Jensen v. Jensen (pdf) (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Brown) (divorce property
division affirmed) (community vs. separate property, reimbursement claim)
Appellant Tammy C. Jensen appeals the property division in a divorce case.  Tammy
contends that the evidence does not support several of the trial court’s findings of fact
and that these findings resulted in a manifestly unjust and unfair property division.  
She also contends that the trial court abused its discretion by awarding Barry Jensen
one-half of the shares of stock from one of her accounts while allocating all of the
associated debt to her and by denying her claim for reimbursement of her separate
funds used for the down payment on their residence.  We affirm.
AFFIRMED: Opinion by Justice Jeff Brown     
Before Justices Brock Yates, Frost and Brown    
14-08-00221-CV  Tammy C. Jensen v. Barry Dale Jensen   
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Ronald R. Pope


Appellant Tammy C. Jensen appeals the property division in a divorce case.  Tammy contends that the
evidence does not support several of the trial court’s findings of fact and that these findings resulted in a
manifestly unjust and unfair property division.  She also contends that the trial court abused its discretion by
awarding Barry Jensen one-half of the shares of stock from one of her accounts while allocating all of the
associated debt to her and by denying her claim for reimbursement of her separate funds used for the down
payment on their residence.  

We affirm.


Tammy and Barry met in July 2001 and were married on July 19, 2003.  Their only child was born on July 7,
2004.  The Jensens separated in May 2007, and were granted a divorce on November 20, 2007.

Tammy and Barry are both Canadian citizens.  When the couple met, Tammy had a degree in petroleum
engineering and had been working for Schlumberger for three years.  Barry had been working as a credit
analyst with DaimlerChrysler Financial in Canada for twelve years.  Barry resigned his position before he
married Tammy, and after they were married, they moved to Brazil, where Tammy was working.  Tammy’s job
required that she travel frequently.  During their marriage, the couple lived in four different countries—Brazil,
Trinidad and Tobago, France, and the United States.  In 2006, Tammy accepted a job offer with Hess
Corporation in Houston and the couple purchased a home in Fort Bend County.  Throughout the marriage,
Tammy worked continuously, except during her maternity leave, but Barry remained unemployed.

In May 2007, Barry left Tammy and their child and went to Canada.  Shortly after that, he returned to Fort
Bend County and petitioned for divorce.  Tammy filed a counter-petition.  Issues concerning the child and
the property division were tried in a four-day bench trial.  On February 28, 2008, the trial court signed the
final decree of divorce.  The trial court also made findings of fact and conclusions of law.  The trial judge
signed an amended final decree of divorce on September 9, 2008.  On appeal, Tammy challenges only the
property division.


Tammy raises four issues: (1) the evidence does not support the trial court’s findings of fact 12.a, d, f, and i
concerning Barry’s employment decisions and employment opportunities; (2) the trial court’s erroneous and
unsupported findings resulted in a manifestly unjust and unfair division of property; (3) the trial court erred in
awarding Barry one-half of her shares of stock from her Mellon One account while allocating one-hundred
percent of the debt encumbering the account to her; and (4) the trial court erred in evaluating her claim for
reimbursement of $60,000 that she paid from separate funds for their residence.  We will address the first
three issues together, as Tammy does, and separately address her fourth issue concerning reimbursement.



      The Texas Family Code requires that the trial court “shall order a division of the estate of the parties in
a manner that the court deems just and right, having due regard for the rights of each party and any
children of the marriage.”  Tex. Fam. Code Ann. § 7.001 (Vernon 2006).  The trial court has broad discretion
when dividing the marital estate.  Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985).  We presume that the
trial court did not abuse its discretion in dividing the estate, and we will not disturb the division on appeal
unless appellant demonstrates a clear abuse of discretion.  Murff v. Murff, 615 S.W.2d 696, 698 (Tex.
1981).  The trial court’s ultimate division need not be equal, so long as it is equitable and so long as the
court has some reasonable basis for an unequal division.  Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—
Houston [14th Dist.] 1996, no writ) (op. on reh’g).

      A trial court abuses its discretion when it acts arbitrarily or unreasonably, and without reference to any
guiding rules or principles.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).  A trial court does not
abuse its discretion when it bases its decision on conflicting evidence, nor does a trial court abuse its
discretion when it bases its decision on some evidence of a substantial and probative character.  Zieba, 928
S.W.2d at 787.  Under this abuse-of-discretion standard, the legal and factual sufficiency of the evidence
are not independent grounds of error but are merely relevant factors in assessing whether the trial court
abused its discretion.  Id. at 786–87.  The trial court’s judgment should be reversed on appeal when the trial
court’s abuse of discretion results in a division of property so disproportionate that it is manifestly unjust and
unfair.  See Hedtke v. Hedtke, 112 Tex. 404, 411, 248 S.W. 21, 23 (1923).


      In her first three issues, Tammy challenges the sufficiency of the evidence supporting the trial court’s
findings of fact 12.a, d, f, and i, and contends that these findings resulted in a manifestly unjust and unfair
division of property.  In reviewing a trial court’s findings of fact, we apply the same standards that we apply in
reviewing jury findings.  Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2004, no

      First, Tammy challenges finding of fact 12.a, contending that the evidence does not support a finding
that “Barry Jensen would be unable to continue his education in Canada” and noting that “[t]he proposition
that there are numerous educational institutions in Canada is self-evident and can be made no plainer by
repetitions or illustrations.”  But Tammy’s contention does not accurately reflect finding 12.a.  Instead, the
trial court found that Barry “would have benefited from the continuation of the marriage as he had enrolled in
college to continue his education and he was attempting to gain the skills necessary to change his career to
allow for his possible future employment in the same industry and future pay scale as [Tammy].”  The court
also found that “[w]hen the parties separated, [Barry] had to drop out of the program in the Houston area
and return to Canada as he did not have a legal right to remain in the United States once divorced because
he was in the Unites States under [Tammy’s] immigration status as a dependent.”  It is evident that in its
finding, the trial court was referring to the divorce-related interruption in Barry’s education in Houston, and
did not state or imply that Barry would be unable to continue his education in Canada.  Further, the finding is
supported by Barry’s testimony that, before the divorce, he had registered to attend Houston Community
College for the 2007 fall semester to advance his education and job skills, but has since withdrawn.

      Tammy also complains of the portion of finding 12.a that Barry did not have the legal right to remain in
the Unites States after the divorce because he testified that he could legally move to Houston “for six
months, then you have to return to Canada for a day and then come back for another six months.”  
Reviewed in context, however, Barry’s testimony merely reflects that he was explaining a way in which he
could change his status.  Further, it was undisputed that he was allowed in the various countries where he
and Tammy lived based on a spousal visa, rather than his own visa.  Therefore, the evidence is sufficient to
support the trial court’s finding of fact 12.a.

      Tammy next contends that finding of fact 12.d—that Barry’s unemployment during the marriage was due
to the number of moves to foreign countries—is not supported by the evidence.  The parties presented
conflicting testimony on the reasons for Barry’s unemployment.  Tammy testified that her employer,
Schlumberger, provided job search assistance, but to her knowledge, Barry never submitted a resume to
Schlumberger.  Tammy also testified that there were jobs available, included a listing with Barry’s former
employer DaimlerChrysler, but he refused to talk to DaimlerChrysler.  She also testified that most spouses of
Schlumberger employees that she knew in Brazil worked.  When she went to work for Hess, Tammy testified,
Hess provided Barry with job counseling and other resources but he did not take advantage of them.  In
contrast, Barry testified that he registered with the Schlumberger-related job listing service, but there were
no suitable jobs listed in Brazil.  He did not know of any spouses in Brazil who had obtained jobs through the
service.  Barry testified that, while in Brazil, he networked with potential employers and others and enrolled in
a Portuguese-language course to improve his skills.  He also testified to various efforts he made to find
employment while the couple lived in Trinidad and Tobago, and he testified that after he and Tammy moved
to Fort Bend County, he made efforts to find employment, including speaking with an immigration lawyer and
applying for a position with Amerada Hess.  Barry testified that he and Tammy had lived in four different
countries in their four-year marriage.  Further, Barry testified that he did not have a work visa and was not
allowed to work in those countries with only a spousal visa.  The credibility of witnesses in a divorce action,
including the husband and wife, is solely under the purview of the trial court, not an appellate court.  
Zagorski v. Zagorski, 116 S.W.3d 309, 318 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’
g).  Here, the trial court resolved the disputed evidence in Barry’s favor.  Based on our review of record, the
evidence is sufficient to support finding of fact 12.d.

      Tammy next contends that finding 12.f is against the great weight of the credible evidence.  Finding 12.f
reflects the following:  “Prior to the marriage [Barry] was employed in the finance industry and earning
approximately $90,000.00 plus benefits annually, but left his employment to support the development and
advancement of [Tammy’s] career.”  Tammy complains that the evidence, viewed as a whole, instead “paints
the picture of a man who simply showed no interest in working and was perfectly content to live off the
earnings of his wife.”  She specifically points to her testimony that, in Brazil, Barry was not interested in
working for his former employer, DaimlerChrysler, or anyone else, and her testimony that, even before the
marriage, Barry took an extended leave of absence to live with Tammy in Indonesia at a place paid for by
her employer.

It is undisputed that Barry worked as a credit analyst for DaimlerChrysler for twelve years before the
marriage.  He testified that that he gave up his career for marriage because Tammy had been offered the
position in Brazil and they agreed that she should take the position to advance her career.  Barry also
testified that after he took the leave of absence to live with Tammy in Indonesia, he returned to his work in
Canada in December 2002, and did not leave his job until July 17, 2003, two days before they married.  And,
as discussed above, Barry testified concerning his ultimately unsuccessful efforts to obtain employment in
the places he and Tammy lived.  Thus, although the parties disputed whether Barry intended to work during
the marriage and the details of Barry’s employment history shortly before the marriage, the trial court, as the
fact finder, had the opportunity to observe the witnesses and determine their credibility and the weight of the
evidence.  See id. at 318.  The evidence shows that the couple agreed that they would follow Tammy’s job
opportunity in Brazil to advance her career, and the trial court reasonably could have found that that this
choice eventually compromised Barry’s own career path.  Therefore, finding of fact 12.f is supported by
sufficient evidence.

Next, Tammy contends that finding 12.i—that Tammy has greater earning power and potential than Barry
does—is “unsupported by the evidence.”  Tammy points to that portion of finding 12.f in which the trial court
found that Barry was earning $90,000.00 plus benefits annually, and posits that this is evidence that “if
[Barry] wants to work and apply himself, he is certainly capable of earning just as much as is his former
wife.”  But this analysis fails to take into account all of the relevant facts, including the evidence that Barry
left his career when he married Tammy, he gained no career experience during the four-year marriage, and
he lacked a college degree.  In contrast, Tammy had a bachelor’s degree in engineering and was
continuously employed as a petroleum engineer with oil companies before and during the marriage.  This
evidence is sufficient to support the trial court’s finding.

Based on the premise that the evidence was insufficient to support the trial court’s findings of fact 12.a, d, f,
and i, Tammy further contends that the trial court’s property division was manifestly unjust and unfair.  To
illustrate the allegedly unjust and unfair division, Tammy argues that the trial court unfairly awarded Barry
fifty percent of the shares in her Mellon One account, but allocated one-hundred percent of the debt
encumbering the stock to Tammy.  But we have determined that the trial court’s findings were supported by
legally and factually sufficient evidence; therefore, the premise upon which Tammy’s argument is based
must fail.  Moreover, although the trial court divided the account’s 745 community shares roughly equally
between the parties, with Barry receiving 373 of these shares, Tammy fails to mention that the court
awarded her 1,015 of the shares in the account as her separate property as well as the debt.  Barry was not
awarded any ownership in, or future benefits from, Tammy’s separate property shares.  Also, the trial court
had before it testimony and documentary evidence concerning any related debt.   A trial court’s division of
property “must take into consideration all the equities, the nature of the property, [and] the debts secured by
liens on the property awarded to each.”  Walker v. Walker, 527 S.W.2d 200, 203 (Tex. Civ. App.—Fort
Worth 1975, no writ).  On this record, therefore, we cannot say that the trial court erred in awarding the debt
to Tammy.

The trial court is authorized to consider many factors, including the disparity of the parties’ incomes and their
earning capacities throughout the marriage, when dividing the parties’ estate.  See Murff, 615 S.W.2d at
698–99.  Tammy has not demonstrated that the trial court’s evaluation of the evidence resulted in an abuse
of discretion as required to overturn its property division.  See id. Accordingly, we overrule Tammy’s first
three issues.


In her fourth issue, Tammy contends that the trial court erred in evaluating her claim for reimbursement of
$60,000.00 that she paid from separate funds for the community residence.  Therefore, she argues, the trial
court’s conclusion of law 18, that Tammy “failed to offer evidence sufficient to support her claims for
reimbursement,” is contrary to the evidence and an abuse of discretion.  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.).


The Texas Family Code defines separate property as 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.  Tex. Fam. Code Ann. § 3.001 (Vernon 2006).  In contrast, community property
consists of the property, other than separate property, acquired by either spouse during marriage.  Tex.
Fam. Code Ann. § 3.002 (Vernon 2006).  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).

To overcome the community-property presumption, a spouse claiming assets as separate property is
required to establish their separate character, not merely by a preponderance of the evidence, but by clear
and convincing evidence.  Tex. Fam. Code Ann. § 3.003(b); Stavinoha, 126 S.W.3d at 607.  Clear and
convincing evidence means the 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.  Stavinoha, 126 S.W.3d at

The party seeking to rebut the community presumption must generally trace and clearly identify property
claimed as separate property.  McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973).  Mere testimony that
the property was purchased with separate funds, without any tracing of the funds, is generally insufficient to
rebut the presumption.  McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995,
writ denied).

Reimbursement is an equitable right that arises when the funds or assets of one estate are used to benefit
and enhance another estate without itself receiving some benefit.  Vallone v. Vallone, 644 S.W.2d 455, 458–
59 (Tex. 1982).  The party claiming the right of reimbursement has the burden of pleading and proving that
the expenditures were made and that they are reimbursable.  Id. at 459.  Reimbursement is not available as
a matter of law but lies within the discretion of the court.  Id.  The discretion to be exercised in evaluating a
claim for reimbursement is equally as broad as the discretion exercised in making a just and right division of
the community estate.  Zieba, 928 S.W.2d at 787.


Tammy argues that the trial court erred in evaluating her claim for reimbursement of $60,000 she borrowed
from her parents to make a down payment on the couple’s home, on the basis that she repaid the loan from
her separate property.  Tammy contends that she repaid the loan from the parties’ joint Wells Fargo
account, into which she had transferred $36,706.52 from her Hansard International account and
$102,662.93 from her Schlumberger account.  She further contends that the Hansard account was an
investment account opened before the marriage.  She acknowledges that some of the Schlumberger
account contained funds that accumulated during the marriage, but states that “the overwhelming majority . .
. was [acquired] prior to the marriage and [is] separate property.”  Tammy also points to Barry’s admissions
that the Hansard account was an investment account she had before they married and that she took
$36,000 out of that account and put it in the joint account to pay back the loan.

Tammy’s Schlumberger separation package consisted of pension-plan contributions, medical, savings,
insurance, and stock options, which accrued before and during the marriage, and were paid out in a lump
sum when she ceased working for the company.  But, significantly, Tammy points to no evidence that shows
what portion of the Schlumberger deposit was her separate property and what portion was earned by the
community.[1]  Tammy then deposited the money from both the Schlumberger and the Hansard accounts
into the couple’s Wells Fargo joint checking account, further commingling them.  Tammy testified that this
joint account was used for community expenses as well as to pay back the loan.  Tammy and Barry disputed
whether separate or community money was used to pay for certain purchases and expenses.

Concerning the Hansard account, Tammy testified that this was an investment fund account that required a
deposit of $1,000.00 per month for five years.  She opened the account in November 2001, before the
marriage.  Tammy testified that the Hansard account totaled $56,000.00, $20,000.00 of which she
accumulated before the marriage.  Over time, all of the money was transferred to the Wells Fargo joint
account.  Tammy testified that “[w]e withdrew $39,000 and 3,000 of that was my separate property money
that we withdrew.”  Tammy thus appears to concede that $36,000 of the money from the Hansard account
was community property.  The Wells Fargo statement shows a deposit was made in July 2006 of $36,706.52
from Hansard into the couple’s joint account.  This is the same $36,000 Barry was questioned about on

Thus, the evidence concerning the separate character of the funds removed from the couple’s joint account
to repay the loan for the down payment on their home was not clearly demonstrated.  To the extent that
Schlumberger account funds may have been used to repay the loan, Tammy produced no evidence to
segregate what portion of those funds belonged to her separate estate as opposed to the community
estate.  Tammy also conceded that at least $36,000 of the money in her Hansard account was community
money.  Further, the funds Tammy contends were used to repay the loan were first deposited into the
parties’ joint checking account, further commingling them, and Tammy did not sufficiently trace them.  See
McKinley, 496 S.W.2d at 543–44.  Because Tammy failed to demonstrate by clear and convincing evidence
that she repaid the loan for the down payment on the parties’ home with her separate funds, the trial court
did not abuse its discretion in concluding that she failed to offer sufficient evidence to support her claim for
reimbursement.  We overrule Tammy’s fourth issue.

* * *
      The trial court’s judgment is affirmed.

Jeffrey V. Brown


Panel consists of Justices Yates, Frost, and Brown.

[1] Tammy testified that she began working for Schlumberger in July 1998 and immediately began contributing to the various
benefits offered.  The parties married on July 19, 2003, and the trial court found that Tammy deposited the lump sum
separation payment from Schlumberger into the parties’ Wells Fargo account “on or about August 2, 2006.”  Schlumberger
documents show Tammy’s length of service to have been 7.8 years.  Thus, some evidence shows that Tammy was married
to Barry for about three years of the 7.8 years she worked for Schlumberger.  However, Tammy presented no evidence
segregating the amount or type of benefits that would have accrued to the community during that time as opposed to the
period before the marriage.