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Click here for the full text of this decision FACTS:Charles Daniel Magness and Betsy Ruth Magness married on March 19, 1988. Before the marriage, Betsy owned a home on 2.233 acres of land in Forney. The parties continued to reside in the home after the marriage. The mortgage on the home was refinanced in 1993 and, during the refinancing process, Betsy executed a deed transferring a one-half interest in the home to Charles. Betsy filed for divorce on March 19, 2004. During trial, Betsy testified she signed the deed as part of the refinancing process and did not intend to make a gift to Charles. Charles did not testify about whether Betsy made him a gift of a half-interest in the home. The trial court found Betsy and Charles each owned a one-half interest in the home as their separate property. Betsy contends the trial court abused its discretion in awarding one-half of the home to Charles as his separate property, because factually insufficient evidence supported the finding that Betsy made a gift to Charles. HOLDING:Affirmed. Whether property is separate or community is determined by its character at inception, the court stated. Separate property is property owned or claimed by a spouse before marriage or acquired by a gift, devise or descent during marriage. It is undisputed, the court stated, that Betsy owned the home before the parties’ marriage and that it was her separate property at the time of the marriage. The question, the court stated, is whether the 1993 deed evidenced a gift from Betsy to Charles. A gift, the court stated, is a voluntary transfer of property to another made gratuitously and without consideration. The elements of a gift, the court stated, are: 1. the intent to make a gift; 2. delivery of the property; and 3. acceptance of the property. A spouse may make a gift of separate property to the other spouse. A deed for property from one spouse as grantor to the other spouse as grantee creates a presumption the grantee spouse received the property as separate property by gift, the court stated. The presumption may be rebutted by proof the deed was procured by fraud, accident or mistake. Betsy, the court stated, argued that factually insufficient evidence supported the trial court’s finding she made a gift of a one-half interest in the home to Charles. The deed shows Betsy as the grantor and Charles as the grantee and transfers a one-half interest in the home to Charles, creating the presumption of a gift. Betsy, however, testified she signed the deed as a condition of refinancing the home and, although the deed “had [Betsy] put on the property,” she did not intend to give Charles a gift of an interest in the home. She thought the deed was a necessary part of the refinancing. On cross-examination, Betsy testified: “I see my name on there, and it says warranty deed, but I don’t know when and why and how.” Charles was not questioned about whether he received a gift from Betsy of a one-half interest in the home. The court stated that the trial court, as the fact finder, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. The trial court was free to disbelieve any or all of Betsy’s testimony. Thus, the trial court could have concluded Betsy did not establish fraud, accident or mistake in the execution of the deed and therefore failed to rebut the presumption of a gift to Charles. Thus, the court held that the trial court did not abuse its discretion in awarding Charles one-half of the home as his separate property. OPINION:Thomas, C.J.; Thomas, C.J., and Lang and Mazzant, JJ.

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