Scott Jarvis v. Graciela Jarvis

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00364-CV ________________ SCOTT JARVIS, Appellant V. GRACIELA JARVIS, Appellee ________________________________________________________________________ On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 23-07-10408-CV ________________________________________________________________________ MEMORANDUM OPINION Scott Jarvis (“Scott”) appeals from a divorce decree that divided the marital estate between him and Graciela Jarvis (“Grace”). In three issues, Scott contends that the trial court erred by characterizing his separate property as community property and awarding it to Grace. For the reasons set forth below, we affirm the trial court’s divorce decree and property division. 1  BACKGROUND Scott and Grace married in May 2009, separated in February 2023, and divorced in July 2024. Although both Scott and Grace had children from prior relationships, they had no children together. Following a bench trial, the trial court divided the parties’ property, and it is this property division that is the subject of the appeal. Scott specifically challenges the trial court’s characterization of the following property as community: a 401k account; proceeds of a property sale; and a parcel of real property. We summarize the trial evidence below. Richard Johnston’s Testimony Richard Johnston (“Johnston”) testified that he was an owner and principal of QDRO Services, a company that “deals with the interface between employee benefits and marital dissolution[.]” Johnston estimated that he had helped clients divide between 250 and 500 military pensions since he started QDRO Services in 1996, and as a military retiree, himself, Johnston was familiar with military retirement benefits. According to Johnston, he became involved with the instant case when Grace’s attorney retained him to value Scott’s pension and determine “the separate and community property components of that pension.” Based on Johnston’s calculations, the present value of Scott’s military pension was worth $516,936 as of 2 October 2023 and would pay Scott approximately $3,043 per month in retirement. Although Johnston determined that $363,716 of the value of Scott’s retirement account was community property, he cautioned that Scott could take legal steps to prevent Grace from receiving any amount of his retirement pay that the court might award to her. Grace’s Testimony Grace testified that she worked as a senior closer with Mission Mortgage, a position she had held for about ten years. Although Grace noted that her annual income varied with the housing market, she indicated that she made about $67,000 per year as of the time of trial, in May 2024. According to Grace, Scott did not share expenses with Grace “if he didn’t agree with” them. Instead, Scott denied Grace access to his earnings, telling her it was none of her business, and he made Grace send him spreadsheets showing their household expenses before he would reimburse her for his share. Grace characterized Scott as manipulative, intimidating, and aggressive. In one example of Scott’s behavior, Grace testified that while her daughter, Samantha, was growing up, they did not tell Samantha that Scott was not her biological father. When Samantha became a teen, Grace and Scott discussed telling her about her biological father, yet Scott took it upon himself to tell Samantha that he was not her biological father, thus upsetting Samantha. Grace decided to divorce Scott after a different incident involving Samantha: Scott was teaching 3 Samantha to drive. When she violated one of Scott’s driving rules, Scott “got very upset and pulled over the car, hitting it, charging her. And what he told [Grace] happened was [Samantha] was so hysterical, [Scott] had to hit her.” Grace filed for divorce on July 20, 2023. As to specific items of property, Grace testified that buying the timeshare was a mutual decision, although she had used it “two more occasions than [Scott] has.” Grace agreed that Scott would receive this property and assume the concomitant debt of about $12,000. Grace and Scott also bought property in Grapeland where, according to Grace, she and Scott planned to build a house and retire. Grace asked the trial court to award her that land, which they bought about four years before trial, while holding Scott responsible for the debt remaining on the property. Grace further sought two accounts worth about $10,000 at First Community Credit Union and requested that the remaining accounts be awarded to the party whose name was on the account, according to the parties’ agreement. 1 As to her 401k account, Grace testified that she borrowed about $20,000 against that account to cover the costs of repairing their former home to get it in marketable condition. When the house was sold, in about February 2023, Grace and Scott shared the proceeds equally and Grace used some of her share to pay some credit card debt. For the reasons Johnston 1 Reference to Plaintiff’s Exhibit 2 indicates that these accounts end with 0380-1 and 0380-2 and that the combined amount in these accounts was $10,062.33 as of March 31, 2024. 4 explained, Grace asked the trial court to award Scott’s military pension entirely to Scott. Grace testified that she and Scott had vehicles, clothing, and other personal property, and she estimated that her possessions were worth approximately the same as Scott’s possessions. Grace acknowledged having a lot of credit card debt but stated that she used credit to benefit herself and Samantha and therefore did not consider her credit card use to be wasteful. Scott’s Testimony Scott testified that he joined the military in 1995. As of the time of trial, he had no definite plans to retire. When asked about Grace’s testimony, Scott disagreed with much of it, from Grace’s 401k account and the loan against it, to his financial arrangement with Grace, to his military retirement benefits. Specifically, Scott averred that he did not require Grace to send him spreadsheets showing household expenses, but that the two of them had discussed it and that Grace had been sending him spreadsheets for years. Scott also testified that he and Grace agreed to maintain separate bank accounts and finances but had no written agreement to that effect. As to his military retirement benefit, Scott testified that it was “not a pension. I earned the right to be able to have the American people pay me $3[,]100 a month for the rest of my life, however long that would be, for my duty and services to the country 5 for 30 years[.]” Scott did not disclose his military retirement benefits in this case because he did not “think of it as being a piece of property.” Although Scott denied that he was involved in a physical altercation with Samantha, he admitted getting into a shouting match with her and hitting her, stating, “she was crying so I did slap her one time.” During their marriage, Scott and Grace bought a house in Pflugerville. When they sold that property, in February 2023, Scott and Grace split the proceeds evenly and Scott deposited his share into an account ending with the numbers 8910. Scott later used some of that money to make a payment on the Grapeland property, property where he and Grace planned to spend their retirement. As for the property Scott claimed to be separate, Scott testified that he was awarded the Sandstone property in a previous divorce, and that he lived there with Grace and Samantha for a while during his marriage to Grace. According to Scott, this property belonged to his son, even though the property was in Scott’s name, Scott paid the mortgage, which was paid off during Scott’s marriage to Grace, and there was no recorded deed reflecting any transfer of ownership from Scott to his son. When the property was sold, in November 2019, Scott deposited the approximately $113,000 realized from the sale into his money market fund at First 6 Community Credit Union, account number ending 8910.2 According to Scott, the money in this account came from the sales of the Sandstone and Pflugerville houses, and the account at First Community Credit Union ending with the number 8910 had a balance of $151,424.02 on August 1, 2023. Of that amount, Scott gave around “$45,000[]” to his son, because it was his son’s house, “[a]nd then $50,000 went to the Grapeland property.” Scott testified that he opened his FireSafe account in 1998 or 1999 and “left them in 2008[,]” before he married Grace. According to Scott, there was no money deposited into that account after 2008, and any increased value of that account therefore was solely attributable to the account’s increased value. Scott testified that he was disabled due to PTSD, anxiety, depression, vertigo, migraines, hearing and vision issues, and spinal problems. Accordingly, Scott stated that after his eventual retirement from the military, he would be unable to work and would be surviving on his military retirement benefits of about $3,100 per month. However, Scott presented no expert medical information to support this contention. 2 Reference to the First Community statements in evidence indicates that 8910 was a member number assigned an account in Scott’s name, only. The account is alternately designated as First Money Market Fund #30. Scott also had First Community accounts in his name with member numbers 0380 and 5800. Member number 1470 was assigned to Scott’s and Grace’s First Community joint account, which later was listed in Grace’s name, only. Grace also had member number xxx4110 assigned to an account in her name. 7 Documentary Evidence The documents in evidence include the parties’ inventories and financial statements, statements showing purchases and payments, and withdrawals, as well as money transfers from one account to another. The statements from First Community Credit Union show that the parties’ accounts earned dividends. The record also includes some of the parties’ income tax returns, W-2 Forms, and other payroll records. According to the W-2 Forms, in 2020, Grace earned $116,886, to Scott’s $62,712. In 2021, Grace earned $101,748, and Scott earned $66,597. In 2022, Grace earned $86,250 while Scott earned $71,053. In 2023, Scott earned about $114,096 per year, but by the time of the 2024 trial, Grace’s salary had fallen to about $64,000 per year. These documents also show deductions from Scott’s and Grace’s paychecks, such as federal income tax and Social Security. The Trial Court’s Property Division In its Final Decree of Divorce, the trial court awarded Grace and Scott the property in their respective possession in addition to several accounts at the First Community Credit Union and several debts. The trial court also awarded Grace the Grapeland property (together with the outstanding debt on the property) and the FireSafe account. In addition, the trial court ordered Scott to execute a promissory note to Grace “[f]or the purpose of a just and right division of the marital estate[.]” 8 Findings of Fact and Conclusions of Law Pursuant to Scott’s request, the trial court made Findings of Fact and Conclusions of Law as follows: Findings of Fact and Conclusions of Law – Divorce and Division of the Community Estate 1. GRACIELA JARVIS, Petitioner (hereinafter “Petitioner”), and Respondent were married on May 12, 2009. The date of marriage was undisputed at trial. The parties ceased to live together as husband and wife on or about January of 2023. 2. At the time of the filing of this suit, Petitioner and Respondent had been domiciliaries of Texas for six months, and Petitioner had been a resident of Montgomery County for ninety days. 3. The marriage has become insupportable. 4. The “Second Amended Petition for Divorce” filed by Petitioner is in due form and contains all the allegations required by law. 5. This Court has jurisdiction of the parties and of the subject matter of this case. 6. All legal prerequisites to granting a divorce have been met. 7. The divorce is granted on the ground of insupportability. 8. The court finds that numerous stipulations were made during trial as to the value of certain assets or liabilities, or as to which party the asset or liability should be awarded, or as to both the value and as to the division. A summary of those stipulations are attached to these findings as Exhibit “B,” which is hereby incorporated by reference as if restated verbatim. The court finds that the items highlighted in yellow in Exhibit “B” indicate which items were in some way agreed to, and the writing next to those items indicate whether the parties agreed to the value only and not to the division, 9  or whether they were agreed to as both the value and the division, or whether they were only agreed as to whom the asset or liability would be awarded, but not as to value. The “÷” symbol is shorthand for the word “division” in Exhibit “B.” Other shorthand used in Exhibit “B” include “FMV” for fair market value, “W” for wife, “H” for husband, and “SP” for separate property. The court finds that the stipulations of the parties made during trial are accurately reflected in Exhibit “B,” and that the court is not required to make findings on issues that the parties agree to at trial, and is only required to make findings on disputed issues. 9. The court finds that the parties further stipulated and agreed in Exhibit “B” that certain items are the separate property of Respondent. Those items are the 2000 BMW K1220LT and the 2001 Kawasaki Vulcan 800. The court confirmed those items as Respondent’s separate property. 10. The court incorporates by reference Exhibit “1” (and the attached Exhibit “A” to Exhibit “1”), which is attached hereto and incorporated by reference as if restated verbatim. Exhibit “1” and the attached Exhibit “A” to Exhibit “1,” contains the court’s letter ruling to parties, along with the court’s findings as to characterization, values, and the division of each asset and liability in the community estate. The court incorporates those findings into these findings of fact and conclusions of law. 11. The court finds that Petitioner indicated in her proposed property division that her child, Samantha, should have the 2013 Toyota Highlander confirmed as the child’s property. Husband testified at trial that he wants “Sam” to have that vehicle. The court confirmed that vehicle as the property of the child, and finds that per the parties’ testimonies, that issue was undisputed. 12. The court finds that Respondent testified that the FireSafe 401k account is his separate property because it was acquired prior to marriage around 1998 or 1999, and that he left employment with that company in 2008 prior to his marriage and did not contribute to that account again. The court finds that no exhibits at all were submitted into evidence as to the FireSafe 401k account to support 10  Respondent’s contentions. The court finds that Wife contended at trial that this account is community property. Respondent failed to trace the FireSafe 401k account by clear and convincing evidence as his separate property. However, even if Respondent [] had traced the Fire[S]afe 401k account as his originating from his separate property, Respondent commingled community funds in that account (interest on the account since their marriage in 2009 to the present) and did not trace out his separate property funds from the commingled funds, and the funds remained commingled beyond re-segregation at the time of trial. Respondent failed to even show what the balance was on the date prior to marriage versus the currant balance as of the time of trial. Respondent’s testimony that any increases in value are his separate property are without support in law, as interest generated from separate property during marriage is considered community property. The community property presumption as to the FireSafe 401k has not been rebutted by Respondent. Even if the FireSafe 401k was the separate property of Respondent, the FireSafe 401k is commingled beyond re-segregation and is presumed to be community property. 13. The court finds that Petitioner presented expert testimony tracing out the separate portion of Respondent’s military pension from the community portion of that pension. It was undisputed that a portion of that military pension was earned during the marriage, despite Respondent taking the untenable position that it was 100% his separate property. The court finds that the expert was credible and that he properly applied present value calculations to determine the present value of the military pension, both in total and with respect to the community estate’s portion. The court found, based on the expert’s testimony, that the sum of $363,716.00 is the community portion of the present value calculation of Respondent’s military retirement. The court awarded the full sum of $363,716.00 (the community portion of the present value of the military pension) to Respondent due to credible testimony that even if the court were to award a portion of that sum to Petitioner, Respondent would be able to make elections upon retirement that could potentially preclude Petitioner from ever receiving any of it. 11 14. The parties stipulated that the total balance of Petitioner’s 401k at Mission Mortgage of Texas, before subtracting out any loans, is $49,188.80. Petitioner contended that she had taken a loan against her 401k in the sum of $20,507.00, and provided credible evidence of same. The court finds that the net balance of Petitioner’s 401k at Mission Mortgage of Texas is $28,681.80. The court awarded Petitioner her 401k at the net value of $28,681.80. 15. The court finds that although the parties did not stipulate at trial to the value of the 2017 Dodge Ram vehicle, they did stipulate to the debt on the vehicle being the sum of $47,584.44. Further the court finds that both parties listed the fair market value of that vehicle in each of their own sworn inventory and appraisements at the sum of $50,734.00. Therefore, the court found that the net fair market value of this vehicle is $3,149.56. 16. The court finds that the parties agreed that each one would be awarded the personal property and furniture and possessions that is in his/her own possession. Petitioner did not present any evidence as to the value of the personal property in each party’s possession, and Respondent was the only party to include a value ($20,000.00) as to the personal property in his sworn inventory and appraisement. Respondent also testified that Petitioner was in possession of $20,000.00 worth of personal property. The court awarded the personal property in the possession of Petitioner at the value of $20,000.00 and awarded Respondent the personal property in his possession at the value of zero. 17. The court finds that there was undisputed testimony that shortly after Petitioner filed for divorce, one of the joint bank accounts contained the balance of $151,424.02. The court finds that Respondent made a withdrawal by check of $51,424.02 on August 3rd, and another cash withdrawal of $50,000.00 on that same day, and one week later another withdrawal of $50,000.00, leaving that bank account with a zero balance. Respondent’s sworn inventory and appraisement showed that Respondent had $100,000.00 of cash on hand. During trial, Respondent stated that he gave $45,000.00 of that money to his son, that he spent $45,000.00 of that money on his attorney[’s] fees, and that he spent 12  approximately $10,000.00 of that money on truck repairs[,] etc. He also admitted that he still had the check withdrawal of $51,424.02 in the form of a check. The court awarded the sum of $45,000.00 to Respondent (the sum he allegedly gave to his son), and awarded the remaining $51,424.00 that was still accounted for in check form to Petitioner. The court considered the $45,000.00 that was spent on attorney[’]s fees when it considered the amount of attorney[’]s fees wife charged on credit cards during the marriage, and when it ordered that both parties pay their own attorney[’]s fees. 18. The court finds that no one presented any evidence on the value of the Chase Prime Visa Points listed in Petitioner’s inventory. The court awarded those points to Petitioner as she is the one who requested that they be awarded to her, and did so at no value as no value was offered by either party at trial nor on their sworn inventory and appraisements. 19. The court finds that Petitioner has a long history of frivolous spending and charging on credit cards, and accruing large balances on same. The parties stipulated to the unsecured liabilities values and their division to each party. At the time of the divorce, Wife had accrued credit card debts in the approximate sum of $60,000.00, and was awarded that debt by agreement and stipulation at trial. The court considered that as one of the factors when it arrived at a 60/40 division of the community estate in favor of Husband and finds that it is a just and right division of the community estate, along with other considerations and factors set forth below. 20. The parties stipulated that the value of the Hilton Grand Vacations Time Share is -$11,947.21. The parties disagreed as to whether there were outstanding dues, fees, and taxes of -$1,339.43 owing on the time share. The court found that this debt existed and awarded both the time share and the existing debt on it to Respondent as part of the just and right division of the marital estate. 13 21. The court finds that Petitioner’s reimbursement claim as to the Sandstone property was not persuasive nor even clear and the court did not grant reimbursement to the community estate as she requested. 22. The court finds that Respondent’s reimbursement claims, as set forth in his sworn inventory and appraisement which was admitted into evidence, were not credible. The reimbursement claim for the payment of $10,000.00 of community funds for community debts Petitioner incurred on credit cards was not a proper claim. The reimbursement claim for the cost of raising a step child is not supported in law. And the reimbursement claim that alleges he used separate property funds to make a down payment on the Grapeland property was never proven, and certainly not by clear and convincing evidence. He further failed to fully answer discovery requests on issues of reimbursement, which limited his claims at trial. 23. The court finds that Respondent’s testimony was less credible than Petitioner’s testimony with respect to unsupported legal contentions and values. 24. In dividing the marital estate, the Court took into consideration the following factors in making a determination of a just and right division: a. fault in the breakup of the marriage; b. disparity of earning power of the spouses and their ability to support themselves; c. health and ages of the spouses; d. education and future employability of the spouses; e. community indebtedness and liabilities; f. tax consequences of the division of property; 14  g. earning power, business opportunities, capacities, and abilities of the spouses; h. need for future support; i. nature of the property involved in the division; j. wasting of community assets by the spouses; k. the size and nature of the separate assets of the spouses. 25. The court finds that in order to reach a just and right division of the marital estate, and due to the largest asset in the marital estate (the community portion of Respondent’s military pension) being awarded to Respondent for the reasons stated in item #13 above, it was necessary to award a money judgment against Respondent and in favor of Petitioner in order to achieve a 60/40 division in Respondent’s favor. The court finds that the money judgment, secured by a promissory note, in the sum of $46,030.38 was necessary in order to effectuate a 40% division to Petitioner and a 60% division to Respondent. The court finds that there was credible evidence that the division of the military pension was not a viable option due to the reasons stated in item #13 above. 26. The court considered the factors set forth in Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) in dividing the marital estate, and the court’s division is a just and right division of the marital estate. 27. The court finds that the disproportionate division of the marital estate as set forth [i]n the Final Decree of Divorce, is a just and right division of the marital estate. 28. The division of the property of Petitioner and Respondent effected by the final judgment is just and right, having due regard for the rights of each party. 15 Findings of Fact and Conclusions of Law – Spousal Maintenance 29. Respondent requested that the court award him spousal maintenance but the court finds that Respondent did not provide sufficient evidence that he was entitled to Chapter 8 spousal maintenance. The court finds that Respondent did not provide credible nor sufficient evidence that he lacks sufficient property, including separate property, to provide for his minimum reasonable needs. The court further finds that Respondent never provided credible evidence of what his minimum reasonable needs are. The court finds that the only evidence Respondent provided was exhibit R-21, which is Respondent’s financial information statement dated 11/20/23. No testimony was provided to clarify whether Respondent’s expenses in R-21 included expenses he was paying for Petitioner (examples: “Clothing for family” and Salon expenses”) and the expenses do not appear to be reflective of his minimum reasonable needs (example: gas $1,100.00). Further, the financial information statement asserts that Respondent pays $1,775.00 a month in mortgage payments, but the only real property that Respondent lists as owning in his sworn inventory and appraisement is the Grapeland property, which was awarded to Petitioner in the Final Decree of Divorce. Further, Respondent’s own testimony at trial was that the Grapeland property mortgage is only $1,000.00 a month. The court finds that there is no credible evidence to establish Respondent’s actual minimum reasonable needs. 30. The court finds that Respondent did not assert a statutory ground in Chapter 8 of the Texas Family Code upon which he was basing his claim for spousal maintenance. However, even if he had clearly asserted a statutory basis for his claim, the court finds that Respondent failed to prove that after the divorce he would lack sufficient property, including his separate property, to provide for his minimum reasonable needs. 31. The court finds that Respondent testified that he planned to retire in the near future. However, he did not state a specific date on which he was to retire. Petitioner’s expert report indicates that Respondent’s retirement date is August 5, 2024, should he choose to actually retire. Further, the report states that Respondent will 16  receive $3,043.00 per month in pay from his military pension. Respondent was awarded 100% of his military pension (a portion of it being community property and a portion of it being his separate property). The present value calculation of the entire military pension (separate and community portions combined) is $516,936.00, and 100% of that was awarded to Respondent. The community portion of that asset ($363,716.00) is the largest asset in the community estate. 32. The court finds that Respondent testified that he gifted his son $45,000.00 of cash (that he withdrew from a community bank account) during the pendency of the divorce. The court finds that Respondent’s testimony as to his need for spousal maintenance is not credible. 33. The court finds that Respondent testified that in 2019 he gifted his son the net sales proceeds of the separate property Sandstone residence (approximately $113,000) that he owned prior to the marriage and that he sold during the marriage. He testified that he promised this house to his son. He further tried to claim that the $50,000.00 down payment on the Grapeland property was separate property funds from the sale of the Sandstone residence, contrary to his testimony that he gifted his son the net sales proceeds of the Sandstone property. The court finds that Respondent’s testimony as to his need for spousal maintenance is not credible. 34. The court finds that at the time of the trial, Respondent’s net income per month per his financial information statement is $8,412.00. Respondent’s testimony seemed to indicate that he is not required to retire from the military at the retirement age of 60, on August 5, 2024, but that was his plan to do so. 35. Respondent does not lack the ability to earn sufficient income to provide for his minimum reasonable needs. 36. After the dissolution of marriage, Respondent will not lack sufficient property, including separate property, to provide for his minimum reasonable needs. 17  37. To the extent the Respondent made a claim for spousal maintenance on the basis of disability, Respondent did not prove that after the dissolution of marriage, Respondent will not lack sufficient property, including separate property, to provide for his minimum reasonable needs. Further, he did not prove that he suffers from an incapacitating physical or mental disability that causes him to earn insufficient income to meet his minimum reasonable needs. 38. The court finds that testimonial evidence was presented that Respondent indicated in his sworn Interrogatory responses that he was not entitled to spousal maintenance. 39. Respondent is not eligible for spousal maintenance under the Texas Family Code. ... 40. Respondent’s request for spousal maintenance should be denied. ANALYSIS In his appeal, Scott contends that the trial court erroneously characterized certain separate property as community property and thus improperly divested him of his separate property by awarding these items of property to Grace. A common thread running through each of Scott’s arguments is that since he testified to the separate nature of the property, and since Grace offered no contradictory testimony or other evidence, the trial court should have decided that these assets were his separate property. The Texas Family Code requires the trial court to divide a marital estate in a manner the court deems “just and right,” having due regard for the rights of the 18 parties and any children of the marriage. Tex. Fam. Code Ann. § 7.001. A divorce court generally may exercise broad discretion in dividing the estate. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Ohendalski v. Ohendalski, 203 S.W.3d 910, 914 (Tex. App.—Beaumont 2006, no pet.). Absent evidence showing an abuse of discretion, the trial court’s division of a marital estate will not be disturbed on appeal. See Murff, 615 S.W.2d at 698. A court abuses its discretion when it acts without reference to any guiding rules or principles, or alternatively, when its acts are arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A “party attacking the property division bears the heavy burden of showing that the trial court’s property division was not just and right.” Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied) (op. on reh’g). We apply a two-part test when reviewing alleged characterization errors. See In re Marriage of Cruey, No. 09-21-00125-CV, 2022 Tex. App. LEXIS 6577, at **13-14 (Tex. App.—Beaumont Aug. 31, 2022, no pet.) (mem. op.) (citation omitted). Under this test, Scott must show both a characterization error and harm, meaning a division or an order that is manifestly unjust and unfair. Id. In this case, the trial court entered findings of fact and conclusions of law. Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We apply the same legal sufficiency standards in 19 reviewing a trial court’s findings of fact as when reviewing evidence supporting a jury’s answer. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a bench trial, the court, as fact finder, is the exclusive judge of the witnesses’ credibility and the weight given their testimony and is free to resolve any inconsistencies in the evidence. See Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). The trial court is free to believe some, all, or none of a witness’ testimony. See Rivas v. Rivas, No. 01-10- 00585-CV, 2012 Tex. App. LEXIS 412, at *5 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.). “All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse[.]” Tex. Const. art. XVI, § 15. The Texas Family Code defines separate property as that property owned or claimed by a spouse before marriage, acquired during the marriage by gift, devise, or descent, and the recovery for personal injuries sustained during the marriage except for the loss of earning capacity. Tex. Fam. Code Ann. § 3.001. Community property consists of the property, other than separate property, acquired by either spouse during the marriage. Id. § 3.002. In Texas, property possessed by either spouse during or on dissolution of the marriage is presumed to be community property, absent clear and convincing evidence to the contrary. Id. § 3.003. Clear and convincing evidence is the degree of proof that will produce in the mind of the trier of fact a firm belief or 20 conviction about the allegations sought to be established. Id. § 101.007; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). To overcome this presumption, the spouse that claims the property as separate property must trace and clearly identify the property claimed to be separate, which involves establishing the separate origin of the property with evidence showing the time and means by which the property was acquired by the spouse. Smith v. Smith, 22 S.W.3d 140, 144 (Tex. App.— Houston [14th Dist.] 2000, no pet.) (op. on reh’g). The characterization of property as either community or separate is determined by the inception of title to the property. Id. at 145. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. See id. (citing Strong v. Garrett, 224 S.W.2d 471, 474 (Tex. 1949), and Winkle v. Winkle, 951 S.W.2d 80, 88 (Tex. App.—Corpus Christi 1997, pet. denied)). If the evidence shows separate and community property has been commingled so as to defy resegregation and identification, the burden is not discharged and the statutory presumption prevails. See McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). Mere testimony that property was purchased with separate property funds, without any tracing of the funds, is generally insufficient to rebut the community presumption. McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (citing Schmeltz v. Garey, 49 Tex. 49, 60-61 (Tex. 1878)). “Any doubt as to the character of property should be resolved in favor of the community estate.” Boyd v. 21 Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Akin v. Akin, 649 S.W.2d 700, 703 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.)). The Family Code explains the spouses’ power to manage certain community property as follows: (a) During marriage, each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single, including: (1) personal earnings; (2) revenue from separate property; (3) recoveries for personal injuries; and (4) the increase and mutations of, and the revenue from, all property subject to the spouse’s sole management, control, and disposition. (b) If community property subject to the sole management, control, and disposition of one spouse is mixed or combined with community property subject to the sole management, control, and disposition of the other spouse, then the mixed or combined community property is subject to the joint management, control, and disposition of the spouses, unless the spouses provide otherwise by power of attorney in writing or other agreement. (c) Except as provided by Subsection (a), community property is subject to the joint management, control, and disposition of the spouses unless the spouses provide otherwise by power of attorney in writing or other agreement. Tex. Fam. Code Ann. § 3.102.