                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NO. 2-08-290-CV


SUSAN COHEN MANDELL                                              APPELLANT

                                      V.

HAROLD LANCE MANDELL                                               APPELLEE

                                  ------------

        FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

                               I. INTRODUCTION

      Appellant Susan Cohen Mandell challenges the property division made by

the trial court in her divorce from Appellee Harold Lance Mandell. The primary

issue that we address is whether the trial court erred by excluding all of

Susan’s evidence valuing Lance’s interest in Oncology-Hematology Consultants,

P.A. (“the Association”). For the reasons set forth below, we will affirm the

trial court’s judgment.
                                II. B ACKGROUND 1

      Susan and Lance, both of whom are physicians, married in 1989. During

the marriage, Lance entered into an Employment Agreement with the

Association. Lance also entered into a Stock Purchase Agreement with the

Association. The Stock Purchase Agreement states that the Association would

sell Lance 22,000 shares of common stock for $0.50 per share for a total

purchase price of $11,000. Lance tendered a check to the Association for

$11,000.

      Pursuant to certain terms of the Stock Purchase Agreement, the

Association also required Lance and Susan to sign a Shareholders Agreement.

The Shareholders Agreement specifically addressed stock transfers, including

voluntary transfers such as in the event of retirement or withdrawal from the

Association and involuntary transfers such as in the event of divorce. In each

of these situations, the Association and/or the other shareholders possesses the

right to purchase the shares at $0.50 per share. In the event the “marital

relationship of a Shareholder is terminated by divorce and such divorced

Shareholder does not succeed to his former spouse’s community interest, if



      1
        The record from this divorce spans twenty-six volumes of the
reporter’s record and over seventeen hundred pages in the clerk’s record. The
following is an overview of the facts; it is limited to the facts relevant to the
issues on appeal.

                                       2
any, in his Shares,” the Shareholders Agreement specifically provides that

within 180 days, the former shareholder shall purchase “all but not less than

all of” his stock back from his former spouse and sets the purchase price of the

stock at $0.50 per share. In the event the former shareholder fails to exercise

this right, the right of repurchase for the same price per share is shifted to the

Association. According to Lance, the restrictions imposed by the Shareholder

Agreement on the transfer of stock and the contractual repurchase rights

vested in a former shareholder or in the Association are required by Texas laws

providing that only a professional individual may be an owner of the

professional association. 2 Neither Lance nor Susan signed the Shareholders

Agreement.

      Approximately three years after Lance had executed the Stock Purchase

Agreement, Susan filed for divorce.         During discovery, Susan served a

subpoena duces tecum on Dr. Jordan, a shareholder of the Association, seeking

payroll records, a list of assets, an inventory, corporate books, and additional

documents.




      2
        See Tex. Bus. Orgs. Code §§ 301.003, .004, .007 (Vernon Pamph.
Supp. 2009) (providing that the owners of a professional association must be
licensed to perform the type of service for which the association is formed).

                                        3
      Approximately three months later, the Association refunded the $11,000

that Lance had paid for the 22,000 shares of stock and thereafter wrote him

a letter, stating that it had requested on numerous occasions during the three

and a half years since he had signed the Stock Purchase Agreement that he

provide it with a signed copy of the Shareholders Agreement.                The

Association’s letter stated that because it had never received a signed copy of

the Shareholders Agreement from Lance and Susan, it had never issued Lance

a stock certificate and was therefore electing to refund the $11,000 that Lance

had previously paid. As a result of these transactions, Lance held no shares in

the Association.

      Susan thereafter joined the Association, among others, in the divorce suit

as a third-party defendant, claiming that it and others had conspired with Lance

to defraud her. The third-party defendants answered and filed a motion for

summary judgment, which the trial court initially denied because it found that

there were genuine issues of material fact.

      The third-party defendants filed a motion for reconsideration of their

summary judgment motion, urging the trial court to find the following as a

matter of law: (1) Lance’s Stock Purchase Agreement with the Association

was subject to its accompanying Shareholders Agreement, and (2) the

Shareholders Agreement was valid and enforceable against Susan. The trial

                                       4
court reconsidered the third-party defendants’ motion for summary judgment

and granted it, ruling that the Stock Purchase Agreement between Lance and

the Association was subject to the terms of the Shareholders Agreement and

that as a matter of law, the Shareholders Agreement between Lance and the

Association was valid and enforceable as to Susan. Prior to trial, Susan settled

her claims with the third-party defendants and entered into an agreement on the

record that the Association would issue the 22,000 shares of stock to Lance

in exchange for an $11,000 check from the community estate. Lance complied

by writing the check, and the Association issued the stock to him.

      During the trial, Lance objected when Susan’s expert attempted to testify

regarding the value of Lance’s stock in the Association.         The trial court

sustained Lance’s objection, stating that it had previously ruled by granting the

third-parties’ motion for summary judgment that pursuant to the terms of the

Stock Purchase Agreement and the Shareholders Agreement, the value of the

22,000 shares of stock in the Association was $11,000 and that the parties

were bound by the agreements. Outside the jury’s presence, Susan made an

offer of proof of her experts’ testimony concerning the valuation of Lance’s

interest in the Association.

      After a multi-day jury trial, the jury made the following determinations

that are pertinent to the issues on appeal: (1) that the marriage between Susan

                                       5
  and Lance had become insupportable because of discord or conflict; (2) that the

  value of the real property at 5017 River Bluff Drive was $244,440; (3) that the

  amount of attorney’s fees reasonably and necessarily incurred by Susan was

  $275,000; and (4) that the amount of attorney’s fees reasonably and

  necessarily incurred by Lance was $0.     Lance thereafter filed a motion for

  judgment notwithstanding the verdict, arguing that the uncontroverted

  testimony and exhibits that were admitted into evidence established that the

  reasonable and necessary attorney’s fees he had incurred totaled $200,000.

         After reviewing the value of the community property assets, the trial

  court’s final decree of divorce divided the community property as follows:


                                                        Susan            Lance

Residence located at 5017 River Bluff                $244,440.00

50% Citizen’s Nat’l Bank Money Mkt Acct #[----] 3     $18,738.11      $18,738.11

50% Wells Fargo Bank Acct #[----]                     $10,365.32      $10,365.32

50% Bank of America Savings Acct #[----]              $10,165.51      $10,165.51

50% Wachovia Investment Acct #[----]                 $316,622.56     $316,622.56

50% Fidelity IRA #[-----]                            $146,467.23     $146,467.23

50% Fidelity Investments Acct #[----]                 $60,522.09      $60,522.09

100% Franklin Templeton Mut. Fund Acct #[----]      $126,723.20

2000 Lexus RX 300                                     $14,625.00


         3
         The account numbers set forth in the decree are omitted for privacy
  reasons.

                                        6
100% Bank of America Money Mkt Acct #[----]                               $28,719.83

100% Fidelity Investments IRA #[----]                                   $120,564.47

100% Fidelity Investments Acct #[----]                                    $46,616.62

100% Franklin Templeton Acct #[----]                                    $156,433.20

2004 Acura MDX                                                            $23,900.00

22,000 shares of the Association                                             $11,000

                                               Total   $948,669.02      $950,114.94

        The trial court acknowledged that the jury had rendered a unanimous

  verdict on the issue of reasonable and necessary attorney’s fees incurred by

  Susan and that the amount for trial was $275,000. The trial court, however,

  ordered that “to effect an equitable division of the estate of the parties’ [sic]

  and as a part of the just and right division of property, . . . each party shall be

  responsible and liable for the payment of the balance of his or her own

  attorney’s fees . . . .”

        Following the entry of the judgment, Susan filed a request for findings of

  fact and conclusions of law, as well as a motion for new trial. In her motion for

  new trial, Susan argued that the trial court erred by refusing to allow her to

  present expert testimony to the jury concerning the value of the 22,000 shares

  of stock in the Association.

        The trial court made findings of fact and conclusions of law setting forth

  the same property divisions as it had made in the decree and stated that it had

                                          7
made “a determination of a just and right division of the assets and debts of the

marital estate” by considering, among other things, monetary sanctions

awarded to Susan against Lance; fault in the breakup of the marriage; and the

finding by the court as a result of the summary judgment proceedings that the

value of the 22,000 shares of stock in the Association was $11,000. The trial

court also stated that in making the property division, it had taken into

consideration that it had made no order for the award or payment of attorney’s

fees to be paid by Lance to Susan and that the division of the marital estate

was disproportionate in Susan’s favor. 4

      Susan filed objections to the trial court’s findings of fact and conclusions

of law and requested additional findings. Susan argued that the trial court erred

when it purportedly used the method for a physician’s withdrawal set forth in

the Stock Purchase Agreement and unsigned Shareholders Agreement in

determining the value of Lance’s 22,000 shares of the Association because

Lance was not being terminated or withdrawing at the time of the parties’

divorce. Susan argued, as she had in her motion for new trial, that the jury

should have been allowed to determine the fair market value of Lance’s interest

in the Association as an ongoing business.



      4
         The division of the community assets, as set forth above, indicates a
relatively equal division between the parties.

                                        8
      The trial court did not make additional findings. This appeal followed.

                        III. T HE A SSOCIATION’S S TOCK

      As set forth above, the Shareholders Agreement restricts who may own

and purchase the Association’s stock as well as the price at which the stock

may be sold, $0.50 per share. In her first, second, and third issues, Susan

argues that the trial court erred when it used the Shareholders Agreement to

value Lance’s 22,000 shares in the Association at $11,000 and then excluded

all evidence that she attempted to put before the jury. Specifically, Susan

argues that the Shareholders Agreement does not establish the fair market

value of Lance’s interest in the ongoing business of the Association.

      A.    Types of Valuation

      As a general rule, the value to be accorded community property that is

to be divided in a divorce proceeding is “market value.” See R.V.K. v. L.L.K.,

103 S.W.3d 612, 618 (Tex. App.—San Antonio 2003, no pet.) (citing Walston

v. Walston, 971 S.W.2d 687, 690 (Tex. App.—Waco 1998, pet. denied)).

“Fair market value has been consistently defined as the amount that a willing

buyer, who desires to buy, but is under no obligation to buy would pay to a

willing seller, who desires to sell, but is under no obligation to sell.”   Id.

(quoting Wendlandt v. Wendlandt, 596 S.W.2d 323, 325 (Tex. Civ.

App.—Houston [1st Dist.] 1980, no writ).

                                      9
      A straight fair market value is not an appropriate valuation method,

however, when a community estate owns shares in a closely held corporation

and, by agreement, any sale of the shares of stock is restricted to the

corporation or other stockholders. See Beavers v. Beavers, 675 S.W.2d 296,

299 (Tex. App.—Dallas 1984, no writ). When the sale of stock is restricted by

a requirement that the shares be offered first to the corporation or to other

shareholders, then essentially the fair market value of the stock is zero. See

id. 5 In this situation, the parties may show the actual value of the property

interest to the owner. See R.V.K., 103 S.W.3d at 618. Such evidence might

include the value of being able, by virtue of ownership of the closely held stock,

to drive a new automobile, to have health insurance paid for by the company,

to have a company-financed life insurance policy, to belong to a country club

at company expense, and other similar financial benefits.         See James M.

Loveless & Kimberly M. Naylor, Handling a Divorce Involving a Closely-Held

Corporation, State Bar of Texas Prof. Dev. Program, Marriage Dissolution

Institute, M, M-3 (1996).



      5
        See also Edwin Terry et al., Handling the Divorce Involving a Medical
Practice, State Bar of Texas Prof. Dev. Program, Marriage Dissolution Institute,
B, B-5 (1996) (explaining that “the concept of market value assumes an
existing, established market” and that “as a practical matter there is often little
or no actual market for a closely-held medical practice . . . . Therefore other
methods of value must be used”).

                                        10
      Generally Accepted Accounting Principles, or GAAP, “encompasses the

conventions, rules, and procedures that define accepted accounting practice at

a particular point in time.” Rowan Cos. v. Wilmington Trust Co., No. 14-07-

00465-CV, 2009 WL 3210936, at *12 (Tex. App.—Houston [14th Dist.]

2009, Oct. 8, 2009, no pet.) (op. on reh’g) (quoting Shalala v. Guernsey Mem’l

Hosp., 514 U.S. 87, 101, 115 S. Ct. 1232, 1239 (1995)). Book value is the

value shown by the books of a business, which are kept in compliance with

GAAP, in the absence of an agreement otherwise.           Chaffe v. Murray, 492

S.W.2d 680, 684 (Tex. Civ. App.—Corpus Christi 1973, writ ref’d n.r.e.).

Specifically, the term “book value” means the value of a corporation that is

arrived at by taking the total value of the assets as shown on the books and

deducting therefrom the total liabilities. Id. Book value has limited application,

if any, in determining the value of stock in a small, closely held corporation.

See Bendalin v. Delgado, 406 S.W.2d 897, 900–01 (Tex. 1966).

      Another valuation method is the comparable sales method. 6 This method

compares the property being valued with similar, recently-sold property, and

values the to-be-valued property in relation to the recent sales prices for similar

property. See, e.g., Religious of Sacred Heart of Tex. v. City of Houston, 836



      6
       See Handling the Divorce Involving a Medical Practice, State Bar of
Texas Prof. Dev. Program, Marriage Dissolution Institute, at B-5.

                                        11
S.W.2d 606, 616 (Tex. 1992); see also Gary L. Nickelson, Special Problems for

Divorcing Professionals and Valuation of Professional Practices, Vol. 2 State

Bar, Advanced Family Law Course, KK, 10 (1998) (recognizing that if

comparable sales exist “they certainly should be considered as a measure of

value”).

      B.    Evidence of Valuation

      In this case, Susan’s valuation evidence was presented through an offer

of proof. Karl Weaver, a certified public accountant and chief financial officer

for the Association, testified that he did not know what the contractual

$11,000 purchase price was based on. Weaver said that the book value of the

Association in 2006 was $5 million.

      Bryan Charles Rice, a certified public accountant specializing in business

appraisals and forensic accounting, testified that he had looked at the books for

the Association, as well as Matrix Holdings and Operation Pathway Systems,

L.P., which provides management services to the Association. Rice explained

that 88,000 shares of common stock in the Association were outstanding and

that three other doctor-shareholders in the Association each owned 22,000

shares of stock so that Lance owned a one-fourth interest in the Association.

      Rice calculated the book value of the Association’s equity under GAAP

and concluded that under this valuation theory, Lance’s one-fourth interest in

                                       12
the Association was worth $794,300. Rice determined that the fair market

value of Lance’s one-fourth interest in the Association, considering the

Association’s equity as a stand-alone business, was $1,100,100. Rice also

determined the fair market value of Lance’s one-fourth interest in the

Association, considering the Association’s equity as a Matrix Holdings

component, was $943,400. Thus, Susan offered expert testimony via her offer

of proof proposing three different methods to value the Association as an

ongoing business resulting in three different figures as the value of Lance’s one-

fourth interest in the Association:     $794,300 (book value under GAAP);

$1,100,100 (fair market value considering Association equity as a stand alone

business); and $943,400 (fair market value considering Association equity as

a component of Matrix).

      Lance’s valuation evidence in the record, which was confirmed through

his cross-examination of Weaver during Susan’s offer of proof, conclusively

established that when three of the Association’s seven physician-shareholders

retired or left the practice, they were each paid $0.50 a share for their shares

of stock pursuant to the Shareholders Agreement.         Each of the physician-




                                       13
shareholders had purchased their stock for $0.50 a share years before they

retired or left the practice. 7

      C.     Division of Community Property

      In a divorce proceeding, the trial court is charged with dividing the

community estate in a “just and right” manner, considering the rights of both

parties. Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Boyd v. Boyd, 131

S.W.3d 605, 610 (Tex. App.—Fort Worth 2004, no pet.). Trial courts are

afforded wide discretion in dividing marital property upon divorce; therefore, a

trial court’s property division may not be disturbed on appeal unless the

complaining party demonstrates from evidence in the record that the division

was so unjust and unfair as to constitute an abuse of discretion. Jacobs v.

Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd, 131 S.W.3d at 610.

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable.     Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). We must indulge

every reasonable presumption in favor of the trial court’s proper exercise of



      7
       Dr. Clibon and Dr. Friess sold their shares after practicing ten to
twelve years with the Association.

                                      14
discretion in dividing marital property. Boyd, 131 S.W.3d at 610. Accordingly,

we will reverse only if the record demonstrates that the trial court clearly

abused its discretion, and the error materially affected the just and right division

of the community estate. Id.

      A spouse is not entitled to a percentage of his or her spouses’s future

earnings. Von Hohn v. Von Hohn, 260 S.W.3d 631, 640–41 (Tex. App.—Tyler

2008, no pet.). A spouse is only entitled to a division of property that the

community owns at the time of divorce. Id. A corporation is a separate legal

entity, and property owned by a corporation is neither separate nor community

property of the shareholders of the corporation. 8 See Barbara Anne Kazen, Vol.

1 Kazen’s Practical Family Law Manual, Pamph. 6, ¶ 5.21[c] (1996). Likewise,

by statute, a professional association has the same powers, privileges, duties,

restrictions, and liabilities as a for-profit corporation. See Tex. Bus. Orgs. Code

§ 2.108 (Vernon Pamph. Supp. 2009). 9 Although dividends from stock are


      8
         Exceptions exist when a trial court properly disregards the corporate
entity, but none of those exceptions were pleaded or proved here. See, e.g.,
Zisblatt v. Zisblatt, 693 S.W.2d 944, 950 (Tex. App.—Fort Worth 1985, writ
dism’d).
      9
        The statutory provisions governing for-profit corporations (Texas
Business Organizations Code Annotated chapters 21 and 22) apply to a
professional association. See Tex. Bus. Orgs. Code Ann. § 302.001 (Vernon
Pamph. Supp. 2009). And under chapter 21, a close corporation existing
before the effective date of the Texas Business Organizations Code is a close
corporation governed by the code. See id. § 21.707(b).

                                        15
treated like income, a corporation’s earnings or surplus funds normally do not

constitute a dividend while they are retained by the corporation. See, e.g.,

Legrand-Brock v. Brock, 246 S.W.3d 318, 322 (Tex. App.—Beaumont 2008,

pet. denied).

      Here, the Association is by law the equivalent of a for-profit corporation.

See Tex. Bus. Orgs. Code Ann. § 2.108. The Association’s property, accounts

receivable, retained earnings, and surplus funds are not assets of Susan and

Lance’s community estate. See Legrand-Brock, 246 S.W.3d at 322. Thus,

they were not subject to division by the trial court. See Tex. Fam. Code Ann.

§ 7.001. The community asset in existence at the time of Lance and Susan’s

divorce was 22,000 shares of the Association’s closely-held stock—not the

Association as an ongoing business. 10 Susan nonetheless argues that the trial

court abused its discretion by prohibiting her from offering expert testimony

concerning the Association’s value as an ongoing business and calculating

Lance’s interest in the Association as one-fourth of that valuation.

      For the proposition that she was entitled to prove the value of Lance’s

one-fourth interest in the Association as an ongoing business, Susan relies upon



      10
        Rice excluded goodwill from his valuation of Lance’s interest in the
Association; goodwill is not an issue in this appeal. See Nickelson, Special
Problems for Divorcing Professionals and Valuation of Professional Practices,
KK, at 4–9.

                                       16
Von Hohn, 260 S.W.3d at 640–41, Keith v. Keith, 763 S.W.2d 950, 952 (Tex.

App.—Fort Worth 1989, no writ), and Finn v. Finn, 658 S.W.2d 735, 740 (Tex.

App.—Dallas 1983, writ ref’d n.r.e.). These cases are not applicable to the

present facts for two primary reasons. First, the property being valued for

purposes of divorce in those cases was not stock in a closely held corporation

but a spouse’s interest in an ongoing partnership. Partnership profits, by law,

belong to the individual partners; the assets and profits of a professional

association belong to the entity.     Compare Tex. Bus. Orgs. Code Ann.

§ 152.202(c) (providing that each partner in a partnership is credited with an

equal share of the partnership’s profits) with id. § 302.011 (providing that

profits of a professional association are distributed in accordance with

governing documents of association).       Thus, increases in the value of a

partnership that accrue during a partner’s marriage may be an asset of the

community estate, while increases in a corporation’s net worth are generally

not an asset of the community estate of each of the corporation’s shareholders.

Compare Von Hohn, 260 S.W.3d at 634, 636–37 (recognizing that each

partner was assigned “an undivided profits account and a capital account”; this

was clearly an asset of the community) with Legrand-Brock, 246 S.W.3d at

322 (explaining that corporations’ earning surplus funds are not a community

asset).   Second, the partnership agreements in Von Hohn, Keith, and Finn,

                                      17
unlike the Stockholders Agreement here, did not mandate application of a

particular value to the spouse’s partnership interest in the event of a divorce.

Compare Von Hohn, 260 S.W.3d at 640 (explaining that partnership agreement

set value of partner’s interest in event of partner’s death, withdrawal,

retirement, or expulsion but did not control value of individual partnership

interest in event of divorce), and Keith, 763 S.W.2d at 953 (same), and Finn,

658 S.W.2d at 749 (same) (Stewart, J., concurring) 11 with Tex. Bus. Orgs.

Code Ann. § 21.104 (Vernon Pamph. Supp. 2009) (providing that shareholders

agreement is effective between shareholders and the corporation). Because the

Shareholders Agreement here does contain a specific contractual provision

addressing stock ownership and value in the event of a shareholder’s divorce

and does restrict who may own and purchase the Association’s stock as well

as the price at which the stock may be sold, Von Hohn, Keith, and Finn are not

controlling. See Tex. Bus. Orgs. Code § 21.104. We hold that the trial court




      11
          On the issue of valuation of the husband’s partnership as an ongoing
business when valuation was not controlled by the partnership agreement, the
majority opinion in Finn simply held that the trial court erred by denying the wife
full discovery of certain financial information concerning the husband’s
partnership. 658 S.W.2d at 746. The majority opinion in Finn held that this
denial of discovery was reasonably calculated to and probably did result in the
rendition of an improper judgment. Id. Here, however, Rice specifically
testified that he had “all the financial information” that he needed to perform
the valuations that he did. Thus, Finn is not applicable to the facts here.

                                        18
did not abuse its discretion by excluding Susan’s $794,300 one-fourth book

value of the Association and her $1,100,100 and $943,400 one-fourth fair

market values of the Association as an ongoing business.

      Susan also contends that she is not bound by the “buy-sell” provision in

the Shareholders Agreement setting the stock’s value at $0.50 per share

because she never signed the Shareholders Agreement and that, accordingly,

the trial court abused its discretion by determining that as a matter of law

Lance’s 22,000 shares of the Association were valued at $11,000.          It is

undisputed that every shareholder of the Association paid $11,000 for their

22,000 shares of stock when the stock was issued to them and that every

shareholder that left the Association was paid $11,000 for the Association to

repurchase their 22,000 shares of stock.     It is undisputed that Lance and

Susan’s community estate paid $11,000 to the Association for the issuance of

Lance’s 22,000 shares of stock. And finally, it is undisputed that Lance can

never sell his 22,000 shares of stock for more than $11,000; the stock’s value

in the closely held Association is contractually set at $11,000. See Lemaster

v. Top Level Printing Ink, Inc., 136 S.W.3d 745, 747–48 (Tex. App.—Dallas

2004, no pet.). Nonetheless, Susan claims the stock should be valued at either

$794,300 (book value under GAAP); $1,100,100 (fair market value considering

Association equity as a stand alone business); or $943,400 (fair market value

                                     19
considering Association equity as a component of Matrix). But Susan cites no

authority for the proposition that a community asset (22,000 shares of the

Association’s stock) which is to be divided in a divorce, may have one

monetary value as to one spouse ($11,000 as to Lance) and a wholly different

value to the other spouse ($794,300, $1,100,100, or $943,400 as to Susan).

Nor have we located any such authority. Because the evidence establishes the

“comparable sales value” for Lance’s 22,000 shares of the Association’s stock

was $11,000 based on prior sales by former physician-shareholders and

because $11,000 is the only price that Lance’s stock may be sold at, the trial

court did not abuse its discretion by valuing the stock at $11,000 under a

comparable sales valuation and as mandated by the Shareholders Agreement

even though Susan did not sign it.

      Susan’s offer of proof likewise did not include evidence that the actual

value of the stock to Lance was greater than the $11,000 “buy/sell” price by

showing that by virtue of ownership of the closely held stock, he obtained

benefits such as driving a new automobile, having health insurance paid for by

the company, having a company-financed life insurance policy, belonging to a

country club at company expense, or gaining any other similar financial benefit.

See R.V.K., 103 S.W.3d at 618.        Because Susan’s offer of proof did not

include testimony or evidence that might have been relevant to establish that


                                      20
the value of Lance’s shares of stock to him was greater than the $11,000 value

set by the Shareholders Agreement, the trial court did not abuse its discretion

by refusing to admit the valuation evidence propounded by Susan. Accord

Fletcher v. Minn. Mining &        Mfg. Co., 57 S.W.3d 602, 607 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied) (recognizing that to preserve error

concerning the exclusion of evidence, the complaining party must actually offer

the evidence and secure an adverse ruling from the court); see also Tex. R.

Evid. 103(a), (b).

      We overrule Susan’s first, second, and third issues.

                             IV. A TTORNEY’S F EES

      In her fifth and sixth issues, Susan complains that the trial court

erroneously granted Lance’s motion for judgment notwithstanding the jury’s

verdict that he incurred $0 in reasonable and necessary attorney’s fees,

erroneously valued the parties’ attorney’s fees, and thereby abused its

discretion in the overall division of the community estate.

      Although there is no statute specifically authorizing an award of

attorney’s fees in a divorce proceeding, the trial court may within its sound

discretion award attorney’s fees. See In re Marriage of Jackson, 506 S.W.2d

261, 268 (Tex. Civ. App.—Amarillo 1974, writ dism’d). The fee of an attorney

is but another element for the court to consider in dividing the marital estate.

Hopkins v. Hopkins, 540 S.W.2d 783, 788 (Tex. Civ. App.—Corpus Christi

                                       21
1976, no writ). That is, in a divorce suit, the trial court has the equitable

power to award either spouse attorney’s fees as a part of the just and right

division of the marital estate. See, e.g., Murff v. Murff, 615 S.W.2d 696, 699

(Tex. 1981); Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005

(1950).

      Here, the trial court’s judgment expressly provides that

      to effect an equitable division of the estate of the parties’ and as
      a part of the just and right division of property, and for services
      rendered in connection with conservatorship and support of the
      children, each party shall be responsible and liable for the payment
      of the balance of his or her own attorney’s fees, expert witness
      fees, expenses, and costs incurred as a result of legal
      representation in this case.

Thus, although the trial court granted Lance’s motion             for judgment

notwithstanding the verdict, set aside the jury’s finding that Lance had incurred

$0 in reasonable and necessary attorney’s fees, and found that Lance had

conclusively established reasonable and necessary attorney’s fees in the

amount of $200,000, Susan is not responsible for payment of any of Lance’s

attorney’s fees. The judgment requires each party to pay any balance owed on

their own attorney’s fees.    Although Susan is not required to pay Lance’s

attorney’s fees out of her property award, she nonetheless complains that the

trial court erred by granting Lance’s motion for judgment notwithstanding the

verdict on the jury’s finding that Lance had incurred $0 in reasonable and

necessary attorney’s fees.

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      Assuming that the trial court did err by granting Lance’s motion for

judgment notwithstanding the verdict concerning his attorney’s fees, Susan has

not shown that any such error “probably caused the rendition of an improper

judgment.” See Tex. R. App. P. 44.1(a)(1) (providing that no judgment in a civil

case may be reversed for an error of law unless the error probably caused

rendition of an improper judgment). The trial court possesses broad discretion

to award either spouse attorney’s fees as a part of the just and right division

of the marital estate; here it chose to require the parties to pay their own fees.

Nothing in the record before us supports the proposition that the trial court

would have ordered Lance to pay Susan’s attorney’s fees but for the granting

of the judgment notwithstanding the verdict. In fact, a review of the list of

factors set forth in the trial court’s findings of fact as factors the trial court

considered in making its division of the community estate—including an award

of sanctions against Lance and in favor of Susan—equally supports the notion

that the trial court would not have ordered Lance to pay for Susan’s attorney’s

fees even if the trial court had not granted Lance’s motion for judgment

notwithstanding the verdict. Because Susan has not shown that any error by

the trial court in granting Lance’s motion for judgment notwithstanding the

verdict, setting aside the jury’s finding that Lance had incurred $0 in reasonable

and necessary attorney’s fees,       and finding that Lance had conclusively



                                       23
established that he had incurred reasonable and necessary attorney’s fees in the

amount of $200,000 probably resulted in the rendition of an improper

judgment, we overrule Susan’s fifth and sixth issues.

                                V. C ONCLUSION

      We have overruled Susan’s first, second, third, fifth, and sixth issues.

We need not address Susan’s fourth issue because it complains of the summary

judgment granted to the third-party defendants; Susan settled any and all of her

claims with the third-party defendants prior to trial and those defendants are

not parties to this appeal. 12 Accordingly, we affirm the trial court’s judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: March 18, 2010




      12
         Susan expressly settled “all claims set out in the various pleadings”
filed by her against the third-party defendants as well as “all claims that were
asserted, that could have been asserted” by her against the third-party
defendants. Susan did not file any type of motion in the trial court revoking her
consent to the settlement or seeking to set it aside; she cannot now claim on
appeal that the third-party defendants (against whom she now possesses no
unsettled claims) should not have been granted a summary judgment. Accord
Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 855 (Tex.
App.—Dallas 2008, no pet.) (recognizing principle that party with no justiciable
interest in suit has no standing to appeal ruling in suit).

                                       24
