Opinion issued October 18, 2018




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-17-00553-CV
                           ———————————
                RONALD DEAN JENNINGS, SR., Appellant

                                        V.

                      MENDY N. MARTINEZ, Appellee



                   On Appeal from the 245th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-36474


                         MEMORANDUM OPINION

      Appellant, Ronald Dean Jennings, Sr., proceeding pro se, challenges the trial

court’s order granting the motion of appellee, Mendy N. Martinez, for enforcement
of the property division in an Agreed Final Decree of Divorce.1 In his sole issue,

Jennings contends that the trial court erred in excluding evidence and testimony at

the hearing on the motion for enforcement and at the hearing on his motion for new

trial.

         We affirm.

                                       Background

         In 2010, Jennings and Martinez became divorced. Pursuant to the parties’

agreed decree, the trial court awarded Jennings exclusive use of the parties’ home in

Huffman, Texas (the “Yida property”), with certain conditions, as follows:

         Property to Husband
         It is ordered and decreed that the husband, [Jennings], is awarded the
         following as his sole and separate property, and the wife is divested of
         all right, title, interest, and claim in and to that property:
         H-1. Exclusive use of the following real property, including but not
         limited to any escrow funds, prepaid insurance . . . and title and closing
         documents:
                [Yida property]
         ....


         Debts to Husband
         It is ordered and decreed that the husband, [Jennings] shall pay, as part
         of the division of the estate of the parties, and shall indemnify and hold
         the wife and her property harmless from any failure to so discharge
         these items:

1
         See Vats v. Vats, No. 01-12-00255-CV, 2012 WL 2108672, at *1 n.1 (Tex. App.—
         Houston [1st Dist.] June 7, 2012, no pet.) (mem. op.) (order enforcing divorce
         decree final and appealable).
                                             2
      H-1. All      maintenance    taxes,    homeowner[’s]      insurance,
      homeowner[’s] fees on the [Yida property] awarded herein to Husband
      until the house is sold.
      ....
      H-3. All encumbrances, ad valorem taxes, liens, assessments, or other
      charges due or to become due on the real . . . property awarded to the
      husband in this decree unless express provision is made in this decree
      to the contrary.
      ....
      Agreements Dealing With Real Property
      The parties agree that [Jennings] is awarded use of the [Yida property],
      however if he sells the property the net proceeds would be split 50/50
      between [Jennings] and [Martinez] . . . . [Jennings] is ordered to timely
      pay all taxes, homeowners insurance and maintenance on the property
      while he resides in the property. Should [Jennings] no longer reside in
      the property, the property shall be sold and the net proceeds shall be
      divided equally between [Jennings] and [Martinez].

      In 2016, Martinez filed a motion for enforcement2 of the decree, seeking an

order to sell the Yida property on the ground that Jennings was no longer residing

there and had failed or refused to place the property on the market for sale.

      At a hearing on the motion for enforcement, Martinez testified that, from the

end of 2013 until 2016, when she filed her motion for enforcement, Jennings was

not living at the Yida property. Martinez further testified that Jennings did not timely

pay the taxes due on the property and that he had “never had insurance” on the

property. The trial court admitted into evidence a copy of the decree and a 2016 Tax




2
      See TEX. FAM. CODE ANN. §§ 9.001–.014 (West 2006 & Supp. 2017).
                                           3
Statement from the Goose Creek CISD Tax Office, showing a “Prior Years” unpaid

balance of $701.96 owed on the Yida property.

      Jennings testified that he was living at the Yida property. He testified that, on

August 23, 2013, the property was damaged by fire. Further, “after the fire,” he was

injured and required medical treatments in Pearland. Thus, “from time to time,”

over a period of “five or six months,” he was “staying” in Pearland for periods of a

“week or so.” Jennings testified that he had represented to the Social Security

Administration that the address of his friend “Linda” was his own. He did not recall

having told the Harris County Mental Health and Mental Retardation Authority

(“MHMRA”) that the Yida property was “unlivable” and that he had moved in with

Linda. The trial court admitted into evidence MHMRA records stating that, on

August 28, 2013, Jennings had reported to a clinician that he “recently had a fire at

his home which has made it relatively unlivable at this time; he has no insurance and

is going to fix the house himself.” Jennings further testified that, “[w]ithin a few

weeks” after the fire, he had cleaned the house and had moved back in. He noted

that he had continuously maintained utility services at the Yida property.

      With respect to paying taxes and maintaining insurance on the Yida property,

Jennings testified as follows:

      Q.     Have you paid the taxes on the home each year, sir?
      A.     Yes.
      Q.     Are they current at this time?

                                          4
      A.    Yes.
      Q.    What about insurance on the home? Is there any insurance on
            the home?
      A.    Not at this time.
      Q.    Was there any insurance on the home after the divorce?
      A.    No.
      Q.    So if that property is damaged, you have to be financially
            responsible for the replacement of that house; is that correct?
      A.    Correct.

Jennings did not seek to admit any evidence.

      At the close of the hearing, the trial court ruled that, based on the paragraph

of the decree entitled, “Agreements Dealing With Real Property,” stated above, that:

             The evidence that was presented today that was uncontroverted
      shows that all of the taxes were not paid timely and you [Jennings]
      specifically stated, sir, that you have never had homeowner[’]s
      insurance on the property. I understand you said because you could not
      afford it however, the order that is being sought to be enforced does not
      have that provision.
             Therefore, the Court, based upon the pleadings on file, the
      testimony presented as well as the evidence presented can only make
      one ruling and finding in that the [Yida property] shall be sold and the
      net proceeds shall be divided in accordance with the decree.

      On April 26, 2017, the trial court signed “Renditions on . . . Motion For

Enforcement of Property Division,” in which it found that, in the underlying decree,

Jennings was awarded the “exclusive use” of the Yida property, subject to certain

conditions. Namely, he was “ordered to timely pay all taxes, homeowners insurance

and maintenance on the property while he reside[d] [at] the property.” The trial


                                         5
court found that Jennings “did not timely pay all taxes on the property,” “did not

timely pay all homeowners insurance on the property,” and, “based on his sworn

testimony,” had “never obtained, provided or maintained homeowner[’]s insurance

on the property.” The trial court ordered that the Yida property be sold and that the

proceeds be distributed in accordance with the terms of the decree.

      Subsequently, Jennings filed a motion for new trial. Although the motion is

not in the appellate record,3 the trial court, at a hearing on the motion, read the motion

into the record as follows:

              Looking at Paragraph 1, it says the Petitioner seeks to have a new
      trial and appeal because he did not have the taxes paid and did not have
      any proof that it wasn’t. [sic] Attached is a copy of the paid taxes
      marked as Exhibit A.
            Number 2, the Petitioner was unable to obtain insurance because
      the house is uninsurable due to a recent fire and at this time it is a
      teardown that I had been making repairs on and I live there and it’s my
      homestead.
             Further, I had two insurance agents look at same and it had to be
      repaired before it qualified to be insurable.

      At the hearing on his motion for new trial, Jennings asked the trial court to set

aside its order compelling the sale of the Yida property and to grant “a new trial to

start over to present the evidence basically.” He asserted that, although, at the

hearing on the motion for enforcement, “it was uncontroverted that on the date of



3
      The trial court noted at the hearing that Jennings filed his motion on May 9, 2017.
      Thus, Jennings’s notice of appeal was timely filed. See TEX. R. APP. P. 26.1(a)(1).
                                            6
the fire the house was not insured,” he had made a “misstatement.” Although he had

said that he had never maintained homeowner’s insurance on the property, he

actually “did have insurance on the house” “up until it became uninsurable.”

Jennings acknowledged that the trial court had asked him numerous times during the

enforcement hearing whether he wished to call any other witnesses or had any other

evidence and that he had responded in the negative. The trial court denied the motion

for new trial.

                               Exclusion of Evidence4

      In his sole issue, Jennings argues that the trial court erred in excluding his

evidence and testimony regarding his payment of taxes and the lack of insurability

of the Yida property. He is not specific in his brief regarding whether he complains

about an exclusion of evidence and testimony during the hearing on Martinez’s

motion for enforcement or during the hearing on his own motion for new trial, or

both. He notes that he attached copies of the evidence at issue to his appellate brief.

      We review a trial court’s decision to exclude evidence for an abuse of

discretion. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998); Harris Cty. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston

[1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts without



4
      Jennings does not challenge the legal sufficiency of the evidence supporting the trial
      court’s order granting the motion for enforcement.
                                            7
reference to any guiding rules and principles or acts arbitrarily or unreasonably.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We

will uphold the trial court’s evidentiary ruling if any legitimate ground supports the

ruling, even if the ground was not raised in the trial court. Hooper v. Chittaluru, 222

S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). We will not

reverse an erroneous evidentiary ruling unless the error probably caused the

rendition of an improper judgment or prevented a proper presentation of the appeal.

See TEX. R. APP. P. 44.1(a); Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966

S.W.2d 467, 474 (Tex. 1998).

      We do not, however, reach the question of whether evidence was erroneously

excluded unless the complaint has first been preserved for review. McInnes v.

Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984). To preserve error

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

evidence and secure an adverse ruling from the [trial] court.” Akukoro v. Akukoro,

No. 01-12-01072-CV, 2013 WL 6729661, at *6 (Tex. App.—Houston [1st Dist.]

Dec. 19, 2013, no pet.) (mem. op.); Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d

602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).                Although the

reviewing court may sometimes be able to discern from the record the general nature

of the evidence and the propriety of the trial court’s ruling, it cannot, without an offer

of proof, determine whether exclusion of the evidence was harmful. Fletcher, 57

                                            8
S.W.3d at 606; see also Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366,

374 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (holding that, in absence of offer

of proof, court has no basis to review contention that trial court reversibly erred by

excluding documents and testimony).

      Thus, when a trial court excludes evidence, the proponent must preserve the

evidence in the record in order to complain of its exclusion on appeal. Fletcher, 57

S.W.3d at 606; see also TEX. R. EVID. 103(a). If a party does not make an offer of

proof, it must introduce the excluded evidence into the record by a formal bill of

exception. Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 494–

95 (Tex. App.—Fort Worth 1999, pet. denied); see also TEX. R. APP. P. 33.2. Failure

to demonstrate the substance of the excluded evidence or testimony through an offer

of proof or bill of exception results in a waiver of any error in its exclusion. Akukoro,

2013 WL 6729661, at *6; Sw. Country Enters., 991 S.W.2d at 494.

      Here, we do not find, and Jennings does not direct us to, any place in the

record in which he actually offered in the trial court, either at the hearing on the

motion for enforcement or at the hearing on his motion for new trial, the evidence

and testimony, i.e., regarding his payment of taxes due on, and any lack of

insurability of, the Yida property, that he complains was excluded. See Akukoro,

2013 WL 6729661, at *6; Fletcher, 57 S.W.3d at 606. There being no actual offer

of the complained-of evidence and testimony in the trial court, no ruling by the trial

                                           9
court, and no offer of proof or bill of exception, we conclude that Jennings has

waived any error in such exclusion. See Akukoro, 2013 WL 6729661, at *6; Sw.

Country Enters., 991 S.W.2d at 494; see also Yap v. ANR Freight Sys., Inc., 789

S.W.2d 424, 429 (Tex. App.—Houston [1st Dist.] 1990, no writ) (“To complain of

the exclusion of evidence on appeal, Yap must show by bill of exception, formal or

informal, the substance of what was excluded, and that the evidence [at issue] was

actually offered and excluded.”).

      Although Jennings attached several documents to his appellate brief,

documents attached to an appellate brief that are not part of the record in the trial

court may not be considered on appeal. See WorldPeace v. Comm’n for Lawyer

Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet.

denied) (“[W]e cannot consider documents attached as appendices to briefs and must

consider a case based solely upon the record filed.”).

      We overrule Jennings’s sole issue.

      To the extent that Jennings asserts that the trial court erred in dividing the

parties’ property in the underlying decree and that he was not “cognitive enough” in

2010 to have meaningfully executed the agreed decree, the trial court was without

jurisdiction in this enforcement proceeding to consider such challenges to the

underlying decree. An order to enforce a property division is “limited to an order to

assist in the implementation of or to clarify the prior order and may not alter or

                                         10
change the substantive division of property.” TEX. FAM. CODE ANN. § 9.007(a)

(West Supp. 2017). An order that “amends, modifies, alters or changes the actual,

substantive division of property made or approved in a final decree of divorce . . . is

beyond the power of the divorce court and is unenforceable.” Id. § 9.007(b); see

Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). Thus, the trial court did not

err in not reaching Jennings’s complaint. See Gainous v. Gainous, 219 S.W.3d 97,

108 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding that section 9.007

is jurisdictional and orders violating its restrictions are void).

                                    Attorney’s Fees

      In a cross-point, Martinez contends that Jennings’s appeal is frivolous and

requests that she be awarded her appellate attorney’s fees. See TEX. R. APP. P. 45

(damages for frivolous appeals in civil cases).

      We may award just damages to a prevailing party if we objectively determine,

after considering “the record, briefs, or other papers filed in the court of appeals,”

that an appeal is frivolous. Id.; Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the record,

viewed from the perspective of the advocate, does not provide reasonable grounds

for the advocate to believe that the case could be reversed. Smith, 51 S.W.3d at 381.

The decision to grant appellate sanctions is a matter of discretion that an appellate

court exercises with prudence and caution and only after careful deliberation. Id.

                                           11
Rule 45 does not require an award of damages in every case in which an appeal is

frivolous. R. Hassell Builders, Inc. v. Texan Floor Serv., Ltd., 546 S.W.3d 816, 833

(Tex. App.—Houston [1st Dist.] 2018, pet. denied). After a review of the record,

briefing, and other papers filed in this Court, we deny Martinez’s request for

damages. See TEX. R. CIV. P. 45; R. Hassell Builders, Inc., 546 S.W.3d at 833.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.




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