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).
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)
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  
Husband Failed to Rebut Community Property Presumption
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]


Sharma v. Routh (pdf) (Tex.App.- Houston [14th Dist.] Dec. 3, 2009)(Concurrence by Hedges)(divorce,
characterization of property)
(Because the trial court mischaracterized a portion of the marital property, namely the trust income from Alice's
testamentary trusts, the majority correctly reverses and remands this case.  Although I agree with the majority's
disposition, I would reverse and remand for different reasons.  I therefore concur in the judgment only and write
separately to explain my reasons.)
Concurring Opinion by Chief Justice Hedges  
14-06-00717-CV  Timothy L. Sharma v. Lisa C. Routh    
Appeal from 246th District Court of Harris County
Trial Court Judge:
Jim York