TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00050-CV
Ben Ridgway, Appellant
v.
Svetlana Frolova, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-22-006590, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Ben Ridgway appeals the trial court’s final decree of divorce dissolving
his marriage to appellee Svetlana Frolova. By three issues, Ridgway contends the trial court
(1-2) mischaracterized the parties’ marital residence as community property and improperly
ordered its sale, and (3) erroneously partitioned the parties’ income for tax purposes. We affirm.
I. BACKGROUND
Ridgway and Frolova married on August 7, 2015. In 2022, Frolova petitioned for
divorce and in 2023, Ridgway filed a counterpetition for divorce. Beginning on April 15, 2024,
the trial court held a three-day bench trial on the parties’ pleadings.
Indian Scout Trail Property
The main asset at issue, both below and on appeal, is the couple’s marital
residence, located on Indian Scout Trail in Austin, Texas, which was purchased on March 31, 2016. The general warranty deed was admitted into evidence and indicates that title to the
property was taken in both parties’ names.
Angelah Cleek/BDO Reports
The parties stipulated that Angelah Cleek, a certified fraud examiner employed
with BDO, was an expert in tracing. Cleek testified that BDO prepared three reports at Frolova’s
request in order to trace her separate property interests in various assets. According to the BDO
reports, the parties purchased the lot located on Indian Scout Trail using cash for $271,000,
which included $2,750 in earnest money. The parties used $268,637.20 from their joint Wells
Fargo *736 account to fund most of this purchase, with the $2,750 in earnest money coming
from community funds located in a different bank account. BDO subtracted $387.20 from this
total amount, which it contended accounted for net settlement charges.
BDO traced the $271,000 purchase of the Indian Scout Trail lot as consisting of
$86,147.45 from Frolova’s separate estate, $146,037.19 from Ridgway’s separate estate, and
$38,815.36 from the community estate. Based on these proportions, the BDO reports
characterized the Indian Scout Trail property as 31.79% Frolova’s separate property, 53.89%
Ridgway’s separate property, and 14.32% community property.
BDO’s Tracing of Frolova’s Separate Property Money
According to the BDO report, Frolova came into the marriage with approximately
$117,676.27 in separate property funds, located in various financial accounts. BDO traced those
amounts throughout the years, accounting for different deposits and withdrawals that affected the
relative amounts of separate and community property in each account. On March 30, 2016,
Frolova transferred $83,400.66 of her separate property funds to the parties’ joint Wells Fargo
*736 account. Additionally, Frolova testified that on that same day, she received a $10,000 cash
2
gift from her mother, which was deposited into the account and which was reflected in the BDO
report. Thus, according to the BDO reports, on March 31, 2016, the Wells Fargo *736 account
held $93,400.66 in Frolova’s separate property monies.
BDO’s Tracing of Ridgway’s Separate Property Money
The BDO report also traced Ridgway’s separate property interest in the Indian
Scout Trail property. On December 31, 2015, Ridgway sold a Houston residence he purchased
prior to the marriage for a net profit of $158,332.83. Ridgway deposited these proceeds into the
Wells Fargo *736 account. At no time did the Wells Fargo *736 account dip below this amount,
and thus, the BDO report determined that on March 31, 2016, the account contained $158,332.83
of Ridgway’s separate property monies. The remainder of the account—$36,117.42—consisted
of community property.
BDO Additional Tracing Methodology and Reimbursement Claims
The BDO reports explained that when community funds ran out from any
particular account, subsequent “disbursements [we]re assumed to have been made proportionally
from the separate balances of Svetlana Frolova and Ben Ridgway to the extent that separate
funds were available for both parties.” Thus, the reports assumed that, after community funds
were depleted from the Wells Fargo *736 account for the purchase of the Indian Scout Trail
property, Frolova used approximately 92.22% of her separate property funds ($86,147.45 of her
total $93,400.66 separate property monies) and Ridgway used approximately 92.22% of his
separate property funds ($146,037.19 of his total $158,332.83 separate property monies) to fund
the purchase.
BDO traced the $271,000 purchase of the Indian Scout Trail lot as consisting of
$86,147.45 from Frolova’s separate estate, $146,037.19 from Ridgway’s separate estate, and
3
$38,815.36 from the community estate. Based on this apportionment of the purchase price, the
BDO reports characterized the Indian Scout Trail property as 31.79% Frolova’s separate
property, 53.89% Ridgway’s separate property, and 14.32% community property. Cleek testified
that through the years, the community estate expended additional funds to build a home on and
make improvements to the Indian Scout Trail property. Thus, Cleek testified that the community
estate had sizeable reimbursement claims against both parties’ separate estates based on the
value of those improvements.
Robert Metz/Whitley Penn Reports
Robert Metz, a certified public accountant associated with Whitley Penn, also
prepared tracing analyses on Ridgway’s behalf. The Whitley Penn reports differed from the
BDO reports on the purchase price of the Indian Scout Trail property, reflecting that $271,948
was expended by the parties. However, a settlement statement that was attached to the initial
Whitley Penn report reflected that the gross amount paid by Ridgway and Frolova was
$271,947.82. The Whitley Penn reports also differed from the BDO reports in terms of their
characterization of Frolova’s separate property funds. The initial Whitley Penn report did not
consider any of the funds used in the purchase to be contributed by Frolova’s separate property,
and thus characterized the Indian Scout Trail property as 51.16% Ridgway’s separate property
and 48.84% community property. By contrast, the supplemental Whitley Penn report considered
$76,772 of the purchase to be from property characterized as Frolova’s separate property funds.
This resulted in a change in the percentage of each estate’s interest; the Indian Scout Trail
property now was alleged to consist of 53.59% Ridgway’s separate property, 28.23% Frolova’s
separate property, and 18.18% community property.
4
Whitley Penn’s Tracing of Ridgway’s Separate Property Money
The initial Whitley Penn report attached certain documents relating to the
residence located in Houston. According to the initial settlement statement, Ridgway purchased
the Houston residence on March 14, 2013, prior to the parties’ marriage. A closing disclosure
from the sale of the Houston residence reflects that the property sold on December 31, 2015,
after the parties’ marriage, for a total net profit of $158,332.83. Both Ridgway and Frolova were
listed as the sellers of the Houston residence. Whitley Penn, like BDO, traced the deposit of
these proceeds into the Wells Fargo *736 account.
Appraisal of Property
Scott Wheeler, a residential real estate appraiser retained by Frolova, testified that
the fair market value of the Indian Scout Trail property, including the land and the improvements
thereto, was $1,575,000. Ted Lear, a real estate appraiser retained by Ridgway, estimated the
value of the Indian Scout Trail property at around $1,315,000.
Testimony of the Parties
Frolova testified that she wanted the Indian Scout Trail Property recognized as
entirely community property and ordered sold, rather than awarding the property to Ridgway and
requiring him to buy out her interest in the property, because she believed that she would
“[n]ever see that payout.” She also disagreed with both experts’ characterization of the funds
used to purchase the Indian Scout Trail Property, explaining, “I remember [Ridgway] paid 100—
less than 150,000, and I gave 120,000.”
Ridgway agreed that the intention of buying the land on Indian Scout Trail was to
build their family home and that he referred to the property as “ours” over the years. During
Ridgway’s direct examination, the following colloquy took place:
5
Q. Okay. And so, you would agree with me that you would
owe Ms. Frolova a payment to pay out for her separate
property interest in the marital residence. Is that right?
A. Oh, yes, ma’am. Yes.
Q. Okay. And so, you think ultimately that you owe a
payment to Ms. Frolova in the amount of $302,018. Is that
right?
A. Yes, ma’am.
Q. Okay. And that’s a decent amount of cash for Ms. Frolova
that you need approximately how many days to figure out
how to pay?
A. 90 days.
Q. Okay. And are you asking the Court to allow you to have
90 days to pay for the [$]302,000 that you believe is owed
to Ms. Frolova in both community funds and separate
property reimbursement?
A. Yes, ma’am.
Q. And if you are unable to do so, are you okay with listing
the house for sale?
A. Yes, ma’am.
The court admitted into evidence proposed property divisions submitted by each
party. In Frolova’s proposed property division, she characterized the entirety of the Indian Scout
Trail property as community property. In the alternative, she characterized the property as
14.32% community property, 31.79% her separate property, and 53.89% Ridgway’s separate
property. In Ridgway’s proposed property division, he characterized the property as 53.59% his
separate property and 46.41% community property. Ridgway also requested reimbursement for
6
the amount the community estate expended on Frolova’s separate property residence—an asset
not at issue on appeal.
Final Decree of Divorce
In its final decree of divorce, the trial court included a special provision regarding
the sale of the Indian Scout Trail property. It awarded the property to Ridgway but required him
to refinance the mortgage to remove Frolova’s name and to pay her $472,770.23 to buy out her
interest in the property by August 28, 2024. 1 Alternatively, if Ridgway failed to timely comply
with these requirements, the parties would be required to list the property for sale and split
evenly any proceeds that remained after paying closing costs and any remaining balance on the
community debt associated with the property. The court denied the parties’ respective claims for
reimbursement. The trial court also ordered the parties to treat their income for 2024 as separate
for tax purposes.
The trial court issued findings of fact and conclusions of law regarding its
property division. It found that neither Frolova nor Ridgway “established their respective
separate property claims by clear and convincing evidence as related to the . . . Indian Scout
Tr[ai]l” property. The trial court did not issue any findings regarding the value of any specific
item of property, and Ridgway did not request any additional findings of fact. This
appeal proceeded.
1 The trial court’s final decree of divorce was signed on November 1, 2024. However, in its decree, the court noted that it rendered judgment on the property division portion of the divorce proceeding “via letter ruling . . . on May 30, 2024.”
7
II. CHARACTERIZATION OF PROPERTY
A. Applicable Law & Standard of Review
In a divorce, the trial court must divide the community estate “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 § 7.001. “The community estate consists of all property, other
than separate property, acquired by either spouse during the marriage; property owned by either
spouse at the time of divorce is presumed to be community property.” Reed v. Reed, No. 03-04-00098-CV, 2005 WL 1241062, at *3 (Tex. App.—Austin May 26, 2005, no pet.) (mem. op.).
“Separate property is the property owned or claimed by the spouse before marriage, as well as
property that the spouse acquired during marriage by gift, devise, or descent.” Goyal v. Hora,
No. 03-19-00868-CV, 2021 WL 2149628, at *5 (Tex. App.—Austin May 27, 2021, no pet.)
(mem. op.) (first citing Tex. Const. art. XVI, § 15; and then citing Tex. Fam. Code § 3.001).
All property on hand at the dissolution of marriage is presumed to be community
property. Pope v. Pope, No. 03-06-00550-CV, 2007 WL 2010766, at *3 (Tex. App.—Austin
July 12, 2007, no pet.) (mem. op.). But this is a rebuttable presumption. Id. “A party seeking to
rebut the community presumption must trace the assets on hand during the marriage back to
property that is separate in character.” In re Marriage of Born, No. 06-08-00066-CV, 2009 WL
1010876, at *2 (Tex. App.—Texarkana Apr. 16, 2009, no pet.) (mem. op.) (first citing
Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975); and then citing Boyd v. Boyd,
131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.)). “The burden of tracing is
difficult, but not impossible, to sustain.” Cobb v. Cobb, No. 03-14-00325-CV, 2016 WL
3136886, at *3 (Tex. App.—Austin June 3, 2016, pet. denied) (mem. op.). “Meeting this burden
requires tracing and clearly identifying the property in question as separate by clear and
8
convincing evidence.” Goyal, 2021 WL 2149628, at *5. Documentary evidence of tracing is
often necessary to carry this burden; testimony alone is typically not enough. Eichhorn
v. Eichhorn, No. 03-20-00382-CV, 2022 WL 1591709, at *6 (Tex. App.—Austin May 20, 2022,
no pet.) (mem. op.). “But ‘[a] party’s own testimony is sufficient to rebut the community
property presumption if it is uncontroverted.’” C.S.S. v. A.S., No. 03-23-00523-CV, 2024 WL
4163557, at *5 (Tex. App.—Austin Sep. 12, 2024, no pet.) (mem. op.) (quoting Bean v. Bean,
658 S.W.3d 401, 417 (Tex. App.—Dallas 2022, pet. denied)). “We resolve any doubt as to the
character of property in favor of community status.” Id. at *4.
“We review a trial court’s property division—including its characterization of
property as separate or community—for an abuse of discretion.” O’Connor v. O’Connor,
No. 03-23-00407-CV, 2025 WL 2147786, at *6 (Tex. App.—Austin July 30, 2025, no pet.)
(mem. op.). The trial court has wide discretion in dividing property during a divorce, but that
discretion does not extend to taking the separate property of one spouse and awarding it to the
other spouse. Hale v. Hale, 712 S.W.3d 670, 677 (Tex. App.—Houston [14th Dist.] 2025, no
pet.) (first citing Tex. Const. art. XVI, § 15; and then citing Eggemeyer v. Eggemeyer,
554 S.W.2d 137, 142 (Tex. 1977)).
“Under an abuse of discretion standard, legal and factual sufficiency challenges to
the evidence are not independent grounds of error, but are relevant factors in assessing whether
the trial court abused its discretion.” Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—
Austin 2006, pet. denied). “Once it has been determined that the abuse-of-discretion standard
applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had
sufficient information on which to exercise its discretion; and (2) whether the trial court erred in
its application of discretion.” Id. The traditional sufficiency review comes into play under the
9
first inquiry. Id. Under the second inquiry, we “determine whether, based on the evidence, the
trial court made a reasonable decision, that is, that the court’s decision was neither arbitrary nor
unreasonable.” Id.
“When a party attacks the legal sufficiency of an adverse finding on an issue on
which she has the burden of proof, she must demonstrate on appeal that the evidence establishes,
as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). In reviewing a “matter of law” challenge, we first examine the record for
evidence that supports the finding, while ignoring all evidence to the contrary. Id. “If there is no
evidence to support the finding, the reviewing court will then examine the entire record to
determine if the contrary proposition is established as a matter of law.” Id. Thus, when
reviewing a legal sufficiency point of error on which the party appealing bore the burden of
proof, the point of error “should be sustained only if the contrary proposition is conclusively
established.” Id.
“Generally when, as here, a party challenges the factual sufficiency of the
evidence supporting the factfinder’s adverse resolution of an issue on which she had the burden
of proof at trial, she must show that the finding was against the great weight and preponderance
of the evidence.” Aguilar v. Soliz, No. 03-20-00121-CV, 2021 WL 2750456, at *3 (Tex. App.—
Austin July 2, 2021, no pet.) (mem. op.). “However, this standard is not adequate in an
appeal . . . where the burden of proof at trial was by clear and convincing evidence.” Id.; see
Lunceford v. Craft, No. 01-23-00921-CV, --- S.W.3d ----, 2026 WL 280362, at *7 (Tex. App.—
Houston [1st Dist.] Feb. 3, 2026, no pet.) (similarly rejecting lower standard in election-contest
appeal). When that is the case, “we review the entire record to determine whether the trial
court’s failure to form a firm conviction or belief in support of the issue is ‘contrary to the
10
overwhelming weight of the evidence and clearly wrong.’” Lunceford, 2026 WL 280362, at *7.
“We examine the record in this case in light of the high evidentiary burden that [appellant] bore
and our required appellate deference to the trial court’s decision that the evidence did not meet
it.” Aguilar, 2021 WL 2750456, at *3.
B. Indian Scout Trail Property
By his first and second issues, Ridgway argues that the trial court erred by
characterizing the Indian Scout Trail property as entirely community property and by ordering
its sale.
The only evidence suggesting that the Indian Scout Trail property is community
property was Frolova’s proposed property division, which listed the Indian Scout Trail property
as community property. We have previously expressed skepticism that a party’s opinion as to
whether property is community or separate, as reflected in an inventory, controls a court’s
analysis. See Rolls v. Rolls, No. 03-14-00435-CV, 2016 WL 284373, at *2 (Tex. App.—Austin
Jan. 14, 2016, no pet.) (mem. op.) (“Otis’s inventory reflecting a mistaken legal conclusion that a
portion of the policy was community property cannot be considered a judicial admission.”). We
see no reason why Frolova’s proposed property division, which we note was not sworn to by
Frolova, should be any more conclusive on the issue.
Neither party presented any other evidence indicating that the property was
purchased exclusively using community funds. During closing argument, counsel for Frolova
explained that they believed the inception-of-title rule supported a conclusion that the Indian
Scout Trail property was entirely community property, arguing that the court
“need . . . look . . . no further than the four corners of the deed.” But “even property purchased
11
during the marriage may be considered separate property if the evidence clearly demonstrates
that it was purchased with separate property funds.” Attaguile v. Attaguile, 584 S.W.3d 163, 173
(Tex. App.—El Paso 2018, no pet.).
Here, the evidence was undisputed that Ridgway’s Houston residence was
purchased prior to marriage. “When evidence establishes that the origin of a spouse’s title to
property preceded the marriage, making the property that spouse’s separate property, the
community property presumption ‘no longer prevails.’” Galindo v. Galindo, No. 02-22-00472-CV, 2023 WL 4630673, at *3 (Tex. App.—Fort Worth July 20, 2023, no pet.) (mem. op.)
(quoting Welder v. Lambert, 44 S.W. 281, 287 (Tex. 1898)). Though the parties have never
discussed the issue, we observe that they were both listed on documents associated with the sale
of the Houston residence, which occurred during the marriage. Compare In re M.H., No. 05-19-00133-CV, 2020 WL 5104965, at *7 (Tex. App.—Dallas Aug. 31, 2020, pet. denied) (mem. op.)
(where both spouses were listed as sellers in sale of husband’s separate property house and
proceeds were deposited into joint account and not adequately traced, husband failed to show by
clear-and-convincing evidence that funds were his separate property), with Leighton v. Leighton,
921 S.W.2d 365, 367 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“Once separate property
character attaches, that character does not change because community funds are spent to improve
the property, . . . because both parties sign a note, or because the names of both parties are on the
deed of trust.”). We will assume for the purposes of our analysis that this oddity did not affect
the separate property character of Ridgway’s Houston residence.
Both BDO and Whitley Penn traced the proceeds from the sale of the Houston
residence into a deposit into the Wells Fargo *736 account. While that account included both
separate and community funds, the funds were not so commingled as to defy resegregation and
12
identification. “A showing that community and separate funds were deposited in the same
account does not divest the separate funds of their identity and establish the entire amount as
community when the separate funds may be traced and the trial court is able to determine
accurately the interest of each party.” Welder v. Welder, 794 S.W.2d 420, 425 (Tex. App.—
Corpus Christi–Edinburg 1990, no writ). Both BDO and Whitley Penn identified different
withdrawals and deposits that occurred between the deposit of the funds from the Houston
residence sale and the purchase of the Indian Scout Trail property.
The difficulty lies in determining the Indian Scout Trail property’s purchase price.
The settlement statement reflects that the parties spent a total of $271,947.82 on the purchase of
the Indian Scout Trail Property, while the BDO reports reflect that the parties spent $271,000
(after subtracting $387.20 in net settlement charges from the total) and the Whitley Penn reports
reflect that the parties spent $271,948. Meanwhile, Frolova testified that Ridgway “paid . . . less
than 150,000, and [she] gave 120,000” to fund the purchase. When there is a lack of uniformity
regarding the purchase price of certain property, it is certainly foreseeable that a trial court will
meet attempts at tracing with some skepticism. Cf. In re Marriage of Nash, 644 S.W.3d 683,
698 (Tex. App.—Texarkana 2022, no pet.) (“[w]hen a trial court is left to speculate, based on
testimony and spotty records,” what portion of property is community and what portion is
separate, “the community presumption prevails.”). But both the BDO and the Whitley Penn
reports identified and attempted to trace the $268,637.20 that went into the purchase from the
Wells Fargo *736 account, allowing the trial court to at least resolve the estates’ respective
interests in this portion of the purchase. See In re Marriage of Thurmond, 888 S.W.2d 269, 275
(Tex. App.—Amarillo 1994, writ denied) (“As [husband] clearly traced the origin of the $53,809
13
paid toward the purchase price of the parties’ home to his separate property, the trial court erred
in finding that he did not have a separate property interest in the home.”).
Regardless of what the actual purchase price may be, neither the experts nor their
reports discussed an important presumption applicable here. “It is well established . . . that when
separate property is used to purchase real property during the marriage and title is taken in both
spouses’ names, a gift of half the interest is presumed.” Giesler v. Giesler, No. 03-08-00734-CV, 2010 WL 2330362, at *6 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.) (trial court
did not err by determining husband’s separate property interest in home was 6% rather than 12%
where husband did not rebut gift presumption); see Rivers v. Rivers, No. 03-17-00690-CV,
2018 WL 6626718, at *1 (Tex. App.—Austin Dec. 19, 2018, no pet.) (mem. op.) (gift
presumption not rebutted where both spouses spent separate property funds to purchase home
and took title in both spouses’ names).
This presumption may be rebutted by evidence that no gift was intended. In re
J.Y.O., 709 S.W.3d 485, 497 (Tex. 2024). But the burden of proof in refuting a presumption of
gift is also by clear and convincing evidence. Pearson v. Pearson, No. 03-13-00802-CV,
2016 WL 240683, at *6 (Tex. App.—Austin Jan. 15, 2016, no pet.) (mem. op.). Here, Ridgway
testified that the lot was purchased “to build a home that [he and Frolova] would live in” and that
he referred to the property as “ours” over the years. He also could not recall whether the parties
took any steps to protect their respective separate property interests in the property. If we apply
the gift presumption and the highest purchase price identified in the evidence ($271,948), as the
14
trial court was entitled to do, Ridgway’s separate property interest in the Indian Scout Trail
property would be 25.58%. 2
We will assume that the trial court erred in characterizing the entire Indian Scout
Trail property as community property, rather than 74.42% community property and 25.58%
Ridgway’s separate property. Ridgway contends that we need not conduct a harm analysis in
determining whether the trial court’s mischaracterization is reversible error. However,
“[r]eversible error exists as a matter of law only if the trial court characterizes property as
community property and awards it to one spouse when it is established as the separate property
of the other spouse.” In re Marriage of Moncey, 404 S.W.3d 701, 706 (Tex. App.—Texarkana
2013, no pet.). Here, Ridgway was awarded the house in the trial court’s property division. It
was only if Ridgway failed to refinance and remove Frolova’s name from the mortgage that he
would be required to list the property for sale.
Ridgway nonetheless contends that the trial court could not order the property
sold at all, as it consisted of his separate property. 3 But “[p]roperty purchased with separate and
2 The gift presumption would ordinarily mean that the other 25.58% would belong to Frolova as her separate property. See Moroch v. Collins, 174 S.W.3d 849, 860 (Tex. App.— Dallas 2005, pet. denied). But Frolova does not challenge the trial court’s characterization of the Indian Scout Trail property as entirely community property, and Ridgway does not have standing to complain of any divestiture of Frolova’s separate property interest on her behalf. See, e.g., Boyd v. Boyd, 67 S.W.3d 398, 412 (Tex. App.—Fort Worth 2002, no pet.) (“Assuming for the sake of argument that the divorce decree imposes duties on Randall’s employer and the IRS and that the imposition is improper, the employer’s and the IRS’s rights were the ones violated, not Randall’s.”).
3 We note that during the trial, Ridgway explicitly testified that he would be amenable to listing the property for sale if he failed to timely pay Frolova for her interest in the property. “[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as ‘the invited error’ doctrine.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005). However, Ridgway did not
15
community funds is owned as tenants in common by the separate and community estates.” Scott
v. Scott, 805 S.W.2d 835, 838 (Tex. App.—Waco 1991, writ denied). And when property is held
by parties as tenants-in-common, those joint owners may seek to partition the property. See Tex.
Prop. Code § 23.001. Frolova asked repeatedly below that the Indian Scout Trail property be
listed for sale, regardless of its characterization. Although partitioning mixed character property
is not typically part of a divorce proceeding, “it can be done concurrently with the divorce
proceeding.” Motley v. Motley, 390 S.W.3d 689, 694 (Tex. App.—Dallas 2012, no pet.); see
Allen v. Allen, No. 02-17-00031-CV, 2018 WL 547586, at *6 (Tex. App.—Fort Worth Jan. 25,
2018, no pet.) (mem. op.) (“[T]he trial court had the authority, under the general laws pertaining
to partition suits between co-tenants, to order, concurrently with the divorce proceeding, that the
residence be partitioned by sale.”). And an order requiring the sale of mixed character real estate
does not necessarily divest a party of his separate property, but rather, merely converts that
separate property from real property to personal property. Mogford v. Mogford, 616 S.W.2d 936,
945 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.) (“[T]he court’s order [to sell real property
consisting of both separate and community property] did not divest appellant of title to his
separate property. The court’s action simply changed the form of his separate property from
realty to personalty.”); see Motley, 390 S.W.3d at 694. So long as the trial court’s order to sell
the property did not divest Ridgway of the amount he would be entitled to in separate property
proceeds, the trial court’s order also did not divest Ridgway of his separate property.
As discussed above, the court ordered the proceeds from the sale to be split
evenly. Considering that Ridgway’s separate property interest was only around 25.58% and the
testify that he was amenable to dividing the proceeds in the specific manner ordered by the trial court here. Thus, we do not conclude that this issue was waived under the invited-error doctrine.
16
community’s interest was around 74.42%, and considering that the trial court did not assign any
value to either the community debt associated with the property or the property itself, we cannot
conclude that splitting the proceeds in this manner would divest Ridgway of his separate
property interest.
Moreover, and perhaps more importantly, the trial court’s order to sell the Indian
Scout Trail property was not effective unless Ridgway first failed to refinance the property and
buy out Frolova’s interest. The judgment in this case was not stayed or superseded, and based on
the record before us, we do not know whether Ridgway failed in refinancing the property. As
stated, reversible error does not occur as a matter of law unless a party is actually divested of his
separate property. See Rivas v. Rivas, 452 S.W.3d 49, 55 (Tex. App.—El Paso 2014, no pet.).
We cannot conclude, without any evidence showing that the property was listed for sale, that
Ridgway might be divested of any of his separate property. See Tex. R. App. P. 44.1(a)(1)
(judgment may not be reversed on appeal unless error complained of “probably caused the
rendition of an improper judgment”); Gunn v. McCoy, 554 S.W.3d 645, 671 (Tex. 2018)
(“‘[P]robably’ is a higher standard than ‘might’ or ‘could have.’”); Aultman v. Dallas Ry. &
Terminal Co., 260 S.W.2d 596, 600 (Tex. 1953) (“‘Probable’ is said to mean ‘having more
evidence for than against; supported by evidence which inclines the mind to believe, but leaves
some room for doubt; likely[.]’”); see also In re Marriage of Postar, No. 07-99-0116-CV,
2000 WL 1854770, at *4 (Tex. App.—Amarillo Dec. 19, 2000, pet. denied) (op., not designated
for publication) (absent showing from appellant “that the proceeds of the sale [of separate
property house] were used for community purposes,” trial court’s mischaracterization not shown
to have probably caused rendition of improper judgment).
17
Because we have concluded that Ridgway has not shown he has been divested of
his separate property, Ridgway was required to demonstrate that he was harmed by the trial
court’s mischaracterization of property. See Rivas, 452 S.W.3d at 55; In re Marriage of Morris,
12 S.W.3d 877, 884 (Tex. App.—Texarkana 2000, no pet.); Magill v. Magill, 816 S.W.2d 530,
533 (Tex. App.—Houston [1st Dist.] 1991, writ denied); see also Dean-Groff v. Groff, No. 13-06-085-CV, 2007 WL 3293540, at *2 (Tex. App.—Corpus Christi–Edinburg Nov. 8, 2007, no
pet.) (mem. op.). Ridgway has not attempted to make such a showing. And without findings on
the value of the property and its associated debt, we are unable to conclude that Ridgway was
harmed. See Mundy v. Mundy, 653 S.W.2d 954, 957 (Tex. App.—Dallas 1983, no writ) (without
findings of fact on values of property, wife failed to meet burden to show mischaracterization
resulted in division of property that was manifestly unjust). Accordingly, we overrule
Ridgway’s first and second issues.
C. Taxes
By his third and final issue, Ridgway contends that the trial court improperly
treated the parties’ income during 2024 as separate property for tax purposes. According to
Ridgway, because the income the parties earned during the marriage, including during the
pendency of the divorce, is community property, the trial court could not include such a
provision in its decree.
This issue boils down to whether the trial court mischaracterized the parties’
income, which is customarily community property, as separate property. See Lynch v. Lynch,
540 S.W.3d 107, 132 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Just as
mischaracterizing separate property as community may not necessarily necessitate reversal,
18
“[t]he mere mischaracterization of community property as separate property does not require
reversal.” Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.). To be
entitled to reversal, Ridgway must establish he was harmed by this mischaracterization. See id.
And just as above, Ridgway has not attempted to do so, nor has the trial court issued findings on
the value of the parties’ marital estate that would allow us to conclude Ridgway has been
harmed. Thus, we overrule Ridgway’s final issue. See Lynch, 540 S.W.3d at 132–33 (overruling
similar argument on basis that appellant “has not attempted to show how the erroneous
characterization of community property as separate property . . . caused the trial court to abuse
its discretion in the overall division of the community estate”).
III. CONCLUSION
We affirm the trial court’s final decree of divorce.
Maggie Ellis, Justice
Before Chief Justice Byrne, Justices Crump and Ellis
Affirmed
Filed: September 24, 2026
19