dissenting justice concluded the bonus was

the husband’s separate property based on a mediated settlement agreement (MSA),

which provided that any future earnings and income were partitioned to the husband.

Id. at 370 (Smith, C.J., dissenting). Because the husband received the bonus post-

divorce, the dissent reasoned the entire bonus fell within the MSA’s provision

relating to future income and earnings and disagreed with the majority’s conclusion

that the MSA did not consider, divide, or partition the bonus. Id.

The Texas Supreme Court reversed the court of appeals and resolved the case

on the ground that the MSA partitioned to the husband future income and earnings,

which included the bonus. 526 S.W.3d at 451. The supreme court stated that

whether the bonus qualified as community property did not affect its determination.

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526 S.W.3d at 451. The court avoided resolution of whether the portion of a purely

discretionary bonus based on services performed during the marriage constituted

community property, but acknowledged it “is an important issue, but one we need

not reach in this case.” 526 S.W.3d at 451.

The supreme court indicated, however, that the terms of the husband’s

employment also supported its interpretation that the broad definition of “future

earnings” in the MSA encompassed all the money the husband received after the

partition date regardless of when the underlying work was performed. Id. at 452.

Specifically, the court noted that the husband’s annual bonus was completely

discretionary and “typically” paid, if at all, in March or April. Id. “Quite simply,

when the parties signed the MSA in June 2010, no 2011 bonus existed” and did not

come into existence until the board declared it. Id. “[T]he purely discretionary

bonus constitutes future income.” Id.

While we recognize the supreme court decided Loya based on the MSA,

which is distinguishable to the present facts, we nonetheless find its dicta instructive.

Husband’s bonus was likewise completely discretionary and typically paid in

February. It was contingent on the board’s approval and Husband’s continued

employment with Bank of America. If Husband was no longer an employee as of

the date of the distribution, regardless of resignation or firing, than he was not

entitled to receive it. “Quite simply,” when the divorce was rendered, the bonus did

not exist, and the “purely discretionary bonus constitute[d] future income.” Id.; see

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also Loaiza v. Loaiza, 130 S.W.3d 894, 909–10 (Tex. App.—Fort Worth 2004, no

pet.) (concluding that major league baseball player’s right to payment under his

contract did not accrue until he performed his services and because payments were

due after the date of divorce, the trial court correctly characterized them as separate

property) (citing Cunningham v. Cunningham, 183 S.W.2d 985, 986 (Tex. Civ.

App.—Dallas 1944, no writ) (acknowledging “other cases have characterized future

earnings similarly”)).

Husband’s right to the bonus vested when he received it. At that time, he was

no longer married, and Wife was not entitled to any division of the property. See

Loaiza, 130 S.W.3d at 909 (“A spouse is only entitled to a division of property that

the community owns at the time of divorce.”). In reaching this conclusion, we are

unpersuaded by Wife’s reliance on Sprague v. Sprague, 363 S.W.3d 788 (Tex.

App.—Houston [14th Dist.] 2012, pet. denied) and Cearley v. Cearley, 544 S.W.2d

661, 665–66 (Tex. 1976).

In Sprague, the Fourteenth Court of Appeals remanded the case based on its

conclusion that issues of fact were required to be resolved to determine how the

bonus should be characterized. 363 S.W.3d at 802. The appellate court did not

determine whether the bonus was community or separate property. Id.

In Cearley, the supreme court considered the characterization of a

serviceman’s military pension and concluded it constituted a contingent interest in

property and a community asset subject to division “which may or may not bloom

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into full maturity at some future date.” 544 S.W.2d at 665–66. During the marriage,

the husband had invested twenty-four years of effort toward his future interest in his

military pension, and the pension was considered a form of deferred compensation

which he earned during each month of his military service. Id. at 665. We do not

find the characterization of a military pension, which was earned during each month

of service over a period of twenty-four years and considered deferred compensation,

to be of assistance to the facts of this case involving a discretionary yearly bonus.

The trial court did not abuse its discretion by awarding Husband the February

14, 2020 discretionary bonus as his separate property. We overrule Wife’s second

issue.

Husband’s Retirement Account

Wife argues the trial court abused its discretion by finding and awarding

Husband $311,788.24 of his Bank of America 401(k) as his separate property

without any evidence of tracing. Husband responds the trial court acted within its

discretion.

Under Texas law, property possessed by either spouse during or on dissolution

of the marriage is presumed to be community property, absent clear and convincing

evidence to the contrary. Boyd, 131 S.W.3d at 612. To overcome the community

presumption, the burden is on the spouse claiming certain property as separate to

trace and clearly identify the property claimed to be separate. Id. “The burden of

tracing is a difficult, but not impossible, burden to sustain.” Id. Tracing involves

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establishing the separate origin of the property through evidence showing the time

and means by which the spouse originally obtained possession of the property. Id.

Separate property will retain its character through a series of exchanges so long as

the party asserting separate ownership can overcome the presumption of community

property by tracing the assets on hand during the marriage back to property that,

because of its time and manner of acquisition, is separate in character. Id.

A spouse’s interest in a retirement or pension plan is regarded as a mode of

employee compensation earned over the length of a given period of employment.

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

denied). Because benefits in a retirement or pension plan are regarded as earned

over a period of time, Texas courts have fashioned apportionment formulas to

allocate to the community estate benefits earned during the marriage. The formula

used depends upon whether the plan is a “defined contribution plan” or a “defined

benefit plan.” Id.

It is undisputed that Husband’s Bank of America 401(k) was a defined

contribution plan. In such plans, the employee has an individual account and makes

periodic contributions to the account, which may be matched by the employer. Id.

at 835. To determine the portion as well as the value of a defined contribution plan

that is community property, courts subtract the amount contained in the plan at the

time of the marriage from the total contained in the account at divorce. Id. Thus,

the equation for calculating the non-employee spouse’s share of a defined

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contribution plan is x = (value of plan at divorce – value of plan at marriage). Boyd,

67 S.W.3d at 409. Any benefits that accrue in a defined contribution pension plan

during the marriage are community property subject to division in a divorce.

Sanchez v. Wales, No. 05-20-00485-CV, 2022 WL 1055376, at *7 (Tex. App.—

Dallas Apr. 8, 2022, no pet.) (mem. op.).

Here, Husband was employed with Bank of America for eight years (from

2002 to 2010) before marriage. It is undisputed that Husband made contributions to

a 401(k) prior to marriage. Wife introduced paystubs from 2005 to 2010 showing

he contributed $20,648.23 to the retirement account. Husband neither presented

evidence to the contrary nor presented evidence of contributions prior to 2005

because he admitted some account statements were unavailable because they were

too old. Thus, the value of the 401(k) owned at the time of marriage was never

identified.

Instead, there was evidence Husband opened a 401(k) in 2015 with a

$124,323.36 deposit. The record contains no evidence indicating whether the

deposit was from community property or separate property. Husband provided no

evidence tracing the character of the funds deposited in 2015. At the time of the

divorce, the value of the 401(k) had increased through a diversified portfolio,

including employer contributions, to $353,091.43. He provided no evidence

considering the growth of the account through these diversified investments. Thus,

all those earnings belonged to the community estate at the time of the divorce. Id.

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(stating benefits that accrue during marriage are community property). It was not

enough to show that the $124,323.36 deposit could have been separate funds and

could have included the $20,648.23 from the retirement account Husband had prior

to marriage. See Moroch v. Collins, 174 S.W.3d 849, 855 (Tex. App.—Dallas 2005,

pet. denied) (“When tracing separate property, it is not enough to show that separate

funds could have been the source of a subsequent deposit of funds.”). Thus, Husband

failed to overcome the community property presumption with legally sufficient

evidence, and any doubt as to the character of the property should have been resolved

in favor of the community estate. Id. at 856.

To the extent that the trial court simply took the value of the account on the

date of divorce, subtracted Husband’s contributions during the marriage and then

awarded the remaining $311,778.24 as his separate property, the trial court abused

its discretion in its characterization and division of the property. See, e.g., Sanchez,

2022 WL 1055373, at *8. We further conclude that the trial court’s abuse of

discretion affected the just and right division of the community estate and remand is

necessary for the trial court to reconsider division of the community estate. We

sustain Wife’s third issue.

Wife’s Retirement Account

Wife argues the trial court abused its discretion by valuing and awarding her

a City of Dallas 401(k) because the uncontroverted evidence established that the

account did not exist at the time of divorce, and there was insufficient evidence to

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support the value of the retirement account on the date of divorce. Husband responds

the evidence was legally and factually sufficient to support the trial court’s finding

that Wife contributed $64,683.69 to five retirement accounts during the marriage.

A fundamental tenet of the community property system is that whatever is

acquired during marriage by the talent, toil, or other measure of productivity of either

spouse is community property. McClary, 65 S.W.3d at 834. Thus, any spouse’s

personal income is community property. Id. Deferred compensation plans such as

defined benefit plans and defined contribution plans are community property to the

extent they are attributable to employment during the marriage. See Boyd, 67

S.W.3d at 406–07. A defined contribution plan is one in which the employer and/or

employee make contributions to an individual account set up for the employee.

Boyd, 67 S.W.3d at 407 n.4.

Wife worked for the City of Dallas prior to J.Y.O.’s birth and then transitioned

to being a stay-at-home mother. She testified that Husband organized the paperwork

so that they could cash out her 401(k) to pay down debts, including his student loans.

At the time of the divorce, she denied having any retirement accounts with the City,

and the inventory she submitted to the trial court did not reference any City of Dallas

or other retirement plans in her name. Husband, however, submitted an inventory

listing five separate retirement accounts from the City of Dallas, but listed the

community contributions as “unknown.”

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 At trial, Husband submitted Wife’s paystubs into evidence showing

contributions into each account. He also submitted a summary of her contributions,

which totaled $64,683.69.

Wife denied having any retirement accounts with the City of Dallas despite

the paystubs Husband introduced into evidence. She contended the paystubs were

from before J.Y.O.’s birth in 2014. However, the first paystub was dated September

24, 2010 and the last one was dated October 25, 2019. The paystubs showed Wife’s

contributions to the accounts. She did not provide any documentation contradicting

the paystubs. Instead, she testified that the “confusion” regarding the status of any

retirement contributions occurred because when she returned to work in 2017, the

City “mistakenly reenrolled” her for her prior benefits. She noticed the mistake in

2018, brought it to the payroll department’s attention, and was allegedly reimbursed

approximately $2,000.

Acting as the factfinder, the trial court had the right to determine the

credibility of the witnesses and the weight that it wished to give to testimony. See

City of Keller, 168 S.W.3d at 819. The trial court was also entitled to resolve any

disputed facts and conflicts in testimony. See McGalliard, 722 S.W.2d at 697; Sink,

364 S.W.3d at 344. Considering the evidence in the light most favorable to the

judgment, the trial court could reasonably have formed a firm belief or conviction

that Wife’s City of Dallas retirement accounts existed and she contributed

$64,683.69 to the accounts. Thus, the evidence was legally sufficient to support the

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trial court’s judgment. After giving due consideration to the evidence that the trial

court could reasonably have found to be clear and convincing, we likewise conclude

the evidence was factually sufficient to support the trial court’s judgment. Wife’s

fourth issue is overruled.

Division of Debt: Wife’s Attorney’s Fees

In Wife’s final issue, she argues the trial court abused its discretion by failing

to consider the $140,000 she incurred in attorney’s fees as debt when dividing the

marital estate. She asserts this resulted in a grossly disproportionate division in favor

of Husband. Husband responds the trial court acted within its broad discretion by

not including outstanding attorney’s fees in the community liabilities.

Although there is no statute specifically authorizing an award of attorney’s

fees in a divorce proceeding, the trial court may within its sound discretion award

attorney’s fees. See Mandell v. Mandell, 310 S.W.3d 531, 541 (Tex. App.—Fort

Worth 2010, pet. denied); see also C.A.S., 405 S.W.3d at 386. An attorney’s fee is

but another element for the court to consider in dividing the marital estate. Mandell,

310 S.W.3d at 541. That is, in a divorce suit, the trial court has the equitable power

to award either spouse attorney’s fees as a part of the just and right division of the

marital estate. See, e.g., Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

Wife acknowledges that a trial court need not divide community property

equally, but rather the division must be equitable. She contends the trial court abused

its discretion by making a property division that was manifestly unjust and unfair

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and operated to punish her for her fault in the divorce. She specifically contends the

trial court did not factor in the attorney’s fees she owed when making a just and right

division of the assets. We disagree.

The trial court concluded that each party was responsible for their own

attorney’s fees. The Final Decree further stated that Wife “shall pay, as a part of the

division of the estate . . . [a]ll debts, charges, liabilities, and other obligations

incurred solely by the wife unless express provision is made in this decree to the

contrary.” The final decree specifically included in this allocation one hundred

percent of the $12,000 loan from her parents for attorney’s fees. Thus, the record

indicates the trial court considered Wife’s attorney’s fees debt when making its just

and right division of the assets.

In reaching this decision, we reject Wife’s assertion that the trial court abused

its discretion by ignoring Husband and Wife’s unequal financial conditions and

earning abilities, ignoring the amount of community assets Husband spent while the

divorce was pending, and finding her at fault for the divorce because of adultery

when there was also evidence that Husband had an affair during the marriage. The

parties litigated their divorce for over two years in which the trial court observed

their behavior and made credibility determinations. While the record indicates

Husband and Wife had unequal financial conditions based on their salaries at the

time of the divorce, there is no evidence supporting Wife’s claim that they had

unequal earning abilities. See Murff, 615 S.W.2d at 699 (considering earning

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capacity, abilities, and education when exercising discretion in dividing marital

estate). Likewise, determining who was at fault for the divorce based on the

evidence presented was within the trial court’s sound discretion. Id. Wife’s belief

that the trial court sought to punish her for her fault in breaking up the marriage by

not including her attorney’s fees in the community liabilities is pure speculation.

To the extent Wife argues it was Husband’s actions that drove up litigation

costs, the trial court heard evidence that Wife had more than one attorney before the

divorce was finalized, and the parties engaged in mediation and attempted to settle

the case; however, Wife cancelled a second day of mediation. Thus, the trial court

could reasonably have found that Wife’s actions prolonged the contentious

litigation.

The trial court, as the factfinder, considered witness credibility and weighed

the evidence before dividing the community liabilities. We cannot say the trial court

acted unreasonably, arbitrarily, or without reference to any guiding principles by

failing to include Wife’s attorney’s fees in the community liabilities. See Sink, 364

S.W.3d at 343 (citing Downer, 701 S.W.2d at 241–42). We overrule Wife’s fifth

issue.

Conclusion

We reverse the trial court’s order awarding Husband a one hundred percent

separate property interest in the marital residence and render judgment awarding the

marital residence to Husband and Wife as tenants in common with each owning an

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undivided one-half interest in the marital residence as their separate property. We

reverse the trial court’s judgment awarding Husband $311,788.24 as his separate

property interest in his Bank of America 401(k) retirement account because the trial

court mischaracterized the property, and we remand to the trial court for

reconsideration of a just and right division of the marital estate in accordance with

this opinion. In all other respects, we affirm the trial court’s final judgment.

200987f.p05
/Craig Smith/
CRAIG SMITH
JUSTICE

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE INTEREST OF J.Y.O., A On Appeal from the 469th Judicial
CHILD District Court, Collin County, Texas
Trial Court Cause No. 469-53096-
No. 05-20-00987-CV 2017.
Opinion delivered by Justice Smith.
Justices Carlyle and Garcia
participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part, REVERSED and RENDERED in part, and
REVERSED and REMANDED in part.

We REVERSE that portion of the trial court’s judgment awarding appellee
Hakan Ali Oksuzler a one hundred percent separate property interest in the marital
residence and RENDER judgment awarding the marital residence to appellee Hakan
Ali Oksuzler and appellant Lauren Michelle Oksuzler as tenants in common with
each owning an undivided one-half interest in the marital residence as their separate
property.

We REVERSE the trial court’s judgment awarding appellee Hakan Ali
Oksuzler $311,788.24 as his separate property interest in his Bank of America
401(k) retirement account. We REMAND to the trial court for reconsideration of a
just and right division in accordance with this opinion. In all other respects, the
judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear their own costs of this appeal.

Judgment entered this 9th day of June 2022.

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