Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 94th District Court of Nueces County, Texas.
Chief Justice Valdez and Justices Rodriguez and Hinojosa
Rogelio Valdez Chief Justice
Donna Kahla Clark, appeals the trial court's divorce
decree. By two issues, appellant contends that the trial
court improperly awarded certain property to appellee, Curtis
Clark. We affirm.
Standard of Review and Applicable Law
review property division incident to divorce under an abuse
of discretion standard. Garcia v. Garcia, 170 S.W.3d
644, 648 (Tex. App.-El Paso 2005, no pet.). A trial court
abuses its discretion if it acts without reference to any
guiding rules and principles. Id. at 649; Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). Under the abuse of discretion standard applied
in family law cases, legal and factual sufficiency of the
evidence are not independent grounds of error, but are
relevant factors for determining whether the trial court
abused its discretion. Boyd v. Boyd, 131 S.W.3d 605,
611 (Tex. App.-Fort Worth 2004, no pet.).
presume that property possessed by either spouse during or on
dissolution of marriage is community property unless clear
and convincing evidence is presented to the contrary.
See Tex. Fam. Code Ann. § 3.003 (West, Westlaw
through 2015 R.S.); Warriner v. Warriner, 394 S.W.3d
240, 247 (Tex. App.-El Paso 2012, no pet.). "'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." In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002) (quoting Tex. Fam. Code Ann.
§ 101.007) (West, Westlaw through 2015 R.S.)).
spouse's separate property consists of property owned or
claimed by a spouse before marriage or acquired after
marriage by gift, devise, or descent. Tex. Const. art. XVI,
§ 15; Tex. Fam. Code Ann. § 3.001(1)(2) (West,
Westlaw through 2015 R.S.). A trial court has no authority to
divest one spouse of separate property and award it to the
other spouse. Cameron v. Cameron, 641 S.W.2d 210,
215-16 (Tex. 1982). A spouse must establish the separate
origin of the property by showing the time and means by which
the spouse originally obtained possession of the property.
Warriner, 394 S.W.3d at 247.
The Cullen Frost Bank Stock
first issue, appellant contends that stock from Cullen Frost
Bank (the Cullen Bank stock) that appellee transferred to her
during the marriage constituted her separate property because
it was a gift.
trial, appellee testified that in 1996, the couple filed for
divorce. During the 1996 divorce, appellee, pursuant to a
divorce settlement agreement, transferred the Cullen Bank
stock to appellant. According to appellant and appellee, the
settlement agreement was contingent on the divorce becoming
final. However, the couple decided to remain in the marriage,
and the 1996 divorce proceeding was dismissed with prejudice.
Appellee stated that he never intended to gift the Cullen
Bank stock to appellant and that he instead transferred it to
her in order to comply with the 1996 divorce settlement
agreement. Appellant testified that when the couple filed the
1996 divorce, their attorneys asked the couple to sign a
settlement agreement prior to finalizing the divorce so that
the couple "could just focus on the custody part"
of the proceeding. Specifically appellant testified as
So we agreed to do that. So at-the agreement from what I can
remember and recall is that I was taking the condo and it had
a balance-I mean, it had a loan on it. I was taking the
condo. Curtis owed $70, 000 in child support. He had quit
paying a long, long time ago when the divorce had been going
on for three-and-a-half years and he owed some money. So he
transferred $70, 000 worth of stock to me for the child
argument on appeal is premised on a finding that the Cullen
Bank stock was a gift. Roberts v. Roberts, 999 S.W.2d
424, 431 (Tex. App.-El Paso 1999, no pet.) ("A gift is a
voluntary transfer of property to another made gratuitously
and without consideration."). Appellant does not dispute
that the Cullen Bank stock was appellee's separate
property at its inception prior to the 1996 divorce
settlement agreement; however, citing Story v.
Marshall, she argues that we must presume that the
Cullen Bank stock was a gift because appellee gave it to her
during the marriage. 24 Tex. 305 (1859) (holding that a deed
from a husband to a wife creates a presumption that the
property given is the wife's separate property); see
also Pearson v. Pearson, No. 03-13-00802- CV, 2016 WL
240683, at *5 (Tex. App.-Austin Jan. 15, 2016, no pet.) (mem.
op.) ("Interspousal transfers are presumed to be a gift
and, thus, the separate property of the recipient
testified that the conveyance of the Cullen Bank stock was
intended as a gift to appellant. See Pankhurst v.
Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.-
Corpus Christi 1993, writ. denied) ("A gift is a
transfer of property made voluntarily and gratuitously"
and requires "an intent to make a gift."). In fact,
appellee testified that he did not intend it as a gift.
Appellant points to no evidence supporting a finding that the
Cullen Bank stock was a gift and relies only on the
presumption that an inter-spousal conveyance is a gift.
However, that presumption can be rebutted. Roberts v.
Roberts, 999 S.W.2d 424, 431 (Tex. App.-El Paso 1999, no
pet.) (explaining that an inter-spousal gift creates a
rebuttable presumption that the property is the grantee's
separate property; however, if the conveyance contains
recitations that the grant is the grantee's separate
property then the presumption of a gift cannot be rebutted
with parol evidence unless there a showing of fraud,
accident, or mistake). And, after reviewing the record in the
light most favorable to the trial court's ruling,
appellant and appellee agreed that the transfer ...