Opinion filed October 31, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00292-CV

__________

BILLY GEORGE KEMP, Appellant

V.

SHARON ANNE KEMP, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 10-07-18413

M E M O R A N D U M O P I N I O N

This appeal arises from a divorce proceeding. Appellant, Billy George Kemp

(Bill), contends that the trial court erred by granting the divorce on the ground of 

cruelty; by awarding trial and appellate attorney’s fees to Appellee, Sharon Anne 

Kemp (Anne); by ordering him solely responsible for the parties’ federal income 

tax liabilities; by granting an owelty lien for the money awarded to Anne; by 
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ordering him to pay off a loan that Anne made to the community estate; and by 

denying him the opportunity to present evidence that was favorable to him. We 

modify and affirm.

Background

Anne and Bill were married on February 13, 2009. While married, they

purchased a house in Lamesa and a minimal amount of personal property. Anne 

separated from Bill and filed for divorce in July 2010. Anne sought a divorce on 

the grounds of insupportability and cruelty. Anne alleged claims for reimbursement 

and attorney’s fees.

Bill obtained counsel to represent him in this case. The trial court entered 

temporary orders. Anne’s counsel served discovery requests on Bill. Bill did not 

respond to the discovery requests. Bill’s counsel filed a motion to withdraw as his 

counsel. The trial court granted the motion. After Bill’s counsel withdrew, Anne’s 

counsel sent a letter to Bill in which he included a copy of Anne’s discovery 

requests and informed Bill that his discovery responses were past due. Bill still did 

not answer the discovery requests.

Bill represented himself pro se at trial. Anne testified that she had bank 

accounts before the marriage. Bill had credit card debts before the marriage. Anne 

presented evidence that, during the marriage, she paid off some of Bill’s separate 

property debts with her separate property funds. Anne also presented evidence that 

she and Bill made improvements to the house in Lamesa with her separate property 

funds.

Anne testified that Bill exhibited anger issues while they were married. She 

said that he yelled and cursed at people who worked for account companies on the 

phone and that, at times, she had to intervene in an effort to calm Bill down. Anne 

also testified that Bill engaged in incidents of road rage when she was a passenger 

in the car. She said that he blocked other drivers in parking lots and confronted 
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them about their driving habits. Anne said that Bill kicked his dog. Anne moved 

out of the marital residence because “[she] was afraid that [she] might be next.”

After the trial court entered temporary orders, Anne went to the house in 

Lamesa to retrieve her personal property. Anne testified that, when she arrived 

there, she discovered that Bill had burned her furniture and clothing. Anne said 

that her furniture was marred and that her clothing and other personal items were 

covered in soot. She said that Bill sent her pictures of her deceased son and Bill’s 

deceased mother. Anne said that “[Bill’s] anger was getting worse.” Anne 

testified that she had a heart condition and that Bill’s conduct made it worse.

Following the trial, the trial court entered a final decree of divorce. In the 

decree, the trial court awarded Bill, among other things, the house in Lamesa, 

subject to an owelty lien in favor of Anne. The trial court awarded Anne, among 

other things, money judgments against Bill for the value of her community interest 

in the Lamesa house and for the outstanding amount due on a loan that she made 

from her separate property to Bill and the community estate. The trial court also 

awarded attorney’s fees to Anne. Bill appeals from the final decree. He is 

represented by counsel in this appeal.

Standard of Review

Bill challenges the sufficiency of the evidence in many of his appellate 

issues. As Bill acknowledges in his brief, we review most appealable issues in 

family law cases under an abuse of discretion standard. In re Marriage of C.A.S. 

and D.P.S., 405 S.W.3d 373, 382 (Tex. App.—Dallas 2013, no pet.); Sandone v. 

Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.—El Paso 2003, no pet.). This 

standard of review applies to a trial court’s granting of a divorce on fault grounds 

and to a trial court’s division of property. C.A.S., 405 S.W.3d at 382; Wells v. 

Wells, 251 S.W.3d 834, 838 (Tex. App.—Eastland 2008, no pet.). A trial court 

abuses its discretion when it acts without reference to any guiding rules or 
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principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 

1985). In family law cases, the traditional sufficiency standard of review overlaps 

with the abuse of discretion standard of review; therefore, legal and factual 

insufficiency are not independent grounds of error but are relevant factors in our 

assessment of whether the trial court abused its discretion. Sink v. Sink, 364 

S.W.3d 340, 344 (Tex. App.—Dallas 2012, no pet.); Boyd v. Boyd, 131 S.W.3d 

605, 611 (Tex. App.—Fort Worth 2004, no pet.). 

In analyzing a legal sufficiency challenge, we must determine whether the 

evidence at trial would enable reasonable and fair-minded people to reach the 

verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); 

Superior Broadcast Products v. Doud Media Group, L.L.C., 392 S.W.3d 198, 210 

(Tex. App.—Eastland 2012, no pet.). We must review the evidence in the light 

most favorable to the challenged finding, crediting any favorable evidence if a 

reasonable factfinder could and disregarding any contrary evidence unless a 

reasonable factfinder could not. City of Keller, 168 S.W.3d at 821–22, 827; 

Superior Braodcast, 392 S.W.3d at 210. We may sustain a no-evidence or legal 

sufficiency challenge only when (1) the record discloses a complete absence of 

evidence of a vital fact, (2) the court is barred by rules of law or evidence from 

giving weight to the only evidence offered to prove a vital fact, (3) the evidence 

offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence 

conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d 

at 810; Pendergraft v. Carrillo, 273 S.W.3d 362, 366 (Tex. App.—Eastland 2008, 

pet. denied). In analyzing a factual sufficiency challenge, we must consider and 

weigh all of the evidence and should set aside a fact finding only if the evidence is 

so weak or the finding is so against the great weight and preponderance of the 

evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 
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629, 635 (Tex. 1986); Bien v. Bien, 365 S.W.3d 492, 495 (Tex. App.—Eastland 

2012, no pet.).

When, as in this case, no findings of fact or conclusions of law are filed or 

requested, we must presume that the trial court made all the necessary findings to 

support its judgment. Roberts v. Roberts, 402 S.W.3d 833, 838 (Tex. App.—

San Antonio 2013, no pet.); Boyd, 131 S.W.3d at 611. If the evidence supports the 

trial court’s implied findings, we must uphold the judgment on any theory of law 

applicable to the case. Roberts, 402 S.W.3d at 838; Boyd, 131 S.W.3d at 611. 

Under Texas law, property possessed by either spouse during or on 

dissolution of the marriage is presumed to be community property. TEX. FAM.

CODE ANN. § 3.003(a) (West 2006). To rebut this presumption, the person seeking 

to prove the separate character of the property must do so by clear and convincing 

evidence. Id. § 3.003(b). Clear and convincing evidence is 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. Id. § 101.007 (West 

2008); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

When the burden of proof at trial is by clear and convincing evidence, we 

apply a higher standard of legal and factual sufficiency review. Sink, 364 S.W.3d 

at 344. In reviewing the evidence for legal sufficiency, we look at all the evidence, 

in the light most favorable to the judgment, to determine if the trier of fact could 

reasonably have formed a firm belief or conviction that its finding was true. Id. at 

344. We must assume that the factfinder resolved disputed facts in favor of its 

finding if a reasonable factfinder could do so. Id. In reviewing the evidence for 

factual sufficiency, we must give due consideration to evidence that the factfinder 

could reasonably have found to be clear and convincing and then determine 

whether, based on the record, a factfinder could reasonably form a firm belief or 
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conviction that the allegations in the petition were proven. Id.; Boyd, 131 S.W.3d 

at 611.

Divorce on Ground of Cruelty

In the final decree, the trial court ordered that Anne and Bill were divorced 

and that the marriage between them was dissolved on the ground of 

“Insupportability” and the fault ground of “Cruelty.” Bill contends in his first 

appellate issue that the trial court abused its discretion in granting the divorce on 

the ground of cruelty. Bill asserts that the evidence was legally and factually 

insufficient to support the finding of cruelty because “there [was] no evidence that 

[his] conduct rose to the level of cruel treatment that rendered the couple’s living 

together insupportable.”

A trial court may grant a divorce on the ground of cruel treatment. FAM.

§ 6.002 (West 2006). To be considered “cruel treatment,” the conduct of the 

accused party must rise to such a level as to render the couple’s living together 

insupportable. Id.; Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st

Dist.] 2011, no pet.); Newberry v. Newberry, 351 S.W.3d 552, 557 (Tex. App.—El 

Paso 2011, no pet.). “Insupportable,” for purposes of “cruel treatment,” means 

incapable of being borne, unendurable, insufferable, or intolerable. Ayala, 387 

S.W.3d at 733; Henry v. Henry, 48 S.W.3d 468, 473–74 (Tex. App.—Houston 

[14th Dist.] 2001, no pet.). Mere trivial matters or disagreements do not justify the 

granting of divorce for cruel treatment. Ayala, 387 S.W.3d at 733. Acts occurring 

after separation can support a finding of cruel treatment. Ayala, 387 S.W.3d at 

733; Newberry, 351 S.W.3d at 557.

Anne testified about Bill’s anger issues. She said that he yelled and cursed 

at people on the phone. Bill exhibited road rage while Anne was a passenger in the 

car. Anne said that she left Bill because she was afraid of him. Anne moved to her 

house in Lubbock when she left Bill. Bill directed his anger toward Anne after she 
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separated from him. Anne said that, on one occasion, Bill came into her house in 

Lubbock. Anne said that Bill would not leave her house and that, ultimately, she 

had to call the police to get Bill to leave. When Anne returned to the house in 

Lamesa to get her property, Anne discovered that Bill had burned her furniture and 

clothing. Bill did not offer any evidence to dispute that he burned Anne’s 

property. Anne also said that Bill sent her pictures of her deceased son and Bill’s 

deceased mother. Anne testified that Bill’s conduct exacerbated her heart 

condition.

Based on the evidence, the trial court could have reasonably concluded that 

Bill’s conduct constituted cruel treatment such that the marriage was made 

insupportable. As the sole judge of the credibility of the witnesses, the trial court 

was free to believe Anne’s testimony. Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). 

Anne’s testimony, which was in most respects unchallenged by Bill, provided 

more than a scintilla of evidence to support the trial court’s finding of cruelty as a 

ground for divorce. Thus, the evidence was legally sufficient to support the cruelty 

finding. After considering all of the evidence, we cannot conclude that the 

evidence supporting the trial court’s cruelty finding was so weak or that the cruelty 

finding was so against the great weight and preponderance of the evidence as to be

clearly wrong and unjust. The evidence was factually sufficient to support the trial 

court’s cruelty finding.

The trial court did not abuse its discretion by granting the divorce on a 

cruelty ground. Bill’s first issue is overruled. 

Reimbursement for Loan

In her petition, Anne sought reimbursement for funds she allegedly used 

from her separate estate to pay unsecured liabilities of Bill’s separate estate. In the 

final decree, the trial court awarded Anne $15,200 to reimburse her for a loan that 

was made from her separate property estate to Bill and the community estate. In 
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his sixth issue, Bill contends that the trial court erred by ordering reimbursement 

for the loan to Anne because the evidence showed that the proceeds of the loan 

were commingled with community property funds and, therefore, became 

community property.

Reimbursement is an equitable remedy. Vallone v. Vallone, 644 S.W.3d 

455, 458 (Tex. 1982); Nelson v. Nelson, 193 S.W.3d 624, 632 (Tex. App.—

Eastland 2006, no pet.). A claim for reimbursement arises upon dissolution of a 

marriage when funds from one marital estate have been expended to benefit 

another marital estate. Roberts, 402 S.W.3d at 838. Permissible reimbursement 

may run from community estate to separate estate, from separate estate to 

community estate, and from separate estate to separate estate. Henry, 48 S.W.3d at 

477. A party may bring a claim for reimbursement of payments that were made by 

one marital estate to satisfy the unsecured liabilities of another marital estate. 

FAM. § 3.402(a)(1) (West Supp. 2013). The party claiming the right of 

reimbursement has the burden of proof. Garcia v. Garcia, 170 S.W.3d 644, 650 

(Tex. App.—El Paso 2005, no pet.). 

Great latitude must be given to a trial court in applying equitable principles 

to value a claim for reimbursement. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 

1988); Nelson, 193 S.W.3d at 632. Accordingly, we review a trial court’s 

resolution of a claim for reimbursement under an abuse of discretion standard. 

Penick, 783 S.W.2d at 198; Nelson, 193 S.W.3d at 632.

Anne testified that she opened an account at Lubbock Telco Federal Credit 

Union in the 1980s. Anne introduced statements from the account into evidence. 

As of December 31, 2008, Anne’s Telco account had a balance of $66,420.49. As 

stated above, Anne and Bill were married on February 13, 2009. Anne testified 

that, in February 2010, she made a $20,200 loan from her Telco account to the 

community estate. A statement from Anne’s Telco account shows that, on 
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February 1, 2010, Anne withdrew $20,200 from her Telco account. Anne testified 

that she deposited the funds into a joint checking account that she had with Bill at 

Lamesa National Bank. She said that some of the funds were used for repair of a 

house that Bill owned in Odessa. Anne said that she had been paid back $5,000 of 

the funds. She sought reimbursement for the remaining $15,200 balance on the 

loan.

Anne served requests for admissions on Bill. Bill never responded to the 

requests. Because Bill failed to respond, the requests were deemed admitted and 

the matters in the requests were conclusively established as to him. TEX. R. CIV.

P. 198.2(c), 198.3. Anne’s Request for Admission No. 5 requested Bill to admit or 

deny “that of the February 2, 2010, deposit of $21,702.84 into a Lamesa National 

Bank account in the name of Bill and Sharon Kemp, $20,200 was from Sharon 

Kemp’s Telco Federal Credit Union account.” Request for Admission No. 9 

requested Bill to admit or deny “that in February 2010 you requested from 

Petitioner a loan in the amount of $20,200 from Sharon Kemp’s Telco Federal 

Credit Union account.”

Anne established that the funds in the Telco account were her separate 

property. She overcame the community property presumption with respect to the 

funds in the Telco account with clear and convincing evidence. Bill does not 

dispute that the funds in the Telco account were Anne’s separate property before 

they were deposited into the Lamesa account. The evidence showed that Anne

withdrew $20,200 of the Telco account funds and deposited them into her joint 

account with Bill. Based on the evidence, including Bill’s deemed admissions, the 

trial court could have reasonably concluded that Anne loaned the money to Bill for 

the benefit of his separate estate.

Bill contends that Anne’s Telco account funds lost their separate property 

character because they were commingled with funds in the community account at 
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the Lamesa bank. Bill asserts that Anne did not sufficiently trace the funds in the 

Lamesa account to establish that they were her separate property. However, 

Anne’s reimbursement claim did not depend on her being able to establish that the 

funds in the Lamesa account were her separate property. Rather, her 

reimbursement claim was based on her contention that she made a loan from her 

separate estate to Bill. Anne presented evidence that established the existence of

the loan, the amount of the loan, and the outstanding balance on the loan.

We conclude that the trial court did not abuse its discretion by awarding 

reimbursement of $15,200 to Anne. Bill’s sixth issue is overruled.

Federal Income Tax Liability

The trial court ordered in its final decree that “BILLY GEORGE KEMP

shall be solely responsible for all federal income tax liabilities of the Parties from 

the date of marriage through December 31, 2009 and prior years.” In his fourth 

issue, Bill contends that the trial court abused its discretion by ordering him to be 

solely responsible for federal income tax liabilities because no evidence related to 

tax liability was offered at trial.

A trial court has broad discretion in dividing the marital estate in a manner 

that the court deems just and right. FAM. § 7.001 (West 2006); Murff v. Murff, 615 

S.W.2d 696, 698 (Tex. 1981); Langston v. Langston, 82 S.W.3d 686, 690 (Tex. 

App.—Eastland 2002, no pet.). Debts and liabilities incurred jointly by the parties, 

such as federal income tax liabilities, must be considered by the trial court in 

determining a just and right division of the community estate and must be 

apportioned to one or both of the spouses. Bush v. Bush, 336 S.W.3d 722, 740 

(Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court has the authority and 

discretion to impose the entire tax liability of the parties on one spouse. In re 

S.A.A., 279 S.W.3d 853, 857 (Tex. App.—Dallas 2009, no pet.).
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The trial court imposed the tax liability of the parties on Bill “from the date 

of marriage through December 31, 2009 and prior years.” The evidence showed 

that Anne requested Bill to produce copies of his tax documents. The record does 

not show that Bill produced the documents. Based on the record evidence, we 

cannot conclude that the trial court abused its discretion by ordering Bill solely 

responsible for the parties’ federal income tax liabilities from the date of the 

marriage through December 31, 2009. However, because Anne and Bill were not 

married until February 13, 2009, the trial court incorrectly imposed Anne’s tax 

liability for the years prior to 2009 on Bill.

We note that Bill has failed to demonstrate that the imposition of tax liability 

on him for the year 2009 adversely affected him with respect to the trial court’s 

overall division of the community estate. An appellate court should reverse a trial 

court’s division of property only if the error materially affects the court’s just and 

right division of the property. See Henry, 48 S.W.3d at 475. Accordingly, even if 

the trial court had erred by imposing federal income tax liability on Bill for the 

year 2009, the error would not require reversal of the trial court’s final decree. 

Bill’s fourth issue is sustained to the extent that he complains that the trial 

court erred by imposing Anne’s tax liability for years prior to 2009 on him. 

Otherwise, his fourth issue is overruled.

Attorney’s Fees

The trial court awarded Anne $7,500 in attorney’s fees through trial, $7,500 

in attorney’s fees in the event of an appeal to this court, and $5,000 in attorney’s 

fees in the event of an appeal to the Texas Supreme Court. In his second and third 

issues, Bill contends that the trial court erred by ordering him to pay Anne trial and 

appellate attorney’s fees because the evidence was legally and factually 

insufficient to support the award of the fees.
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In a divorce action, a trial court may within its sound discretion award 

attorney’s fees as part of a just and right division of the community property. 

C.A.S., 405 S.W.3d at 386; Mandell v. Mandell, 310 S.W.3d 531, 541 (Tex. 

App.—Fort Worth 2010, pet. denied). The trial court does not abuse its discretion 

when an award of attorney’s fees is supported by the evidence. Tull v. Tull, 159 

S.W.3d 758, 760 (Tex. App.—Dallas 2005, no pet.). The reasonableness of the fee 

is a question of fact that must be supported by evidence. Sandone, 116 S.W.3d at 

208. To support an award of reasonable attorney’s fees, there should be evidence 

of the time spent by the attorney on the case, the nature of the preparation, the 

complexity of the case, the experience of the attorney, and the prevailing hourly 

rates. Hardin v. Hardin, 161 S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 

2004, no pet.). However, evidence on each of these factors is not necessary to 

determine the amount of an attorney’s fee award. In re M.A.N.M., 231 S.W.3d 

562, 567 (Tex. App.—Dallas 2007, no pet.). The court may also consider the 

entire record and the common knowledge of the lawyers and judges. Phillips v. 

Phillips, 296 S.W.3d 656, 673 (Tex. App.—El Paso 2009, pet. denied); M.A.N.M., 

231 S.W.3d at 567. A judgment awarding attorney’s fees may be supported solely 

by the attorney’s testimony. Ayala, 387 S.W.3d at 733.

Anne hired her current counsel to represent her in this case in late 2010. 

Anne was previously represented by other counsel. The trial occurred on June 8, 

2011. Anne’s counsel testified about his experience as an attorney. He said that he 

was familiar with the usual, customary, and reasonable attorney’s fees charged in 

family law cases of this nature. He testified as to the work he had performed in the 

case. He said that he reviewed the proceedings that took place in the case before 

Anne hired him, submitted discovery, dealt with former counsel, and had 

consultations with Anne. He also said that he spent considerable time obtaining 

evidence to substantiate Anne’s reimbursement claims. Anne’s counsel testified 
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that his normal hourly rate was $300 an hour but that he may have given Anne a 

lesser hourly charge because she had previously been represented by other counsel. 

He estimated that he would spend a total of about twenty-five hours working on 

the case through trial and the preparation of a divorce decree. He also testified that 

he anticipated an additional $7,500 in attorney’s fees would be necessary to 

prosecute an appeal of the case and an additional $5,000 in attorney’s fees would 

be necessary if the case were taken to the Texas Supreme Court. Anne’s counsel 

said that all of the services he had provided in representing Anne in the case had 

been usual, customary, and necessary. As of the date of trial, Anne had paid her 

counsel about $6,000 in legal fees to represent her in this case.

The evidence was legally and factually sufficient to support the trial court’s 

award of trial and appellate attorney’s fees to Anne. Considering the issues 

involved in the case and the testimony of Anne’s counsel, we conclude that the 

trial court did not abuse its discretion by awarding attorney’s fees to Anne for the 

amounts in the final decree. Bill’s second and third issues are overruled. 

The Owelty Lien

The trial court found that Bill and Anne had $34,182.65 in equity in the 

Lamesa house. In the final decree, the trial court awarded the house to Bill as part 

of the just and right division of the marital estate. The trial court awarded Anne 

the amount of $17,091.33, which represented one-half of the equity in the Lamesa 

house. The trial court imposed an owelty lien against the house to secure Bill’s 

payment of $17,091.33 to Anne and to secure his payment of other sums awarded 

to Anne in the decree. Those awards included the following: the amount of 

$4,516.22 to repay Anne for a loan that she made from her separate property funds 

to pay off Bill’s separate credit card debt; the amount of $3,964 to reimburse Anne 

for contributions that she made from her separate property funds for improvements 

to the Lamesa house; the amount of $15,200 to reimburse Anne for the loan that 
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she made from her separate property funds in the Telco account; and the amount of 

$7,500 to reimburse Anne for her payment of attorney’s fees.

Bill contends in his fifth issue that the trial court erred by including the 

$4,516.22 loan, the $15,200 loan, and the attorney’s fees in the owelty lien. Anne 

agrees in her brief that these items were not proper subjects of an owelty lien.

When dividing marital property on divorce, “the court may impose an 

equitable lien on the property of a benefited marital estate to secure a claim for 

reimbursement against that property by a contributing marital estate.” FAM.

§ 3.406(a) (West. Supp. 2013); see Heggen v. Pemelton, 836 S.W.2d 145, 146 

(Tex. 1992). A trial court may impose a lien on the marital homestead to secure 

payment of the amount awarded to the other spouse for that spouse’s homestead 

interest. Wren v. Wren, 702 S.W.2d 250, 252 (Tex. Civ. App.—Houston [1st Dist.] 

1985, writ dism’d); Brunell v. Brunell, 494 S.W.2d 621, 623 (Tex. App.—Dallas 

1973, no writ). Thus, the trial court properly included Anne’s equity of $17,091.33 

and Anne’s contribution of $3,964 for improvements to the Lamesa house in the 

owelty lien. However, as the parties agree in their briefs, the owelty lien should 

not have included the other amounts. Bill’s fifth issue is sustained.

Opportunity to Present Evidence

In his seventh issue, Bill contends that the trial court erred by denying him 

the opportunity to present evidence that was favorable to him. Bill argues that, 

without such evidence, the trial court could not and did not render a just and right 

division of the community estate.

The record does not support Bill’s contention that the trial court denied him 

the opportunity to present favorable evidence. Bill cross-examined Anne. Bill

elected not to cross-examine Anne’s attorney. The trial court informed Bill that he 

could present relevant matters in an appropriate manner. Bill testified on his own 
15

behalf. He did not call any other witnesses. He did not seek to introduce any 

documentary evidence. 

Even if the trial court had denied Bill the opportunity to present favorable 

evidence, Bill did not preserve the issue for appellate review. The trial court 

sustained relevancy and hearsay objections to some of Bill’s testimony. Bill did 

not make an offer of proof related to any of the testimony that the trial court 

excluded. 

Pro se litigants must comply with the rules of evidence and procedure. 

Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex. App.—Waco 2001, pet. 

denied); Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex. App.—Amarillo 

1998, pet. denied). To challenge the exclusion of evidence by the trial court on 

appeal, the complaining party must present the excluded evidence to the trial court 

by an offer of proof. Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602, 606 

(Tex. App.—Houston [1st Dist.] 2001, pet. denied). The primary purpose of an 

offer of proof is to enable the reviewing court to determine whether the exclusion 

was erroneous and, if so, whether the error was harmful. Id. at 608. The failure to 

make an offer of proof of the excluded testimony waives any complaint about the 

excluded evidence on appeal. Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 

339 (Tex. App.—San Antonio 2000, pet. denied). Bill failed to preserve his 

seventh issue for review. Additionally, because Bill did not make an offer of 

proof, he cannot demonstrate that the trial court excluded evidence that was 

favorable to him. Bill’s seventh issue is overruled.
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This Court’s Ruling

The owelty lien provisions are found on page ten of the final decree of 

divorce. In accordance with our ruling on Bill’s fifth issue, we modify Section (2) 

of the decree on page ten to read as follows:

(2) An award and judgment in favor of Petitioner Wife for 

reimbursement to her separate property estate, against Respondent 

Husband in the amount of $3,964, bearing interest at the rate of 5% 

per annum from and after June 8, 2011, all due and payable on or 

before August 15, 2011.

We modify the decree to delete Section (3) on page ten in its entirety.

We also modify the decree to delete the words “and prior years” in the first 

paragraph under the heading “Federal Income Tax” on page eleven of the decree. 

As modified, we affirm the trial court’s final decree of divorce.

TERRY McCALL

JUSTICE 

October 31, 2013

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.