Zamarripa v. Zamarripa (Tex.App.- Houston [14th Dist.] Jun. 30, 2009)(op. by Boyce)  (divorce
property law, dispute over characterization and division of retirement benefits, separate vs. community
property, presumption of community property not rebutted, QDRO)
The dispositive issue on appeal is whether husband overcame the presumption of
community property by proffering clear and convincing evidence establishing the
separate character of the disputed asset. The Court of Appeals overrules
husband's issue regarding the trial court's characterization of his entire pension
fund as community property.
AFFIRMED: Opinion by Justice Boyce    
Before Justices Anderson, Guzman and Boyce  
14-08-00083-CV Jimmy Zamarripa v. Syliva C. Zamarripa  
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: ROBERT J. KERN  

M E M O R A N D U M   O P I N I O N

Appellant Jimmy Zamarripa appeals from a final divorce decree following a bench trial.  Jimmy contends
that the trial court erred by characterizing all of his pension benefits as community property.  We affirm.

Background

Jimmy and appellee Sylvia Zamarripa were married on June 3, 1984.  Jimmy began receiving funds
from a pension plan administered by Central Pension on June 1, 2003.  Jimmy filed a petition seeking
divorce on February 9, 2005.  Neither Jimmy's original petition nor his amended petition filed on
February 28, 2005 identifies any portion of his pension benefits as his separate property.

Sylvia submitted interrogatories, requests for disclosure, and requests for production to Jimmy on
October 12, 2005 to determine the existence and value of any property Jimmy claimed to be separate
property.  The appellate record does not contain Jimmy's responses to these discovery requests.

Sylvia filed her inventory and appraisement on March 28, 2007.  She identifies Jimmy's Central Pension
benefits as part of the community estate in her inventory.  Sylvia describes this pension as being
administered by Central Pension and paid to employee Jimmy Zamarripa in the form of A[r]etirement of
$2,600.95 per month as of December 31, 2005."  All other information about the pension is stated to be
A[u]nknown" to Sylvia.  Sylvia's inventory also states that Jimmy's separate estate is unknown to Sylvia.

Jimmy filed his inventory and appraisement on April 11, 2007.  He also identifies his Central Pension
benefits as part of the community estate.  Jimmy states that he began receiving pension benefits on
June 2, 2003, and describes these benefits as “[r]etirement of $2,603.90 per month as of January 1,
2007."  Jimmy's inventory describes as “[u]nknown" Jimmy's percentage of vesting, the value of the
community interest in his pension benefits, and the method of computation.  Jimmy did not identify any
portion of his pension benefits as part of his separate estate, but he did list several items of personal
property as his separate property.

On April 19, 2007, Jimmy and Sylvia signed a mediated settlement agreement for a partial divorce
settlement.  This agreement required Jimmy to produce to Sylvia “current statements on [Jimmy's]
pension showing account values" by May 1, 2007.  The appellate record does not contain these
statements.

Sylvia filed a proposed division of property and debts on August 14, 2007, in which she proposed that
half of Jimmy's pension benefits be awarded to her in the divorce.  Jimmy did not file a proposed
division of property with the trial court.

Jimmy testified at trial that he began contributing to his pension fund 10 years before marrying Sylvia in
1984, and that he contributed $24,000 toward his pension before the marriage.  No documentation
tracing this asserted $24,000 contribution was offered to corroborate Jimmy's testimony.  Jimmy's trial
counsel later stated during questioning: “Now, let's go to your retirement accounts because that's joint
property."  Jimmy did not refute this statement in answering his trial counsel's question.  Jimmy further
testified that he paid his trial counsel from his pension benefits, which he did not consider to be
community property.  Jimmy later testified that he began contributing to his pension fund in 1970.

Sylvia testified that she had accessed information about the form and duration of Jimmy's pension
through a website.  Sylvia further testified that Jimmy had provided to her no documentation to show
that he had ever checked information about his pension's form or duration through the website.  Sylvia
also testified that Jimmy had not informed her of the amount he had accrued in his pension.  Sylvia
stated that Jimmy began contributing to his pension 10 years before they married in 1984, and that she
considered the value of those 10 years to be Jimmy's separate property.  Sylvia also testified that
Jimmy's average annual income more than doubled from the 1993-1998 period to the 1999-2003
period.  Following Sylvia's testimony, the trial court took judicial notice of Jimmy's first amended petition
seeking divorce and the absence therein of any pleading for separate property.  

The trial court signed its final divorce decree awarding Sylvia half of Jimmy's entire pension benefits on
November 2, 2007.  Jimmy timely filed a motion for new trial on November 27, 2007.  On December 4,
2007, the trial court signed a Qualified Domestic Relations Order (“QDRO") informing Central Pension
of its obligations under the divorce decree.  This QDRO states that Sylvia is to receive half of Jimmy's
“monthly retirement benefit amount," and that Jimmy's participation in the pension fund lasted from
June 1, 1970 until he received his first benefits on June 1, 2003.  

The trial court held a hearing on Jimmy's motion for new trial on December 6, 2007, and signed an
order denying the motion on December 21, 2007.  The trial court signed an amended QDRO to the
same effect as the first one on February 28, 2008.  Jimmy appeals from the trial court's November 2,
2007 final divorce decree.

Analysis

Jimmy does not challenge on appeal the trial court's division of community property.  Rather, he
challenges the trial court's legal conclusion characterizing all of his pension benefits as community
property subject to division by the court.  Jimmy asserts that the trial court erred by characterizing as
community property that portion of his pension benefits attributable to contributions he made before
marrying Sylvia in 1984.  The dispositive issue on appeal is whether Jimmy overcame the presumption
of community property by proffering clear and convincing evidence establishing the separate character
of the disputed asset.

A.      Definitions and Standard of Review

Characterization of marital property is a conclusion of law.  See Carter v. Carter, 736 S.W.2d 775, 777
(Tex. App.- Houston [14th Dist.] 1987, no writ).  We review the trial court's conclusions of law de novo.  
Stavinoha v. Stavinoha, 126 S.W.3d 604, 608 (Tex. App.- Houston [14th Dist.] 2004, no pet.); Zagorski
v. Zagorski, 116 S.W.3d 309, 314 (Tex. App.- Houston [14th Dist.] 2003, pet. denied) (opinion on
rehearing).  We review conclusions of law to determine whether they are correct based on the facts of
the case.  Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.  We will uphold a trial court's
conclusions of law if the judgment can be sustained on any legal theory supported by the evidence.  
Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.

Separate property is that property owned by a spouse before marriage; acquired during the marriage
by gift, devise, or descent; or as a recovery for personal injuries sustained during the marriage.  
Stavinoha, 126 S.W.3d at 607; see also Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001
(Vernon 2006).

Community property is that property, other than separate property, acquired by either spouse during
marriage.  Tex. Fam. Code Ann. § 3.002 (Vernon 2006); Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.
2001); Stavinoha, 126 S.W.3d at 607.  All property possessed by either spouse during or on
dissolution of marriage is presumed to be community property.  Tex. Fam. Code Ann. § 3.003(a)
(Vernon 2006); Barnett, 67 S.W.3d at 111; Stavinoha, 126 S.W.3d at 607.

To overcome the community property presumption, a spouse claiming assets as separate property
must establish their separate character by clear and convincing evidence.  Tex. Fam. Code Ann. §
3.003(b); Stavinoha, 126 S.W.3d at 607; Zagorski, 116 S.W.3d at 314.  Clear and convincing evidence
means the measure or degree of proof that will produce in the mind of the finder of fact a firm belief or
conviction as to the truth of the allegations sought to be established.  Tex. Fam. Code Ann. § 101.007
(Vernon 2009); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); Stavinoha, 126 S.W.3d at 607.  This
evidence must generally trace and clearly identify the property as separate.  Evans v. Evans, 14 S.W.
3d 343, 346 (Tex. App.- Houston [14th Dist.] 2000, no pet.).

The clear and convincing burden is not satisfied when characterizing the property at issue as separate
property requires surmise or speculation by the court.  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).  Any doubts as to the character of
marital property must be resolved in favor of the community property presumption.  See Courtney,
2002 WL 1732996, at *5.

If the evidence shows separate and community property have been so commingled as to defy
resegregation and identification, the clear and convincing evidentiary burden has not been met and the
community presumption prevails.  Zagorski, 116 S.W.3d at 316.  Testimony that some portion of
commingled property is separate property, standing alone, is insufficient to rebut the community
property presumption.  See id.

As a general rule, the clear and convincing standard is not satisfied by testimony that funds possessed
at the time the marriage is dissolved are separate property when that testimony is contradicted or
unsupported by documentary evidence tracing the asserted separate nature of the funds.  See, e.g.,
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) (“[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"; 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) (husband's testimony that he purchased
certificate of deposit with separate assets, without documentary evidence tracing the supposedly
separate funds, held insufficient to rebut the community property presumption notwithstanding wife's
failure to provide controverting testimony); 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., not designated for
publication) (husband's failure to produce documentary evidence establishing the time and means by
which he originally obtained possession of assets C including a pension C precluded trial court from
finding that husband met clear and convincing standard notwithstanding husband's testimony that the
assets were his separate property).

B.      Jimmy Failed to Rebut Community Property Presumption

It is undisputed that the portion of Jimmy's pension benefits attributable to contributions made after his
1984 marriage to Sylvia is community property.  Jimmy argues on appeal that the portion of his pension
benefits attributable to contributions made before the marriage is his separate property.  Sylvia
contends that Jimmy failed to overcome the community property presumption and establish by clear
and convincing evidence the portion of his pension benefits attributable to pre-marriage contributions.

The parties assume that the trial court treated Jimmy's entire pension as community property subject to
division by the court.[1]  See Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Slaton v. Slaton, 987
S.W.2d 180, 182 (Tex. App.- Houston [14th Dist.] 1999, pet. denied).  Jimmy did not request
findings of
fact or conclusions of law from the trial court, and the court filed none.  It therefore is implied that the
trial court found that Jimmy failed to meet his burden to rebut the community property presumption with
clear and convincing evidence of the disputed asset's separate character.  See Mays v. Pierce, 203 S.
W.3d 564, 571 (Tex. App.- Houston [14th Dist.] 2006, pet. denied).[2]  Because Jimmy has provided
this court with a complete reporter's record, he may challenge the legal and factual sufficiency of the
trial court's implied finding that he failed to meet his heightened evidentiary burden.  See id.

We first address the legal sufficiency of the evidence to support the trial court's finding that Jimmy
failed to rebut the community property presumption with clear and convincing evidence of the disputed
asset's separate character.  Both Jimmy and Sylvia identified the entirety of Jimmy's pension benefits
as part of the community estate in their respective inventories and appraisements.  Jimmy did not
identify any portion of his pension benefits as separate property in his original or amended petition for
divorce.  Jimmy supplied the court with no documentary evidence corroborating his separate property
claim or tracing any amount of asserted pre-marriage contributions.  The credibility of Jimmy's and
Sylvia's testimony and the resolution of any conflicts in the evidence was under the trial court's
purview.  See Zagorski, 116 S.W.3d at 318-19.  On this record, we conclude that the evidence is legally
sufficient to support the trial court's implied finding that Jimmy did not meet his burden of proof to
present clear and convincing evidence sufficient to overcome the community property presumption.

The following evidence speaks to the factual sufficiency of the evidence supporting the trial court's
finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient
to overcome the community property presumption: (1) Jimmy did not identify any portion of his pension
benefits as separate property in his original or amended petition seeking divorce; (2) Jimmy and Sylvia
identified Jimmy's pension as community property in their respective inventories and appraisements; (3)
Jimmy did not list any portion of his pension benefits as separate property in his inventory and
appraisement, but did list several other items; (4) Jimmy and Sylvia testified that he began contributing
to his pension fund 10 years before marriage; (5) Jimmy also testified that he began contributing to his
pension in 1970 (14 years before marriage) and had contributed $24,000 toward his pension before
marriage; (6) Sylvia testified that Jimmy did not tell her how much money he had accrued in his
pension; and (7) Jimmy failed to provide Sylvia or the court with any documentation corroborating his
testimony about pre-marriage contributions or tracing the amount of any pre-marriage contributions.

Standing alone, Jimmy's and Sylvia's imprecise and contradictory testimony fails to rebut the community
property presumption in light of the pleadings before the court identifying the entirety of Jimmy's
pension benefits as community property.  See Zagorski, 116 S.W.3d at 316; see also Rogers, 2001 WL
1013405, at *3; Brehm, 2000 WL 330076, at *3; In re Marriage of Santopadre, 2008 WL 3844517, at *3.
[3]  In addition, because the trial court was left to speculate about which portion of Jimmy's pension
benefits, if any, was separate property, the trial court was obligated to resolve all doubts in favor of the
community property presumption.  See Courtney, 2002 WL 1732996, at *4-*5.  

On this record, we conclude that the evidence is factually sufficient to support the trial court's implied
finding that Jimmy did not meet his burden of proof to present clear and convincing evidence sufficient
to overcome the community property presumption.

Our conclusions regarding the legal and factual sufficiency of the evidence to support the trial court's
implied finding are underscored by In re Marriage of Santopadre.  In that case, the parties were married
in September 1996 while the husband was working for Texas Instruments.  In re Marriage of
Santopadre, 2008 WL 3844517, at *1.  Two years later, the husband took early retirement from Texas
Instruments.  Id.  The wife filed for divorce in 2000 and a final divorce decree was signed in May 2004
after a bench trial.  Id.  This final divorce decree awarded 10 assets to the husband as his separate
property, including certain real property in New Mexico; Texas Instruments stock; and the husband's
Texas Instruments retirement benefits and employee pension plan.  Id. at *3.

On appeal, the wife challenged the trial court's characterization of the 10 assets as separate property.  
Id.  The husband introduced only three exhibits at trial: (1) a one-page summary regarding the
purchase and financing of the New Mexico property; (2) an e-mail between the parties regarding the
sale of stock valued at $5,000; and (3) the wife's inventory and appraisement.  Id. at *3 n.1.  The
husband testified that all of the assets were his separate property, but he presented no deeds, closing
statements, property tax statements, financial records, or other documents indicating when these
assets were acquired or established.  Id. at *3.  The Dallas Court of Appeals reversed the trial court's
judgment because (1) the clear and convincing evidence standard required the husband to “show the
time and means by which he originally obtained possession of each asset"; and (2) the evidence
produced at trial was legally and factually insufficient to establish by clear and convincing evidence that
the 10 assets were his separate property.  Id.; see also Rogers, 2001 WL 1013405, at *1, *3 (evidence
was sufficient to support trial court's conclusion that wife failed to establish that Merrill Lynch account
opened during marriage was her separate property despite (1) husband's concession that the funds
originally belonged to his wife's mother, and (2) wife's testimony that these funds were given to her
through gift or inheritance; wife's testimony and the “few limited and incomplete documents" admitted
into evidence did not trace or clearly identify the funds in the account as her separate property).[4]

We conclude that the evidence before the trial court was legally and factually sufficient to support the
trial court's implied finding that Jimmy did not meet his burden of proof to present clear and convincing
evidence sufficient to overcome the community property presumption with respect to his pension
benefits.  See id. at 608; Zagorski, 116 S.W.3d at 314.  Because this finding supports the trial court's
legal conclusion that all of Jimmy's pension benefits are community property, we must allow this legal
conclusion to stand.  See Stavinoha, 126 S.W.3d at 608; Zagorski, 116 S.W.3d at 314.[5]

C.      Jimmy Did Not Establish That His Pension Is a Defined Benefit Plan

Jimmy also asserts that (1) his pension is a defined benefit plan; and (2) the characterization of his
separate property interest is controlled by statute.[6]  See Tex. Fam. Code Ann. § 3.007(a), (b)
(Vernon 2006).

Under section 3.007(a), a spouse who is a participant in a defined benefit plan "has a separate
property interest in the monthly accrued benefit the spouse had a right to receive on normal retirement
age, as defined by the plan, as of the date of marriage."  Id. § 3.007(a).  “The community interest in a
defined benefit plan shall be determined as if the spouse began to participate in the plan on the date of
marriage and ended that participation on the date of dissolution or termination of the marriage."  Id. §
3.007(b).

The trial court had before it the following evidence addressing the nature of Jimmy's retirement plan:
(1) Sylvia's inventory and appraisement listing Jimmy's pension under the heading of “Company
Retirement Benefits" as “[r]etirement of $2,600.95 per month" administered by Central Pension; (2)
Jimmy's inventory and appraisement listing Jimmy's pension under the heading of “Retirement Benefits
C IRA/SEP" as “[r]etirement of $2,603.90 per month" administered by Central Pension; (3) the
admission of both parties in their respective appraisements that they did not know the value of the
community interest in Jimmy's pension or the method of computation of the amount of his pension; and
(4) Jimmy's testimony that his pension paid him a monthly benefit after he retired.  Jimmy never invoked
the term “defined benefit plan" or section 3.007 until the hearing on his motion for new trial.

Jimmy asserts that the evidence listed above established that his pension was a defined benefit plan
subject to division under sections 3.007(a) and (b).  Jimmy predicates his argument on Smith v. Smith,
22 S.W.3d 140, 148 (Tex. App.- Houston [14th Dist.] 2000, no pet.) (opinion on rehearing), in which we
described a defined benefit plan as one that promises employees a monthly benefit beginning at
retirement.  Jimmy misplaces his reliance on this description because a defined contribution plan also
may be paid as an annuity through which a retiree receives a monthly benefit.  See Vickery v. Vickery,
999 S.W.2d 342, 350 (Tex. 1999) (annuity may be distributed in monthly payments); Steven R. Brown,
An Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and Post-Judgment Partition
Actions, 37 Baylor L. Rev. 107, 114 (1985) (defined contribution plan may be paid in the form of an
annuity or a lump-sum payment).

Therefore, even taking as a given that Jimmy's pension is paid to him as a monthly benefit, this fact by
itself does not determine whether the pension is a defined benefit plan, a defined contribution plan, or
some other type of retirement plan.  See Vickery, 999 S.W.2d at 350; Brown, 37 Baylor L. Rev. at 112-
17.  Furthermore, Jimmy did not invoke section 3.007 or the term “defined benefit plan" below to make
the trial court aware of his assertion that his pension was such a plan governed by sections 3.007(a)
and (b) until his motion for new trial.  Jimmy's inventory listed his pension under the heading of
“Retirement Benefits C IRA/SEP."  This record left the trial court to speculate regarding the nature of
Jimmy's retirement plan.[7]  

On this record, Jimmy has not established that his pension is a defined benefit plan.  See McKinley,
496 S.W.2d at 544; Courtney, 2002 WL 1732996, at *4-*5.  Therefore, he cannot rely on section 3.007
to establish his separate property interest in the pension benefits.  See Courtney, 2002 WL 1732996,
at *4-*5; In re Marriage of Santopadre, 2008 WL 3844517, at *3.

We overrule Jimmy's issue regarding the trial court's characterization of his entire pension fund as
community property.

Conclusion

The trial court's judgment is affirmed.

/s/        William J. Boyce

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.
--------------------------------------------------------------------------------

1           The divorce decree does not explicitly characterize Jimmy's pension as community property;
rather, the decree simply includes the entire pension as part of “the parties' marital estate" and awards
each party half of the pension pursuant to the “just and right division of the parties' marital estate."  
Both parties assume that the trial court found Jimmy's entire pension to be community property and
divided it equally.  But this assumption is unnecessarily broad.  Contrary to the parties' assumptions,
the trial court's division of Jimmy's pension is not inconsistent with the testimony of both parties that
part of the pension is Jimmy's separate property.

This is more easily seen by first noting that the trial court prefaced the property division with the
statement that it was making a disproportionate division of the marital estate.  In awarding Jimmy half of
the pension, the trial court did not expressly characterize Jimmy's share as separate property,
community property, or both.  Thus, even assuming that the trial court found part of the pension to be
Jimmy's separate property, Jimmy still cannot demonstrate that he was divested of separate property
unless the amount of the pension benefit attributable to his pre-marriage contribution exceeds the
amount he actually received in the judgment.

To illustrate, let us assume that 25 percent of the pension was Jimmy's separate property and 75
percent of it was community property.  If the community property were divided equally, Sylvia would
have gotten 37.5 percent of the pension benefit (i.e., half of 75 percent) and Jimmy would have
received 62.5 percent (i.e., half of 75 percent plus his separate property of 25 percent).  But by
dividing the marital estate disproportionately, the trial court in this example could award Sylvia as much
as 75 percent of the pension benefit (representing the entire community interest in the pension, and
none of Jimmy's separate property) and award Jimmy only 25 percent (representing his entire separate
property interest, and none of the community property).

Because the judgment is affirmed on any legal theory supported by the record, and Jimmy does not
challenge the disproportionate division of the marital estate, his arguments that the trial court
improperly characterized the pension benefits and divested him of his separate property must fail
unless the record conclusively establishes that more than half of the pension should have been
characterized as Jimmy's separate property.  But Jimmy has not taken that position, at trial or on
appeal, and the record supports the trial court's implied finding that Jimmy's separate property interest
in the pension does not exceed 50 percent.

2           When no findings of fact or conclusions of law are filed or properly requested in a non-jury trial,
we imply that the trial court made all necessary findings to support its judgment.  See Mays, 203 S.W.
3d at 571.  Sylvia urges us to affirm based upon Jimmy's failure to explicitly challenge a specific finding
of fact.  See Zagorski, 116 S.W.3d at 319.  Because we must generously construe our briefing rules,
we conclude that Jimmy's original appellate brief adequately described his challenge as encompassing
the legal and factual sufficiency of the trial court's implied finding that he failed to meet his evidentiary
burden.  See Tex. R. App. P. 38.9.

3           Jimmy urges us to construe as a “judicial admission" Sylvia's testimony that (1) Jimmy began
contributing to his pension 10 years before they married, and (2) she considered the value of
contributions made during those 10 years to be Jimmy's separate property.  We need not decide
whether this testimony constituted a judicial admission because Jimmy's failure to provide corroborating
documentary evidence rendered unduly speculative any effort to overcome the community property
presumption and specifically apportion pension assets between community property and separate
property.  See Zagorski, 116 S.W.3d at 316; Rogers, 2001 WL 1013405, at *3; Brehm, 2000 WL
330076, at *3; In re Marriage of Santopadre, 2008 WL 3844517, at *3.  

4           See also Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.- Houston [14th Dist.] 2002, no
pet.) (husband's testimony insufficient to meet clear and convincing evidence standard in absence of
deposit slips or bank records tracing source of funds); Boyd v. Boyd, 131 S.W.3d 605, 616 (Tex. App.-
Fort Worth 2004, no pet.) (clear and convincing evidence standard not met where husband failed to
present specific tracing testimony or corroborating testimony or evidence of nature of real and personal
property); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.- Austin 2002, pet. denied) (clear
and convincing evidence standard not met where husband's testimony and exhibits offered failed to
Aprovide account numbers, statements of accounts, dates of transfers, amounts transferred in or out,
sources of funds or any semblance of asset tracing"); Bahr v. Kohr, 980 S.W.2d 723, 728-29 (Tex. App.
- San Antonio 1998, no pet.) (wife's testimony insufficient to meet clear and convincing evidence
standard because documentary evidence offered did not show date account was opened, running
balance of account, or identity of party receiving wire transfer for asserted purchase of property at
issue); Robles v. Robles, 965 S.W.2d 605, 616 (Tex. App.- Houston [1st Dist.] 1998, pet. denied)
(husband's testimony insufficient to meet clear and convincing evidence standard where husband
provided no supporting documentary evidence to trace funds used to purchase property); In re
Marriage of Moore, 890 S.W.2d 821, 837 (Tex. App.- Amarillo 1994, no pet.) (clear and convincing
evidence standard not met by husband's testimony that he owned certain farm equipment prior to
marriage where he failed to trace such equipment from that time to the time of the divorce proceeding).

5           Jimmy also asserts that the trial court acted without jurisdiction and its action is void because
the court lacked the authority to divest him of his separate property.  See Slaton, 987 S.W.2d at 182.  
“Jurisdiction" refers to a court's authority to adjudicate a case.  Reiss v. Reiss, 118 S.W.3d 439, 443
(Tex. 2003).  In general, as long as the court entering a judgment has jurisdiction over the parties and
the subject matter and does not act outside its capacity as a court, the judgment is not void.  Id.  The
proper means of challenging errors other than lack of personal or subject matter jurisdiction is through
the appellate process.  See id.  Barring lack of personal or subject matter jurisdiction, a trial court has
jurisdiction to characterize property as separate or community property, even if it does so incorrectly.  
See id.  Because Jimmy does not challenge the trial court's jurisdiction over the parties or subject
matter of the case, and instead challenges the trial court's assertedly erroneous characterization of his
entire pension as community property, his jurisdictional argument fails.  See id.

6           The two principal types of qualified private pension plans are defined benefit plans and defined
contribution plans.  Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Benefits in
Divorce and Post-Judgment Partition Actions, 37 Baylor L. Rev. 107, 112 (1985).  Under a defined
benefit plan, the future benefit to be received is specified in advance and “defined" by a benefit formula
or benefit schedule, and plan contributions are made as required to fund the specified benefit.  Id.  
Under a defined contribution plan, the contributions to the fund are specified and “defined" but there is
no predetermined scale of benefits, and the benefit amount received by the retiring employee is
determined by the accumulated contributions allocated to that employee at retirement.  Id.  Both plans
may be contributory or non-contributory, but in a defined benefit plan individual account balances need
not be maintained for each participant.  Id. at 115.  In a defined benefit plan, the future benefit to be
received is specified in advance according to one of four basic formulas or some combination thereof:
(1) a flat amount formula; (2) a flat percentage of earnings formula; (3) a flat amount per year of
service formula; or (4) a percentage of earnings per year of service formula.  Id. at 115-16.

7           If the trial court had concluded that Jimmy's pension was in fact a defined benefit plan subject
to division under sections 3.007(a) and (b), Jimmy contends it would have been required to
characterize a substantial fraction of that pension as his separate property.  See Tex. Fam. Code Ann.
§ 3.007(a); In re Marriage of Santopadre, 2008 WL 3844517, at *3.  According to the formula described
in section 3.007, this fraction would have been determined by dividing the number of years of Jimmy's
participation in the defined benefit plan prior to marriage by his total number of years of participation in
the plan; this value would represent the percentage of the pension characterized as Jimmy's separate
property.  See Tex. Fam. Code Ann. § 3.007(a), (b); In re Marriage of Santopadre, 2008 WL 3844517,
at *3.