## NUMBER 13 - 16 - 00180 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

GARY WILLMORE , Appellant ,

v. ZAHIRA ALCOVER , Appellee.
On appeal from the 309th District Court of Harris County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Valdez
A ppellant Gary Willmore and a ppellee Zahira Alcover married in 2008. T he parties divorced seven years later. No children were born of the marriage. Following a bench2 trial, the trial judge entered a final decree of divorce that divided the marital estate

. 1 See
T EX

. F AM

. C ODE A NN

. § 7 .001(1) (West, Westlaw through 2017 1st C.S.) (pro viding that

“ the court shall order a division of the estate of the parties in a manner that the court deems just and right ” ). Willmore contends in five issues the divorce decree should be reversed and the case remanded for a new trial. 2 We affirm. I. W ILLMORE ’ S I NVENTORY 3 By his first issue, Willmore contends that the trial “ [j] udge committed harmful error when [it] refused to allow [him] to put on evidence of the character or value of [marital] property, or to rebut [ Alcover’ s] evidence.” A. Pertinent Facts On the first day of trial, Willmore filed an inventory and appraisement of the marital estate, as required under local rule 4.2 of the Harris County Family Trial Division. See
H ARRIS C OUNTY F AM

. T RIAL D IV

. L OC . R. 4.2 (providing that divorcing spou ses must exchange an inventory listing each item of property and its value and all other relevant financial information )

. Alcover sought to exclude Willmore ’s inventory on the basis that he failed to exchange the inventory at least ten day s in advance of trial , as required by

r ule 4.2

. See id . (providing that the parties must exchange their respective inventories at least t en days in advance of trial). Alcover further asserted that Willmore ’s failure to provide at least ten day s’ notice called for not only the exclusion of the inventory i tself,

1 This case is before the Court on transfer from the First Court of Appeals in Houston , Texas pursuant to a docket equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001 (West, Westlaw through 2017 1st C .S.).

2 Alcover has not filed an appellate brief in response to Willmore ’s appeal

.
3 As this is a memorandum opinion and the pa rties are familiar with the facts of the case, we will not recite them here except as necessary to advise the parties of this Court's decision and the basic reasons for it

. See T EX

. R. A PP

. P . 47.4.3 but also any evidence offered by Willmore to contradict the information contained in the inventory Alcover filed with the court , which had been timely served on Willmore in advance of trial

. Will more responded that he had not been provided adequate notice of Alcover’s intention to exclude his inventory under rule 4.2 and that he would have been able to demonstrate compliance with the rule had he been so told prior to the day of trial

. However, Willmore did not request that the trial be continued to afford him an opportunity to demonstrate compliance with rule 4.2 . After hearing arguments from both sides on the issue, t he trial judge expressly declined to rule on Alcover’s motion to exclude unde r rule
4.2

. Willmore did not obtain or otherwise urge a ruling from the trial court at that time. The trial judge then began the evidence portion of the trial with Alcover’s testimony. On the second day of trial, t he rule 4 .2 issue quickly resurfaced w hen Alcover objected to a question that Willmore posed to her during cross examination concerning improvements to a specific piece of property. After Alcover objected, t he following colloquy between the trial court and Willmore ’s counsel occurred: Trial judge: [Wife’s] objection is sustained. Next question. Willmore : I don't even remember what the question was, J udge. Trial judge : Well, I sustained it, so ask the next question. Willmore : I don't know what the next one is. Willmore : Oh, with regard to . . . [ new question posed to wife] Willmore made no attempt to obtain a ruling on Alcover’s motion to exclude, which had been filed the previous day. Furthermore, Willmore did not attempt to make a record of what he believed Alcover would have said ha d the trial judge not sustained Alcover’s objection to his question concerning improvements to the piece of property

.4 B. Preservation Willmore argues that the trial co urt erred in excluding information contained in his inventory under rule 4.2 because he was not afforded adequate notice of Alcover’s motion to exclude in advance of trial. To support this argument, Willmore points to the porti ons of the record recited above. The burden is on the complaining party ( Willmore ) to present a suffici ent record to the appellate court to show error requiring reversal. See T EX

. R. A PP

. P. 33.1(a)

. A party
must take the following steps in order to preserve err or stemming from the exclusion of evidence:
1. attempt during the evidentiary portion of the trial to introduce the evidence;
2. if an objection is lodged, specify the purpose for which [the evidence] is offered and give the trial court reasons why the evidence is admissible;
3. obtain a ruling from the court; and
4. if the court rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted. Ulogo v. Villanueva , 177 S.W.3d 496, 502 (Tex. App.

— Houston [1st Dist.] 2005, no pet.)

. Here, Willmore fails to present this Court with a sufficient trial record demonstrating compliance with the steps set out above. See id

. Willmore made no attempt to obtain a definitive ruling on Alcover’s motion to exclude

. Furthermore , we have no record of the precise evidence Willmore sought to admit or what Alcover’s response to Willmore ’s question would have been

. See Ulogo , 177 S.W.3d at 502 ; see also Greensteln, Logan & Co. v. Burgess Mktg., Inc ., 744 S.W.2d 170, 181 (Tex. App.

— Waco 1987, writ denied) ( concluding that error was not preserved because reporter's record did not show what5 evidence was refused). We therefore conclude that Willmore failed to preserve his first issue for appellate review

. See T EX

. R. A PP

. P . 33.1. II. R EIMBURSEMENT C LAIM By his third issue, Willmore contends that “[i]t was harmful error for the [j]udge to refuse to allow [him] to put on evidence of his reimbursement claim[.]” However, as with his first issue, Willmore has failed to provide us with a su fficient trial record demonstrating compliance with the steps listed above

. See Ulogo , 177 S.W.3d at 502

. Specifically, we have no record of the precise evidence Willmore sought to admit or what evidence was refused in regard to his reimbursement claim

. See id . At trial, Willmore referenced a “CD” in regard to his reimbursement claim, but he failed to make an offer of proof or otherwise include this evidence in the appellate record

. We conclude that Willmore failed to preserve his thi rd issue for appel late review. See T EX

. R. A PP

. P . 33.1. III. D IVISION OF M ARITAL E STATE P aragraph 7.7 of the divorce decree ordered Willmore to pay Alcover $ 275,000 as a means of equalizing the division of the marital estate

. According to the decree, this equalizing payment was ordered “ for the purpose of a just and right division of property .” By his fourth issue, Willmore contends there is insufficient evidence to justify this payment

. A trial judge must divide the estate of divorcing spouses in a manner that is just and right, having due regar d for the rights of each party. See T EX

. F AM

. C ODE A NN . §
7.001

. Although the division must be equitable, the trial judge need not divide the marital
estate e qually. Richardson v. Richardson , 424 S.W.3d 691, 696 (Tex. App.

— El Paso 2014, no pet.). The trial judge is afforded broad discretion in its division of marital property6 upon divorce. See Murff v. Murff , 615 S.W.2d 696, 698 (Tex.1981). We address two
q uestions in determining whether the tr ial court abused its discretion: “ (1) did the trial court have sufficient information upon which to exercise discretion, and (2) did the trial court abuse its discretion by making a property division that was manifest ly unjust or unfair? ” Richardson , 424 S.W.3d at 696. Willmore concedes that the trial judge divided the marital estate “ about evenly, ” based on the inventory Alcover filed with the judge

. Nevertheless, Willmore asserts that the trial judge lacked sufficient information upon which to order the equalizing payment when the judge allegedly excluded evidence to which his first and third issues relate. However, as noted above, we have no record of the precise e vidence Willmore sought to admit. Furtherm ore, even if Willmore had furnished a record of the allegedly excluded evidence, our review would be limited to the evidence admitt ed at trial. See id

. Willmore does not discuss the evidence that could have supported the equalizing payment

. Instead, without analysis or citation to the record, Willmore simply declares that the evidence “just isn’t enough ” to support a finding that the equalizing payment was necessary to a ccomplish a just and right division of the marital estate . We conclud e that Willmore has not met his appellate burden to establish that the equalizing payment lacked sufficient evidence. We overrule Willmore ’s fourth issue

. IV. F RAUD ON THE M ARITAL E STATE By his fifth issue, Willmore contends that Alcover committed fraud on the marital
estate by allegedly depositing all paycheck s from her teaching job i nto a separate account for the entire duration of their seven

- year marriage without his knowledge

. Willmore7 therefore asserts that the trial court erred in rejecting his claim for fraud on the marital
estate. Because Willmore pleaded fraud, he had the bu rden to prove it at trial. See Brooks v. Parr , 507 S.W.2d 818, 819 (Tex. Civ. App.

— Amarillo 1974, no writ) . To obtain relief on appeal, Willmore must now show that the evidence conclusively established his fraud claim as a matter of law. See Dow Chem. Co. v. Francis , 4 6 S.W.3d 237, 241 (Tex. 2001) (observing that w hen a party challenges an adverse finding on an issue on which he had the burden of proof at trial, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue ). To establish fr aud, Willmore had the burden to prove the following elements at trial :

“ (1) [ Alcover ] failed to disclose [the separate account] to [him] , (2) [ Alcover ] had a duty to disclose [the separate account] , (3) the [ separate account was] material, (4) [Alcover ] knew [that Willmore ] was ignorant of [the separate account] and [ Willmore ] did not have an equal opportunit y to discover [the existence of the separate account] , (5) [Alcover ] was deliberately silent when [she] had a duty to speak, (6) by failing to disclose [the separate
account ] , [Alcover ] intended to induce [ Willmore ] to take some action or refrain from acting, (7) [ Willmore ] relied on [ Alcover’s ] nondisclosure, and (8) [ Willmore ] was injured as a result o f acting without that knowledge.” Blankinship v. Brown , 399 S.W.3d 303, 308 (Tex. App.

— Dallas 2013, pet. denied)

. The argument section of Willmore ’s appellate brief consists of one paragraph on this issue

. Without addressing any particular fraud element listed above , Willmore attempts to conclusively establish fraud by point ing not to what the evidence showed, but instead to what the evidence allegedly did not show. Specifically, Willmore argues there8 is no evidence that he knew Alcover had been depositing paychecks into a separate
account for seven years

. However, by framing t he argument in this way, Willmore shifts the burden on to Alcover to disprove fraud when it is his burden on appeal to show that the evidence conclusively proved fraud. We reject Willmore ’s attempt to invert and shift
to Alcover the burden he shoulder ed at trial and on appeal. Furthermore , Willmore provides no citation to the record indicating that Alcover had been depositing paychecks from her teaching job into a separate account for seven years without his knowledge

. We conclude that Willmore has n ot met his burden on appeal to show that the record conclusively establishes ea ch element of his fraud claim. We overrule Willmore ’ s fifth issue. V. F INDINGS OF F ACT AND C ONCLUSIONS OF L AW By his second issue, Willmore contends that the trial court erred i n failing to enter written findings of fact and conclusions of law after Willmore made a timely request for such findi ngs following the bench trial

. A. Applicable Law In a case tried to the bench , “ any party may request the court to state in writing its findings of fact and conclusions of law .” T EX

. R. C IV

. P . 296

. Upon timely request, t he court is required to make findings on the controlling or ultimate issue in the case

. Finch v. Finch , 825 S.W.2d 218, 221 (Tex. App.

— Ho uston [1st Dist.] 1992, no writ ). The court is not required to make findings on an evidentiary matter. Id

. “ An ultimate fact issue is one that is essential to the right of action

. . . . Such an issue seeks a fact that would have a direct effect upon the judgment

. . . . In contrast, an evidentiary issue is one that the9 [fact finder] may consider in deciding the controlling issue, but that is not a controlling issue itself .” Id

. The failure to enter findings on an ultimate issue constitutes er ror subject to a harm analysis

. See In re Marriage of Edwards , 79 S.W.3d 88, 95 (Tex. App.

— Texarkana 2002, no pet.)

. If harm is shown, the appropriate remedy in most cases is to abate the case for the trial judge to enter findings. See Larry F. Smith, Inc. v. The Weber Co., Inc ., 110 S.W.3d 611, 616 (Tex. App.

— Dallas 2003, pet. denied) (observing that abatement is the preferred procedure to remedy the harm resulting from a lack of findings). In determining harm, an appellate court asks whether the lack of findings prevents the appealing part y from proper ly presenting the issues presented for review on appeal. See In re Marriage of Edwards , 79 S.W.3d at 95.
B. Analysis Although Willmore timely requested written findings from the trial judge, 4 none were entered

. This was error

. See id

. Consequently, w e now mu st determine whether Willmore was harmed by assessing the extent, if any, to which the absence of fi ndings prevented him from properly presenting his issue s on appeal. See id

. Willmore ’s first and third issues complain ed about evidence the trial court allegedly excluded

. However, it was not the lack of findings that prevent ed Willmore from presenting those issues on appeal ; instead, as noted above, it was Willmore ’s failure to provide a record of the allegedly excluded evidence that prevented review

. See Ulogo, 177 S.W.3d at 502; see also In re Marriage of Edwards , 79 S.W.3d at 95

. Furthermore, Willmore ’s first and third issues complain ed of evidentiary matters relating to the exclusion

4 Willmore filed a notice of past due findings

. See T EX

. R. C IV

. P . 297

.10 of evidence , not ultimate issues

. Lifshutz v. Lifshutz , 61 S.W.3d 511, 515 (Tex. App.

— San Antonio 2001, pet. denied)

. Therefore, findings responsive to those issues would not have been required

. See id

. Willmore ’ s fourth issue complain ed about the value of the equalizing payment that the trial judge ordered in paragraph 7.7 of the divorce decree

. However, as noted above, Willmore ’s main argument was that the trial judge lacked sufficient information to properly value the marital estate because the judge e xcluded evidence made the subject of his first and third issues. In this sense, Willmore ’s fourth issue reformula tes his first and third, which relate not to ultimate issue s but instead to evidentiary matter s for which findings would not have been required

. See Finch , 825 S.W.2d at 221 . Furthermore, “[t] he ultimate issue in this case [was] whether the trial court made a just and right di vision of the [marital] estate.” Id

. The value the trial court placed on the equalizing payment was not essential to Willmore ’ s right of action . See i d. Instead, the value of the equalizing payment was an evidentiary issue that the trial court considered in deciding what was a just and right di vision of the community estate. See id

. (concluding that the trial judge was not required to ma ke findings on the values of properties comprising the marital
estate because t hat valuation is an evidentiary issue the judge considers in deciding the ultimate issue of what is a just and right division). Therefore, finding s responsive to Willmore ’ s fou rth issue would be evidentiary in nature and not required

. Finally, Willmore ’s fifth issue complained about the sufficiency of the evidence to prove a claim (fraud) on which he had the burden of proof at trial

. However, a lack of written f indings as to that issue is harmless when , as here, the record reflects that the appealing party simply failed to prove a claim on which he had the burden of proof at trial.11 See Lee v. Thornton , 658 S.W.2d 234, 236 (Tex. App.

— Houston [1st Dist.] 1983, writ ref'd n.r.e. ) (concluding that the absence of findings was harmless where the record showed that the appealing party simply failed to meet her burden of proving the claim at trial). We conclude that any error in failing to enter written findings did not prevent Willmore from properly presenting his issues on appeal

. Accordingly, the error is harmless, and we overrule his second issue. 5
VI. C ONCLUSION We affirm the trial court’s judgment.

s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Delivered and filed the 22nd day of March , 2018.

5 We note that , had we found the error to be harmful, Willmore requested a new trial, rather than an abatement to remedy the error with findings

. Willmore argued that we must order a new trial (rather than abate) because the judge who presided over the case allegedly recused herself after the bench trial. However, nothing in the appellate record provided to us indicates that the judge in fact recused herself. Furthermore, even if the judge had in fact recused herself, Willmore provides no authority that a successor judge on abatement would be disqualified from entering the requested findings based on the record. In short, even if we were to conclude that the error was harmful, Wil lmore failed to demonstrate that the remedy he specifically requested

— i.e., a new trial

— was the appropriate one under the circumstances

. Willmore did not request that the case be abated for findings

.