In re Everse, No. 07–11–00220–CV.

CourtCourt of Appeals of Texas
Writing for the CourtJAMES T. CAMPBELL, Justice.
Citation440 S.W.3d 749
Decision Date18 June 2013
Docket NumberNo. 07–11–00220–CV.
PartiesIn the Matter of the MARRIAGE OF Melissa Lea Gunn EVERSE and Johannes Everse.

440 S.W.3d 749

In the Matter of the MARRIAGE OF Melissa Lea Gunn EVERSE and Johannes Everse.

No. 07–11–00220–CV.

Court of Appeals of Texas, Amarillo.

June 18, 2013.


440 S.W.3d 750

William E. McNamara III, Lubbock, for Appellee.

Anna McKim, Field, Manning, Stone, Hawthorne & Aycock, P.C., Lubbock, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

In this appeal from a divorce decree, Johannes Everse and Melissa (“Lea”) Everse both challenge the trial court's characterization of assets held in accounts. We will affirm in part and reverse in part and remand for the trial court to reconsider its division of the marital estate.

Background

The parties were married in July 1993 and separated in October 2009. Lea filed for divorce that month. They had no children together. Johannes has a doctorate in chemistry and was employed as a professor at Texas Tech University throughout his marriage to Lea. Lea was a homemaker during her marriage to Johannes. Ultimately, the trial court found the total value of the community estate to be $1,013,196.20 and awarded $555,812.56 to Lea and $457,383.70 to Johannes.

440 S.W.3d 751

Analysis

Applicable Law

There is a statutory presumption that all property possessed by either spouse on dissolution of the marriage is community property. See Tex. Fam.Code Ann. § 3.003(a) (West 2011); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). The degree of proof necessary to overcome the presumption is clear and convincing evidence. Tex. Fam.Code Ann. § 3.003(b) (West 2011). Clear and convincing evidence is that measure or degree of proof which 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. The proof must weigh more heavily than merely the greater weight of the credible evidence, but the evidence need not be unequivocal or undisputed. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no pet.).

Tracing involves establishing the separate origin of property through evidence showing the time and means by which the spouse originally obtained possession of the property. Moroch v. Collins, 174 S.W.3d 849, 856–57 (Tex.App.-Dallas 2005, pet. denied). To overcome the community property presumption, the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975). The burden of tracing is a difficult, but not impossible, burden to sustain. Boyd, 131 S.W.3d at 612. As a general rule, mere testimony that funds came from a separate source, without any tracing of the funds, will not constitute the clear and convincing evidence necessary to rebut the community presumption. Id.;see In re Marriage of Born, No. 06–08–00066–CV, 2009 WL 1010876, at *5–6, 2009 Tex.App. LEXIS 2569, at *13–15 (Tex.App.-Texarkana April 16, 2009, no pet.) (mem. op.) (collecting cases); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

A showing of community and separate funds existing in the same account does not divest the separate funds of their identity and establish the entire amount as community, if the separate funds may be traced and the trial court is able to determine accurately the interest of each party. Holloway v. Holloway, 671 S.W.2d 51, 60 (Tex.App.-Dallas 1983, writ dism'd). In such cases, we presume the community funds are drawn out first, before separate funds are withdrawn, and where there are sufficient funds at all times to cover the separate property balance in the account at the time of the divorce, we presume the balance remains separate property. Smith v. Smith, 22 S.W.3d 140, 146 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Husband's Appeal

Funds in Prudential Discovery Select Annuity

In Johannes' first issue, he contends the trial court mischaracterized as community property part of the assets held in a Prudential Discovery Select Annuity account. The record shows a balance of $53,257.80 in the account at the time divorce proceedings were initiated. In its findings of fact, the trial court found $13,551.21 of the amount to be Johannes' separate property, but treated the remaining $39,706.59 as community property. It is this characterization Johannes challenges.

There is no dispute that Johannes traced the $13,551.21 to an Aetna account which contained that amount at the time of the marriage. He contends he traced the remaining $39,706.59 to accrued retirement benefits he received in 1994 from the

440 S.W.3d 752

University of California, where he worked from 1969 to 1976.

When tracing separate property, it is not enough to show that separate funds could have been the source of a subsequent deposit. Boyd, 131 S.W.3d at 612. Lea points to gaps in Johannes' tracing evidence, including a gap of over ten years between a November 1999 statement in evidence and a statement for September 2010. We conclude the trial court did not err by finding Johannes' tracing evidence as to the $39,706.59 to be less than the clear and convincing evidence required. Johannes' first issue is overruled.

American State Bank Account # 6061

In his second issue, Johannes similarly contends the trial court mischaracterized funds in American State Bank account # 6061 as community property because he established their separate property character. At issue here again is the evidence Johannes set forth at trial to show the savings balance of $23,773.84 in account # 6061 was his separate property.

Johannes testified he placed his Social Security payments for 2010 in that account. The record also indicates a document pertaining to the balances of the accounts at American State Bank was present in the courtroom, and was discussed by the parties. The document was not offered into evidence, however, and we cannot conclude the trial court erred by finding Johannes' testimony insufficient to establish the separate character of the funds, particularly given his testimony that he transferred funds from account to account. Boyd, 131 S.W.3d at 612 ; see In re Marriage of Robbins, No. 06–10–00019–CV, 2010 WL 3168402, at *3–4, 2010 Tex.App. LEXIS 6579, at *8–9 (Tex.App.-Texarkana Aug. 12, 2010, no pet.) (mem. op.).1 We overrule Johannes' second issue.

Just and Right Division

Johannes presents a third issue challenging the trial court's division of the community property. Because our disposition of Lea's appeal will require remand of the case for a new division, we need not address Johannes' third issue. Tex.R.App. P. 47.1.

Wife's Appeal

Treatment of Social Security Benefits

By her first issue, Lea contends the trial court erred by characterizing amounts held in certain investment accounts as Johannes' separate property. The court found Johannes successfully traced the amounts to Social Security benefits2 he had received.3

Defending the trial court's characterization, Johannes cites Richard v. Richard, 659 S.W.2d 746, 748–49 (Tex.App.-Tyler 1983, no writ), in which the court found section 407(a) of the Social Security Act4

440 S.W.3d 753

precluded division under community property laws of Social Security disability benefits.5 Lea responds that Richard dealt with an award to the wife of half of the husband's future monthly disability payments. Richard, 659 S.W.2d at 747. Here, she points out, the benefits have been received by Johannes and are held in investment accounts. She argues treatment of the received benefits as community property subject to a just and right division does not interfere with the federal statutory system,6 and thus should not be precluded. Cf. Hisquierdo v. Hisquierdo, 439 U.S. 572, 588, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (addressing similar anti-attachment provision of Railroad Retirement Act, stating such provisions “ensure[ ] that the benefits actually reach the beneficiary”). But in Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), the United States Supreme Court applied section 407(a) to Social Security...

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2 practice notes
  • Goyal v. Hora, NO. 03-19-00868-CV
    • United States
    • Court of Appeals of Texas
    • May 27, 2021
    ...believe there's any other gap.Gaps in account statements can make tracing evidence less than "clear and convincing." See In re Everse, 440 S.W.3d 749, 752 (Tex. App.—Amarillo 2013, no pet.) (noting that tracingPage 19 evidence included gap between account statements for November 1999 and Se......
  • United States v. Anderson, Case Number: 3:17-CR-00222-M
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • July 29, 2020
    ...96 S.W.3d 345, 354 (Tex. App.-Austin 2002, pet. denied). The burden of tracing is difficult to sustain. In re Marriage of Everse, 440 S.W.3d 749, 751 (Tex. App.-Amarillo 2013, no pet.). Testimony alone is generally insufficient to rebut the community property presumption. Id. Any doubt as t......
2 cases
  • Goyal v. Hora, NO. 03-19-00868-CV
    • United States
    • Court of Appeals of Texas
    • May 27, 2021
    ...believe there's any other gap.Gaps in account statements can make tracing evidence less than "clear and convincing." See In re Everse, 440 S.W.3d 749, 752 (Tex. App.—Amarillo 2013, no pet.) (noting that tracingPage 19 evidence included gap between account statements for November 1999 and Se......
  • United States v. Anderson, Case Number: 3:17-CR-00222-M
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • July 29, 2020
    ...96 S.W.3d 345, 354 (Tex. App.-Austin 2002, pet. denied). The burden of tracing is difficult to sustain. In re Marriage of Everse, 440 S.W.3d 749, 751 (Tex. App.-Amarillo 2013, no pet.). Testimony alone is generally insufficient to rebut the community property presumption. Id. Any doubt as t......

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