Affirmed and Majority and Dissenting Opinions filed June 27, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00672-CV

 IN THE MATTER OF THE MARRIAGE OF JOSE EUGENIO RANGEL
             AND CATALINA TOVIAS-RANGEL

                    On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-68294


                    DISSENTING OPINION

      Catalina Tovias-Rangel sought a disproportionate division of property based
on her payment of community expenses for thirty months after Jose Eugenio
Rangel left the marital residence. She challenges the trial court’s exclusion of
evidence of those payments. The majority concludes that Catalina failed to
preserve error as to this complaint and that even if she had done so, the record does
not show that the trial court’s exclusion of the evidence was harmful. I would
conclude that Catalina preserved error because based on the record of the trial, we
can determine that the exclusion of the evidence was erroneous and harmful.1
Therefore, I respectfully dissent.

       I.      The issue is preserved.

       During trial, Catalina informed the trial court that she made the following
payments to support the community for thirty months after Jose moved out: house
payments, insurance payments, taxes, and funeral expenses for the couple’s child
who passed away. Catalina’s counsel also informed the trial court that the evidence
of these payments was relevant to Catalina’s disproportionate division claim.

       An offer of proof need not be formal. Jones v. Mattress Firm Holding Corp.,
558 S.W.3d 732, 736 (Tex. App.—Houston [14th Dist.] 2018, no pet.). It needs
only to enable a reviewing court to determine whether the exclusion of the
evidence was erroneous and harmful and to enable the trial court to reconsider its
ruling in light of the actual evidence. Id. Thus, a “short, factual recitation of” the
evidence will suffice. Id. The relevance of the evidence can be apparent from the
context. Id.

       Here, counsel informed the trial court, albeit inartfully, that Catalina made
many payments to support the community estate for thirty months. In the context
of this record, it was not necessary, as the majority contends, for Catalina to outline
specific amounts in her offer of proof because we can see that Jose purportedly
contributed less than an equal share to the community when he left the family’s


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         Catalina also contends the trial court should have awarded a disproportionate division
based on Jose’s purported infidelity. I agree with the majority that Catalina did not offer
evidence that she witnessed a “public display of intimacy” between Jose and another woman. I
also agree with the majority that Catalina did not preserve error as to her argument that she used
separate property for the down payment to purchase the marital residence. Whether she used
separate property for this or any other payments is relevant only to her reimbursement claim. See
Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988) (“[T]he payment by one marital estate of the
debt of another creates a prima facie right of reimbursement.”).

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house, tax, and insurance payments to Catalina for two and a half years.2 See Lewis
v. Lewis, 853 S.W.2d 850, 852–3 (Tex. App.—Houston [14th Dist.] 1993, no writ)
(holding it was not necessary for party to make “an offer of proof of specific dollar
amounts” when reviewing court did not “need to see them to decide whether that
category of evidence was relevant” to party’s claims).

       II.    The evidence was admissible.

       The evidence was admissible to support a claim for disproportionate division
of property because it tends to show that Jose contributed less than an equal share
to the community. See In re Williams, No. 06-18-0041-CV, 2018 WL 6424245, at
*5 (Tex. App.—Texarkana Dec. 7, 2018, pet. denied) (mem. op.) (“Courts may
also consider whether one spouse contributed less than an equal share to the
family’s finances or the development of the community estate.”); Zorilla v. Wahid,
83 S.W.3d 247, 252 (Tex. App.—Corpus Christi 2002, no pet.) (taking into
consideration whether one spouse “contributed less than an equal share to the
family’s finances”), disapproved of on other grounds by Iliff v. Iliff, 339 S.W.3d 74
(Tex. 2011). The majority concludes, however, that Catalina was not entitled to a
disproportionate division of property because the payments apparently were made
with community property. That is an incorrect statement of the law. Catalina’s
disproportionate division claim relates to community funds used to pay a
community debt. See Williams, 2018 WL 6424245, at *5 (“Any doubt as to the
character of property should be resolved in favor of the community estate.”). If
Catalina had proven that the payments were made with separate property, she
would have been entitled to reimbursement. See Penick v. Penick, 783 S.W.2d 194,

       2
          The majority also concludes that Catalina was required to show whether and to what
extent the payments were made from her separate property. As discussed below, this information
would be relevant only to Catalina’s reimbursement claim, not to a disproportionate division of
property.

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196 (Tex. 1988); Dyer v. Dyer, No. 03-16-00753-CV, 2018 WL 2994439, at *5
(Tex. App.—Austin June 15, 2018, no pet.) (mem. op.) (“In general, where the
community funds are used to pay a community debt, no right to reimbursement can
be asserted.”). I agree with the majority that Catalina did not preserve error as to
her reimbursement claim. As to the disproportionate division claim, at issue is
whether Jose failed to contribute an equal share to the family’s finances or the
development of the community estate. See Williams, 2018 WL 6424245, at *5;
Zorilla, 83 S.W.3d at 252. Because the payments are relevant to this issue, they
were admissible.

      III.   The exclusion of evidence was harmful.

      I would also conclude that the trial court’s exclusion of the evidence was
harmful. As an initial matter, the majority holds that to assess harm, we are
required to have findings of fact from the trial court on the value of the community
assets. I disagree. To assess harm in the exclusion of evidence, we are required to
assess whether the excluded evidence is controlling on a material issue in the case
and would not have been cumulative of other evidence in the case. See Manon v.
Solis, 142 S.W.3d 380, 393 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000)).

      The material issue in this case is whether Catalina was entitled to a
disproportionate division of property based on the payments mentioned above. But
the majority conflates the issue of whether the trial court abused its discretion in
excluding evidence supporting a disproportionate division with whether the trial
court made a just and right division of property. I would hold that the trial court
abused its discretion in excluding the evidence and such error was harmful because
the excluded evidence is controlling as to whether the trial court should have



                                         4
awarded a disproportionate division.3 Because we have a complete reporter’s
record, we are able to review whether the trial court’s exclusion of evidence
resulted in harm. See Slater v. Slater, No. 14-13-00693-CV, 2014 WL 6677603, at
*3 (Tex. App.—Houston [14th Dist.] Nov. 25, 2014, no pet.) (mem. op.) (holding
trial court’s failure to file findings of fact and conclusions of law was not harmful
when the record affirmatively showed party could present her case on appeal); In
re J.I.T.P., 99 S.W.3d 841, 848–49 (Tex. App.—Houston [14th Dist.] 2003, no
pet.) (“Because there is a complete reporter’s record, [appellant] was able to fully
brief, and we were able to fully review, whether the judgment is supported by
legally and factually sufficient evidence.”).

       The trial court excluded the only evidence offered at trial that would support
a disproportionate division of property in Catalina’s favor. Had the trial court
admitted this evidence, it would have been required to consider it in its division of
property. This exclusion likely resulted in the rendition of an improper judgment
because the purpose of Catalina’s payments for thirty months was to maintain the
only community asset at issue. If Catalina made these payments to support the
community, by contrast and logic, Jose failed to make the payments. This evidence
was necessary to support Catalina’s claim for a disproportionate division on the
basis that Jose failed to contribute an equal share to the community during the
relevant timeframe. See Rawls v. Rawls, No. 01-13-00568-CV, 2015 WL 5076283,
at *7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no pet.) (mem. op.) (holding
trial court’s exclusion of evidence in support of petition for enforcement of divorce
decree probably resulted in rendition of improper judgment because excluded


       3
        I also disagree with the majority’s assertion that “Catalina cites no authority to support
her suggestion of harm.” Catalina correctly articulates the standard for harm: “Rulings on the
admissibility of evidence will constitute reversible error when the record shows that the evidence
was controlling on a material issue dispositive of the case.” See Manon, 142 S.W.3d at 393.

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evidence could have resulted in award to spouse of withheld funds) (citing
Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)
(recognizing when judgment turns on excluded evidence, exclusion of evidence is
harmful)). As a result of the trial court’s failure to consider the payments made by
Catalina, the trial court ordered the home sold and awarded the net sales proceeds
to be divided equally between Catalina and Jose. The exclusion of the evidence of
Catalina’s payments precluded the trial court from making a disproportionate
division of property, because, without it, there was no basis in the record for such a
division. On these facts, I would hold that the trial court’s error probably resulted
in the rendition of an improper judgment.

      For these reasons, I respectfully dissent. I would reverse the judgment of the
trial court and remand to the trial court for a new trial.




                                         /s/       Frances Bourliot
                                                   Justice


Panel consists of Justices Wise, Jewell, and Bourliot (Bourliot, J., dissenting).




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