### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00517
- CV

Janet Rose Banister , Appellant

v. Gregory D. Ba nister , Appellee

FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY NO. 20-0707-F425, THE HONORABLE BETSY F. LAMBETH , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Janet Ros e Banister appeals from the district court ’ s final decree of divorce . In six issues on appeal, Janet asserts that the district court (1) erred by fin ding that she brea c hed her fiducia ry duty to appellee Greg ory D. Banister , committed fraud on the ir community estate , and wasted th e ir comm unity asse ts ; (2) erred by characteriz ing certain real property acquired by Janet during the marriage as community rather than separate proper ty; (3) inc orrectly appraised other re al property in the estate ; (4) erred by excluding the testimony of a witness ; (5) erred by fail ing to awar d Janet and Greg equal amounts of the proceeds of the sale of their marital residence; and (6) abused it s discretion by f ai ling to aw ard Ja net spousal maintenance. 1 For reasons that we explain below, w e affirm the divorce decree

.

1 Because the partie s sh are the same last name , we will refer to them as Janet and Greg for clari ty and convenience.2 BACKGROUND Janet and Greg married in 1996

. On March 3, 2020, G reg filed a petition for divorce after he learned that Janet was having an af fair with another man , Kevin Mikulenc a k

. O n April 9, 20 20 , Janet filed a cou nter

- petition for di vorce
. J anet and Greg had three children together , two of whom were adults and one was fifteen years old at the time of the divorce , and they owned sever al re ntal properties , the value s of which w ere a major source of contention during the divorce

. The ca se proceeded to a bench trial on April 8 and 15, 2021. Witnesses at trial , whose testimony we discuss below, included Jan et and Greg ; Koa Short, the pe rson who
pur chased Janet and Greg ’ s marital resid ence after they filed for divo rce ; Vance Powell, the re al estate apprais er for Greg; Christopher Hogue, the real estate appraiser for Janet; and Janet ’ s mother and brother , Virg inia and John Debus , w ho testi fied about p roperty that Janet had acquired during the marriage. At the conclusion of trial, th e distri ct court gra nted the divorce and advised the parties that it was granting most of the relief requested by Greg , including that it found t hat Janet had b reach ed her fiduciary du ty to Greg, committed fraud on the comm unity estate, and wasted community assets

. Later , the d istrict court emailed the parties its property division

. In its division, t he district court valued the community estate at $3,993 ,630

. G reg was

aw arded $1,9 72,629 in net assets, or 50.15% of the estate, while Janet was awarded $1,961,001
in net assets, or 49.85% of the estate

. 2 Janet filed a motion for new trial and an amended motion for new trial, which the district cour t denied follow in g a he arin g. Subseque ntly , the district court signed its final divorc e de cree . Th is appeal by Jan et followed.

2 The d istrict court also made findings regarding custody and control of Janet and Greg ’ s minor child, but thos e findings are not at issue in this appeal and we need not discuss them here

. See Tex. R. App. P. 47.1.3 STA N DARD OF REVIEW In a divorce, the trial court shall divide the estate of the parties “in a manner that the court deems just a nd ri ght , having due regar d for the rights of each party and any children of the marriage. ” Tex. Fam. Code § 7.001. We review a tr ial court ’ s division of the marital estate for abuse of discretion, and the tria l court has broad disc retion in making its d iv isi on. See Penick
v. Pe nick , 78 3 S.W.2d 19 4, 198 (Tex. 1988); Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981) ; Iliff v. Iliff , 3 39 S.W.3d 126, 133 (Tex. App.

— Austin 2009), aff ’ d , 3 39 S.W.3d 74 (Tex. 2011) ; O ’ Carolan v. Hopper , 71 S.W.3d 52 9, 532 (Tex. A pp.

— A ustin 2002, no pet.) ( O ’ Carolan I ). Legal and factual sufficiency are relevant factors, rather than independent bases for reve rsal, in determining whether the trial court abused its discretion

. Iliff , 339 S.W.3d at 134 ; s ee Coburn

v. M oreland , 433 S .W. 3d 809, 823 (Tex . App.

— Austin 2014, no pet.); Zeifman v. Michels , 212 S.W.3d 582, 587 (Tex. App.

— Austin 2006, pet. denied). Thu s, in determining whether the trial court abused its discretion, we consider whether the court had sufficient evidenc e upon whi ch to exercise it s discr etion, and if so, whether it erred in the application of that discretion. Coburn , 433 S.W.3d at 823; Zei fman , 212 S.W.3d at 588. Every reasonable presumption should be resolved in favor of the trial court ’ s
proper exerci se of i ts di scretion in dividing th e parties ’ property. Zieba v. Martin , 928 S.W.2d 782, 791 (Tex. App.

— Houston [14th Dist.] 1996, n o writ ). “ We presume on appeal that the trial court correctly exercised its discretion when dividing property in a divorce procee ding , and the appellant bear s the burd en to show from the record that the division was so disproportionate , and thus unfair, that it constitutes an abuse of discretion. ” O ’ Carolan v. Hopper , 414 S.W.3d 288, 311 (Tex. App.

— Austin 2013, no pet .) ( O ’ C arolan II ); see Murff , 615 S.W.2d a t 699

- 700 ( listing fact ors that trial c ourt may consider in exercising its discretion , obs erving that4 “[ m] athematical precision in dividing property in a divo rce is usually not possibl e , ” and concluding that “[w]id e latit ude and di sc retion rests in these t rial courts and that discretion should only be disturbed in the case of clear abuse”) ; see also O’Carola n I , 71 S.W.3d at 532 ( “To constitute an abuse of discretion, the property division must be manifestly unfair. ” )

. I n makin g t he determination of a just and right division, the trial court is the sole judge of the witnesses ’ credibilit y and the weight to be given their testimony. Iliff , 339 S.W.3d at 138 (citing McGalliard v. Kuhlmann , 722 S.W.2d 694, 696 (Tex. 1986) ). The t ria l court is free to accept o r reject the testimony of each witness in whole or in part and to resolve any incon sistencies in the t estimony. Id

. The trial court does not abuse its discretion when it bases its decision on conflict ing eviden ce or w hen som e e vi dence of a probative and substantive character exists to support the division. I d

. at 134; Zieba , 928 S.W.2d at 787.

DISCUSSION
Fraud / waste findings against Janet In her first issue, Janet asserts that the district court e rred in ma king findin gs th at she breached he r fiduci ar y duty to Greg, committed fraud on the community estate, and wasted community assets

. She contends that these findings are not supported by the evidence. A fiduciary duty exists between a husband and a wife as to the com munit y property controlled by eac h spouse. Puntarelli v. Peterson , 405 S.W.3d 131, 137 (Tex. App.

— Houston [1st Dist.] 2013, no pet.); Zieba , 928 S.W.2d at 789. “ In the divorce context, a claim for a breach of fiduciary duty is the same as a cl aim fo r fra ud on the community , ” Ricks v. Ri cks , 169 S.W.3d 523 , 526 (Tex. App.

— Dallas 2005, no pet.) , which is “ a judicially crea ted concept based on the theory of constructive fraud , ” Zieba , 928 S.W.2d at 789. No dishonesty of purpose5 or intent to de cei ve m ust be estab lished to prove constructive fraud

. Puntarelli , 405 S.W.3d at
138. “ A presumption of constructive fraud arises wh ere o ne spouse breaches the fiduciary duty owed to the other spouse and disposes of the other spouse ’ s one - half interest i n co mmu nity
pr opert y without the other ’ s knowle dge or consent. ” Wheeling v. Wheeling , 546 S.W.3d 216 , 225 (Tex. App.

— El Paso 2017, no pet.)

. A related concept is waste of community assets , which occurs when one spouse, dishonestly or purposefully with t he i nte nt to d eceiv e, deprives the community es tate of assets to the detriment of the other spouse. Schlueter v. Schluet er , 975 S.W.2d 584, 58 8 (Tex. 1998).

“ Evidence of a spouse using excessive funds without the other spouse ’ s consent supports a waste f indi ng. ” Whee ling , 546 S.W.3d at 225 (citing G raves v. Tomlinson , 329 S.W.3d 128 , 151 (Tex. App.

— Houston [14th Dist.] 201 0, pet. denied) ). “ Expenditures for the benefit of a paramour also e stablish waste , ” i d . (citing Loaiza v. Loaiza , 130 S.W.3d 894, 90 0 (Te x. App.

— F ort W orth 2004, no pet.) ) , as do disbursements of community funds to relatives and friends , see Falor

v. Fal or , 840 S.W.2d 683, 688 (Tex. App.

— San Antonio 19 92, no writ). “ Further, while waste claims are often premised on specific transfers or gi ft s of co mmuni ty property to a third party , a waste judgment can also be sustained by evidenc e of community funds una ccounted for by the spouse in control of those funds. ” Wheeling , 546 S.W.3d at 225.
In t his case , the district court ’ s fraud and wa ste f in dings w ere b ased primarily on Janet ’ s al leged expenditures of community funds for the benefit of her paramour , Mikulenc a k

. Greg testified that w hen he and Janet were preparing to sell their marital residence, Janet “ took it upon herself to start ha ving th e house reno vated and to get it prepared for sale ” by authorizing Mikulenc a k to r e novate the property. Janet did not ask Greg if it was okay for Mikulenc a k to
start re n ovating the property . According to Greg, Mikulenc a k “ just s ho wed up ” at the hou se on e6 day to begin work without any e xplanatio n from Janet , and Greg “ did not interfere ” because he

“ did not want to make a scene in front of the kids

. ” Greg also testified that Janet told him that Mikulenc a k was living in a r ental house that Greg and Ja net own ed and that “ in lieu of any rent that he would be paying ” for living there, he would be making repairs to the marital residence

. Greg did not believe that “ the cost for the rent of the [rental] house would be enough to cover the efforts that [ Mikulenc a k ] was put ting in for the repairs , ” and Gre g “ figured [he] would have to pay him something, ” but Janet “ neve r told [Greg] what the repairs were going to cost. ”
He expl ained,

Sometimes some materials were needed, she would use our joint credit cards to pay fo r those mate rials so I was not aware of how much, material wise, we were paying for and how much he was paying for, if any, an d I didn ’ t know of any agreement, any c ontracts between Janet and [ Mikulenc a k ]

. I just thought we would figure it out. I intende d to

— I figur ed I would have to pay him s omething. I figured at some point Janet would produce this is how much hours, this is how mu ch material that [ Mikulenc a k ] spent on the house and if it was reasonable then that would have been fine.
Approxim ately t wo days bef o re closing on the sale of th e ir marital residence, Greg learned that , unbeknownst to him, Janet had signed a contract with Mikulenc a k for repair work on the proper ty

. Greg discovered this when t he t i tl e company inf ormed him that Mikulenc a k , ac ting on beh a lf of his company Centex Sol utions, had filed a lien against the property for $72,463.77 , which Mikulenc a k claimed was owed to him “ pursuant to a contract by and between Claimant and Janet & Greg Banister ” for repair s to the property. G reg tes tified th at he never signed any such con tract with Mikulenc a k

. A copy of the contract was admitted into evidence, and it show ed that it was signed by Janet but not by Greg. After learning of the lien , Greg “ confronted [ Mikulenc a k ] to ask him to ex plain t he invo ice a nd gi v e me some detailed7 inf ormation regarding hours and material costs. ” According to Greg, “ His reaction was that he does not do that, he does not divulge hours and material costs, he just puts a number out there. ” Greg added that he “ had d oubts a bout why t h e total was so high be cause the work that [ Mikulenc a k ] did we had estimates for from another provider ” th at was less than half the amount that Mikulenc a k was charging. Mikulenc a k also filed a second lien on the property, this on e a “ si x perce nt fi nder ’ s fee ” for finding a buy e r for the marital residence , K o a Short , who Mikulenc a k claimed

was “ a friend of a friend

. ” The six percent fee was based on the total amount of the $841,000 sale of the house , whi ch amounted to $50, 460.00. Greg f ound ou t abo ut thi s lien “ just days befor e closing, ” and he testified that before the n , he “ had no idea ” that Mikulenc a k was claiming any sort of finder ’ s fee in relation to the sale of the hous e. Greg testified that he did not sign any contract wi th Miku lenc a k for a finde r ’ s fee , but he learned that Janet did. A copy of th is
contract , signed by Janet, was admitted in to eviden ce
. Greg told Mikulenc a k that he did not
agree to the finder ’ s fee. Nevertheless, Greg paid Mikulenc a k a three percent fin der ’ s f ee that they negot iated the day before cl osing, for approximately $25,000. Greg explained , “ I still did not agree to [the finder ’ s fee] but [Janet] offered to lower that to three percent just to try to entice me to go through with the sa le of the h ouse. ” Greg t estif ied th at he did not believe i t was reasonable to pay Mikulenc a k anything for the sale of the house but that he “ felt pressured from the buyer who threatened to sue for perfor mance on the sale of the contract if I didn ’ t agree to close

. ” Greg e xplaine d,

Th e whol e situation to me seeme d like it was designed to force me to agree to the sale of the house with Kevin Miku l e n cak getting nearly $100,000 from the proceeds of the house a nd I had only two choices, to not sell the house and incur8 th e conse qu ences of t hat fr om the buyer or to go a head and sell the house and let Mr. Miku le n cak have the $100,000.

Short tes tified that he found the hous e “ on Zillow as an open house. ” When he and his wife atte nded the open house, he met Mikulenc a k for t he firs t time. Eve n thou gh Mikulenc a k showed Sh ort the house, Short ’ s interactions with him did not make him more or less likely to purchase the home. H e testif i ed , “ I liked the house, it didn ’ t matter what he said or did. ” Short acknowledged that he wa rned Gr eg that he w ould s ue him if Greg did not sell the house to Short

. Mikulenc a k rece ived other financial benefits from Janet

. As mentioned above, Mikulenc a k lived in a rental home that was owned by the community estate , but Ja net did not requir e him to pay ren t or utilities while he lived there. Greg testified that he and Janet had previously rented the house for $900. 00 per month, and Mikulenc a k lived there for approximately s ix or seven months

. During that same time , Janet and Greg spent app roximately $1 , 40 0 on ut ilities for the house. Also, G reg introduced into evidence a spreadsheet of expenditures that , Greg claime d , showed that Janet had spent $10,000 o n legal fees for Mikulenc a k and $1 7 ,5 6 0 for other le gal fees not related to t he divorce litigation

. Bas e d on the above , the district cour t assessed “ breach of fiduciary duty / waste claims against Janet Banister” for the following amounts : (1) $72,46 3.77, the “ amount paid to Kevin Mikulenc a k at cl osing of [the] mari tal residence ” for repairs to the property; (2) $25,230.00, the “ amount paid to Kevin Mikulenc a k at closing of [the] marital residence as finder ’ s fee ” ; (3) $6 , 300 , the “ loss of rent due to allo wing Janet Ba nister ’ s paramour [to] s tay in a rental property of the parties ” ; (4) $1,400, “ the utilities paid for Janet Banister ’ s paramo ur ” ;9 (5) $13,500, the “ attorney ’ s fees paid by Janet Banister to non

- divorce related counsel ” ; 3 and (6) $10,000, the “ attorney ’ s fees paid by Janet Baniste r for benefit of paramour. ” In arguing against these findings, Janet contends that she and Greg wer e no longer fid uc iar ies when t hey sol d their marital residence because by then , they had already filed for divorce and ret ained separate cou nsel

. See Sheshunoff v. Sheshunoff , 172 S.W.3d 686, 701 n. 21 (Tex. App.

— Austin 2005, pet. denied) ( acknowledging ge neral rule that “ [t] he fiduciary duty arisi ng from the marriage relationship does not continue wh en a husband and wife eac h hire independent professional counsel to represent them in a contested divorce proceeding ” but

r ej ecting “ a categorical rule that sp ouses who hire separate counsel to negotiate a property div ision can never owe fiduciary duties t o one another ” ) . Janet a lso argu es that be cause she was
not the “ managing spouse ” of the marital residence , she could not have committed any fraud relating to the sale of that property

. See Mazique v. Mazique , 742 S.W.2d 805, 807

- 08 (Tex. App.

— Houston [1 st Dist.] 1987, no writ) (limi ti ng construc tive fraud to trans fe rs of community property by spouse who controls property , i .e., “ the managing spouse ” )

. Regard ing waste , Janet

a rgues that “ [ t ] here was zero ev idence that the $72,463.77 and the $25,230.00 cl aims put forth by [Greg] were done dishones tly, or purposefully with the intent to deprive or deceive [Greg]

. ” Janet makes the same argument r egarding the cla ims for lost rent, utilities paid , and legal fees

. Regarding the legal fees, s he further argues that Greg “ failed to prod uce any evidence t hat these
amounts are for what he purports them to be, other t han listing them o n a spreadsheet and scant speculatio n about the claims

. ”

3 Although Gr eg ’ s spreadsheet indicated th at Janet paid $17, 560 for legal fees not related to th e divorce litigation , the district court found tha t Janet paid $ 13 ,500

.10 We will first address the findings regarding the $7 2,463.77 and $25,23 0.00 claims related to the sal e of the marital r esidence and the $6,3 00 and $1,400 claims related to rent and utilities provided to Janet ’ s paramour
. Assuming witho ut deciding that the re is in sufficient evid ence to support findings of breach of fiduciary duty / constructive fraud rega rding those claims , we conclude that th ere is sufficient evidence to support findings that Janet w asted

comm unity asse ts

. The evidence shows that Janet entered into two contracts with Mikulenc a k , one to repair the marital residenc e for $72,463.77 , and the other for a “ find er ’ s fee ” that
amount ed to $25,230.0 0. It is undisputed that Greg did n ot sign either of these contracts and was
not made aware of them until d ays before closing , when the title company informed him of liens
on t he property filed by Mikulenc a k

. Additiona lly, Greg testified t hat Janet told him that Mikulenc a k would be doing repairs o n the property free of charge , in exc hange for him living
rent

- free in one of their rental properties. This representation turned ou t to be false

. Regarding the finder ’ s fee, Short testified that he did not meet Mikulenc a k until after he had already foun d the house on Zillow and that his de cision to purchase t he residence was not based on anything that Mikulenc a k said or did. Greg di d not believe that Mikulenc a k should receiv e any finder ’ s fee , b ut Janet offered to lower the fee from six percent to three percent “ just to try to entice [Greg ] to go through with the sale of the house

. ” Although Greg ultimately agreed to pay Mikulenc a k , he agreed to do so only because there we re liens on the propert y at closing and the buyer was threatening to sue Greg if h e did not follow through on the sale

. As Greg explained,

“ The whole situation to me seemed like it was designed to force me to agree to the sale of the house with Kevin Mikule nc a k getting nearly $ 100,000 from the proceeds of the house

. ” A factfinder also could infer that Greg allowed Mikule nc a k to live in the rental house without requiring Mikulenc a k to pay rent or u tilities because J anet caused Greg to believ e that “in lieu of11 any rent that he wo uld be paying” for living there, Mikulenc a k would be making repairs to the marital residence. A lthough Mikulenc a k made repairs to the house , t hey were not free , contra ry
to Janet ’ s clai m
. We conclude that this evidence is sufficient to prove that Janet, dishonestly or purposefully with the intent to deceive Greg , deprived the commu nity estate of as sets to Greg ’ s detriment

. Janet further argues that the evidence is in sufficient to s upport the fu ll amount

a ssessed against her

. Greg testified that he was planning on repairing the mar ital residence to prepare it for sale and that he had received a bid on the repairs for approximately $30,000

. On

cross - examination, Greg agreed that t he repairs to the property increased the h ome ’ s resale value and that he suffered damages in the amount over the $30,000 that he would h ave paid anyway for the repairs

. Acc ordingly , of the $72, 463.77 that Greg pa id Mikulenc a k for repairs , only $42,46 3.77 was to his detriment. Thus, Janet argues th e amount a ssessed against her for w a ste was overvalued by $30,000. Additionally , Janet claims that there is scant evidence in the record regarding the $23,500 in legal fe es allegedly incurred by Janet for non - divorce related litigation , other than them being listed on a spreadshe et produced by Greg showing various payments to law f irms with o ut explanations for those payments

. She s tates that n o evidence would enable a factfi nde r
to infer that Janet made these pa yments fraudulently , such as to support a claim for breach of fiduciary duty / constr uctive fraud , or that she made these payments d ishonestly or purposefully with intent t o dece ive Greg , which would support a claim f or waste

. Assuming without deciding that Janet is correct, out of a total of $128,893.77 assessed against Janet for “ breach of fiduciary duty / was te , ” $ 5 3,500 .00 w ould n ot have been supported by some evidence of a substantive and probative character

.12 Nevertheless , our ultimate inquiry concerns t he trial court ’ s overall division of the community estate , and that division “ should be corrected on appeal only wh en an abuse of discretion has been shown. ” Murff , 615 S .W. 2d at 69 8. “ To constitute an abuse of discretion, the pr operty division must be manifestly unf air , ” O’Carolan I , 71 S.W.3d at 532 , and “ t he appellant bears the burden to show from the record that the divisio n was so disproportionate, and thus unfair, that it constitutes an abuse of discretion , ” O’Carolan II , 41 4 S.W.3d at 311

.

“ Moreover, we should reverse a court ’ s division of property only i f the error materially affects the court ’ s just and right division of the property. ” Von Hohn v. Von Hohn , 26 0 S.W.3d 631 , 640

- 41 (Tex. App.

— Tyler 2008, no pet.). “ A de m inimis effect does not require reversal. ” Roberts v. Rob erts , 402 S.W.3d 833 , 839 (Tex. App.

— San Antonio 201 3, no pet.)

. Here, in its property div ision spreadsheet, the district court valued th e community
estate at $3,993,630

. On this record, w e cannot conclude that overvaluing the amount of Janet ’ s
waste by $53,500 , which represents approximately 1.34% of the es tate ’ s value , resulted in a “manifes tly unfair” division of the property or had any t hing more than a de minimis effect on the district court’s division of the property, particularl y considering that the district court award ed Greg 50.15% of the estate an d Janet 49.85% of the estate

. As disc ussed above, t here was sufficient evidence to s u pport a fin ding that Janet wasted at least $75,393.77 of community
assets , and Janet has failed to carry her burde n to show that the district court ’ s accounting for an additional amount of waste resulted in a n overall division of the community es tate that was “ so disproportionate ” or “ so unjust and unfair ” that it constituted an abuse of the district court ’ s broad dis cretion in dividing the estate

. See, e.g. , Schlueter , 975 S.W.2d at 589 (explaining that
t ria l courts “have wide discretion and are allowed t o take many factors into consideration in making a just and right division, including wasting of community assets ” (internal citation13 omitted) ); Wheeling , 546 S .W.3d at 227 (concluding that there was s ufficie nt eviden ce that wife wasted community assets a n d that, even if evidence was insufficient , wife failed to meet her

“ burden to show that the alleged error caused t he trial court to abuse its discretion in the overall division of the community estate ” or tha t “ this error, if any, had more than a de minim i s effect on the just and right division of the community estat e ” ) ; see also Diaz Maldonado v. Medrano , No. 13

- 18

- 0 0525

- CV , 2019 WL 3953110 , at *4 (Tex. App.

— Cor pus Christi

- Edinburg Aug. 22, 2019, no pet.) (me m. op.) (concluding that wife , when challenging trial court ’ s finding that she co mmitted constructive fraud, “ failed to carry her burden on appeal of showing from the evidence in the record that the trial cou rt ’ s division of the community estate was so unj ust and unfair as to constitute an abuse of dis c retion ” ) ; Bennett v. Bennet t , No. 09

- 17

- 00162

- CV , 2019 WL 1940859 , at *12 (Tex. App.

— B eaumont May 2, 2019, no pet .) (mem. op.) (con cluding that there was suffi cient evidence to support trial court ’ s waste fi nding and that , e ven if appellate
court “ wer e t o have reached a different conclusion

. . . as to the sufficiency of the remainder of the evidence ” regarding waste , husband “ failed to meet his burden ” to “ demo nstrate that the alleged error caused the trial court to abuse its discretio n in the overall di v ision of the community
estate ” ) ; In re Marriage of Garcia , No. 14

- 17

- 00444

- CV, 2019 WL 1523483, at * 4

- 5 (Tex. App.

— Houston [14th Dist.] Apr. 9, 2019, no pet.) (mem. op.) (explaining that appealing party

“ must not only show that there is insufficient evide n ce to support the trial court ’ s waste finding, but also that the erroneous finding caused the trial court to abuse its discretion in the overall division of the community estate ” ).
We overrul e Jan et ’ s first issue.14 Charact erization of property During the m arr iage, Janet and her brother John f o rmed a company , Landsraa d,
LLC , that bought land

. Janet and John each acquired a 50% ownership in terest in the compan y. The district court characteriz ed Janet ’ s interest in Landsraad as community property. In Jane t ’ s second issue, she ass erts that this interest s hould have been characterized as h er separate pro p e rty. 4 In dividing the marital estate, “ [ t ] rial courts can only divide community property , ” not separate property. Pearson v. Fillingim , 332 S.W.3d 361, 36 3 (Tex. 2011)

. Community property is the property , other than separate property, ac quired by either spouse during marriage. Tex. Fam. Code § 3.002. Separate property is the property owned o r claimed by the spouse before marriage, as well as property tha t the spouse acquired dur ing marriage by gift, dev ise, or descent. Tex. Const. art. XVI, § 15; Tex. Fam. Code § 3.00 1. Property possessed by either spouse during or on dissolution of marriag e is presumed to be community property. Tex. Fam. Code § 3.003(a )

. “Parties claiming ce rtain
p roperty as their s eparate property have the burden o f rebutting the presumption of community property.” Pearson , 332 S.W.3d at 363. Meeting this burden requir es tracing and clearly identifying the property in question as se p arate by clear and conv incing ev idence. Id .; se e Tex. Fam. Code § 3.003(b) (“The degree of proof necessary to establish that property is separate property is clear and convincing evidence.” ). “ ‘Clear and convincing evidence’ means the measure or degree o f proof that will produ ce in the mind of the tri er of fact a firm belief or convict ion as to the t ruth of the allegations sought to be established.” Tex. Fam. Code

4 Greg a s serts that Jan et failed to prese rve error on this issue

. However, Janet argued during tria l that Landsraad was separate property and objected t o the characterization of it as community property. T h us, she preserve d error. See Tex. R. App. P. 33.1 (a)

.15 § 101.007; Ganesan v. Val labhaneni , 96 S.W.3d 345, 354 (Tex. App.

— Austin 2002, pet. denied )

.

“ Tracing involves e stablishing the separate origin of the property through evidence showing th e time and means by whi ch the spouse originally obtained possession of the property. ” Ganes an , 96 S.W.3d at 354 (citing Whorrall v. Whorrall , 691 S.W.2d 32, 3 5 (Tex. App.

— Austin 19 85, writ dism ’ d) )

. I n de termining the separate or community cha racter of a corporation formed during a marriage , Texas courts “ requ ire the parties to clearly trace th e separate and community property assets that were contributed duri n g the formation of th e corporation. ” Allen v. Allen , 704 S.W.2d 600 , 604 (Tex. App.

— Fort Worth 1986, no writ ) (citing Vallone v. Vallone , 644 S.W.2d 455, 457 (Tex. 1982); Marriage of York , 613 S.W.2d 764, 769

– 70 (Tex. App.

— Amarillo 1981, no writ) )

. “ Cor p orations organized du ring marriage and capital ized e ntirely with traceable separ ate property of one spouse are characterized as the separate property of that spouse. ” Id . (citing Holloway v. Holloway , 671 S.W.2d 51, 56

– 57 (Tex. App.

— Dallas 1983, writ dis m ’ d) )

. Janet testified that she formed and acqu ired her 50% ownership interest in Landsraad in 20 08, duri ng her marriage to Greg

. The agreement to form the company (the Agreem ent) indicated that Janet made a $500 capital contribution to acquire her ownersh i p interest , although the Agr eement does not sp ecify the source of th at contribut ion

. At the tim e of trial, Landsraad owned three parcels of land in Taylor , Texas, tw o that originally belo nged to
Janet ’ s great grandparents (the Windy Ridge propert ies ) and one that Landsraad pu rchas ed directly through a realtor (the Rowe Valley propert y)

. The record reflects that all three properties were acquired by Landsraad after the company was formed. On December 26, 2008, approximately seven months after Landsraad w a s formed, Landsraad m ade a resolution under16 wh ich Janet, as president of the com pany , was author ized to purchase the Windy Ridge properties and to borrow $346,440 from her mother to purcha se these properties. The Rowe Valley property was purchased someti m e after that. Althou gh Janet characterized th e Windy Ridge p ropert i es as an “ in herit ance ” from her family, she test ified that she had purchased the propert ies from her mother by taking ou t a note on the property , the cu rrent balance of which

was approxim a tely $145,000 that sh e still owed to her mothe r
. Greg testified that Landsraad was a “ 50/50 pa rtnership ” formed between Janet and her brother , that t he partnership had purchased land fro m Janet ’ s mother , and that “ there ’ s a loan associated with that trans a ction , ” which the p artnership “ pays [] back every month. ” Greg also testified that he and Jan et contributed community funds to Lan dsraad in an amount between $1,000 and $2,000 monthl y t o make payments on the loan

. The total amount th at they contributed w as approximatel y $151,275

. Janet ’ s mother Virginia Debus testified that her i ntent in tra nsferring the Wi ndy Ridge properties was to “ give it as a gift to my children ” and not to th eir spouses. Virgin i a denied that there was a ny loan on the property. Ja n et ’ s bro th er John testified that th e transfer of the W indy Ridge p roperties “ was set up a s a purchase ” through their mother, who owned the la nd after their father died. The intent of the purchase was to “ buy out ” the ir siblings, the other heirs to the la n d , so that Janet and John could own it in full

. John explained , “ [ T ] he way i t was set up , [ Virginia ] would gift the children their part of this inheritance each year and we funnele d ours back to her as payments toward the purchase so we didn ’ t keep any o f the money , it just went to pay the payments. ”
Two versions of the Agre ement were a dmitted into evidence. B oth versions of the A greement a re largely identical, except that th e second version of the A greement includes17 provisions that “ if the marital relat i onsh ip of a Memb er is termina ted by divorce, such Member ’ s interest in the Company shall be deemed separate property ” and that “ the Assignee Spouse , ” i.e., the spouse of eithe r Janet or John , “ waives any and all community property rights. ” Also, the

seco n d ve rsion of the A greement is missing a right

- of

- first

- refusal provis io n that is re ferenced in both versions of the A greement and misspel ls the name of Landsraad as “ L andraad ” in the footer of the document. The signatures of the parties appear identical i n ea ch version of the Agreeme nt

. A h otly contest ed issue at trial was w hether the first or second version of the Agr eement w as t he authentic version

. Janet claim ed that the second version of the Agreement was the one that she and Greg had signed “becaus e th a t’s the only one” that sh e had in her possession. Greg claimed tha t the first version of the Agreement, whic h did not waive his community

- property rights, was the one tha t they had signed

. Greg testified , “ I would have never signed a document

. . . w aivi ng any claim that the val ue of the entity is not community property and I would never have waived any right to reimbursements for the monthly payments that we make. ”
We co nclude that the above evidence falls short of proving by “ clear and convincing e v iden ce ” that Ja net ’ s interest in Landsraad was separate property. She formed the

c ompany during the marriage, and there is no evidence in the record that she used separate
pr operty to acquire her 5 0 percent owner ship interest in the company

. To the exte n t th at Janet ’ s mother intende d t he Windy Ridge properties to b e a gift to Janet, th e properties were acquired several months after Landsraad was formed, so they could not have been used to acquire Janet ’ s ownership in terest in Landsraad

. Moreo ver, a gift is a voluntary transfer of pr operty to another made gratuitously and wi thout consid eration. Nipp v. Broumley , 285 S.W.3d 552, 558 (Tex. App.

— Waco 2009, no pet.). E vidence wa s presented that Landsraad purchased the Windy Ridge properties from Janet ’ s mo t h er, and it did so by ta king out a $ 3 4 6 , 4 4 0 note on the18 property , which Greg testifi ed was being repaid monthly to Janet ’ s mother from community funds. Thus, we cannot say tha t there is clear and convincing evidence that the Windy Rid ge properties were a g ift to Janet, even if h er mother claimed that they were . Finally , there was confli cting evidence presented on whether the parties signed the f irst or the second version of th e Agreement, and we cannot say that the re was “ clear and convincing evidence ” t h a t the authentic versio n of the Agreement was the one that charact erized Landsra ad a s separate property and that waived “ any and all ” o f Greg ’ s community property rights

. The trial court reasonably could have credited Greg’s testimony that he willingly u s e d approximately $151,27 5 of community funds to r epay the loan that Landsraad took o ut to purchase the Win dy Ri dge properties

. We conclude that the district court did not err in charact erizing Janet ’ s ownership interest in Landsraad as community property

. We overrule J anet’s second issue.
Appraisal of r ental properti es Janet and Greg o wned ten rental properties at the time of the divorce , and each used se parate real estate appraisers to value the properties . E ach came up with diffe rent appraisals of the pr operties , and t he district court value d the properties using the appr a isals provi ded by Vance Powell, Greg’s expert , rather than the appraisals provided by Christopher Hogue, Janet ’ s expert

. In her third issue, Janet a sserts that the district court abu s ed its discretion by crediting the appraisa ls of Greg ’ s expert on seven of the rent al propert ies . She further asserts that the district court erred by fa iling to deduct the “ cost s of sale ” from the value of those proper ties

.19 In valuing the assets in an estate, “ [ w ] here the uncontested evidence establishes only one value, the t rial court cannot draw a different inference. ” Banker v. Ba nker , 517 S .W.3d
863 , 8 70 (Tex. App.

— Corpus C h risti

- Edinburg 20 17, pet. den i ed)

. However, “ if several values
are g iven, or if a witness testifies that the value may be higher or lower than his es timate, the
court ’ s determination of the value should be wit hin the ran ges in the e vidence. ” Id . (citing Van Heerden v. Van Heerden , 3 2 1 S .W.3d 869, 880 (Tex. App.

— Houston [1 4th D i st.] 2010, no pe t.);
Mata v. Mata , 710 S.W.2d 756, 758 (Tex. App.

— Corpus Ch risti 1986, no writ) )

. So long as the value is within that range, ther e is no abus e of discretion. See Pelzig v. Berkebile , 931 S.W.2 d
398 , 403 (Tex . App.

— Corpus Chr i sti

- Edi nbur g 1996 , no writ )

. Powe ll testified that he ha s been in the appraisal busine ss since 1973 an d that since 1975, he ha s been appraising residential r eal property specifically within and around the Williamson County area , which i s where the subject prope rties were located. Powell also testified that he is a m emb er of the Appraisal I nstitute , a Senior Residential Appraiser , a general certified state app raiser for the State of Texas , and a realtor . He testified extensivel y regardi ng his methodology for ap prais i ng residence s and prov ided detailed explanations for h is appraisals of the properties

. Nevertheless, Janet argues that Powell ’ s appraisals were n ot credible because he “ nev er walk ed inside of any of the proper ties in q uestio n ” to see the repairs tha t she asserts were needed . Ho wever, Powell testified that J anet and Mikulenc a k , the m anager of the propert ies , did not allow him inside the properties when he was preparing his appraisals and only gave him permission to ente r the properties shortly before tria l

. Additionally, Powell provided extensive testimony a s to why he believed the appraisals of Hogue, Janet ’ s appraiser , were unreliable, including Hogue ’ s inexperience in the appraisal business. T he district court , as the jud ge of the weight and cred ibili t y of t he witnesses, was entitled t o credit the opinion s of Powell20 a nd to di s credit the opinions of Hogue. On this record, we cannot conclude that the district court abused it s discretion in a ssigning values to the properties that were c onsistent wit h
Pow e ll ’ s appraisals

. Regarding the costs of s elling the propert ies, alth ough a trial court has discretion to deduct such costs from its propert y valu ation , s ee , e .g. , Pelzig , 931 S.W.2d at 40 3 ; Cole

v. Cole , 880 S.W.2d 477 , 484 (Tex. App.

— Fort Wor th 1994, no w rit) , such a deduction is not mandatory. Furth ermore , Janet testifi ed that she d oubted the properties could be sold currently

“ b ecause the market is so high r ight now ” that potential buyers would “ not be able to get a bank loan , ” and she also testified t h at continuing to rent the properties was her “ b est hope for a
prospe rous life of any kind

. ” Accordingly, the district court would not have abused its discretion
in finding that any potential sale of the properties was speculative and uncertai n at the tim e of trial and in de cl ining to deduct the costs of s ale from the valu ations for that reason

. We overrule Janet ’ s third issue.

Exclu sion of witness At trial, Jane t attempted to call her sister

- in

- law, Gr etchen T oler, to testify regardin g the Landsraad con t ract. Toler, the wife of Janet’ s brothe r John, had signed th e contract along with Janet, Gre g, and John. However, during discovery , Janet failed to disclose Toler as a witness , and the distr ict court , followin g Greg ’ s objection to Tol er ’ s testimony for t hat reason , excluded Toler as witness

. See Tex. R. Civ . P. 1 93.6(a). In her fourth issue, Janet asserts that th e district court ab used its discretion in doing so. Greg argues that Janet fa iled to preserve erro r on this issue. To pres erve error concerni n g the exclusion of evidence, t he complai ning party must demon strate the substance of21 the ex cluded evidence through an offer of proof or a bill of exception unless the substance of the eviden ce is apparent from t he context. Tex. R. Evid . 103(a)(2); Compto n v. Pfannenstiel , 428 S.W.3d 88 1, 885 (T ex. App.

— Houston [1st Dist.] 2014, no pet.) ; Sink v. Sink , 364 S.W.3d 340, 347 (Tex. App.

— Da llas 2012, no pet .)

. “ The reviewing court may be able to d iscern from the reco rd the nature of the evid ence and the propri e ty of the trial court ’ s ruling; h owever, without an offer of p roof, we can never determine w hether exclusion of the evidence was har mful. ” Sink , 364 S.W.3d at 347. Here, Janet argued at tria l that Toler “ has pe rsonal knowledge of the c ontract ” but

never m ade an offer of proof or a bill o f excep tion showing the subst ance of Toler ’ s testimony regardi ng the contract

. Without that inform ation, we could not conclude that Janet was harmed by the excl usion of Toler ’ s testimony , even if the ex clu sion ha d been er r oneous. Accordingly,

we conclude th at J anet failed to preserv e error on this point

. See Compton , 428 S.W.3d at 88 6 ; Sink , 364 S.W. 3d at 347 (Tex. App.

— Dallas 2012, no pet .) ; see also Triesch v. Tries ch , No. 03

- 15

– 00102

– CV , 2016 WL 103 9035 , at *6 (Tex. A p p.

— Austin Mar. 8 , 2016, no pet.) (mem. o p.)

. We overrule Janet ’ s fourth issue.

Proc eeds from the mari t al residence
Janet a nd Greg each received approximat ely $204,000 from the sale of their
marital res idence. However, in i ts div ision of property , the district court listed this amount as an asset for J anet but not for Greg

. In her fifth issue, Janet asserts that t his resulte d in a di visio n of the community estate that was not just and right. In Janet ’ s view, “ the trial court should have22 either assign e d both parties the same amount on the division spreads he et or decline [d] to assign the amount to either party. ” In a divorc e decree, a tr ial court must “order a division of the estate of the parties
in a manner that the court d eems just and right, havin g due regard for the rights of eac h party and any chil dr en of the marriage.” Tex. Fam. Code § 7.001; see Bradshaw v. Bradshaw , 555 S.W.3d
5 39, 543 (Tex. 2018) (defining “just,” “right,” and “due regard” a nd descri bing abuse of di scretion standard for revi e wing trial c ourt ’ s division of ma rital estate). The di vision must be equitable, but the trial court does not have to divide the marital es tate equally. Murff , 615 S.W.2d at 698

– 99. If there is a reason able basi s for an unequal division of the property i n the record , the trial court has not abused its disc re tion. See id .; O’Carolan I , 71 S.W.3d at 532 (explaining t hat trial c ourt’s discret ion is not unlimited and that there must be a reasonable basis fo r divisio n). Here, ther e is a reasonable basis in the record for the unequal divisi on of the proceeds. “ The value of community assets is generally determined at th e date of d ivorce or as close to it as possible. ” Wheeling , 546 S.W.3d at 228 (citing Han dley v. Handley , 122 S.W. 3d 904, 908 (Tex. App.

— Cor p us Ch ri sti

- Edinburg 2003, no pet. ); Grossnickle v. Grossnickle , 93 5 S.W.2d 830, 837 (Tex. App.

— Texarkana 1996, writ denied) )

. E vidence was presented that
at t he time of the divorce , Janet still had possession of her procee ds from the sale of the residenc e
. Specifically, in a document ha nd written by Janet en t itled , “ Trace of Proceeds from Sale of 36 Woodland Loop [the marital r esidence] ” that was produced durin g discovery, Janet wrote that $80,309 o f the proceeds was in a “ money order I have, ” another $80 , 0 00 was “ cash in [a] safe , ” and t he other $44,000 was deposi ted into an account that Janet owned. The document further state d that Janet had $204 ,309 “ Total Available Funds in account statements

. ” This was23 the exact amoun t that the district court listed as an ass e t for Janet from the sa le of the proceeds

. When a sked if she thought it was fair tha t the sale proceeds be reflect ed as an asse t aw arded to her, Jan et testified , “ I do. ” On the other han d , Greg testified that he had only approximately $15,200 r e maining from his proceeds of the sale because he had spent most of the proceeds on paying off his and Janet ’ s credit cards a nd on his living expenses. Based on this evidence , we cannot conclude th at the district court abu sed its discretion in listing Ja n et ’ s proceeds from the sale as an asset but in not doing the same for Greg. We overrule Janet ’ s fifth issue.
Spousal ma intenance
In her sixth issue, Janet asserts that the district court abu sed its discretion in fai ling to awa r d her any sp ousal ma inte n ance . She argues that she is e ntitl ed to sp o usal maintenance because she lack s sufficient property and income to meet he r minimum reas onable needs , ha s not worked outside of the home in over 20 years, and her only sour ce of incom e w as from her employ ment wi th Greg ’s business

. Family Code C hapter 8 governs the award of spousal maintenance in a divo rce decree. See Tex. Fam. Code §§ 8.001

- .359; Dalton v. Dalton , 551 S.W.3d 126, 13 0 (Tex. 2018) (“ In 1995, the Texas Legisl ature first au th orized courts to awar d a form of involuntary post

divorce alimony referred to as ‘spousal maintenance.’ ”). The Famil y Code defines “maintenanc e” as “an awar d in a suit for dissolution of a marriage o f periodic payme nts from the future incom e of one spo us e for the support of th e other spouse.” Tex. Fam. C ode § 8 .001(1). “The legislative purpose in enacting provisions for spousal maintenance was to provide
tem porary and rehabilitative support for a spo use whose abilit y for self

- support is lac king or has24 de te riorated over ti me wh i le engaged in homemaking act ivities and whose capital assets are insufficient to provide suppor t.” O ’ Carolan I , 71 S.W. 3d at 533

. The Family Code authorizes trial courts to awa rd spousal maint enance in “very limited c ircumstances ” if the parties mee t cer t ain eligibility requirements

. Dalt on , 5 51 S.W.3d at 130 (quoting McCollough v. McCollough , 212 S.W.3d 638, 645 (Tex. Ap p.

— Austin 2006 , no pet.))

. In this case , Jane t would be eligible for spo usal maintenance if she ( 1) lack s suf fi ci ent property, in cludi n g her separate property, on dissolu tion of the marriage to provide for her minimum reasonable needs ; (2) has been marrie d to Greg for 10 years or longer ; and (3) lacks the abili ty to earn suffi cient income to provide f or her minim um r easonable needs

. Tex

. Fam. Code § 8.051(2)(B).
Janet , who was 5 4 years old at the time of trial, work ed for Shell Oil until 2000 and began working for Greg ’ s software

- development company in 2003 , alth ough the nat ure of her work at th e co mpany was un clea r
. 5 Janet conti nued to work for Greg ’ s compa ny at the time of trial, although she testified that her em ployment there would end when the divo rce was finalized. Janet also owned a business called Diamon d Pr o perty H oldings, LLC , and she
tes tified that this bus iness involv ed buyi n g distressed properti es, f ixing them up, and then either renting or “ flipping ” t he properties. Janet testified that t his would be her only source of income following the divorce and that it would be “ three to five y ears ” before all ten properties that sh e owned could be a rel iable source of steady income for her. S he opined that eve n though she ha d

5 Greg te stified that altho ugh Janet was “ technically ” an employee of his company and was on p ayro ll so t hat contri butions co u ld be made to her retirement accounts , Janet was not involved with the company “ at all

. ” Janet disputed that she had no role in G reg ’ s com pany but acknowled ged that when she first started working for him , she though t she “ was going to do t he ma rketing and he was going to do the software but a ppare ntly his thoug hts were different and he did not want me to be part of t hat company

. ”25 two degrees, includin g one from Texas A&M , she did not believe that she could star t another

ca reer at her age because h er “ job had been rel egated to ju st taki n g care of the kids so [she ] lost [her] s kills for 15 years. ” When asked ho w muc h she was requesting that the court aw ard her in spousal maintenance, Janet testified that she was “ not s ure [o f] the exact number ” but that the

mon t hly pay ment on the note s f o r the rental properti es wa s $11,000 and that she was currently earning monthly i ncome of $4,000 from her rental proper t ies “ due to COVID. ” To help offset that deficit, Janet was a sking for $ 3,000 a month for a durat ion of “ some where bet ween three to five years
. ” Greg testifi ed th at Janet ’ s job at Shell Oil in vol ved marketing and rea l estate and that she had quit in 2000 to help raise their child ren
. In 2003, Janet began wor king for Greg ’ s

c ompany, where she made ap proxima tely $43 ,000 per year . G reg ackn o wledged that he planned

o n terminating Janet ’ s employment from his company upon the grant ing of their divorce

. Greg testified that he was opposed to paying sp o usal maintena nce to Janet beca use she “ has enough
asset s to wh ere she does n ’ t need it , ” “ has in c ome from her re al estate business , ” and was apparently “ employed by Centex Solutions which is Kevin Mikule nc a k ’ s comp any
. ” A copy of

a business card was admitted into evide nce that listed J anet as the “ Operations M anager ” for
Centex Solutions, In c., whic h was Mikulenc a k ’ s “ r oofin g and r e mod eling ” business. Janet denied that she worked for Centex S olutions or was receiv ing any money from either the
company or Mikulenc a k

. When confronted wi t h th e business card from Centex Solutions that had he r n a me on i t , Janet testified t hat she recognized the card but denie d creating or using it

. The record also reflects tha t the dis trict court awarded Janet $1 , 961,001 of the net community estate, which i ncluded $215,000 in cash and banking accounts , multiple rental

pro d ucing prope rties in Will iamson County , and Janet ’ s inter est in Landsraad , which owned26 thr ee other properties in Will iamson County

. The district court could have reasonably inferred that this property was suffi cient to meet Jane t ’ s min i mum r easonable need s
. Addition ally, Jane t

o wned her own compan y that rented homes in Will iamson County , she was earning at l east $4,000 per month fr om that business, and there was some evidence presented that Janet worked for Mik ulenc a k ’ s compa ny , Centex Solutions , as an Op e rations Man ager
. From t his evidence, the district court could have reasonably inferred that Janet did not lack the ability to e arn sufficient income to provide for her minimum reasonable needs

. We cannot conc lude on this

re cord that the district court’s decision to deny J anet’s request for spousal maintenance was

“ manifestly unfair

. ” See Chafino v. Chafino , 228 S.W. 3 d 467 , 475 (Tex. App.

— El Paso 2007, no pet.); s ee also Browne v. Browne , No. 03

- 08

- 00185

- CV , 2 010 WL 1730066 , at *3

- 4 ( Tex. App.

— Austin Apr

. 29, 20 10, no pet.) (mem . op.).
W e overrule Janet ’ s si xth issue.

CONCLUSION
We have found no abuse of discretio n or error in the district court ’ s di vorce decree ; therefore, we affirm.

________________________ __________________ Gisela D. Triana , Jus tice
B efore Justices Baker, Triana, and Theofanis Affirmed Filed: June 13 , 2023