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Date: 09-19-2022

Case Style:

William Owen Barber v. Irena Mary Barber

Case Number:

Judge: Elizabeth Kerr


Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from the 367th District Court of Denton County

Plaintiff's Attorney:

Fort Worth, TX - Best Divorce Lawyer Directory

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Defendant's Attorney: Anne Beletic
Chad M. Ruback


Fort Worth, Texas – Divorce lawyer represented Appellant with a division of property incident to a divorce.

Husband and Wife married in 2010. Because they married later in life, each
spouse brought a substantial amount of separate property into the marriage. At the
time of the marriage, Husband owned a home in Plano, and Wife owned two homes:
one in Granbury and another located on Poplar Court in Plano.
In 2014, Husband and Wife purchased a new house in Frisco for $613,000,
after which Husband sold his Plano home, and Wife sold her Granbury home.
Husband used $141,000 from the sale of his Plano home to pay down the mortgage
on the new Frisco house, and Wife likewise applied $150,000 from the sale of her
Granbury home toward the Frisco house’s mortgage.
Shortly after the couple moved into the Frisco house, Husband paid nearly
$70,000 for the construction of an elaborate pool at the new home. While Husband
maintains that he used his separate property to pay for the pool, Wife testified at trial
that she believed that Husband had paid for it with community funds.
After marrying Husband, Wife kept her separately owned home on Poplar as
an investment and estate-planning vehicle. Wife allowed Husband’s daughter and two
grandsons, to whom Husband had previously been providing rent assistance, to live in
the home rent free for over ten years.
In late 2020, mold and water damage made the Poplar house uninhabitable.2
Husband and Wife hired a contractor to remediate the house. Husband used a credit
Wife’s testimony on this point was seemingly inconsistent. At one point during
questioning from Husband’s attorney, Wife testified as follows:
Q. Do you know how much [Husband] received from the sale of his
A. I heard a number earlier, but I don’t recall. 200 something. I don’t --
Q. Okay. Would you dispute that he received $253,000.00?
A. I -- I can’t dispute it. I don’t know it.
. . . .
Q. All right. And do you dispute that [Husband] used some of that
money to put the pool in that house, in the Frisco house?
A. Do I dispute it? No.
This testimony would appear to indicate that Wife acknowledged that the funds
used to purchase the pool constituted proceeds from the sale of Husband’s separate
property, namely his home in Plano. But when questioned later about the funds used
to pay for the pool, Wife testified that she disputed that Husband had paid for the
pool with separate funds and instead believed that the money had been community
card to pay $5,430 toward the remediation. Ultimately, homeowner’s insurance paid
Wife over $20,000 to cover the water-damage repair costs, but Wife did not share the
insurance proceeds with Husband. Before repairs were completed, wife sold the
Poplar house to “one of those people who buy ugly houses” for around $130,000.
In December 2020, Husband sued for divorce, and Wife countersued. In June
2021, following a bench trial, the trial court signed a final divorce decree. The decree
awarded Husband a 23% separate interest in the Frisco house and Wife a 24.47%
separate interest.
3 The decree also required each spouse to pay all credit-card debts for
which he or she was the primary account holder. The decree did not address what
Husband had spent for the pool’s construction, nor did it require Wife to reimburse
Husband for the credit-card debt he had incurred for the Poplar house remediation.
This appeal followed.
In his brief, Husband attributes the water damage and mold to a “plumbing
failure.” But Wife testified that the water damage was caused by Husband’s grandsons
putting things in the toilet, which caused it to overflow.
These percentages of separate property ownership appear to correspond to the
amounts of separate funds that Husband and Wife contributed toward the mortgage
on the Frisco house. The original purchase price of the Frisco house was $612,993.
Twenty-three percent of this amount is $140,988.39, which is approximately equal to
the $141,000 that Husband paid from the proceeds of the sale of his Plano house
toward the Frisco house mortgage. Similarly, 24.7% of the purchase price equals
$149,999.39, which is roughly equal to the $150,000 that Wife contributed from the
proceeds of the sale of her house in Granbury.
II. Discussion
On appeal, Husband raises two issues. First, he argues that the trial court erred
in dividing the marital estate by implicitly treating the $70,000 that Husband had paid
for the Frisco house’s pool as community property. Second, he asserts that the trial
court erred by failing to order Wife to reimburse him for the $5,430 remediationrelated debt that he incurred. For the reasons set forth below, we affirm.
A. Standard of Review
“A trial court has broad discretion in dividing the marital estate, and we
presume the trial court exercised its discretion properly.” Loaiza v. Loaiza, 130 S.W.3d
894, 899 (Tex. App.—Fort Worth 2004, no pet.) (citing Murff v. Murff, 615 S.W.2d
696, 698–99 (Tex. 1981)). In order to successfully challenge a trial court’s division of
property, a party must demonstrate from evidence in the record that the division was
so unjust that the trial court abused its discretion. Id.; Zeptner v. Zeptner, 111 S.W.3d
727, 734 (Tex. App.—Fort Worth 2003, no pet.) (op. on reh’g); Pletcher v. Goetz,
9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied) (op. on reh’g). A trial
court abuses its discretion when it acts without reference to any guiding rules or
principles or its actions are arbitrary or unreasonable under the circumstances. See
Loiaza, 130 S.W.3d at 899.
A trial court’s discretion in evaluating a claim for reimbursement is equally as
broad as its discretion in making a “just and right” division of the marital estate. Penick
v. Penick, 783 S.W.2d 194, 198 (Tex. 1988). We must give great latitude to the trial
court’s application of equitable principles to value a claim for reimbursement. Id. If
there is some evidence of substantive and probative character to support the trial
court’s decision, there is no abuse of discretion. In re Estate of Baker, 627 S.W.3d 523,
526 (Tex. App.—Waco 2021, no pet.); Ayala v. Ayala, 387 S.W.3d 721, 726 (Tex.
App.—Houston [1st Dist.] 2011, no pet.).
B. Issue One: The $70,000 for the pool
Husband’s first issue concerns the $70,000 that he paid to have the pool
installed at the Frisco house. Husband testified that these funds were proceeds from
the sale of his separately owned home in Plano. Husband thus argues that he should
have been awarded a larger percentage of separate ownership in the Frisco house than
what the divorce decree provided, asserting that, in dividing the Frisco house’s
ownership among the various marital estates as set forth in the decree, the trial court
implicitly (but wrongly) found that Husband’s $70,000 was community property.
According to Husband, this must be the case: if the trial court treated the $70,000 in
the same manner as the separate funds that each spouse contributed to pay down the
Although Husband filed a request for findings of fact and conclusions of law, he
did not file it timely. Accordingly, the trial court did not issue findings of fact or
conclusions of law in support of the divorce decree. Thus, all findings necessary to
support the divorce decree are implied. See, e.g., Shields Ltd. P’ship v. Bradberry,
526 S.W.3d 471, 480 (Tex. 2017).
Frisco house’s mortgage, then his separate-ownership percentage should have been as
high as 34.42%.5 We are not convinced.
In essence, what Husband seeks in his first issue is credit for making a capital
improvement—adding the pool—to the community-owned Frisco house. The Texas
Family Code provides that a claim for “capital improvements to property other than
by incurring debt” is one for reimbursement. Tex. Fam. Code Ann. § 3.402(a)(8); see
also Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982) (“A right of reimbursement
arises when the funds or assets of one estate are used to benefit and enhance another
estate without itself receiving some benefit.”). Thus, in order to prevail on his first
issue, Husband must show that the trial court abused its discretion by denying a
reimbursement claim. See Penick, 783 S.W.2d at 198; Mason v. Mason, No. 03-17-00546-
CV, 2019 WL 1967166, at *1 (Tex. App.—Austin May 3, 2019, no pet.) (mem. op.).
Section 3.402 of the Texas Family Code governs reimbursement claims. A
claim for reimbursement must be pleaded. See Vallone, 644 S.W.2d at 459; Finch v.
Stegman, No. 01-19-00109-CV, 2020 WL 4516866, at *8 (Tex. App.—Houston [1st
Dist.] 2020, no pet.) (mem. op.). Courts are to apply equitable principles in resolving
reimbursement claims, and such claims are to be measured “by the enhancement in
Husband appears to have derived this percentage simply by adding the
$70,000 that he paid for the pool to the $141,000 in separate funds used to pay down
the mortgage on the Frisco house and then dividing this sum ($211,000) by the
$612,993 purchase price. Alternatively, Husband suggests that if one assumes that the
pool increased the value of the house by $70,000, then Husband’s share of separate
ownership should be 30.89%, and Wife’s should be decreased to 21.96%.
value to the benefited marital estate.” Tex. Fam. Code Ann. § 3.402(b), (d); see also
Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex. 1985) (“[A] claim for reimbursement
for funds expended by an estate for improvements to another estate is to be measured
by the enhancement in value to the benefited estate.”).
Husband has not met his burden to show that the trial court abused its
discretion by denying his reimbursement claim. Because the trial court did not issue
findings of fact and conclusions of law, we must presume that the trial court made all
findings in support of its judgment and must affirm the judgment if it can be upheld
on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). A review of the record reveals ample evidence to support the
trial court’s judgment. First, Husband failed to plead a claim for reimbursement based
on the money that he had spent on the pool.
6 See Vallone, 644 S.W.2d at 459 (“The
party claiming the right of reimbursement has the burden of pleading and proving
that the expenditures and improvements were made and that they are reimbursable.”).
Moreover, even setting aside this pleading defect, Husband presented little to no
We note that the failure to plead a claim for reimbursement would not necessarily
require the denial of such a claim. See Talliti v. Sarris, No. 05-10-00096-CV,
2011 WL 2859996, at *7 (Tex. App.—Dallas July 20, 2011, no pet.) (mem. op.)
(holding that a failure to plead a claim for reimbursement is not per se fatal because
“courts generally construe pleadings in a divorce case more liberally than in other civil
cases”). Nonetheless, such a failure, particularly when taken together with other
record evidence, provides support for the trial court’s exercise of discretion to deny
Husband’s reimbursement claim.
evidence concerning the extent to which the pool increased the Frisco home’s value.
Because a reimbursement claim is measured in terms of the increase in value to the
benefited estate, the lack of evidence presented on this issue provides an independent
basis for denying Husband’s claim. See Anderson, 684 S.W.2d at 675; Zeptner,
111 S.W.3d at 735 (“The party claiming reimbursement bears the burden of
establishing the net benefit to the payee estate.”). Furthermore, because Wife
controverted Husband’s testimony that he had used his separate property for the
pool, the trial court could have found that Husband had failed to carry the difficult
burden to show that these were separate funds, which would be fatal to his claim for
8 See Hinton v. Burns, 433 S.W.3d 189, 196 (Tex. App.—Dallas 2014, no
The extent of Husband’s evidence regarding some increased value was limited to
one conclusory statement during his direct testimony that the pool “contributed to
the sales price” of the house. Husband did not state a specific dollar amount by which
he believed that the pool had increased the sales price, nor did he call any expert
witness, such as an appraiser or a real-estate agent, to testify about the supposed
increase in value.
Husband bore the burden of proving that these funds were separate property by
clear and convincing evidence. Sink v. Sink, 364 S.W.3d 340, 344 (Tex. App.—Dallas
2012, no pet.). As noted above, though Wife’s testimony on this issue was seemingly
inconsistent, she clearly stated twice on the record that she disputed the separate
character of the funds used to pay for the pool, thus holding Husband to his burden
of proof. While Husband did testify that the funds were his separate property and
offered bank statements and copies of checks in support of his testimony, he
presented no corroborating or expert testimony on this issue. Thus, the trial court
could have found that Husband had failed to carry his high burden of proof to show
that these funds were his separate property. See Leggio v. Florian, No. 14-21-00168-CV,
2022 WL 3093538, at *3 (Tex. App.—Houston [14th Dist.] Aug. 4, 2022, no pet. h.)
(mem. op.) (pointing out that, while not required, expert testimony is helpful in
tracing funds and noting that “[a]s a general rule, mere testimony that funds came
pet.) (“[A] spouse making a claim for reimbursement on behalf of a separate estate
must prove by clear and convincing evidence that the funds expended on behalf of
the community estate were separate funds.”); see also Boyd v. Boyd, 131 S.W.3d 605,
612 (Tex. App.—Fort Worth 2004, no pet.) (noting that the burden of tracing funds
to prove their separate character “is a difficult . . . burden to sustain”).
In sum, because the evidence in the record goes to a number of legal theories
that would support the trial court’s denial of Husband’s pool-related reimbursement
claim, we cannot hold that the trial court abused its discretion by denying this claim.
See Worford, 801 S.W.2d at 109. We overrule Husband’s first issue.
C. Issue Two: The credit-card debt for remediation
In his second issue, Husband contends that the trial court erred by failing to
order Wife to reimburse Husband for the $5,430 in credit-card debt that he had
incurred to pay for remediation of the Poplar house. But Husband has not satisfied
his burden on this issue.
As noted, we must presume that the trial court made all findings in support of
its judgment and must affirm the judgment if it can be upheld on any legal theory that
from a separate source, without any tracing of the funds, will not constitute the clear
and convincing evidence necessary to rebut the community presumption” (quoting
Weltch v. Estate of Weltch, No. 14-20-00113-CV, 2021 WL 6141184, at *5 (Tex. App.—
Houston [14th Dist.] Dec. 30, 2021, no pet.) (mem. op.))); Sink, 364 S.W.3d at
346 (holding that trial court did not abuse its discretion in characterizing certain assets
as community property where husband did not present specific tracing testimony or
corroborating testimony or evidence to prove the assets’ separate character).
finds support in the evidence. Worford, 801 S.W.2d at 109. The record supports the
trial court’s denial of Husband’s claim for reimbursement of the credit-card debt.
First, Husband did not properly plead his claim. See Vallone, 644 S.W.2d at 459.
Although his first amended petition for divorce requests that the community estate be
reimbursed for funds expended to make repairs to the Poplar house, it does not
request the relief that Husband now seeks—an order directing Wife to reimburse
Husband’s separate estate for these expenditures.9 Moreover, in 2018 Husband and
Wife signed an agreement10 specifically providing that any “appreciation or increases
in value” of the Poplar house “due to financial contributions of either Husband’s
separate property or of community property . . . remain the separate property of Wife
because those contributions are deemed to be a gift . . . by Husband to Wife.” Indeed,
at trial Husband conceded that by signing this agreement, he had waived any claim for
reimbursement regarding the Poplar house. Furthermore, even if Husband had not
waived his reimbursement claim, because Wife had allowed Husband’s daughter and
grandsons—to whom Husband had previously provided money for rent—to live in
the Poplar house rent free for over ten years and because the evidence suggests that
Husband’s daughter and grandsons contributed to the water damage, the trial court
This pleading defect would not, of course, in and of itself require the denial
Husband’s reimbursement claim. See Talliti, 2011 WL 2859996, at *7.
10This agreement is formally titled “Confirmation of Wife’s Separate Property
could reasonably have denied Husband’s claim for reimbursement on equitable
principles. See Tex. Fam. Code Ann. § 3.402(b); Anderson, 684 S.W.2d at 675 (“The
right of an estate to reimbursement from another estate . . . should be determined by
equitable principles.”).
As the record contains sufficient evidence to support a number of legal
theories that would justify the denial of Husband’s claim for reimbursement of the
remediation-related debt, we cannot hold that the trial court abused its discretion by
denying Husband’s reimbursement claim. See Worford, 801 S.W.2d at 109. We overrule
Husband’s second issue.

Outcome: Having overruled both of Husband’s issues, we affirm the trial court’s

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