A FFIRMED and Opinion Filed March 4, 2021

In The



### Court of Appeals

Fifth District of Texas at Dallas

No. 05

- 19

- 01303

- CV

IN THE MATTER OF THE MARRIAGE OF A.W.E. AND D.M.F.N.

On Appeal from the 254th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DF

- 18

- 11265

MEMORANDUM OPINION

Before Justices Myers, Osborne, and Carlyle

Opinion by Justice Myers

A.W.E. (Wife) appeals the property division in the trial court’s decree of

divorce of her marriage with D.M.F.N. (Husband)

. Wife brings five issues

contending the trial court abused its discretion by (1) ordering th at one of the

community asset s

, their interest in their companies, be sold to the highest bidder; (2)

awarding Husband more of the brokerage accounts than were awarded to Wife; (3)

awarding Husband a ranch that was community property without awarding Wife half

of the community funds used during the marriage to improve the ranch; (4) dividing

an investment equally b etween the parties when Wife had paid for the investment

from her line of credit; and (5) ordering Wife, and not Husband, to pay the attorney’s– 2

–

fees of their companies incurred after Wife brought the companies into the divorce

litigation. Husband moves for dismissal of the appeal, asserting that Wife’s appeal

is barred because she accepted some of the benefits of the divorce decree. We deny

Husband’s motion to dismiss the appeal

, and we affirm the trial court’s judgment

.

BACKGROUND

After Husband got out of college, he started a real estate company, Clifford

Fischer & Company (the company). 1 Wife came to work at the company, and they

married in 1986. They worked successfully to build up the business, and they built

a substantial community estate. Before 2008, the company was Husband’s separate

property. In 2008, he and Wife signed a post

- nuptial agreement (PNA) that

converted Husband’s interest in the company from separate to community property.

As a result of the PNA, Husband and Wife each held fifty percent of the company’s

shares.

Much of the company’s success was due to the work of four key employees :

Jeff Kernochan, Larry Teel, Ted Uzelac, and Chris Joyner. In the 1990s and early

200 0s

, while the company was still Husband’s separate property, Husband entered

into oral and informal written agreements on behalf of the company with these key

employees to pay them annual bonuses that together totaled twenty

- five percent of

the company’s net cash profits each year. He also promised that if a majority of the

1 Over the years, subsidiary companies were created, including Fischer Solutions, Inc., Fischer

Pennsylvania, Inc., Fischer Management Services, Inc., and Fischer Pacific, Inc. Unless otherwise

specified, references to “the company” include these subsidiar ies.– 3

–

stock were to pass to someone other than him

, Wife, or their descendants, then the

key employees would receive change

- of

- control bonus es totaling twenty

- five

percent of the net cash proceeds for the company.

The PNA also contained provisions concerning the division and valuation of

the parties ’ community estate if they got divorced

. The PNA provided they would

each be “allocated or awarded assets and liabilities totaling fifty percent of the net

value of the community.” The agreem ent stated that the “net value of the community

estate ” would be “determined by totaling the fair market value of all assets and

subtracting the total of all community liabilities then outstanding.” The PNA stated

that if they could not agree on the value of an asset, then they would each have it

valued by an appraiser. If the appraisals were within ten percent of each other, then

the two appraised values would be averaged. If the two appraisals were more than

ten percent apart, then the appraisers would choose a third appraiser, whose appraisal

would be averaged with the appraisal closest in value

, “and the resulting value shall

be used as the fair market value.”

The parties separated on July 6, 2017

. O n May 31, 2018, Wife filed suit for

divorce. The parties could not agree on the fair market value of the company, and

they hired appraisers to determine the value of the company as of December 31,

2018

. The appraisers delivered their appraisals on February 6, 2019. Wife’s

appraiser, Aurora Kraus, appraised the company at $72,280,000. Husband’s

appraiser, Bryan Rice, appraised the company at $30,494,700. Because these two– 4

–

appraisals differed by more than ten percent, the appraisers brought in a third

appraiser, Thomas Hope, who issued his report on April 15, 2019, apprais ing the

company at $ 50,522,000. 2 None of the appraisals considered the effect of the

change

- of

- control bonuses or capital gains tax if the spouse awarded the company

were to sell it.

Pursuant to the PNA, the appraisal close r to Hope’s appraisal would be

averaged with Hope’s appraisal to determine the company’s fair market value.

Hope’s appraisal was closer to Rice’s appraisal than Kraus’s

, and the average of Rice

and Ho pe’s appraisals was $40,508,350. Considering only those appraisals, the fair

market value of the company determined under the procedure set forth in the PNA

was $40,508,350.

However, that was not the last of the appraisals. On May 20, 2019, after Hope

had published his appraisal, Kraus revised her appraisal, reducing her apprais ed

value to $65,840,000. This revision brought Kraus’s appraisal closer to Hope’s than

Rice’s. If Kraus ’s revised appraisal were averaged with Hope ’s appraisal, then the

fair market value of the company would be $58,181,000

, an increase in value of

almost $18 million by using Kraus’s appraisal instead of Rice’s

. Husband moved to

exclude Kraus’s revised appraisal from consideration, but the trial court denied the

motion.

2 All three appraisals were made without knowledge of the results of the other appraisals. The

appraisers described the process as “blind” or “independent.”– 5

–

During the trial, the parties presented evidence on the va luation of the

company

, the methodology of the appraisals, and the value of other assets. Husband

asked that the trial court order the company be sold because the time was right to

sell the company. Wife testified that she did not want to be awarded the company

,

but she did not want the company sold if a court

- ordered sale would result in a

reduced price. Wife asked that the company be awarded to Husband and valued at

the average of the Hope and revised Kraus appraisals

, i.e., $58,181,000, and that she

be awarded the equivalent amount of the community estate in other property

.

Husband testified he would agree to being awarded the company if it were valued at

$20 million or less.

Besides the litigation concerning the business, the parties also agreed during

the trial to the sale of the ir residences, which neither of them wanted to receive in

the property division . The properties were to be listed with a particular realtor

, sold

for a price mutually agreeable to Husband and Wife, and the net proceeds from the

sale s divided between the parties.

After the trial, the court sent the parties a memorandum of rendition of

judgment. The court stated that it divide d the community estate equally. The court

awarded each spouse one half of the stock in the company and ordered that the

company be sold. The memorandum set forth the procedure for selling the company,

provided for the payment of the expenses of the sale, the payment of the change

- of

control bonuses to the key employees, the payment of any capital gains tax, and– 6

–

stated that the remainder was to be paid in equal amounts to the parties. The court

later signed the divorce decree, which followed the memorandum of rendition.

MOTION TO DISMISS

Husband moves to dismiss this appeal because Wife ac cepted the benefits of

the divorce decree and is therefore estopped from attacking the decree. Husband

contends Wife accepted the benefits of the decree when she (1) brought a motion to

enforce the decree and sought to hold Husband in contempt of court for misusing

funds in an account designated for expenses of the parties’ residences; (2) took

possession of furnishings awarded to her in the divorce decree; and (3) invoked the

divorce decree and the post

- divorce separate

- property nature of her interest in the

company when she asserted that a shareholder voting agreement was no longer valid.

The supreme court most recently described the acceptance

- of

- benefits

doctrine in a divorce case in Kramer v. Kastleman

, 508 S.W.3d 211 (Tex. 2017) :

Litigants cannot enjoy the fruits of a judgment while simultaneously

challenging its validity

. . . . The acceptance

- of

- benefits doctrine is

based on the principle of estoppel and precludes a party from first

adopting a judgment as right, and then repudiating it as wrong, so as to

take advantage of its being both right and wrong. Estoppel prevents

litigants from taking contradictory positions as a means of gaining an

unfair advantage from the inconsistency. Courts, we have said, should

not be placed in the attitude of subserving such a purpose; nor would it

be fair dealing towards the opposite party to permit it.

The acceptance

- of

- benefits doctrine is thus anchored in equity and bars

an appeal if the appellant voluntarily accepts the judgment ’ s benefits

and the opposing party is thereby disadvantaged. The burden of

proving an estoppel rests on the party asserting it, and the failure to

prove all essential elements is fatal.– 7

–

. . . . The doctrine’s equitable objective of precluding an appeal when a litigant’s actions are inconsistent with a cla i m of error further s finality,

preserves scar c e judicial resources, and guards against gamesmanship.

Id. at 217

– 18 (footnotes and internal punctuation omitted).

“[T]he existence of prejudice plays a fundamental role in determining whether

it would be unconscionable and inequitable to permit an appeal to move forward,

particularly in divorce cases

. . . .” Id. at 219. In determining prejudice to one spouse

from the other spouse’s acceptance of benefits under the divorce decree

, courts

consider whether the benefits the spouse accepted, or the proceeds from their sale,

remain available for redistribution, or whether they have been so dissipated, wasted,

or otherwise converted that they cannot be recovered. Id. at 222. Dismissal under

the acceptance

- of

- benefits doctrine is not favored; “an adjudication on the merits is

preferred in Texas.” Id. at 227 (internal punctuation omitted).

Thus, we must determine whether Wife’s actions are inconsistent with her

claims of error on appeal and whether Husband established the prejudice necessary

to deny Wife a merits

- based disposition of her appeal. See id. at 232 (“ We hold that

a merits

- based disposition must not be denied absent disadvantage to the opposing

party and circumstances reflecting clear intent to acquiesce in the judgment's

validity. ”).

Husband argues Wife accepted the benefits of the divorce decree when she

filed her motion seeking an order that Husband be held in contempt of court and

ordered to reimburse an account. I n the divorce decree

, the court permitted the– 8

–

parties to access a joint bank ac count to be used exclusively for the expenses of their

residences pending the sale of the residences. Wife alleged in the motion that

Husband had violated this provision by withdrawing funds from the account and

using them for travel, business expenses, and other spending not related to the

residence. Wife asked the court to hold H usband in contempt and to require him to

reimburse the account in the amount of his improper withdrawals. This motion does

not concern any of the i ssues relevant to this appeal, and the motion is not

inconsistent with any of Wife’s claims of error on appeal. Nor does Husband explain

how the motion prejudiced him by making property unavailable for redistribution

should the appeal result in the case being remanded to the trial court. We conclude

Wife’s motion is not the sort of acceptance of benefits that should deny her a

merits

- based disposition of this appeal.

Husband also argues the appeal should be dismissed because Wife “took

furniture, some of which was awarded to her under the decree.” The divorce decree

provided that Wife’s residence was to be sold with its furnishings

. Any personal

property (other than clothing) formerly located in Wife’s residence but that was no

longer there was to be sold at auction. The court ordered the parties not to remove

any property from Wife’s residence without the approval of the realtor. Husband

alleged Wife removed furnishings from her residence without his knowledge and

without the realtor’s approval. None of the issues in this appeal concern the

furnishings in Wife’s residence. Nor does Husband explain how Wife’s taking– 9

–

possession of the furnishings prejudiced him. He does not assert that the furnishings

or their proceeds are not available for redistribution. We conclude Husband has not

shown the appeal should be dismissed because Wife took possession of furniture.

Finally, Husband argues the appeal should be dismissed because of Wife’s

action at a shareholders’ meeting of the company. When Husband and Wife signed

the PNA, which made the company ’s stock community property instead of his

separate property, they also signed a voting agreement. The voting agreement

provided that if they disagreed on an issue requiring the majority vote of the

shareholders, then an executive of the company could cast the deciding vote. In

2019, that executive was Larry Teel. The voting agreement provided it would

remain in effect so long as Husband and Wife owned the company’s stock “as their

community property.” At a shareholders’ meeting in December 2019, which was

held to approve proposed changes to the company’s articles of incorporation and

bylaws, it became apparent that Husband and Wife did not agree on the changes.

Wife objected to Teel casting the deciding vote

. She asserted that because the

divorce decree awarded them each fifty percent of the company as their separate

property, they no longer owned the stock “as their community property,” the voting

agreement was no longer in effect, and Teel had no authority to vote in the

shareholders’ meeting. Husband argues the appeal should be dismissed because of

Wife’s reliance on the decree in her assertion that the voting agreement was no

longer in effect. We disagree. “[M] erely using, holding, controlling, or securing– 10

–

possession of community property awarded in a divorce decree does not constitute

clear intent to acquiesce in the judgment and will not preclude an appeal absent

prejudice to the nonappealing party. ” Id. at 228. Wife’s refus al to approve the

amendments was the use of the shares

, the exercise of her rights as a share holder,

and will not preclude her appeal absent a showing of prejudice by Husband.

The prejudice Husband asserts is that the articles of incorporation and bylaws

refer to repealed statutes, not current law. He states that the “antiquated provisions

deter the Company from seeking qualified, experienced candidates to serve as

officers and/or directors of the company, which in turn negatively affects the

Company’s ability to compete in the market.” He also states that some of the

Company’s officers have sought the amendments and that Wife’s refusal to vote for

the amendments “threatens to push these seasoned officers to seek employment

elsewhere, which would negatively impact the Company’s success as a business and

affect the scalability of the Company and the value of [Husband’s] interest in the

company.” None of these assertions is supported by the record. The record does

not show what specific amendments were sought, nor is there any evidence that a

potential officer or director would refuse a position with the company because the

articles of incorporation and the bylaws refer to the old statutes. Nor is there any

evidence that any current officer would leave due to the out

- of

- date corporate

documents

. Instead, the record from the trial, held about six months before the

shareholders’ meeting, shows that none of the key employees still at the company– 11

–

had any plans to leave the company. Furthermore, the potential, but unproven, drop

in the company’s value, standing alone, is not the sort of prejudice recognized in

Kramer

. Husband has not shown how Wife’s refusal to vote for the amendments

and her assertion that the voting agreement had expired interfere with the distribution

of property and any possible redistribution in the event of a remand. See id. at 228

–

29.

Husband’s loss of any control he may have had over the voting of the shares

is not the sort of irremediable prejudice necessary to support dismissal of the appeal.

The appeal does not concern the voting of the company’s shares. In Kramer

, the

husband argued that the award to the wife of partnership interests that were

community property and her making decisions affecting the partnerships when the

husband had previously controlled them constituted irremediable prejudice because

he could not exercise the rights of a general partner during any period the wife

controlled the assets. The supreme court did not find the husband’s argument

persuasive. See id. at 230. Likewise, Husband’s loss of any control over the

outcome of a voting dispute is not the sort of prejudice warranting dismissal of the

issues Wife brings on appeal.

We conclude Husband has not shown the appeal should be dismissed due to

Wife’s acceptance of benefits under the divorce decree. We deny Husband’s motion

to dismiss the appeal.– 12

–

STANDARD OF REVIEW OF PROPERTY DIVISION

Wife’s first through fourth issues assert the trial court erred in the division of

the community property between the parties.

In a divorce decree, “ the court shall order a division of the estate of the parties

in a manner that the court deems just and right, having due regard for the rights of

each party and any children of the marriage

. ” T EX

. F AM

. C ODE A NN

. § 7.001. Citing

Black’s Law Dictionary, the supreme court has defined “just” as meaning “legally

right; lawful; equitable”; “right” as meaning “that which is proper under law,

morality, or ethics”; and “due regard” as meaning “the attention, care, or

consideration that is just, proper, regular, and reasonable.” Bradshaw v. Bradshaw

,

555 S.W.3d 539, 543 (Tex. 2018) (footnotes and internal punctuation omitted). “In

the end, the court is to do complet e equity as between the husband and wife and the

children, having due regard to all obligations of the spouses and to the probable

future necessities of all concerned.” Id.

When exercising its broad discretion to divide the marital property, the trial

court may consider many factors, including the nature of the marital property, the

relative earning capacity and business opportunities of the parties, the parties ’

relative financial condition and obligations, the parties ’ education, the size of the

separate estates, the age, health, and physical conditions of the parties, fault in

breaking up the marriage, the benefit the innocent spouse would have received had

the marriage continued, and the probable need for future support. See Murff v. Murff

,– 13

–

615 S.W.2d 696, 699 (Tex. 1981); In re Marriage of C.A.S. & D.P.S.

, 405 S.W.3d

373, 384 (Tex. App.

— Dallas 2013, no pet.)

.

We review the trial court ’ s division of a community estate for an abuse of

discretion. Moroch v. Collins

, 174 S.W.3d 849, 857 (Tex. App.

— Dallas 2005, pet.

denied). A trial court does not abuse its discretion if there is some evidence of a

substantive and probative character to support the decision. LaFrensen v.

LaFrensen

, 106 S.W.3d 876, 877 (Tex. App.

— Dallas 2003, no pet.).

In family law cases, the abuse of discretion standard of review overlaps with

the traditional sufficiency standards of review; as a result, legal and factual

sufficiency are not independent grounds of reversible error, but instead constitute

factors relevant to our assessment of whether the trial court abused its discretion.

Moroch, 174 S.W.3d at 857. To determine whether the trial court abused its

discretion we consider whether the trial court (1) had sufficient evidence on which

to exercise its discretion and (2) erred in its exercise of that discretion. In re A.B.P.

,

291 S.W.3d 91, 95 (Tex. App.

— Dallas 2009, no pet.). We then proceed to determine

whether, based on the elicited evidence, the trial court made a reasonable decision.

Id.

In an appeal from a bench trial, an appellate court reviews a trial court ’ s

conclusions of law de novo and will uphold them on appeal if the judgment of

divorce can be sustained on any legal theory supported by the evidence. Reisler v.

Reisler

, 439 S.W.3d 615, 619 (Tex. App.

— Dallas 2014, no pet). We “may not– 14

–

challenge a trial court ’ s conclusions of law for factual sufficiency, but

. . . may

review the legal conclusions drawn from the facts to determine their correctness.”

Id. If we determine that a conclusion of law is erroneous, but the trial court

nevertheless rendered the proper judgment, the error does not require reversal. Id.

at 619

– 20.

When the appellate record contains a complete reporter ’ s record, we review

the trial court ’ s findings of fact under the same standards for legal and factual

sufficiency that govern the review of jury findings. Id. at 620. In evaluating a legal

sufficiency challenge, we credit evidence that supports the finding if a reasonable

fact finder could, and disregard contrary evidence unless a reasonable fact finder

could not. City of Keller v. Wilson

, 168 S.W.3d 802, 827 (Tex. 2005). The test for

legal sufficiency is whether the evidence at trial would enable reasonable and fair

minded people to reach the verdict under review. Id. In a factual sufficiency review,

we examine all the evidence in the record, both supporting and contrary to the trial

court ’ s finding, and reverse only if the finding is so against the great weight of the

evidence as to be clearly wrong and unjust. In re Marriage of C.A.S. & D.P.S.

, 405

S.W.3d 373, 382

– 83 (Tex. App.

— Dallas 2013, no pet.).

In this case, the parties had an agreement to divide the marital estate equally.

The trial court intended to honor that agreement, and the court’s division of the

community property purports to equally divide this $90 million community estate

—– 15

–

not including the value of the company and some mineral interests

— down to the

penny.

SALE OF THE COMPANY

In her first issue, Wife contends the trial court erred by ordering the company

be sold and the net revenues divided equally between the parties.

Wife first points out that the PNA does not provide for the sale of the

community property. The PNA provides that if the parties get divorced, the

community estate will be equally divided between them with each spouse receiving

assets and liabilities totaling fifty percent of the net value of the community estate.

“The net value of the community estate shall be determined by totaling the fair

market value of all assets of the community estate and subtracting the total of all

community liabilities then outstanding.” If the parties are unable to agree on the fair

market value of community property, then they will jointly engage an appraiser. If

they cannot agree on an appra iser, then they will each select an appraiser. If the two

appraisers’ values are within ten percent of one another, then the fair market value

is the average of the two appraised values. However, if the values are more than ten

percent apart, then the two appraisers select a third appraiser. Then, the third

appraiser’s value is averaged with whichever of the other two appraisers’ values is

closer

, and that averaged value would be the fair market value for the property.

Although the PNA did not authorize the sale of any of the property as a means

to determine value or to distribute the community estate

, the parties agreed to sell– 16

–

and divide the net proceeds for property that neither of them wished to receive in the

divorce

, most notably, two of their residences. One was a $10 million house, and

the other was a $4 million condominium. The court ordered those properties be sold

and for the net proceeds to be divided equally between them.

The divorce in this case was pending in the trial court for a little over a year

before trial. Early in the proceeding, Husband was opposed to the sale of the

business. But by the time of trial, he thought selling the business was the best plan

for him and Wife and the key employees to be able to reap the benefit of their

longtime work in the business. He testified that he and the other key employees

were close to retirement age, and that a purchaser of the company would want them

to stay on for a few years to assist in the transition to the new ownership. So the

time was right to sell the company.

The testimony about the appraisals also showed they were fraught with

inconsistencies. Four of the inconsistencies were what data to use, what size

businesses to compare to the company, how to accoun t for and remove the spouses’

personal goodwill from the valuations, and how to account for $5.8 million of profits

from 2018. Evidence also showed that regardless of the appraisers ’ determination

of fair market value , the actual price a purchaser would p ay for the company

followed a different formula.

The apprais ers were to determine the fair market value of the company as of

December 31, 2018. The question then arose of whether to determine the value of– 17

–

the company and the other business used to comp a r e to the company based on the

information available on December 31, 2018, or to include data that became

available after December 31, 2018. Kraus and Rice used only information that was

available on December 31, 2018. Hope, who delivered his appraisal about 3 months

after Kraus and Rice, used data that did not become available until after December

31, 2018

, but that was relevant to determining the company’s value on December

31, 2018. Kraus then amended her appraisal to use the later

- available informat ion,

which reduced her valuation by $6,440,000, about nine percent.

The appraisers also disagreed about the size of the businesses to use to

compare to the company. The company’s revenues were historically $47 million to

$62 million per year. Kraus and Hope compared the company to multinational

businesses with revenues in the hundreds of millions to billions of dollars. Rice

compared the company to smaller businesses and explained that smaller businesses

had risks affecting their valuations that did not exist to the same extent in the larger

businesses Hope and Kraus used to compare to the business. 3 Hope and Kraus

testified that their valuations followed acceptable protocols.

The appraisers also disagreed on how to discount pers onal goodwill. In Texas,

the personal goodwill of a spouse in a business is not an asset of the community

estate subject to division in a divorce. See Nail v. Nail , 486 S.W.2d 761, 763

– 64

3 One of the company’s risks was that about half of its revenues came from one client. In 20 19, that

client deferred many of its real estate projects, which resulted in reduced revenues for the company.– 18

–

(Tex. 1972); Finn v. Finn , 658 S.W.2d 735, 741

– 42 (Tex. App.

— Dalla s, 1983, writ

ref’d n.r.e.) (en banc). Thus, the question was how much of the company’s value

was attributable to Husband and Wife’s personal goodwill. Rice determined that it

was fifty percent of the company’s intangible value, Kraus determined it was t wenty

five percent of the intangible value, and Hope, who had not previously done a

business valuation for a divorce in Texas, determined it was zero percent. 4 Rice

determined the personal goodwill attributable to Husband and Wife was $12

. 8

million. Krau s determined the personal goodwill attributable to the parties was

$22 .9 million. If Kraus, like Rice

, had determined the personal goodwill was 50

percent of the intangible value instead of twenty

- five percent, then her appraisal

would presumably have bee n substantially reduced. If Hope, like Kraus, had

determined the parties’ personal goodwill was twenty

- five percent of the intangible

value, then his appraisal would have been about $8.4 million less, and if he had

agreed with Rice and determined the part ies’ personal goodwill was fifty percent of

the intangible value, then it would have reduced his appraisal by $13.9 million.

The other inconsistency was the accounting for the $5.8 million of

distributable profits in the company from 2018. These profits were due to be

distributed to Husband and Wife but were still on the company’s books on December

4 Hope testified that Husband and Wife’s personal goodwill was paid to them in the form of their

compensation and payment of the profits from the business, so none of its value remained in the company.

Kraus and Rice, who had performed many business valuation s for divorces in Texas, testified they did not

understand Hope’s explanation.– 19

–

31, 2018 . Kraus and Rice included the funds in their determinations of the

company’s value, but Hope did not.

Each of these inconsistencies amounted to diffe rences of several million to

over ten million dollars of appraised value in the company.

The trial court also heard evidence that the appraised values were not the

amount a purchaser would pay for the company. Witnesses testified that businesses

that w ould be interested in purchasing the company would pay three to three

- and

- a

half times EBITDA, earnings before interests, taxes, depreciation, and amortization.

The company’s EBITDA had been falling over the last few years. In 2017, EBITDA

was $11.9 mill ion; in 2018, it was $8.9 million, and in 2019, based on the first part

of the year, it was projected to be $6 million. Using the 2018 EBITDA, that would

make the sales price $26.7 million to $31.15 million, well below Kraus ’s and Hope ’ s

appraised values

. And if the sales price were based on the 2019 projected EBITDA

of $6 million, the sales price would be $18 million to $21 million.

The trial court also heard evidence about the effect of the change

- of

- control

bonuses and capital gains tax on the amount a spouse would receive from the sale of

the company

. Husband presented evidence that if the company sold for $40,508,350

(Rice’s valuation averaged with Hope’s), then the net proceeds reduced by the

change

- of

- control bonuses and capital gains tax would be $23,342,963.58, a

reduction of over $17 million, and if the sale price were $58,181,000 (Kraus’s

revised valuation averaged with Hope’s), then the net proceeds reduced by the– 20

–

bonuses and tax would be $33,319,174.50, a reduction of over $25 million. These

reductions amount to about forty

- two percent of the company’s value. And those

calculations do not include any of the other potential costs associated with the sale

of the company

.

Neither party wanted to keep the company if it were awarded to that spou se.

The court could conclude from the evidence that if the company were awarded to

one spouse for the appraised amounts according to the PNA, there was a likelihood

that spouse would sell the company and receive, at most, only fifty

- eight percent of

the a ppraised amount, while the other spouse would receive the entire appraised

amount in other community property or in a promissory note secured by the

community property awarded to the spouse receiving the company

. There was also

the possibility that the co mpany’s sale price befor e the reductions for the change

- of

control bonuses and capital gains tax might be significantly less than the appraised

value. The court could conclude that such a result would not be in keeping with the

clear intent expressed in t he PNA to divide the community estate equally nor result

in a just and right division of the community estate as required by section 7.001 of

the Family Code

.

The court ’s memorandum of rendition of judgment demonstrates the court’s

difficulty in determini ng the fair market value of the company :

The issue that has been most problematic is the Fischer companies

themselves. Recognizing that there is an enormous disparity in value I

have determined that these companies should be sold. The arguments– 21

–

cited by Mrs. Fischer are serious[;] however neither party should be

awarded an asset that requires them to work if they choose not to do so.

The memorandum of rendition of judgment, and subsequently the divorce decree set

out the procedure for selling the company.

Wife argues on a ppeal that Husband was estopped from asserting the company

should be sold because that position was contrary to an earlier position Husband had

taken in the litigation. “Estoppel prevents litigants from taking contradictory

positions as a means of gaining an unfair advantage from the inconsistency.”

Kramer , 508 S.W.3d at 217 (Tex. 2017). Wife asserts Husband had made statements

during the litigation that the court was bound by the valuation procedures in the

PNA. In particular, Wife cites to statements in Husband’s “Brief That the Court is

Bound by the Terms Set Out Within the Four Corners of the Post

- Nuptial

Agreement.” That brief argued the trial court could not consider Kraus’s revised

appraisal of the company because, he argued, the valuation could be determined only

from the original appraisals of each spouse’s appraiser and the third appraiser. The

brief did not address whether the trial court could order the company be sold and the

proceeds divided between the parties. 5 The brief was not contrary to Husband’s

position that the company should be sold. The sale of the company with distribution

5 The record does not show that the parties scrupulously follo wed the three

- app raiser procedure.

Husband’s inventory included the value he put on the community property and the value Wife put on the

property. That exhibit shows the spouses disagreed about the value of several vehicles by more than ten

percent, yet the record does not show they followed the three

- appraiser procedure to resolve the difference s

. Instead, it appears they allowed the trial court to exercise discretion to determine the value.– 22

–

of the net proceeds was an alternative form of relief versus award ing the company

to one spouse based on valuation u nder the PNA’s three

- appraiser procedure. It was

not a contradictory position. Therefore, Wife has failed to show Husband was

estopped from requesting the sale of the company.

Wife asserts the PNA did not provide for the sale of any of the community

ass ets to determine their value. Wife is correct; the PNA did not expressly provide

for the sale of community assets. Nor did it expressly prohibit it. The PNA was

silent on the subject. However, the parties obviously did not believe the PNA

prohibited th e sale of community assets and the division of the proceeds as part of

the property

- division procedure because they agreed that the court could order the

sale of their residences and furnishings with the net proceeds from the sale s divided

between the part ies. The trial court could presume this was the procedure for assets

that neither spouse wanted to receive in the property distribution. Wife testified she

did not want to be awarded the company , and she “would agree to buy the company”

for one dollar

. However, she testified she thought the company was worth more than

$100 million and should be awarded to Husband even if he did not want it . Her

proposed division of property requested that the court award the company to

Husband and value it in the prope rty distribution at over $5 9 million. Husband

testified he did not want the company unless it was valued at $20 million or less.

The trial court could conclude from this evidence that, like the residences, neither– 23

–

party wanted to receive the company in t he property distribution and that it should

be sold, dividing the net proceeds between the parties.

Wife argues on appeal that the law does not permit a court to order the sale of

the company. 6 Quoting an opinion from the Texarkana Court of Appeals, Wife

asserts, “‘[t]he right to have property partitioned in kind is a valuable right,’ and

‘[t]he law does not favor compelling an owner to sell his property against his will,

but prefers a division i n kind when such can be fairly and equitably made.’” Rayson

v. Johns , 524 S.W.2d 380, 382 (Tex. App.

— Texarkana 1975, writ ref’d n.r.e.).

Rayson stands for the proposition that where there is a fact question about whether

real property can be divided in k ind, a party is entitled to a jury determination of that

issue when a jury has been properly requested. See id. at 382

– 83. The case d id not

involve division of property in a divorce, nor d id it concern division of business

interests. To the extent the opinion is applicable, it stands for the position that the

trier of fact may determine that property should be sold instead of divided in kind

when the division cannot “be fairly and equitably made.” Id. at 382. In this case,

Wife did not seek to have the company divided; she wanted the company awarded

entirely to Husband with other community property equal to the value of the

company awarded to her. Moreover, there was evidence that awarding the company

to one spouse would potentially be unfair and inequitable given the large differences

6 Wife did not present this argument in the trial court. Ther e, she argued that the trial court had authority

to order the company be sold but that the court should not do so.– 24

–

in the appraisals of the property

, the effect of the change

- of

- control bonuses and

capital gains tax, and the fact that neither spouse wanted to be awarded t he property.

Wife also cites Braswell v. Braswell , 476 S.W.2d 444, 447 (Tex. App.

— Waco

1972, writ dism’d w.o.j.) . In that divorce case, the spouses owned as community

property all but 38 shares of the 35,000 issued shares in a closely held corporation.

The remaining 38 shares were held by an employee of the company. Id. at 445. In

that case, the husband managed the company. Id. at 447. The wife wanted their

interest in the company sold, but the husband did not. Id. The court assumed that

the husban d would control a majority of the shares because the employee holding

the 38 shares would vote with him. Id. The trial court divided the community shares

between the spouses, and the court of appeals affirmed. Id. The court of appeals

stated, “ the mere fact that stock in a closely

- held corporation is divided in kind

between the husband and wife in such a way that the husband, who is president and

general manager of the corporation, might retain the control of the corporation does

not, alone, constitute an inequitable division. ” Id. at 448. That is not our situation.

First, the husband in Braswell wanted to keep control of the company. Id. at 447

(the wife argued the husband refused to sell the company and “possesses the control

to operate it for his own benefit”). In the case before us, neither spouse wants to

continue to own the business. Also, in Braswell

, despite the wife’s assertion that she

would be unable to liquidate her minority position, the court of appeals assumed she

would be able to liq uidate her interest if she decided to do so. Id. The court of– 25

–

appeals determined, in that situation, that it was not an abuse of discretion for the

court to refuse to order the sale of the shares and to divide the shares equally between

the parties. Id. In this case, Wife is not complaining that she cannot sell her shares,

nor is she asking that the shares be divided equally between the parties and not be

sold. Instead, she is asking that Husband essentially be required to purchase her

shares in the co mpany when Husband does not desire to do so. That was not the

situation in Braswell , and Braswell is not helpful in determining whether the court

may order the sale of the shares in this case.

Wife also cites Bowman v. Stephens , 569 S.W.3d 210 (Tex. App.

— Houston

[1st Dist.] 2018, no pet.). That case involved a dis pute among siblings concerning

lakefront property. The two brothers wanted to sell the property; the sister did not

want to sell but wanted the property partitioned so she could keep a portion of the

property and the brothers could sell their portions. Id. at 215

– 16. The brothers sued

their sister seeking a judgment requiring the sale of the property and division of the

sale proceeds. Id. at 216. The trial court determined that partition in kind was

possible. The brothers appealed that determination, id. at 224

– 27 , and the court of

appeals concluded the trial court did not abuse its discretion in determining the

property could be p a

rti ti oned in ki nd. Id. at 227

– 28. Wife quotes the court of

appeals’ statements that “Texas law favors partition in kind over partition by sale,”

id. at 220, and “[t]he party seeking to obtain a partition by sale (instead of the legally

favored partition in kind) has th e burden to demonstrate that partition in kin d is– 26

–

impractical or unfair.” Id. at 220 (internal quotation marks omitted). In this case,

neither party seeks partition in kind of the company’s stock . Husband wants

partition by sale of the stock, and Wife w ants the trial court to order Husband to buy

her interest at a price that does not account for the change

- of

- control bonuses and

the capital gains tax. The evidence showed, and the trial court commented in the

memorandum of rendition of judgment, that the re was “an enormous disparity in

value” concerning the company that supported selling the company and that “neither

party should be awarded an asset that requires them to work if they chose not to do

so.” Because this case does not involve a choice betwee n partition in kind or

partition by sale, Bowman is not helpful.

Wife also cites Beavers v. Beavers , 675 S.W.2d 296 (Tex. App.

— Dallas 1984,

no writ). In that divorce case, the community owned a one

- third interest in a closely

held corporation. The trial court awarded the stock to the husband and awarded the

wife a judgment against the husband. Id. at 299. We observed that “[n]either party

complained of this approach.” Id. In the case before us, however, Husband did

complain of an approach that would have awarded him all the shares and awarded

Wife other community property or a promissory note secured by community

property awarded to Husband. Therefore, Beavers is not applicable to the case

before us.

Q uoting a brief she filed in the trial court, Wif e states, “Texas law favors

dividing marital assets between the spouses where it is possible to do so.” Wife cites– 27

–

Carter v. Henry , 525 S.W.3d 420 (Tex. App.

— Fort Worth 2017, no pet.). That case

concerned a suit for partition of real estate. Id. at 421. It did not involve a divorce

or marital property. The case does not stand for the proposition that a court may not

order the sale of a community asset that neither spouse wants to receive in the

division of the marital estate.

To the extent Wife argues Texas law does not allow the trial court in the

divorce decree to order the sale of a community asset, Wife is mistaken. The trial

court in a divorce proceeding has authority to order the sale of a community asset

the court deter mines is not subject to partition in kind. See Vannerson v. Vannerson

,

857 S.W.2d 659, 672 (Tex. App.

— Houston [1st Dist.] 1993, writ denied) (“In

divorce proceedings, if the homestead cannot be partitioned, it is subject to sale and

a division of the proc eeds.”). Numerous cases refer to trial courts ’ ordering the sale

of community assets. See, e.g.

, Manning v. Jones , No. 05

- 18

- 01140

- CV, 2019 WL

6522183, at *1 (Tex. App.

— Dallas Dec. 4, 2019, no pet.) (“The district court

determined the Property was commun ity property and ordered that it be sold.”);

Matter of Marriage of Rangel , 580 S.W.3d 675, 678 (Tex. App.

— Houston [14th

Dist.] 2019, no pet.) (mem. op.) (“The trial court granted the divorce, ordered the

marital residence sold, and ordered the sale proceed s divided equally among” the

husband and the wife). In this case, the parties’ testimony that they did not want to

be awarded the company supports the trial court’s conclusion that the company

cannot be partitioned between the spouses.– 28

–

Wife also argues that the trial court abused its discretion by ordering the shares

sold witho ut specifying a minimum price. T he court ordered the company be sold

for the highest offer following a procedure set out in the decree. Wife asserts that

the highest offer might be significantly below the appraised values. It might well

sell for less than those valuations. However, given that neither party wants to retain

an interest in the company , the court could still conclude that the sale at any price

was the best way to p rovide a just and right division of the community estate , having

due regard for the rights of each party

. See F AM

. § 7.001.

Wife next a s s erts that Husband agreed with her that the sale price of the

company would be “ materially depressed ” by a court

- order ed “distressed sale.”

Wife cites to an e

- mail Husband sent to the company’s board of directors in June

2018, shortly after Wife filed for divorce. In the e

- mail, Husband described the

possible outcomes for the company, including that he would buy out Wif e’s position

or that all of his and Wife’s equity would be sold to a third party. Regarding this

latter possibility, Husband stated:

If the decision is made that a sale of the Company to a third party is the

best approach, I am concerned that attempting t o sell the Company to a

third party in the midst of a divorce proceeding will be viewed by

potential buyers as a distressed sale and will result in a depressed

valuation.

During the trial, Husband testified that those comments concerned a sale in the

middl e of the divorce. Husband testified he was requesting a sale at the conclusion

of the divorce. The record contains no evidence that the court

- ordered sale following– 29

–

the procedures in the divorce decree would result in a lower sales price for the

company than would result under more normal business circumstances.

Wife also argues that the sale of the company will result in reduced proceeds

to the parties because of the change

- of

- control bonuses and capital gains tax. The

bonuses and tax demonstrate why ordering a sale of the company results in a just

and right distribution. There are at least three possible scenarios:

(1) the court awards the company to one spouse, values the companies

without adjusting for the bonuses and tax, and awards that value of

other community assets to the other spouse;

(2) the court awards the company to one spouse, adjusts the value for

the effect of the bonuses and tax, and awards that value of other

community assets to the other spouse; and

(3) th e court orders the sale of the company and divides the net proceeds

after deduction for the amount of the bonuses and tax.

Under the first scenario, if the spouse receiving the company decides to sell it shortly

after the decree, that spouse will have to pay all of the bonuses and tax, the spouse

receiving other community property will not have to pay any of it, and the spouse

receiving other community property will receive at least forty

- two percent 7 more for

the interest in the company than the spouse r eceiving the company. Under the

second scenario, if the spouse receiving the company never sells it, and the bonuses

and tax never come due, then the spouse receiving other community property will

have received forty

- two percent less than was appropriate. Under the third scenario,

7 The evidence at trial showed the bonuses and tax would reduce the net proceeds from the sale of the

company by about 42 percent.– 30

–

the court’s sale of the company, payment of the bonuses and tax, and equal

distribution to the spouses of the remaining proceeds guarantees each spouse

receives fifty percent of the net value of the company.

Wife asserts that not ordering the sale of the company would save the spouses

millions of dollars because they would not have to pay the bonuses and tax.

However, that would require the court to award control of the company to a spouse

that no longer wanted to control the company, and if that spouse decided to sell the

interest, would burden that spouse with the entirety of the bonuses and tax, an

outcome the court could find in its discretion was neither just nor right.

We conclude Wife has not demonstrated the trial cou rt abused its discretion

by ordering the sale of the company. We overrule Wife’s first issue.

BROKERAGE ACCOUNTS

In her second issue, Wife contends the trial court’s distribution was not just

and right because the court awarded Husband a greater value of the brokerage

accounts and other business and legal interests than were awarded to W ife.

The trial court’s rendition of judgment included an eleven

- page spreadsheet

listing the parties assets and debt, valuing them, and assigning that value to either or

both spouses. The spreadsheet shows Husband received $1.5 million of certain

business and legal interests other than the company and Wife received $0 and that

Husband received $16.7 million of the brokerage accounts while Wife received

$14.2 million.– 31

–

T he PNA required the “ net value of the community estate ” be divided equally

between the parties. It did not require each class of assets be divided equally . The

end of the trial court’s spreadsheet contains a total of the assets and debts awarded

to each spouse, makes a nine

- cent adjustment to equalize the division, and shows

that each spouse received community assets and debts of $45,973,089.50 , plus the

net proceeds from the sale of the company and the value of some mineral interest s

that were div id ed eq ually between the parties and were not assigned a value by the

trial court . In some asset categories, Husband received more than Wife, and in other

asset categories, Wife received more than Husband. But the final net value of the

community estate each sp ouse received was equal.

We conclude Wife has not shown the award to Husband of a greater share of

the brokerage accounts and other business and legal interests resulted in a division

that was not just and right or was otherwise an abuse of discretion. W e overrule

Wife’s second issue.

FISCHER RANCH

In her third issue, Wife contends the property division was not just and right

because the trial court awarded Husband a ranch , valued at $4.8 million, but did not

award Wife one half of the community funds, nearly $2 million, used by Husband

during the marriage for the construction and renovation of the ranch.

The ranch was community property. Wife did not allege a claim of waste of

community assets. Nor did she list a claim for reimbursement of these amounts in– 32

–

her proposed division of the community estate. Wife cites Bufkin v. Bufkin , 259

S.W.3d 3 43 (Tex. App.

— Dallas 2008, pet. denied). In that divorce case, the

husband owned a ranch as his separate property

. Id. at 342. One of the husband’s

separate businesses, a pipeline company, borrowed money to build a pipeline. Id. at

353. The husband guaranteed the debt, and he used his separate property as

collateral. Id. Th e spouses had a p re nuptial agreement that all liabilities benefitting

separate property would be assumed by the owner of the separate property. Id. We

stated there was no evidence that the borrowed money ever benefitted the

community estate or that it wa s used to pay the spouses’ living expenses. Id. We

applied the parties’ postnuptial agreement and concluded that the debt must be

assumed by the husband because he was the owner of the separate

- property company

that borrowed the money. Id. Bufkin did n ot involve money spent to improve

community property awarded to one spouse, and it has no applicability to the case

before us.

Wife has not shown that the community funds spent to improve the ranch are

not included in the ranch’s valuation included in the court’s memorandum of

rendition of judgment . Nor has Wife presented any authority that the community is

entitled to reimbursement for improvements to community property. We conclude

Wife has failed to show that the property division is not just and righ t or that the trial

court abused its discretion. We overrule Wife’s third issue.– 33

– HIGHPEAK ENERGY INVESTMENT

In her fourth issue, Wife contend s the trial court should have awarded all of

the investment in HighPeak Energy Partners to Wife instead of dividi ng it equally

between Husband and Wife. She also complains about Husband’s depletion of bank

and brokerage accounts while the divorce was pending.

Wife testified that about a month befor e the trial, she made a million

- dollar

investment in HighPeak Energy Partners using one million dollars from her line of

credit with BNY Mellon. The trial court awarded each spouse half the communit y’s

interest in the investment, and the court awarded Wife the debt on the line of credit

used to purchase the investment, wh ich the rendition memorandum showed was

$1,980,000. The court’s rendition memorandum show ed that all these amounts were

part of the court’s equal distribution of the community’s assets and debts. Wife

states that the $1,980,000 debt did not include the m illion dollars used to purchase

the investment and that Wife’s actual debt on the line of credit was almost $3 million.

The record does not support this assertion. Wife’s proposed division of the

community estate included the HighPeak investment for $1 m illion, but it shows the

debt owing on the BNY Mellon line of credit was $1,980,000, the same as the trial

court’s judgment. Wife does not cite to any testimony that her proposed

distribution’s listing of the BNY Mellon line of credit was incorrect. Wife has not

shown the division of property was not just and right or that the trial court abused its

discretion.– 34

–

Wife also asserts Husband depleted several bank accounts by $1,240,274 and

brokerage accounts by $371,139 while the divorce was pending

. Wife st ates in her

brief, “the $1,240,274 depleted by [Husband] could have been allocated between

both parties, with both [Wife] and [Husband] receiving additional funds.” Wife,

however, fails to mention the evidence of her own excessive spending during the

liti gation . Bryan Rice, husband’s appraiser of the compan y , prepared a report

examining Wife’s spending before and after she filed for divorce. The report

concluded that during the litigation, “it is clear that [Wife] has engaged in excessive

and wasteful spending in the amount of at least $4.4 million.”

The trial court’s duty under the Family Code was to make a just and right

division of the community estate, and the PNA provided the net value of the

community estate should be divided between them equally. “The value of

community assets is generally determin ed at the date of divorce or as close to it as

possible.” In re Marriage of C.A.S. , 405 S.W.3d 373, 385 (Tex. App.

— Dallas 2013,

no pet.). Wife does not assert the trial court used the wrong valuations for the

accounts . The trial court divided the net co mmunity estate equally between the

parties as required by the PNA

.

Wife does not explain how Husband’s depletion of the accounts constituted

an asset of the community estate “that could have been allocated between both

parties” with both parties “receiv ing additional funds.” Moreover, given the

allegations of waste and profligate spending by both parties, the trial court’s decision– 35

–

to award Husband the accounts at their value proven at trial was not an abuse of

discretion and did not result in a divisio n of the community estate that was not just

and right. We overrule Wife’s fourth issue.

ATTORNEY’S FEES

In her fifth issue, Wife contends the trial court erred by ordering her to pay

t he attorney’s fees of the third

- party defendants consisting of the com pany and its

subsidiaries

.

Wife alleged that the company and its subsidiaries were “necessary parties,

because in their absence complete relief cannot be accorded to protect [Wife’s]

interest post

- divorce with regard to her interest in each entity.” Du ring discovery, it

became apparent that Wife was considering challenging the legality of the annual

bonuses and change

- of

- control bonuses, which the parties sometimes called the

profits participation interest s

, promised to the key employees. The company f iled a

counterclaim to Wife’s petition seeking a declaratory judgment “that the

aforementioned profits participation interests are legally enforceable.” The

company requested its attorney’s fees under the Uniform Declaratory Judgments

Act. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 37.009

. On the second day of the

trial, Wife stipulated that the bonus agreements were legal and enforceable, and she

agreed to a declaratory judgment to that effect.

Under section 37.009, “ the court may award costs and reasonable and

necessary attorney ’ s fees as are equitable and just. ” A grant or denial of attorney's– 36

–

fees in a declaratory judgment action lies within the sound discretion of the trial

court. Oake v. Collin C ty., 692 S.W.2d 454, 455 (Tex. 1985). The cou rt ’ s judgment

will not be reversed on appeal absent a clear showing that it abused its

discretion. Id. ; Wells Fargo Bank, N.A. v. Leath , 425 S.W.3d 525, 539 (Tex. App.

—

Dallas 2014, pet. denied)

.

Wife argues that the trial court should not have awarded at torney’s fees under

section 37.009 because the company did not prevail on any declaratory judgment

claim. We disagree. The company pleaded for a declaratory judgment that the bonus

agreements were legal and enforceable, and the trial court declared in th e decree that

the bonus agreements “are all valid and enforceable obligations” of the company and

that Husband “had, at a minimum, the requisite apparent authority to enter into each

of the Agreements.”

Wife also argues that the award of attorney’s fees s hould be against both her

and Husband “so as to be equitable and just.” However, the issue is not whether

imposition of attorney’s fees against both parties would have been equitable and just;

the issue is whether the imposition of attorney’s fees against Wife alone is so

inequitable and unjust as to constitute an abuse of discretion. Wife sued the

company; Husband did not. Wife raised the issue of the enforceability of the bonus

agreements; Husband did not. And the company brought its counterclaim agai nst

Wife, not Husband. Under these facts, we cannot conclude the trial court abused its– 37

–

discretion by determining that imposing attorney’s fees under section 37.009 against

Wife alone was equitable and just.

We overrule Wife’s fifth issue.

CONCLUSION

We affirm the trial court’s judgment.

191 303 F

. P 05 /Lana Myers/

LANA MYERS

JUSTICE– 38

– 

### Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

In the Mater of the Marriage of

A.W.E. and D.M.F.N.

No. 05

- 19

- 01303

- CV On Appeal from the 254th Judicial

District Court, Dallas County, Texas

Trial Court Cause No. DF

- 18

- 11265.

Opinion delivered by Justice Myers.

Justices Osborne and Carlyle

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial

court is AFFIRMED

.

It is ORDERED that appellee D.M.F.N. recover his costs of this appeal

from appellant A.W.E.

Judgment entered this 4th day of March , 2021

.