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Ceasar v. Ceasar5/18/2000
is theory has been criticized. See Stewart W. Gagnon & Christina H. Patierno, Reimbursement and Tracing: The Bread and Butter to a Gourmet Family Law Property Case, 49 Baylor L. Rev. 323, 383 (1997); Oliver S. Heard, Jr., Richard A. Strieber, & Richard R. Orsinger, Characterization of Marital Property, 39 Baylor L. Rev. 909, 924 (1987). But it is accepted by this court, see Harris v. Ventura, 582 S.W.2d 853, 855-56 (Tex. App.-- Beaumont 1979, no writ), and it has received recent acceptance by other courts. See Scott v. Estate of Scott, 973 S.W.2d 694, 696 (Tex. App.-- El Paso 1998, no writ). Accordingly, we hold it is an acceptable method of tracing the community estate interest in the brokerage account.
The wife's two issues include a larger number of complaints. She complains the evidence did not overcome the presumption that the account was community property, the accountant's calculations are based in part on inadmissible matters, there is no evidence the money withdrawn from the account was spent on the community, and the evidence is legally and factually insufficient to support the finding that the account was the husband's separate property. To sustain any of these complaints we must conclude the trial court abused its discretion. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
The wife complains the accountant considered matters that were not admissible by deducting income taxes and worker's compensation benefits. She concedes she did not object to that testimony. Neither did she object to the accountant's testimony that the community estate had no remaining interest in the account. Because of her failure to object either to the accountant's opinion or his testimony describing how he arrived at it we conclude error was not preserved. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); Tex. R. App. P. 33.1.
The wife complains there was no evidence the money withdrawn from the account was spent on the community. First we note that the case she cites does not require proof the money was spent on the community. See Barrington v. Barrington, 290 S.W.2d 297, 304 (Tex. Civ. App.--Texarkana 1956, no writ). Further, the exhibits prepared by the accountant along with the parties' testimony of the husband's reduced income are some evidence the money was spent for the use and benefit of the parties.
With regard to the wife's remaining complaints, we conclude the testimony set out above, together with the husband's testimony describing his limitations and future medical need, was in every respect sufficient. The judgment is affirmed.
AFFIRMED.
Submitted on March 13, 2000
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