                                    NO. 07-04-0597-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                NOVEMBER 30, 2005
                          ______________________________

                In the MATTER of the MARRIAGE of BENITA HIGGINS
                              and JOHNNY L. HIGGINS
                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 67,809-E; HON. ABE LOPEZ, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Johnny L. Higgins (John) appeals from a divorce decree ending his marriage to

Benita Higgins (Benita). His two issues concern 1) the trial court’s refusal to permit him to

tender evidence of the balance of the mortgage on Benita’s separate real estate on the

date of their marriage, and 2) the purportedly unequal division of the marital estate in favor

of Benita. We affirm the judgment of the trial court.

                            Issue One - Exclusion of Evidence

       John initially attacks the trial court’s decision to exclude the testimony from Benita

about the balance remaining on her mortgage at the time the couple married. He hoped

to use the evidence to prove that their marital estate was entitled to economic contribution

from her due to that estate’s payment of her mortgage with community assets. Benita
objected to the admission of the evidence because John had failed to properly supplement

his answers to interrogatories propounded by her. Supplementation did not occur until the

day before trial. The trial court sustained the objection and excluded the evidence.

       Before us, John argues that the trial court abused its discretion in ruling as it did.

This is allegedly so since use of the evidence would not unfairly surprise Benita given that

the information was obtained from her. We overrule the issue.

       Assuming arguendo that the trial court erred in ruling as it did, we find no harm

arising from the decision. This is so because the record before us contains no evidence

of the monetary contribution made by either the marital estate of Benita and John or the

separate estate of Benita. Both amounts are needed to calculate a claim for economic

contribution. See TEX . FAM . CODE ANN . §3.403(b)(1) & (2) (Vernon Supp. 2005) (stating

that the amount of the claim equals the product of the equity in the benefitted property

times the fraction of the economic contribution made to the benefitted property by the

contributing property over the economic contribution made by the contributing property plus

the economic contribution made by the benefitted property). Without these amounts, it

does not matter what the balance of the mortgage was when John and Benita married for

the claim cannot be calculated. Given this, we cannot say that the trial court’s decision

probably caused the rendition of an improper judgment or that it probably prevented John

from presenting the case to this court. TEX . R. APP. P. 44.1(a)(1) & (2) (describing this as

the test for assessing harm).

                            Issue Two - Unequal Property Division

       Next, John argues that the trial court erred in unequally distributing the marital

estate. Allegedly, Benita received 72% of it while he received 28%. We overrule the issue.



                                             2
        John’s supposition is founded on the belief that the net community estate equaled

$217,956.33. The source of that supposition goes unmentioned, however. Yet, if the

inventory of Benita is used as its basis, we cannot but conclude that the foundation

underlying his argument is wrong.

        Of the $217,953.33 mentioned, $182,456.33 consisted of Benita’s retirement

account. Next, the trial court found that account to be Benita’s separate property and not

part of the community. Moreover, John does not attack that finding on appeal. So, the

community estate does not have a net value of $217,956 but rather $35,497. And, of the

$35,497, John received property having a net value approximating $23,500 while the net

value of the property received by Benita approximated $12,000. Having received almost

twice as much of the community estate as did Benita, John did not establish that the trial

court favored her in its division of the community estate.1 Thus, we cannot say that it

abused its discretion in the manner suggested by John.

        Accordingly, the judgment of the trial court is affirmed.



                                                          Brian Quinn
                                                          Chief Justice




        1
          This court further notes that though the retirement account was foun d to be the sep arate prop erty
of Benita, the trial court awarded John 20% of it. This further detracts from his argume nt that he was
disfa vore d in the division of the prop erty.

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