Affirmed and Memorandum Opinion filed October 26, 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00298

- CV

THOMAS BART MAXWELL, JR. , Appellant

V.
DANIELLE LEMOINE MAXWELL , Appellee
On Appeal from the 322nd District Court Tarrant County, Texas T rial Court Cause No. 322

- 619363

- 17

M E M O R A N D U M O P I N I O N Thomas Bart Maxwell, Jr. (“Husband”) and Danielle Lemoine Maxwell (“Wife”) were married on June 30, 2006 and divorced approximately seven years later. The parties signed a “Final Agre ed Decree of Di v orce” on October 7, 2013, dividing their money and other assets approximately in half. However, the divorce decree also awarded to Husband the full equity interest he held in his employer, Home Care Home Base (the “HCHB interest”). In the years followin g the parties’ divorce, Husband’s equity interest underwent several partial sales for a total of2

approximately $14 million in proceeds. In May 2017, Wife filed a petition for bill of review. In her second amended petition, Wife alleged th at, during thei r divorce, Husband (1) made material misrepresentations regarding the characterization of the HCHB interest, and (2) simultaneously threatened Wife with financial ruin if she retained her own divorce attorney. Wife alleged that this extrins ic fraud preven t ed her from asserting a meritorious claim for the HCHB interest. The trial court held a bill of review hearing in September 2018. After hearing evidence and the argument of counsel, the trial court signed an order granting the bill of re view and settin g aside the parties’ property division as set forth in their 2013 divorce decree. The parties proceeded to a jury trial and the trial court signed a final judgment on December 18, 2019. With respect to assets other than the HCHB interest, the trial court ’ s final judgment retained approximately the same division as set forth in the parties’ 2013 divorce decree. With respect to the HCHB interest, the trial court awarded Wife $3,152,726.50 as her portion of the asset. The trial court also aw arded Wife $100 , 000 in attorney’s fees. Husband appealed and Wife filed a cross

- appeal. For the reasons below, we affirm the trial court’s final judgment. 1
O VERVIEW The issues raised in this appeal address three separate parts of the underlying
proc eeding: the ord e r granting the bill of review, the trial court’s subsequent

1 This case was transferred to this court from the Seco nd Court of Appeals by Texas Supreme Court Transfer Order, Mi sc. Docket No. 20

- 9048. Because of the transfer, we mu st decide the case in accord ance with the precedent of the Second Court of Appeals if o ur decision otherwise would have been inconsistent wi th that court’s precedent. See Tex. R. App. P. 41.3.3

property division, and the trial court’s attorney’s fees award. We delineate our analyses accordingly, beginning with the bill of review proceeding.
A bill of review has three s ubstantive eleme n ts: (1) a meritorious claim or defense to the underlying judgment, (2) an excuse justifying the failure to present that claim or defense based on the fraud, accident, or wrongful act of the opposing party, and (3) an excuse unmixed with t he petitioner’s f ault or negligence. Baker v. Goldsmith , 582 S.W.2d 404, 406

- 07 (Tex. 1979). Challenging the trial court’s order granting the bill of review, Husband asserts Wife did not make the requisite showing with respect to these three elements. H usband also cont e nds the trial court’s findings of fact with respect to these elements are insufficient. We overrule Husband’s challenges. Next, our analysis turns to the trial court’s property division. On this point, the parties’ arguments focus on th e trial court’s d ivision of the HCHB interest. In three issues, Husband asserts:
1. the HCHB interest was not community property; 2. the evidence is legally and factually insufficient to support the trial court’s division of the HCHB interest; and 3. the trial court issued insuf f icient findings of fact with respect to the property division.
In her cross

- appeal, Wife asserts the trial court incorrectly valued the HCHB interest. We overrule Husband’s and Wife’s issues with respect to the trial court’s
prope rty division. Finally, Husband and Wife challenge the trial court’s attorney’s fees award. We overrule these challenges and affirm the trial court’s final judgment.4 A NALYSIS
I. Bill of Review
A. Governing Law and Standard of Review A bill of review is an independent action to set a side a judgment that is no longer appealable or subject to challenge by a motion for new trial. PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 275 (Tex. 2012); Baker , 582 S.W.2d at 406. Courts narrowly const rue the grounds on which a plaintiff may obtain a bill of review due to Texas’s fundamental public policy favoring the finality of judgments. Mabon Ltd. v. Afri

- Carib Enters., Inc. , 369 S.W.3d 809, 812 (Tex. 2012) (per curiam) ; see also Okon v. Boldon , No. 02

- 14

- 00334

- CV, 2015 WL 4652775, at *4 (Tex. Ap p

. — Fort Worth Aug. 6, 2015, no pet.) (mem. op.) (“the grounds on which a petitioner may obtain relief by bill of review are narrow and defined”). To set aside a judgment by bill of review, the petitioner must plead and prove (1) a meritorious defense to t h e cause of a ction alleged to support the judgment, (2) that she was prevented from making by fraud, accident, or wrongful act of her opponent, (3) unmixed with any fault or negligence of her own. Baker , 582 S.W.2d at 4 06

- 07; see also Mosel e y v. Omega OB

- G YN Assocs. of S. Arlington , No. 2

- 06

- 291

- CV, 2008 WL 2510638, at *2 (Tex. App.

— Fort Worth June 19, 2008, pet. denied) (mem. op.) (per curiam). We generally review the ruling on a petition for bill of review for an abuse of discretion. See Kukuk v. Kukuk , No. 02

- 14

- 00 382

- CV, 2015 WL 4504224, at *1 (Tex. App.

—

Fort Worth July 23, 2015, no pet.) (mem. op.). To determine whether the trial court abused its discretion, we must decide whether the court acted without reference to any guiding rules or principles; in other word s, we must decide whether the act was arbitrary or unreasonable. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007). “An appellate court cannot conclude that a trial court5

abused its discretion merely because t he appellate court would have ruled differently i n the same circumstances.” Kukuk , 2015 WL 4504224, at *1. Under the abuse of discretion standard, challenges to the sufficiency of the evidence are not independent grounds of error but instead are relevant factors in assessing whether the tri al court abus ed its discretion. Okon , 2015 WL 4652775, at *3. The trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence of a substantive and probative character

su pports its decision. Kukuk , 2015 WL 4504224, at *1 (citing Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009) (per curiam) ). Moreover, the trial court “is the fact

- finder at a hearing on a bill of review and has the duty of ascertaining the true facts, and it is within the court’ s province to judge the

cr edibility of the witnesses and to determine the weight to be given their testimony.” Okon , 2015 WL 4652775, at *3 (internal quotation omitted).
B. Evidence and the Trial Court’s Ruling Husband challenges whe ther sufficient evidenc e supports the trial court ’s findings regarding the three elements necessary to grant a bill of review. See Baker , 582 S.W.2d at 406

- 07. Before addressing these specific arguments, we summarize the testimony and evidence presented at the bill of review h earing. The bill of revie w hearing was separated into two parts: in the first part, Wife presented evidence to establish a meritorious defense to the 2013 property division. In the second part of the hearing, the evidence addresse d the two remaining bil l

- of

review elements.

1. Firs t Part of Hearing Husband was the first witness to testify at the hearing. Admitted into evidence during Husband’s testimony was the parties’ divorce decree signed on6

October 7, 2013. Under the heading “Division of Marital Estat e”, the dec ree states that : “The Court finds that the following is a just and right division of the parties’ marital estate, having due regard for the rights of each party.” Reviewing this division, Husband agreed tha t it divide s “almost all of [the] mar ital propert y 50

- 50”. The divorce decree also state s that Husband would retain 100% of the HCHB interest. Husband testified that, at the time of the divorce, his equity interest was “just over 1 percent”.
Also admitte d into evidence during Husband’s test imony was a worksheet he fi lled out with the title “Inventory and Appraisement”. According to Husband, his attorney gave him the worksheet to complete in August 2013 as part of his preparation for the divorce. The HCH B interest was included in the portio n of the

wor ksheet entitled , “Community Estate of the Parties”. Husband listed the HCHB interest as “[a]pproximately 1.086 percent” and valued it at $2.6 million. The portion of the worksheet entitled “Separate Estate s of the Parties” is struck through

a nd there are no separate as sets listed. Husband testified that he sold a percentage of the HCHB interest on December 19, 2013, for approximately $6.7 million. Husband said Wife was “well aware” of the HCHB interest; according to Husband, he had sold a po rtion of the HCHB interest for “[a] little over a million bucks” in 2011. Husband testified that he used this sale to estimate the value of the HCHB interest he included on the “Inventory and Appraisement” w orksheet. Wife was the second witness to testify at the hear ing. According to Wife, she was 47 years old at the time of the hearing and had completed one year of college. Wife said she and Husband were married on June 30, 2006; according to Wife, neither she nor Husband brought substantial financi al a ssets into the marriage. W ife testified that Husband “handled the finances” during their7

marriage and said that she did not “feel that [she] had the ability to make purchases when [she] wante d to.” Wife testified that Husband “controlled all the bank ing and the money” and monitore d her spending. Wife described Husband as “controlling” during their marriage. According to Wife, Husband would call her repeatedly during the day and, if she did n ot answer, “he would call [her] four and five more times and tex t [her] until [she]

answere d the phone.” Describing their daily routine, Wife testified that Husband expected her to “stand with him while he was taking a shower, while he was getting ready, [and] walk[] him to the door or out to the car.” When Husba nd

r eturned home in the evening , Wife said he expected her “to be there in the doorway or in the garage when he pulled in.” Wife said that, if she did not meet these expectations, Husband “would get mad”. Wife said Husband encouraged her to get two breast aug mentations. According to W ife, Husband repeatedly told her that her breasts were “saggy” and “weren’t big enough.” At an appointment with a plastic surgeon, Wife said Husband picked the size of her breast implants.
Wife said Husband became “more cont roll ing” and “more demanding” a fter selling a portion of the HCHB interest in 2011. Wife said she was expected to “make the bed every morning the way that he liked it” and fold Husband’s laundry “a certain way.” Wife testified that she would organize Hus band ’s closet for him. Wife re called that, on an occasion when the closet organization did not meet Husband’s expectations, he “took everything out of the closet, threw it in the middle o f the rotunda in the bedroom and told [her] to figure out how to fix it, so it never happened again .”
Wife said she used to work a full

- time job but Husband encouraged her to quit because she “couldn’t have a full

- time job and work and build the house.”8

A ccording to Wife, she did not feel like she could choose to keep wor king . Wife also testified that Husband had “rules” for her when they entertained guests at their home, including ensuring the cigar ashtrays did not get too full and refilling Husband’s d rink when it reached a certain level. In July 2013, Wife found out t hat Husband was having an affai r with another woman. Wife said she was “crying and very hysterical, very upset” when she confronted Husband. According to Wife, Husband told her “that he was done and he wanted a divorce.” Wife said she “[b]egged and begg ed h im and cried for him
not to do it and told him [they] could work on it and [they] would figure it out.” Wife testified that Husband told her, “[i]f [she] weren’t such a bad wife, [he] wouldn’t [have] had to cheat on [her].” When discussing the divor ce, Wife recalled that Husband told her “[t]here’s no reason for either of [them] to have an attorney” because they would “split the cash in the bank and the house.” Wife testified that H usband also told her not to tell anyone about the divorce, including her friends. Wife said Husban d later retained an attorney that he said was “just to draw up the documents.” Wife told Husband she too was going to hire a lawyer and he told her that, if she did, “he would throw [her] and [her] four dogs out on the stree t wi th no money” and that she “ wouldn’t get anything.” Wife recalled Husband telling her that she “was lucky that he was giving [her] half because it was all from the proceeds of his [HCH B] shares that were not [hers].” According to Wife, Husband told he r hi s attorney confirmed the HC HB interest was his separate property. After Husband told her he wanted a divorce, Wife said she purchased a secret phone to communicate with her friends w ithout Husband knowing. Wife said her friends encouraged her to spe ak w ith an attorney. Wife met with an attorney on July 31, 2013, and signed a fee agreement entitled “Potential Divorce9

Matter

— Limited Scope Fee Agreement

— Legal Advice ONLY”. The por tion of the fee agreement entitled “LIMITED SCOPE OF REPRESENTATION” inc ludes the following: [The a ttorney] may:

• Review any pleadings or documents regarding your divorce.

• Provide you with legal advice regarding your divorce. [The attorney’s] representatio n specifically DOES NOT include the following:

• Filing or signing an answ er, response, or any other pleadings, or otherwise making an appearance in your divorce matter.

• Corresponding with the opposing party, or the court on your behalf.

• Preparing for or at tending any hearing, mediation, or settlement negotiations on your b ehal f. According to Wife, she w as “hysterically crying” when she met with the attorney and told the attorney that Husband “absolutely could not find out that [she] was there.” Wife said t he attorney contacted her once by emailing a billing statement to he r fr iend’s email address. The billing statement was sent on August 13, 2013, and noted that $1,000 had been paid, $380 of which was deducted for an “initial consultation” on July 31, 2013

. After the parties rested, the trial court concluded Wife “met th e pr ima facie proof in the meri torious defense in this case, which is not barred as a matter of law.” The parties proceeded to the second part of the hearing, which addressed whether (1) Wife was prevented from making her defense by fraud, accident, or

wr ongf ul act of Husband, (2) unmi xed with any fault or negligence of her own. See Baker , 582 S.W.2d at 406

- 07.10 2. Second Part of Hearing Five witnesses testified during the second portion of t he bill of review hearing. The first witness to testify was Jim Gr iffi n, who worked with Husband at HCHB. According to Griffin, he received a 1% equity interest in HCHB in August 2010; at this time, Griffin said, Husband already owned a 3% equity interest in HCHB. Griffin described himself and Husband as part “owners” of H CHB and members of the “exe cutive team”. According to Griffin, 85% of HCHB was sold to the Hearst Corporation (“Hearst”) in a transaction that closed on December 19, 2013. Griffin said the company knew in “March of 2013 that we were going to go to marke t” and that he and Husband discussed the pending sale throughout 2013. Griffin also testified that he and Husband participated in meetings with potential buyers of HC HB. Griffin said that in “the May

- June [2013] time frame”, it was e stimated that the

mar ket value of the sale would be $450

- 525 million. Griffin said the final price for the December 2013 sale exceeded $525 million. Griffin said he received $3.9 million from the 2013 sale. According to Griffin, Husband received “a litt le less than two

— le ss

— less than two times wh at [Griffin] received.” Francine Cohan was the second witness to testify. Cohan said she met Husband and Wife in June 20 12, when she moved to their neighborhood. Cohan said she and Wife “ became friends and started seeing each other for lunches and thin gs of that nature.” According to Cohan, once she got to know Wife “it was evident .

. . that [Wife] was afraid” of Husband . Cohan testified that Wife was “always kind of on edge” and was “c onstantly making sure everything was j ust so”11

because Husband “li ked things a certain way.” According to Cohan, Wife did not “communicate much when [Husband] was in town”.
Cohan said Wife called her the night she discovered that Husband was having an affa ir. Cohan recommended to Wife that sh e get an attorney and told her to get a “communication device that [Husband] did not have access to and did not pay for or wouldn’t be able to look in to.” According to Cohan, Wife “was extremely afraid of having an at torney locally” in case the attorney k new Husband. Cohan recalle d that Wife “had been told not to contact an attorney, and if she did contact an attorney, [Husband] would throw her out on the streets.” Cohan said Wife eventually visited with an attorney and used Cohan’s email address to rece ive an email regarding paym ent. Cohan did not receive any other emails from an attorney during the pendency of the divorce. In the months preceding the divorce, Cohan said Wife’s health deteriorated: [Wife] became ve ry thin very quickly. She was not eat ing. She was unable to eat anything. What she did eat, it did not stay with her. She was distraught. She cried constantly. Bawled, sobbing constantly.

. . . She was a complete .

. . she was a trai n wreck. She wa s not in a good state of mind.
Cohan said she also was concerned that Wife continued to have sex with Husband during this period of time. Cohan recalled Wife telling her that “[Husband] said too bad they didn’t get along this great when t hey were married and that he had to divorce her.” Acc ording to Cohan, Wife seeme d to think she “was going to be able to win [Husband] back by having sex with him”. Cohan said Wife was not making “much” sense during that time and described her as follows:

It was

— it was difficult to speak with [Wife]. She

— her thoughts were erratic . She was, you know, all over the place with her line of thinking. She was very concerned about her well

- being, the well

being of her animals. Where was she going to live? What she was12

go ing to do? What was going on with [Hu sband’s] situation? .

. . Getting her to calm down and talk was very difficult. Cohan testified that Wife moved to Arizona in September 2013. Cohan said Wife kept in contact with Husband and returned to Dallas to v isit him

. According to Cohan, Wife bo ught a house in Tarrant Cou nty, Texas in 2014. Dr. Albritton, a forensic psychologist, was the third witness and testified regarding Wife’s “psychological functioning prior to the end of 2013 as well as what followed i t in terms of her cognitive ability as well as her depression.” To reach his conclusions, Dr. Albritton said he reviewed affidavits from two of Wife’s friends, including Cohan; therapy records and notes from Wife’s psychologist, Tina John ston; texts; emails; pictures; and Husband’s deposition . Dr. Albritton also said he met with Wife three times. Based on his review of Johnston’s records and notes, Dr. Albritton said Wife had 87 visits with Johnston from December 2013 through 2016. Dr. A lbritton testified that this number of visits is “indic ative of the level of distr ess that [Wife] was in at the time she began therapy.” According to Dr. Albritton, Johnston described Wife as a “puddle” who was “having a great deal of trouble functioning” ; Johnston also noted that Wife had “[b]ad hygiene” , “i nappropriate, almost di sheveled grooming”, and was “almost anorexic.” Johnston stated in her notes that Wife had a “flat affect” with “no expression” except “occ asionally being tearful.” Accordin g to Dr. Albritton, Johnston’s impression was that Wife “wa s having tremendous tro uble putting thoughts together in a meaningful way” and had “some cognitive impairment.” Dr. Albritton testified that Johnston diagnosed W ife as having severe major depressi on and an anxiety disorder. Johnston “recommended, in fact , almost insisted on in patient hospitalization” and made a “psychiatric referral” based on the issues she observed with Wife. According to13

Dr. Albritton, Wife de clined hospitalization but contin ued to visit Johnston several times a week for therapy.
Dr. A lbritton testified th at Johnston’s notes also included impressions of Wife’s relationship with Husband. According to the notes, Wife “felt fearful” and felt li ke Husband “was dictating her behav ior, and .

. . specifically mentioned the attorney issu e beca use of his threats.” Johnston also noted that “there was a significant amount of coercion and control in [Husband’s and Wife’s] relationship” and she was conce rned about Wife’s “level of depende ncy”. Based on his review of the information given to him, Dr. Albritton opined that Wife had been conforming her behavior to Husband’s expectations and “had lost her sense of agency or sense of autonomy”. Discussing W ife’s capacity when she signed the divorce decree in October 2013, Dr. Albritton stated it “was more likely than not that [Wife’s] judgment was significantly impaired”. According to Dr. Albritton, Wife was “psychologically or neurologically impaired” in her dealings with Husband “[p]artic ularly, continuing after the divorce in a relationship, that was very unusual.” A fter Wife moved to Arizona, Dr. Albritton testified that she would continue to visit Husband and “was very hopeful that somehow the relatio nship would be, you know, resurrect ed.” Dr. Albritton also said Wife had “difficulty sett ing ap propriate boundaries” and noted that her sexual relationship with Husband “turned into what [Wife] described as more of a bondage

- servant

- slave

- master relations hip.” Dr. Albritton said Wife main tained this relationship with Husband for at least a ye ar aft er the divorce.
Dr. A lbritton said he first met with Wife in January 2014 and said “she was still kind of disorganized and her thoughts were not a hundred perce nt clear”. According to Dr. Albrit ton, Wife had a conversation with a friend in the summe r of 2 016 “that led her to become

— start questioning whether there had been foul gain14

in the divorce”. Husband testified again during the second part of the bill of review hearing. D uring Husband’s testimony, portions of his video

- taped deposition were p layed. In the first clip, Husband testified that he retained an attorney to draft “an uncontested divorce decree.” Husband said he told Wife that, “if she worked with [him] and the l awyer that [he] had hired, that [he] would treat her fairly and give her what she was due”.
Durin g the second and fourth deposition clips, Husband testified that Wife did not know how much the HCHB interest was worth in 2013. Husband said his opinion th at the HCHB interest was his separate property was based on “[his] opini on and Google.” Testifyin g at the hearing, Husband said he and Wife talked about her hiring an attorney for the divorce proceeding. Acco rding to Husband, he and Wife “had a discussion around [sic] there was no reason to. This was a very commo n, split

everyth ing divorce .” Husband acknowledged telling Wife that he “wanted to keep the divorce proceedings secret” and did not want her “to dis cuss [their] personal life with peo ple in the neighborhood or people in the industry or her friends.” Husb and said Wife ag reed to kee p the divorce a secret. Husband said he and Wife put together the “Inventory and Appraisement” worksheet valuing their as sets.
Husband testified that Wife was financially dependent on him after she stopped working. According t o Husband, Wife “appear[ed] anxious about that” and said “[s]he didn’t like it that she didn’t have a job.” But according to Husband, Wife also “did not like where she was working” an d “had a long commute.” Husband said Wife “was making very little money ” at her job and it “was pr obably a big distraction from us trying to get our house built.” Husband agreed that it was his preference that Wife stop working to focus on getting the15

ho me build completed. After the divorce, Husband recalled that Wife ask ed him to come b ack “multip le times.” Husband said Wife was “sad” after the divorce but “every time [they] were together, she was in a great place.” Even after their divorce, Husband said he and Wife “had a relationship, and [they] had lots of sex, amazi ng sex.”
Wife wa s the last witness to testify at the hearing. Describing her marriage to Husband, Wife said there was no limit on w hat she would do for him. Even

a fter th e divorce, Wife said she “would have done anything” to keep Husband in her life. Wife sa id she went along with Husb and’s sexual requests because she “would have done anything for him because [she] was still in love with him.” Wife said she “[s]ometimes” had bruises “as a result of the sexual activities”. Wife also said she continued to writ e Husband “ long emails .

. . pretty much every day” because she “was in love with him.”
Wife said she believed Husband when he told her the HCHB interest was his
separ ate property. Wife said she never saw any documents pertaining to the HCHB interest.

W ife also wa s questioned abo ut the attorneys she retained before and after the divorce proceeding. Wife said she retained an attorne y in 2013 and had a one

hour initia l consultation. Wife said she did not have any further interactions with the attorney ou t of “fear. ”
Wife said she signed a second contract for legal representation in April 2014. According to Wife, she had one phone ca ll with an attorney because she had questions about the allotment of the sales proceeds from the parties’ marital home.
Wif e said she saw therapist Jo hnston for two

- to

- three years after the divorce and did not work during this time. Wife said she returne d to work full

- time in16

February 201 6. Wife said that, in the summer of 2016, she had a conversation with a friend that led her to thin k she could have had a claim to the HCHB interest. Wife said she retained her current attorneys in August 2016 because she “ was suspicious if maybe [Husband] h ad not been honest with [her] during the divorce

. . . about the HCHB shares.”
Wif e recalled t hat, when she visite d with her attorneys in August 2016, she did not have any records or documents regarding the HCHB interes t but only ha d the divorce decree. Wife agreed that it was “important .

. . to know for sure that [she] w[as] on solid footi ng” be fore going forward with her petition for bill of review because of the cost it would incur. Wife a lso said she had to “really, really think about” whether she wanted to “challenge” Husband. According to Wife, the pet ition for bill of review was fil ed app roximately nine months after she consulted with her attorney. Wife said she brought the bill of re view proceeding “[t]o stand up for [her]self and to stand up to [Husband] for the first time.”

3. The Trial Court’s Ruli ng On September 27, 2018, the tr ial co urt signed an order granting Wife’s petition for bill of review. On November 1, 2018, the trial cou rt signed a “Corrected and Clarifie d Order from the ‘Baker Hearing’ for the Bill of Review.” In this order, the trial court clarified the extent to wh ich th e 2013 divorce decree was set aside: In granting the Bill of Review, the Court hereby sets aside on ly the property division as set for th in the Decree of Divorce signed on October 7, 2013. The Court will divide the pa rties’ community estate existing as of October 7, 2013 on final trial. After trial, the trial court issued findings of fact and conclusions of law. In its “Additional or Amended Findings of Fact and Conclusions of Law (Second)”, the17

trial court issued th e following findings with respec t to t he bill of review proceeding:
1. Petitioner herein, [Wife], established facts sufficient to co nstitute a meritorious defense to the origi nal 2013 property division. 2. Petitioner herein, [Wife], established that the origina l 2013 property division was ren dered as the result of fraud of [Husband]. 3. Petitioner herein, [Wife], established that the fraud was unmixed with any fault or negligence of her own.
C. Husband’s Challenge to the Bill of Review Elements On appeal, Husband chal lenges whether sufficient eviden ce sup ports the trial court’s findings that Wife (1) had a meritorious defense, (2) which s he was prevented from making by Husband’s fraud, (3) unmixed with any fault or negligence of her own. We examine these elements indi vidually.

1. Meritorious Defense

I n a bi ll of review proceeding, the petitioner must first, as a pre

- trial matter, present pr ima facie proof to support the alleged meritoriou s defense or claim. Baker , 582 S.W.2d at 408; Elliott v. Elliott , 21 S.W.3d 913, 91 7 (Tex. App.

— Fort Worth 2000, pe t. den ied). A prima facie defense or claim is presented if the trial court determines that (1) the petitioner’s claim or defense is not bar red as a matter of law and (2) the petitioner will be entitled to judgment on re

- tri al if no contrary evidence is of

fered. Baker , 582 S.W.2d at 408

- 09; Elliott , 21 S.W.3d at 917. Whether a prima facie showi ng has been made is a question of law for the

cou rt. Elliott , 21 S.W.3d at 917. Prima facie proof may be comprised of documents, an swers to interrogatories, admiss ions, and affidavits on file along with such other evidence that the trial court may receiv e in its discretion. Baker , 582 S.W.2d at 409; E lliott , 21 S.W.3d at 917. The bill of review respondent may18

respond with like proof showing that the petitioner’s c laim o r defense is barred as a matter of law, but any fact questions are resolved in favor of the petitioner for purposes of this pre

- trial determination

. Baker , 582 S.W.2d at 409; Elliott , 21 S.W.3d at 917.
“In cases inv olving bills of review to set as ide di vorce decrees regarding division of property, courts have held that a meritorious cla im is presented by proof that the petitioner woul d obtain a more favorable property division on retrial.” Elliott , 21 S.W.3d at 919 (internal quotation omitted). A nalyzi ng this element in a similar context, the Fort Worth Court of Appeals cited at length the reasoning from Martin v. Martin , 840 S.W.2d 586 (Tex. App.

— Tyler 1992, writ denied):

Martin illustrates the type of proof which would suffice to present a prima facie meritorious defense by a complainant such as [ the w ife]

. In the divorce decree in t hat case, Wife received her jewels, a new Cadilla c, $44,000 in cash and $3,000 per month for 120 months as contractual alimony. Hu sband received the remainder of th e prop erty, including stock in a business he managed, which he listed as separate property worth approximately $2 million. Wife filed a bil l of review some two years later, claiming that she had suffered from severe depre ssion during the period of the div orce, that Husband had taken advantage of her condition and threatened to seek custody of the couple ’ s only child if she pu rsued discovery, and that he misrepresented that the stock was his separate property and that the
c ompany was in a precarious financi al con dition. At a Baker v. Goldsmith hearing, Wife offered evidence discovered by her subsequent to the divorce that the s tock was communit y property, that Husband paid himself a dividend of approximately $2.8 million sho rtly after the divorce became fina l, and that there had been $6 million in retained earnings in the company at the time of the divorce. Based on this eviden ce, the court of appeals in Martin concluded that the trial court erred in dismissing Wife ’ s bill o f review on the ground that, as a matter of law, she did not present prima facie proof of a meritorious claim. The court of appeals held that, by this evide nce ,19

Wife “demons trated that she would obtain a more favorable property division on retrial. ”
Ellio tt , 21 S.W.3d at 919

- 20 (quoting M artin , 840 S.W.2d at 589

- 90). Guided by this reasoning, we conclude the trial court did not abuse its discretion by conclud ing that Wife met her burden to present prima facie proof of a meritorious claim to the property di vision in the 2013 divorce decree. 2 The decree divided most of the parties’ marital estate into two approximately equal portions. However, the divorce dec ree also awarded H usband all the HCHB interest. Conflicting evidence was presented regarding wheth er the HCHB interest was part of t he com munity estate or was Husband’s separate property. See Irvin v. Parker , 139 S.W.3d 703, 708 (Tex. App.

— Fort Worth 20 04, no pet.) (whet her property is characterized as community or separate is a question of fact). Th e divorce decree lists the HCHB in terest as part of the “Marital Estate”, which includes the parties’ other community assets. On his “Inventory and Apprais ement” worksheet, Husband listed the HCHB interest as part of the “Community Estate of the Parties” and struck through the portion of the wo rksheet entitled “Separate Estates of the Parties”. But Wife also testified that, prior to the divorce, Husband tol d her the HCHB int erest was his separate property

— a classification that, Husband told Wife, he had confirmed with his attorney. Und er the applicable standard of review, we resolve this factual dispute in Wife’s favor and conclude she presented evidence sufficient to esta blish a prima facie case that the HCHB interest is community property. See Baker , 582 S.W.2d at 409; Elliott , 21 S. W.3d a t 917. Evidence at the hearing also showed that, approximately two months after

2 For this analysis, we rely on the evidence presented durin g the first part of the bill of review hearing.20

the parties signed the divorce decree, Husband sold a portion of the HCHB interest for $6.7 million. As evidenced by this sale, the H CHB interest was a substantial

ass et in the divor ce

— an asset that was awarded to Husband in full. As the Fort Worth Court of Appeals noted, the proof in Martin sufficed t o present a meritorious defense to a prior property division. See Elliott , 21 S.W .3d at 919

- 20 (citing Martin , 840 S.W.2d at 589

- 90) . Specifically, the wife in Martin produced evidence showing (1) the parties’ divorce decree awarded to the husband certain stock in a business he managed; (2) the stock was valued at approximately $6 milli on at the time of the divorce; and (3) the stock was community property. See id

. Here too, Wife presented evidence showing (1) the parties’ divorce decree awarded Husband al l the HCHB interest; (2) a portion of this interest was sold for $6.7 million two months after the parties signed th e di vorce decre e; and (3) the HCHB interest was community property. No evidence was presented showing that Wife’s claim was barred as a mat ter of law. Accordingly, the trial court did not err by finding that Wife present ed prima facie proof to support th e al leged merit orious claim to the parties’ 2013 property division. We overrule Husband’s challenge to this finding.
2. Extrinsic Fraud

To sec ure a bill of review, the petitioner must establish by a preponderance of the evid ence that the prior judgment was r ende red as a result of fraud, accident, or wrongful conduct of the opposite party. Baker , 582 S.W.2d at 409. Here, according to the findin gs of fact and conclusions of law, the trial court found that the parties’ 2013 pr operty division was rendered as a resu lt of Husband’s fraud. In the bill of review context, extrinsic fraud is wrongful conduct that21

occurred outside the challenged tri al pro ceeding and affected the manner in which the judgment was procured. Montgomery v. Kennedy , 669 S.W.2d 309, 312 (Tex

. 19 84). Extrinsic fraud prevents a real trial upon the issues presented and includes acts such as keeping a party away from court, m aking false promises of compromise, and denying a party knowledge of the lawsuit. Id .; see also Boa z v. Boa z , 221 S.W.3d 126, 131 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). Extrinsic fraud is collateral fraud in the sense that it must be collateral t o the matter tried and not something that was actually or potentially an issue in the challenged proceeding. Montgomery , 669 S.W.2d at 312. Extrinsic fraud requires proof of some deception practiced by the adverse party that was collateral to the underly ing

ac tion. McIntyre v. Wilson , 50 S.W.3d 674, 680 (Tex. App.

— Dallas 2001, pet. denie d). Conversely, intrinsic fraud re late s to the issues that were presented and were or should have been settled in the former action. King Ranch, Inc. v. Chapman , 118 S .W.3d 742, 752 (Tex. 2003). Intrinsic fraud includes fraudulent instruments, perjured testimony, or any matter that was p rese nted to and considered by the trial court in rendering the challenged judgment. Id . Intrinsic fraud does not support a bill of r eview because each party must guard against adverse findings on issues directly presen ted. Id . Thus, “[a]s a matter of l aw, misrepresentation with respect to the value of known community assets does not alone constitute extrinsic fraud.” Rathmell v. Mor rison , 732 S.W.2d 6, 13 (Tex. App.

— Houston [14th Dist.] 1987, no writ).
Several cour ts have considered similar cases whe re, as here, the wife alleged that the husband’s threats or deception kept her from pursuing a claim to community assets. Most recent ly, th e Corpus Christi Court of Appeals examined whether this type of evidence was suf ficient to defeat a motion for summa ry22

j udgment on the wife’s petition for bill of review. See Hester v. Prickett , No. 13

- 11

- 00677

- CV, 2012 WL 3252721, at *3

- 4 (Tex. App

. — Corp us Christi Aug. 9, 2012, pet. denied) (mem. op.). In her summary judgment respo nse, the wife in Hester attested tha t, w hen she was going through the process of divorcing her husband, she “immediately requested her husband to disclose all assets, inc luding any business interest or entitlement whether by stock option or otherwise.” Id . at *4. The wife said her husband told her he did not have any ownership in his employer and “told her that he would make her sorry if she made him waste his time and m oney o n a lawyer to answer discovery.” Id . Concluding this evidence was sufficient t o raise an issue of fact with respec t to extrinsic fraud, the court held that “[f]raudulent concealment, in addition to threats designed to coerce a spouse into not inves tigati ng the other party’s financial status, is sufficient to establish extrinsic frau d”. Id .; see also Hill v. Steinberg er , 827 S.W.2d 58, 62 (Tex. App.

— Houston [1st Dist.] 1992, no writ) (wife raised an issue of fact on extrinsic fraud where husband “ad mitted he made fraudulent misrepresentations concerning [wife’s] need for an attorney in the divorce proceedings, and that tho se fraudulent misrepresentations were made in order to induce [wife] to refrain from hiring a lawyer”).

In Rathmell v. Morrison , the husband challenged the trial court’s order granting his former wife’s petition for bill of review and asserted there was no evidence of extrinsic fraud. 732 S.W.2d at 13. Reviewing the evidence, this court noted: [T]he record contains evidence not only of a misreprese ntation of the market value of the Rathmell comp anies but also threats by [husband] that if [wife] obtaine d an interest in the companies or even if she merely insisted on having the compan ies appraised, [husband] would dissolve the companies, close them do wn and walk across the street and start new comp anies.23

Id . at 14. Concluding this evidence was sufficient to support a finding of extrinsic fraud, this court held that, “[i]f [wife] was i nduced by [husband’s] threat to forego an appraisal and agreed to th e property settlement agreement based on [husban d’s] representations regarding the value of the companies, she was prevented from having a fair opportunity of presenting in the divor ce tri al evidence concerning the value of the companies.” Id

. ; see also V ickery v. Vickery , No. 01

- 94

- 01004

- CV, 1997 WL 7 51995, at *24

- 25 (Tex. App.

— Houston [1st Dist.] Dec. 4, 19 97, pet. denied) (op. on reh ’ g, not designated for publication) (evidence sufficient to support finding of extrinsic fraud because the wife test ified that her husband “duped her into getting the divorce by persuading her that it was necessary to
p rotect th e family’s assets and that the couple would reunite”). Examined in light of these authorities, the evidence presented at the bill o f review hear ing is sufficient to support the trial court’s finding that extrinsic fraud prevented Wife from asserti ng her cl aim to the HCHB interest in the 2013 property division. When the parties were preparing to divorce, Wife recalled Husband t elling her there wa s “no reason for either of [them] to have an attorney” because they would “split the cash in the bank a nd the ho use.” According to Wife, Husband told her she “was lucky that he was giving [her] half because it was all from the proceeds of his [HCHB intere st] shares that were not [hers].” Wife said Husband told her his HCHB interest was his separate proper ty and th at he had confirmed that classification with his attorney. Wife also said that Husband instructed her not to tell anyone abo ut the ir divorce. Wife testified that, when she told Husband that she too was going to hire an attorney, Husband told her “he woul d throw [her] and [her] four dogs out on the street with no money” and that she “wouldn’t get anything.” Wife said her frien ds24

enc ouraged her t o see an attorney before finalizing the divorce and that she met with an attorney once in July 2013 for a one

- ho ur consultation. According to Wife, she did not have any further contact with the attorney out of “fear.” Similarly, Cohan a lso te stified that Wife “had been told not to contact an attorney, and if she did contact an attorney, [Husband] would thr ow her ou t on the streets.” Cohan also recalled that Wife “was extremely afraid of having an attorney locally” in case the attorney k new Hu sband. Cohan described Wife as “erratic” during this time and said Wife was concerned about “her well

- being”, “the well

- bein g of her animals”, and where she was going to live. And according to Dr. Albritton’s testimony, Husband’s threats to Wife regardin g her retenti on of an attorney also were mentioned in Johnston’s notes taken during Wife’s therapy.
Evidence of thes e threats comports with other testimony addressing the broader nature of Husband’s and Wife’s relationship. In her testimony, Wife describe d Husband as “controlling” and “demanding” and said he had total control over their finances. Wife said she did not feel lik e she had the ability to make purchases when she wanted to and recalled that Husband monitored her spending. Wife als o testified t hat Husband w as demanding with respect to how certain household tasks were completed and expected Wife to immediatel y attend to his needs. Likewise, Cohan testified that, once she got to know Wife, “it was evident

. . . that [Wife] was afraid ” of Husband.
This evide nce supports the conclusion that Husband threatened Wife and told her that, if she retained an attorney in the d ivorce proceeding, she would not get anything from the division of the parties’ estate. As in the cases discussed abo ve, these thr eats constitu te extrinsic fraud, i.e. , conduct that occurred outside the challenged trial proceeding that affected t he manner in which the judgment was procured. See, e.g., Hester , 2012 WL 3252721, at *3

- 4; Vickery , 1997 WL25

751995, at *24

- 25; Hill , 827 S. W.2d at 62; a nd Rathmell , 732 S.W.2d at 13

- 14. Based on this evidence, the trial court’s finding that the 2013 prop erty divi sion was rendered as a result of Husband’s fraud does not constitute an abuse of discretion. Challenging this findin g, Husband co ntends that t he evidence does not show that he prevented Wife from obtaining an attorney during the divorce proceedi ngs. To support this argument, Husband points to evidence showing that Wife (1) consulted with an attorney in July 2013; (2) s igned a fee a greement and paid a retainer fee; and (3) purchased a secret flip phone to communicate with her attorney.
But the record al so contains evidence showing that Husband’s threats prevented Wife from having anything more than an initial consulta tion with the attorney. S pecifically, Wife testified that she only had a one

- hour consultation with the attorney and did not hav e any furt her interactions with the attorney out of “fear.” Likewise, Wife’s fee agreement with the attorney was very limited and provided only that the attorney would review documents and give legal advice; the attorney’s representation did not include t aking any substantive action in the divorce proceeding on Wife’s behalf. Moreover, Wife testified that she used a secret phone and her frie nd’s email ad dress to communicate with the attorney, further underscoring her assertion that she was scared to work with an at torney. Reconciling this evidence fell to the trial court which, as fact

- finder, was charged with “judg[ing] the cr edibility of the witnesses ” and “determin[ing] the weight to be given their testimony.” See Okon , 2015 WL 4652775, at *3 (intern al quotati on omitted). We decline to revisit that determination on appeal. The witnesses’ testimony and evidence regarding Wi fe’s limited interactions with an attorney and the reasons she did not pursue further legal representation support the trial cour t’s extrin sic fraud finding.26

Husband also contends the evidence at the hearing “reveals anything but fraud” and is “far from egregious”. Husband point s out that there is no evidence of physical or sexual abuse and that “[t]he police were never called to [the part ies’] home.” But this argument overstates the evidence necessary to show extrinsic fraud. To prove extrinsic fraud , the petitio ner must prod uce evidence of wrongful conduct that occurred outside the challenged proceeding which affected the man ner in whi ch the judgment was procured. See Montgomery , 669 S.W.2d at 312. As shown by the authorities discussed above, this showing can b e made throug h evidence of threats or deception that kept the petitioner from pursuing a claim to community assets i n a divorc e proceeding. See, e.g., Hester , 2012 WL 3252721, at *3

- 4; Vickery , 1997 WL 751995, at *24

- 25; Hill , 827 S.W.2d at 6 2; and Rathmell , 732 S.W.2 d at 13

- 14. The cases do not require that the petitioner show physical abuse or similar actions of tha t nature t o establish extrinsic fraud. Accordingly, we will not apply that standard here. We overrule Husband’s challenge to this finding

. 3. Unmixed Wit

h Fault or Negligence The final element for a bill of review requires the petitioner to show that her f ailure to raise a meritorious claim or defense was unmixed with any fault or negligence of her own. See Baker , 582 S.W.2d at 406

- 07; Mosel e y , 2008 WL 251 0638, at *2. Specific ally, the petitioner must show she diligently pursued all adequate legal remedies against a former judgment. Mabon Ltd. , 396 S.W.3d at 813; see also Bergenholtz v. Eskenazi , No. 05

- 14

- 00609

- CV, 2015 WL 4481664, at *2 (Te x. App.

—

Dalla s July 23, 2015, pet. denied) (mem. op.). “‘Adequate legal remedies’ only consists of motions that cou ld have b een filed in the trial court’s first proceeding and does not include a restricted appeal.” Dias v. Dias , No. 13

- 12

-27

00685

- CV, 2014 WL 6679525, a t *4 (Tex. App.

— Corpus Christi Nov. 25, 2014, pet. denied) (mem. op.). A person who knew or, by the exe rcise of ordinary prudence, could have known of the judgment in time to have invoked a legal remedy but negligently failed to do so is not e ntitled to a bill of review. Hesse r v. Hesser , 842 S.W.2d 759, 765 (Tex. App.

— Houston [1st Dist.] 1992, writ denied ). “Howe ver, an incompetent [person] cannot be negligent.” In re Marriage of Ham , 59 S.W.3d 326, 332 (Tex. App.

— Texarkana 2001, no pet.); see also id

. at 329, 332 (petitione r raised an issue of fact on negligence element in bill of review proceeding wher e she all eged she “was unable .

. . to exercise such prudence because of her mental condition”). The application of these principles is il lustrated in Rose v. Rose , 598 S.W.2d 889 (Tex. App.

—

Dallas 1980, writ dism’d w.o.j.). There, the wife filed f or divorce fro m the husband while the husband (who was diagnosed as an alcoholic and schizophrenic) was confined to a nursing home. Id . at 892. As part of the divo rce, the wife obtained the husband’s signature on a property settlement agreement that awar ded all the pa rties’ property to the wife. Id . The husband later filed a petition for bill of review to set aside the property agreement, which the tri al court gra nted. Id

. On appeal, the wife argued that the evidence did not support the trial court’s f inding that th e husband’s failure to assert a meritorious claim or defense was unmixed with his own negligence. See id . at 894. Rejecting this argument , the
court noted that “[s]everal witnesses, including doctors who saw [the husband], testified that [h e] was disorie nted, slow, dazed, and on heavy medication at the time” of the divorce and that the husband’s medication “caused side

- effects such as letha rgy and diso rientation.” Id . “This evidence”, the court concluded, was28

“sufficient to support the finding that the [husband] was not negligent in his actions concerning the divorce action.” Id

. Here too, the record contains eviden ce sufficient to support the trial court’s finding that Wife’s failure to assert her claim with respect to the parti es’ 2013 property divi sion was unmixed with her own fault or negligence. According to Wife, Husband told her there was “no reason for eith er of [them] to have an a ttorney” in the divorce proceedings because they would “split the cash in the bank and the house.” Wife testifie d that Husband threatened her when she said she wanted her own attorney and told her that, if she did, “he would throw [her] and [h er] four dog s out on the street with no money” and that she “wouldn’t get anything.” Wife said she was afraid of Husband’s t hreats and, as a result, only had a single consultation with an attorney with respect to the divorce.
Cohan also testi fied about Wi fe’s emotion al state during the divorce proceedings. Cohan said Wife’s health deteriorated quickly and she recalled that Wif e “was not eating”; “became very thin”; “was distraught”; “cried constantly”; and “was a train wreck.” Cohan recalled that it was “difficult t o speak” with Wife during this time and that Wife’s thoughts were “erratic”.
Cohan also s aid she was concerned because Wife continued to have sex with Husband. According to Cohan, Wife seemed to think she “was going to be able t o win [Husban d] back by h aving sex with him”. Similarly, Wife testified that she “would have done anything” to keep Husband in her life a nd went along with Husband’s sexual requests because she “would have done anything for him because [she] was still in love with him .” Wife als o said she continued to write Husband “long emails .

. . pretty much every day” because she “was in love with him .”29

Wife said she did not work for approximately three years after the divorce and had frequent therapy sessions with Johnston. Te stifying abo ut these sessions, Dr. Albritton said Johnston described Wife as a “puddle” who was “having a great deal of troub le functioning”; Johnston also noted that Wife had “[b]ad hygiene”, “inappropriate, almost disheveled grooming”, and w as “almost an orexic.” Jo hnston diagnosed Wife as having severe major depression and an anxiety disorder and recomme nded inpatient hospita lization. After Wife moved to Arizona, Dr. Albritton testified that she would continue to visit Husband for at least a year and “ was very hop eful that somehow the relationship would be, you know, resurrected.” Dr. Albritton said Wi fe had “difficulty set ting appropriate boundaries” and noted that her sexual relationship with Husband “turned into what [Wife] described as more of a bo ndage

- servan t

slave

- master relationship.” Dr. Albritton said when he first met with Wife in January 20 14, she was “still kin d of disorganized and her thoughts were not a hundred percent clear.” According to Wife, it was not until summer 2016 that a

conve rsation with a friend led her to think she could have had a claim to the HCHB interest.
This evidence supports the conclusio n that Wife was emotionally distraught and exhibiting symptoms consistent with severe major depression and an anxiety disorder befo re, during, and after her divorce from Husband. Accordingly, this evidence is sufficient to support th e trial court’s findin g that Wife was not negligent in fail ing to assert a claim to the HCHB interest in the parties’ divorce proceeding. S ee Rose , 598 S.W.2d at 89 4; see also Vickery , 1997 WL 751995, at *24

- 25 (evidence sufficient to support finding that the wife was not negl igent or at fault, in spite of some evidence showing that the wife was a legal assistant who should have understood th e legal proce ss and that the wife never called or wrote to30

the attorney her husband hired for her). Challenging th is finding on appeal, Husband argues that the “undisputed facts” show Wife (1) signed a waiver of service in the divorce proceeding; (2) sig ned the agree d divorce de cree; (3) signed a qualified domestic relations order; and (4) retained counsel during the pendency of the procee dings. Therefore, Husband argues, Wife was “consciously indifferent to protecting her rights.” But whether the petiti oner’s failur e to raise a meritorious claim or defense was unmixed with any fault or negligence of her own is a ques tion of fact. See Ale xander v. Hagedorn , 226 S.W.2d 996, 998 (Tex. 1950). Husband’s argument asks us to revisit the trial court’s resoluti on of this qu estion in li ght of the conflicting evidence presented at the hearing: the evidence showing Wife was

me ntally and emotionally distraught before, during, and after the divorce versus the evidence showing Wife participated in the divorce proceed ings and reta ined counsel . We decline to second

- guess the trial court’s determination on this point. Because some evidence of substantiv e and probative character supports the trial court’s determination that Wife was not negligent or at fault, we will no t reverse tha t finding on appeal. See Kukuk , 2015 WL 4504224, at *1 (citing Unifund CCR Partners , 299 S.W.3d at 97)

. Husband also argues that Wife’s attorneys lacked diligence in pursuing her claim and points out that Wife’s “Original Petition for Bill of Review” was filed
approx imately nine months after Wife signed a retainer contract with her current attorneys. But this alone does not re nder the trial court’s finding an abuse of discretion. Testifying at the hearing, Wife said she did not have any docu ments or

reco rds pertaini ng to the HCHB interest when she first met with her attorneys in August 2016

— rather, Wife said she only had her divorce decree. Wife also said she wanted to ensure she was “on solid footing” before proceeding with the31

petition f or bill of re view.
The tr ial court was permitted to consider this testimony in conjunction with the filings on record. See Bob Smith Bail Bonds, Sur., v. State , 963 S.W.2d 555, 556 (Tex. App.

— Fort Worth 1998, no pet.) (“A trial court may take judicia l notice of i ts own file at any stage of proceedings and is presumed to have done so with or without a request from a party.”). Wife’s origina l petition for bill of review included a detailed recitation of the facts underlying Wife’s claim and the relevan t legal autho rities perta ining to a bill of review. The bill of review petition also included affidavits from Wife, two of Wife’s friends, and Johnston. This filing, considered with Wife’s testimony, supports the conclusion that Wife’s attorneys
were not negligent by waiting nine months to file Wife’s petition and used that time to prepare for the filing. Accordingly, this evidence is sufficie nt to support the trial court’s finding that Wife was not negligent or at fault. We overrule Husband’s challenge to this findi ng.
D. Husband ’s Challenge Regarding Additional Findings of Fact The trial court issued findings of fact and conclusions of law on January 2 7 , 2020, after the trial on the parties’ property division. The trial court’s findings of fact state th at Wife’s pet ition for bi ll of review was granted; the findings do not address the specific elements necessary to br ing a bill of review.
On February 12, 2020, the trial court issued “Additional or Amended Findings of Fact and Conclusions of Law (Second). ” In relevan t part, the trial court found that Wife (1) “established facts sufficient to constitute a meritorious d efense to the original 201 3 property division”; (2) “established that the original 2013 property division was rendered as a result of fraud of [Husband]” ; and (3) “e stablished that the fraud was unmixed with any fault or negligence of her32

own.”
Husband f

iled a “Request for Additi onal or Amended Findings of Fact and Conclusions of Law” and asserted as follows:
1. While the court found that [Wife ] had “establ ished facts sufficient to constitute a meritorious defense,” the Court did not find what those facts we re, or what the meritoriou s defense was. 2. While the court found that [Wife] “established that the original 2013 property division was rendere d as the resu lt of fraud, accident, or mistake of [Husband]” the court does not specify if it was fraud, accident or mistake. Further, the co urt did not fin d what that fraud, accident, or mistake was, nor did the court find any facts supporting that concl usion. 3. The c ourt failed to find any facts supporting the conclusion that the “fraud, accident, or mistake was unmix ed with any fault or negli gence” of [Wife]. The trial court did not issue additional findings with respect to the bill of review elements. On appeal, Husband contends that this failure to issue additional findings constitutes error. A trial court is requ ired to file findings of f act and conclusions of law within twenty days after a timely request is made. Tex. R. Civ. P. 297. Upon a party’ s timely re quest for additional findings, the trial court “shall file any additional or amended findings and conclus ions that are appropr iate. ” Tex. R. Civ. P. 298. The Fort Worth Court of Appeals has interpreted this rule to require additional findings a nd conclusi ons “only when they relate to ultimate or controlling issues.” Kirby v. Chapman , 917 S.W.2d 902, 909 (Te x. App.

— Fort Worth 19 96, n o pet.). “Additional findings are not required if the original findings of fact and conclusions of law ‘properly and succinc tly relate the ultimate findings of fact and law necessary to apprise [the party] of adequate information for the preparation of hi s or her appeal.’” Jamestown Partners, L.P. v. City of Fort Worth ,33

83 S.W.3d 376, 386 (Tex. App.

— Fort Worth 2002, pet. denie d) (quoting In re Marriage of Morris , 12 S.W.3d 877, 886 (Tex. App.

— Texarkana 2000, no pet.)). Additiona l findings and conclu sions are not required “if they are evidentiary only.” Kirby , 917 S.W.2d at 909.
If the refusal to file additional fin dings or co nclusions does not prevent a party from adequately presenting an argument on appeal, there is no reversib le

error. Main Place Cust om Homes, Inc. v. Honaker , 192 S.W.3d 604, 612 (Tex. App.

— Fort Worth 2006, pet. denied). To make this determinati on, we exam ine the record; if the record shows that a party did not suffer injury from the failure to make additiona l findings or conclus ions, then no reversal is required. Jamestown Partners, L.P. , 83 S.W.3d at 386. Here, we conclude Husband’s requested additional findings were merely evidentiary and adequately covered by the findings issued by the trial court. The

e lements necessary to warra nt a bill of review and those elements’ application in the context of a divorce are well

- established in the case l aw. As sh own by the analyses above, the trial court’s refusal to issue additional findings did not prevent Husband from adequately pres enting his arguments on appeal with respect to these elements. See Main Place Custom Homes, Inc. , 192 S.W.3d at 612. Accordingly , we conclude Husband did not suffer any injury from the trial court’s failure to issue additional findin gs.
We overrule Hus band’s challenge with respect to the trial court’s refusal to issue additional findings with respect to the bill of rev iew.
II. Prope rty Division
A. Governing Law and Standard of Review In dividing the parties’ community estate, the trial co urt shall order a34

div ision of the property that it deems just and right, having due regard for the rights of each party. Tex. Fam. Code Ann . § 7.001; Boyd v. Boyd , 131 S.W.3d 605, 610 (Tex. App.

— Fort Worth 2004, no pet.). “The division of the community

e state need not be equ al, bu t it should be equitable.” Barnard v. Barnard , 133 S.W.3d 782, 787 (Tex. App.

— Fort Worth 2004, pet. denied). Th is standard vests the trial court with broad discretion in dividing the marital estate; accordingly, we will not dis turb the trial court’ s divi sion on appeal unless the complaining party shows that the division was so unjust and unfair as to constitute an abuse of di scretion. Murff v. Murff , 615 S.W.2d 696, 698

- 99 (Tex. 1981); Neyland v. Raymond , 324 S.W.3d 646, 649 (T ex. App.

— Fort Worth 2 010, n o pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, th at is, if i ts act is arbitrary or unreasonable. Boyd , 1 31 S.W.3d at 610. In reviewing a marital property division, the abuse of discret ion st andard overlaps with the traditional civil sufficiency standards of review. Chi Hua Lee v. Linh Hoang Lee , No. 0 2

- 18

- 00006

- CV, 2019 WL 3024478, at *2 (Tex. App.

— Fort Worth July 11, 2019, no pet.) (mem. op.). Therefore, legal an d factual sufficiency

are n ot independent grounds of error but instead are relevant factors in assessing whether the trial court abused its discretion. Id . To determine whether an abuse of discretion has occurred because the evidence is legally or factua lly insufficient to

s upport the trial court’s decision, we engaged in a two

- pronged inquiry: (1) whether the trial court had enough informa tion upon w hich to exercise its discretion, and (2) whether the trial court erred in applying its discretion. Id

. The applicable suffic iency review comes into play in answering the first question. Id

. With respect to the second question, we determine w hether the trial court’s decision is reasonable based on the elicited evidence. Id

.35

B. Evidence Addressing the HCHB In terest To analyze the part ies’ arguments addressing the trial court’s property division, we focus on evidence addressing the characterizati on and valu e of the HCHB interest.

1. Trial The first witness at trial was April Anthony, the chief executive officer of HCHB, who testified via deposition. Anthony said HCHB started as a Kentucky LLC organized in 2001. According to Anthony , she became the “100 perce nt owner” of HCHB in March 2006. Anthony testified that she hired Husband as vice president of im plementa tion services in 2005. Adm itted into evidence was Husband’s offer letter from HCHB, which was dated August 20, 2005. Accor ding to the letter, Husband ’s compensation package consisted of three components: (1) an annual salary; (2) a “potential 25 % annual performance bonus”; and (3 ) a “bonus on sale” of HCHB. The offer letter provided as follows with respect to the third
comp ensation component:
Bonus o n Sale of Homecare Homebase

– Offered to [Husband] 8/20/2005 Introduction: Plan is meant to prov ide a bo nus to key executives upon sale of the company, if employed by HCHB 30 days prior to the sale. Bonus payable will be calcul ated on the amount of sale less ten million dollars ($10,000,000). In other words, the bonus will be payable on the sale am ount in excess of $10mm. Bonus offe red to [Husband] will be no less than $20,000, regardless of the date of sale after a minimum of 30 days employment. Perce ntage opportunity will escalate over time as follows: Sale Date Bonus Payable 11/1/2005

- 4/30/2006 (Sale Price

– 10,000,000) * .002536

5/1/200 6

- 10/30/2006 11/1/2006

- 4/30 /2007 On or after 5/1/2007 (Sale Price

– 10,000,000) * .005 (Sa le Price

– 10,000,000) * . 0075 (Sale Price

– 10,000,000) * .01
Anthony described the bonus on sale as a “transaction based bonus th at would occur upon there b eing an equity event for the company.” Continuing on, Anthony said that “[w]hen a n equity event f or the company occurred, [ Husband] would have the opportunity to be paid an amount commensurate with the equity value of the
transac tion.” Anthony said the $ 10 million threshold for the transaction bonus’s payment schedule represented the amount invested by HCHB’s original equity holders.
Anthony testified that Husband “performed well, expanded his respons ibility and eventually expan ded into a much more expan sive role.” Based on this performance, Anthony said Husband’s transaction bonus was increased to 4% “in relatively short or der.” According to Anthony, this increased transaction bonus was offered and accepted as part of a verbal agreement; Anthony said s he was unable to find any documentation in writing to support the increased bonus. According to An thony, she “made the decis ion to stop these informal interests in [HCHB’s] equity sale and go to a more formal relationship” and

acc ordingly “remove[d] the tr ansaction bonus and replace[d] it with a formal equity instrument.” With respect to Husband, Anth ony said he was granted a 3% equity interest in HCHB on January 1, 2007, as shown in the “First Amendmen t to Agreement of Limited Pa rtnership of Home Care Hom e Base, L.P.” Anthony testified that the applicable percentage was reduced to 3% “to reflect the fact that you no longer ha ve this $10 million threshold.” With respect to this exchange, Anthony testif

ied as follows:37

Question: Wh en you offered [Husband] t he 3 percent equity

interest in HCHB, LP, he no longer had the option of a transaction bonus, corr ect? Answer: Correct. Qu estion: And what

— what I believe you said earlier is that at

that point in ti me, his choice was: Accept the equity interest, stay, work with us, or you can leave? Answer: Correct. Question: And if he had left at the point that you and he had that

conve rsation, he would not have had either a transaction bonus or an equity interest, correct? Answer: Correct

. Further describing the differences between the original transaction bonus and the later

- enacted equity interest, Anthony said the transaction bonus was a “nonequity interest” that “never came into effect” because the t riggering sale to a third

- party for greater than $10 million did not occur. Anthony also noted that the equity interest inured its owners with additional righ ts that the transaction bo nus did not confer, such as the right to engage in partial sales. Paym ents made as part of the transactio n bonus would also “be tax ed as ordinary income at a higher tax rate”, making the equity interest “a much more effective tax instrument”. Anthony test ified that 40% of HCHB was purchased in 2011 by two private equity comp anies for a total of $56,550,000. From this sale, Husband re ceived approximately $1,612,500 and his HCHB interest decreased from 3% to 1.8%. Anthony said the company underwent “an extr aordinary amount of growth” and, in summer 2013, the executives prepare d to take it to market. On Decembe r 19, 2013, Hearst purchas ed 85% of HCHB for approximately $625 million. From this sale Husband received approximately $6,6 69,544. In January 2018, Hearst purchased 30% of the rollover equity from the38

December 2013 tra nsaction, from which Husband receiv ed approximately $1,923,94 2. Hearst purchased the remaining HCHB shares in May 2019, from which Husband received approximat ely $5,771,833.
Husband also testified with respect to his compensation package and equity inte rest in HCHB. Husband said he init ially was hired as HCHB’s vice president of implementation services and began work on September 6, 200 5. According to Husband, he was promoted to chi ef operating officer in March 2006 and Anthony in creased his transaction bonus to 4%. Like Anthony, Husba nd said this increased bon us amount was not recorded in writing. Husband said he received a 3% equity interest in HCHB in January 1, 2007, as reflect ed in the first amendment to HCHB’s limited partn ership agreement.
Husband said h is and Wife’s divorce wa s finalized on October 7, 2013, with the signing of their agreed divorce decree. Reviewing the divorc e decree, Husband agreed that it “pretty basica lly reflect[ed] a 50

- 50 division of the bank accou nts [and] the retirement plan” he had with HCHB. From th e ir six bank accounts, Hu sband and Wife each received approximately $500,000. Husband said he also
gave Wife a $12,000 credit for the furniture he kep t. Admitted into evidence was a statement from Hu sband’s bank account showing these withdrawals were made when Husband paid the m oney to Wife. Husband called Michael McDonald, an employment law attorney, as a n expert witness with respect to the characteri zation of the HCHB interest. McDonald recounted the same timeline of events discussed in Anthony’s testimo ny: Husband was hired in 2005 and his compensation package included a
transact ion bonus ranging from .25% to 1%; Husband’s transaction bonus was inc reased to 4% in 2006; and H usband received an equity interest in HCHB in January 2007.39

According to McDona ld, Anthony “exchanged” Husband’s 4% transaction bonus for the 3% equity intere st in HCHB. McDonald acknowledged that there were not any sales trigg ering the transaction bonus but asserted that Husband’s “rights” under the transaction did not “disappear”. McDonald opined that “the fact that these rights [under the transaction bonus ] were never asserted doesn’t eliminate their existence”; rather, the equity interest “replac[ed] one set of rights with a new set of rights.” Wife called Bryan Rice, a certifie d public account, to te stify with respect to the characterization and value of the HCHB interest. Rice opined that the HCHB interest was community p roperty as of the date of the parties’ divorce. With respect to valuation, Rice testified that he believed “the value [of the HCH B interest] could be as high as about $ 14.4 million, which is essentially what [Husband] received subsequent to the date of hi s divorce for his remaining interest.” According to Rice, rights to an equity partnership interest arise wh en the “equity interest is vested in the party who owns it” an d “there’s nothing else that has to happen for [the owner] to be able to exercise those rights.” Rice opined that the HCHB equity interest arose with the execution of the first amendment to HCH B’s limited partnership agreement in January 2007, which grant ed Husband a 3% equity interest in the company. Noting that Husband and Wife were marr ied in 200 6, Rice testified that he was “very” confident that Husband “first acquired his ownership interes t in HCHB, LP during hi s marriage” to Wife.
Rice then testifie d regarding the value of the HCHB interest as of the parties’ divorce on October 7, 201 3. Rice s aid he relied on a letter HCHB received from Hearst on October 3, 2013, in which Hearst offered t o pay between $550 mill ion and $600 million to purchase HCHB.40

Rice then reviewed a document setting forth the various sales of the HCHB interest from March 2011 through May 2019. In relevant part, the document shows:
Date Sold To % Sold % Remaining Enterp rise

Value $ to

[Husban d] 3.1.11 Cressey & Co. +

SV Life Scie nces 19.5%

19.5% 1.8% $145 Million $1,612,500.00

12.19.13 Hearst Corp. 85% .027% $625 Million $6,669,544.00 1.3.18 Hearst Corp. 30% .0189% $1.4 Billion $1,923,942. 72 5.29.19 Hearst Corp. Fina l Sale $1.8 Billion $5 ,771,833.92

TOTAL PROCEEDS TO [HUSBAND ]

– $15,977,821.13 Describing the HCHB interest as a “true minority interest”, Rice opi ned that it would be “equitable to divide .

. . that type of percentage interest in kind because that simpl y keeps both of the par ties that own the property in the same position they were before the interest was divided.” Rice said, had he been testifying at the time of the parties’ 2013 divorce, he would have recommended the HCHB interest be divided in kind.
Based on the October 2 013 Hearst offer letter, Rice said he v alued Husband’s total 1.8% HCHB interest as of the October 7, 2013 d ivorce date at $7,8 81,816, with half of that amount equaling $3,940,908. Rice also noted that the .027% equity interest Husba nd retained after the D ecember 2013 Hearst sale continued to y ield large partnership distributions as well as proceeds from later equity sales.
On cross

- examination, Rice testified that the $7,881,816 figure he used to value the HCHB interest as of the p arties’ divorce date wo uld have been subject to41

a capital gain s tax of approximately 20%. Rice agreed that $6,305,453 would remain after deducting 20% from the $7.8 million figure.

2. The Trial Court’s Final Judgment The trial court signed its final judgmen t on December 18, 2019. The trial court’s property division w as substantially the same as the division in the parties’ 2013 agreed divorce decree: (1) each party kept the household furniture, furnishings, fixtures, goods, appliances, equipment, clothing, jewelry , and other
per sonal effects in their possession or sub ject to their sole control; (2) each party received half of the proceeds in the six ba nk accounts; (3) each party received half the proceeds from the sale of the marital home; (4) each party rec eived half the proceed s in Husband’s 401(k) plan with HCHB; (5 ) each party kept their vehicles; and (6) Husband retained the membership in the Troph y Club Country Club. With respect to Husband’s HCHB interest, the trial court held: With respect to the 1.8 perce nt of HomeCare H omeBase (“HCHB”) , the remaining portions of wh ich are represented by monies held by [Husband] in the “enjoine d account,” [ 3 ] the Cour t award s to [Wife], from those proceeds, the sum of $3,152,726.50 , plus prejudgment interest on that amount calculated at th e rate of 5 percent , per annum, simple interes t, beginning October 7, 2013, and plus post

- judgment interest on that amount calculate d at the rate of 5 percent, per annum, simple interest, beginning on the date of the signing of this Final J udgment in Bill of Review Proceeding , al l to be paid from the “enjoined account.”

3 The “enjoined account” contains the proceeds Husband received from the 2019 sale of the remaining HCHB interest. Pursuant to two orders signed on Ma y 30, 2019 and July 26, 2019, the trial court enjoined Husband from disbursing any funds from this account until Husband paid Wife her portion of the HCHB interest.42

C. Husband’s Issues
1. Characterization of the HCHB Interest
In his firs t challenge to the trial court’s property division, Husband argues the trial court erred by classifying the HCHB interest as community property subj ect to division. Spec ifically, Husband contends that the original transaction bonus he was promised at the beginning of his HCHB employment constituted separate property that was later “exchanged” for the 3% HCHB eq uity interest. Therefore, Husband argue s, the HCHB equity int erest retained its character as separate property. Only community property is subjec t to the trial court’s just and right division. Barnard , 133 S.W.3d at 789. Under Texas law, property poss essed by either spouse during or on diss olution of the marriag e is presumed to be community property, absent clear and convincing evidence to the co ntrary. Tex. Fam. Code Ann. § 3.003. Clear and convincing evidence means the measure or degree of proof th at will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id . § 101 .007. This intermediate standard of proof falls between the preponderance standard of proof that applies to most civil proc eedings and the reasonab le

- doubt standard that applies to most criminal proceedings. In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980); I n re D.T. , 34 S.W.3d 625, 630 (Tex. App.

— Fort Worth 2000, pet. denied). “Clear and convincing evidence must outweigh eviden ce that would satisfy th e preponderance standa rd, but it need not be unequivocal or undisputed.” Chi Hua Lee , 2019 WL 3024478, at * 4. The characterization of property as either community or separate is determined by the inception of title to the property. Boyd , 131 S.W.3d at 61 2. Inception of title occurs when a party first has a right of claim to the property by43

virtue of which tit le is finally vested. Id

. In order to overcome the community presumption, the burden is on the spouse claim ing certain prop erty as separate to trac e and clearly identify the property claimed to be separate. Id . “The burden of tracing is a difficult, but not impossible, burden to sustain.” Chi Hua Lee , 2019 WL 3024478, at *4. Tracing involves establishing th e separate origi n of the property throug h evidence showing the time and means by which the spouse originally obtained possession of the property. B oyd , 131 S.W.3d at 612. Separate property will retain its character through a series of exchanges so long a s the party asse rting separate ownership can overcome the pres umption of community property by tracing the assets on hand during the marriage back t o property that, because of its time and manner of acquisition, is separate in character. Id

. Citing thes e principles, Hu sband contends that the original transaction b onus he was promised at the beginning of his HCHB employment constituted separate
prop erty that was later exchanged for the 3% HCHB equity interest. Therefore, Husband argues, the HCHB equity i nterest retained its character as separa te property. We rejec t Husband’s contention and conclude the trial court did not err by classifying the HCH B interest as community property subject to division. The premise underlying Husband’s argument on this p oint is correct: separate property reta ins its character thro ugh a series of exchanges. See id .; see also Newland v. Newland , 529 S.W.2d 105, 107 (Tex. App.

— Fort Worth 1975, writ dism’d) (“property purchased with separate funds, or taken in exchange for separate propert y, becomes the sepa rate property of him w hose money purchases or whose property is given in exchange”). But this precept refer s only to exchanges of property ; here, Husband’s interest with respect to the transaction bonus originally i ncluded as a componen t of his HCHB compensation did not meet44

t his standard. Husband did not have any defined, vested interest in the transaction b onus

— rather, as supported by Anthony’s testimony and Husband’s 2005 offer letter from HCHB, the transacti o n bonus was contingen t upon there being a qualifying equity ev ent. But this contingency did not take place. As Anthony testified, the transaction bonus “never came into effect” because the triggering sale to a third

party for greater than $10 million di d not occur before the transaction bonus was replaced with a fo rmal equity interest. See Raulston v. Raulston , 531 S.W.2d 683, 685 (Tex. App.

—

T exarkana 1975, no writ) (“It is settled, however, that a .

. . possibility of acquiring a title in the futu r e is not such a legal expe ctancy as will amount to a present r ight or title in property.”). Moreover, Anthony testified that the transaction bonus w as extinguished when formal equity interests in HCHB were established via the first amendment to HCHB’s lim i ted partnership agreement. According to Anthony, if Husband h ad declined the offered HCHB equity interest and instead chose to leave the company, h e would not have been entitled to enforce any rights associated with the transaction bonus. Aligned with A nthony’s testimony on this issue, Rice testified that Husband’ s equity interest in HCHB vested when the first amendment to the HCHB limited partners hip agreement was executed and Husband was formally granted a 3% equity interest. At this time, Rice testi f ied, Husband was able to e xercise those rights associated with the interest, thus demonstrating ownership of the asset. Because the first amendment to the HCHB limited partnership agreement was executed after Husband and Wife were married, Rice opined th a t he was “very” confident that Husband “first acquired his own ership interest in HCHB, LP during his marriage” to Wife.45

To overcome the community pr esumption, the burden was on Husband to prove by clear and convincing evidence that the HCHB interest const i tuted his separate propert y. See Tex. Fam. Code Ann. § 3.003; Boyd , 131 S.W.3d at 612. Based on the evidence discussed above, the trial court did not err in concluding that Husband failed to make this showing. We overrule Husband’s challenge to the tr i al court’s characterizatio n of the HCHB interest as community property subject to division.

2. Division of the HCHB Interest In his second challenge t o the trial court’s property division, Husband asserts the trial court’s division of the HCHB interest was “ arbitrary and against any guiding principles.” In support, Hu sband argues that “none of the numbers posited as the value o f the HCHB asset represen t a figure equal to double the award.” We reject this contention. As we noted above, the trial court has broad discretion in dividi ng the marital estate and we do not disturb that division unless the complaining party shows the overall division was so u njust and unfair as to constitute an abuse of discretion. See Murff , 615 S.W.2d 698

- 99; Neyland , 324 S.W.3d at 649. Here, the eviden ce supports the trial court’s decisi on to award Wife $3,152,726.50 as her portion of the HCHB int erest. Testifying at tria l, Rice said he valued the HCHB interest as of October 7, 2013, the day the parties signed the agreed divorc e decree. In making this valuation, Rice consulted the Octobe r 3, 2013 letter from Hearst offering to purchase HCHB for be tween $550 million and $6 00 million. At this time, Husband owned a 1.8% equity interest in HCHB. After the December 19, 2013 sale o f 85% of HCHB to Hearst, H usband received $6,669,544 and retai ned a .027% interest in the company. Extrapolating these fig ures to calculate the val ue46

of Husband’s full 1.8% interest at the time of the December 2013 sale, Rice valued the asset at $7,881,81 6. Rice agreed that this figure would have been subject to a capital gains tax of approximately 20%, which would have left $6,305,453. This $6,30 5,453 figure, divided in half, equals $3,152,726.50, which is what the trial court awarded to Wife for her s hare of the HCHB interest. This division of the asset comport s with the trial court’s other allocations of the parties’

co mmunity property, which a lso were divided approximately in half. Therefore, based on the evidence presented at trial, the trial cour t’s division of the HCHB i nterest does not constitute an abuse of discretion. We overrule Husband’s challenge to the tria l court’s division of the HCHB interest.
3. The Trial Court’s Findings of Fact In his final issue addressing the trial court’s propert y division, Husband
argues the trial court erred by failing to issue a finding addressing how the HCHB interest was valued as of October 7, 2013. W ithout this information, Husband argues, “[i]t is impossible to know, and properly present an appeal on the issue of, the ultimate fac t of how the [HCHB interest] was val ued”. As stated above, the trial court’s December 18, 2019 final judgment awards Wif e $3,152,726.50 as her portion of the HCHB asset, plus pre

- and post

- judgment interest. Within 20 days afte r the trial court signed t he final judgment, Husband requested findings of fact and conclusions of law in accordance with T exas Rules of Civil Proce dure 296 and 297. See Tex. R. Civ. P. 296, 297. The trial court issued findings of fact and conclusions of law on January 29, 2020. The trial court made the following finding with respect to the HCHB interest:

W ith respect to th e 1.8 percent of HCHB, th e remaining portions of which are represented by the monies of which are held by [Husband]47

in the “enjoined account,” the Court awarde d to [Wife], from those proceeds, th e sum of $3,152,726.50, plus prejudgment interest on that
amo unt calculated at the rat e of 5 percent, per annum, simple interest, beginning October 7, 2013, all to be paid from said account.
In his first “Request for Add itional and Amended Findings of Fact and Conclusions of Law”, Husband cited Texas Rule of Civil P rocedure 298 and requeste d the trial court make a finding as to “[t]he value of the 1.8 percent of HCHB subject to division as of Oct ober 7, 2013”. Denying th is request, the trial court held tha t the requested finding lacked the specificity required by Te xas Rule of Civil Procedu re 298 and was untimely pursuant to Texas Family Code section 6.711. Section 6.711(a) of the Family Code pr ovides that, in a suit for dissolution of marriage, on the req uest of a party the court shall state in writing its findings of fact and conclusions of law regarding (1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented, and (2) the value or amo unt of the community estate’s assets, liabilities, claims, an d offsets on which disput ed evidence has been presented. Tex. Fam. Code Ann. § 6.711(a). However, as the Fort Worth Court of Appeal s has held, a party must s pecifically request findings under s ection 6.711(a) to preserve for appeal any error associated w ith the trial court’s fai lure to make findings regarding the valuation of certain assets. See Logsdon v. Logsdon , No. 02

- 14

- 00045

- CV , 2015 WL 7690034, at *10 (Tex. App.

— Fort Worth Nov. 25, 2015, no pet.) (mem. op.) (“Because Wife initially requested findi ngs under rule 296, did n ot request findings under section 6.711, and requested additional findings under family code section 7.009, we hold that Wife waived h er right to section 6.711 findings.” ); see also Moore v. Moore , 383 S.W.3d 190, 200

- 01 (Tex. App.

— Dallas 2012, pet. denied ) (holding that initial request for findings of fact pursuant to R ule 29648

waived right to section 6.711 find ings requested after the e xpiration of time for initial reques t for fact findings). Here, neither Husband’s original request for findings of fact and conclusions or law nor his request for additional findings referenced Texas Family Code section 6.711(a). Based on the authorities discussed above, we conclude Husban d waived his right to f

indings under section 6.711 regarding the valuation of certain
assets. See Logsdon , 2015 WL 7690034, at *10; Moore , 383 S.W.3d at 200

- 01. We overrule Husband’s challenge with respect to the trial court’s refusal to issue additional findings with respect t o its division of the HCHB interest.
D. Wife’s Issue
In her sole issue challenging the trial court’s property division, Wife asserts the trial court “incorrectly valued the H CHB interest by refusing t o partition in kind in accordance wi th Texas law.” This er roneous valuation, Wife argues, grants Husband a “windfall” by failing to take into account the full $14 million in proceeds Husband received from subsequent partial sales of the HCHB interest.
A ssets may be partitioned in kind (me aning that property is divided into separate parcels and each parcel is allocated to a separate owner) or by sale (meaning that property is sold and sale proceeds are divided among the owners). Carter v. Harvey , 525 S.W .3d 420, 429 (Tex. App.

— Fort Worth 2 017, no pet.). Texas l aw favors partition in kind over partition by sale. Id . “The threshold question in a partition suit is whether the property is ‘susceptible of partition’ in kind or if i t is, instead, ‘incapable of partition’ in kind because a ‘fai r and equitable divisio n’ cannot be made.” Bowman v. Stephens , 569 S.W.3d 210, 220 (T ex. App.

— Houston [1st Dist.] 2018, no pet.) (quoting Tex. R. Civ. P. 761, 770). Here, Wife did not cite (a nd our research did not f ind) any cases or other49

authority sup porting a partition in kind where an asset has already been divested in favor of mone tary proceeds. Rather, the cases Wife cites discuss a partition in kind with respect to assets that are stil l intact. See Tarver v. Tarver , 394 S.W.2d 780, 781 (Tex. 196 5) (discussing partitio n in kind with respect to oil royalties, stock s , and bonds); Ha iley v. Hailey , 331 S.W.2d 299, 301

- 03 (Tex. 1960) (discussing partition in kind with respect to real propert y owned by the parties); Nelson v. Nelson , 193 S.W.3d 624, 629

- 30 (Tex. App.

— Eastland 2006, no pet.) (discussing partition in kind with respect to a 12

- acre tract); Walston v. Walston , 971 S.W.2d 687, 692

- 93 (Tex. App.

— Waco 1998, pet. denied) (discussing p artition in kind in the context of the parties’ personal prope rty, including furnitur e, appliances, and tools); and Braswell v. Braswell , 476 S.W.2 d 444, 445 (Tex. App.

— Waco 1972, writ dism’d) (discussing partition in kind with respect to stock in a closel y
- held corporation). Th ese authorities do not support the con clusion that the trial court erred by failing to partition in kind an interest that n o longer exists in its original form. Therefore, we construe Wife’s issue as a challenge to the trial court’ s valuation and division of the HCHB interest. As discussed a bove, the evidence show s the trial court’s allocation of this asset does not constitu te an abuse of discretion. We overrule Wife’s challenge to the trial court’s property division.
III. Attorney’ s Fees In its final judg ment, the trial court included the fol lowing provision awarding attorney’s fees: The Court awards a judgment in favor of [W ife] against [Husband] in the amount of $100,000.00 for reasonable and necessary attorney’s fees, plus post

-

j udgment interest on that amount calculated at the rate50

of 5 pe rcent, per annum, simple interest, beginning on the date of the signing of this Final Judgment in Bill of Review Proceeding , all to be p aid from the “enjoined account.” Challenging this award, H usband asserts (1) the e vidence is legally and factually insu fficient to support the award of attorney’s fees, and (2) the trial court failed to is sue the requisite findings of fact and conclusions of law

. Turning to Wife’s challenge, she contends that, b ecause the award only re presented 10% of her total fees incur red in the underlying proceedings, it was neither just nor right. We begin with Hus band’s arguments.
A. Husband’s Issues

Hu sband’s first argument challenges the legal and factual sufficiency of the evidence underlying the trial court’s attorney’s fees aw ard. We conclude the award is supported by sufficient evidence

. Here, at least two legal bases support the trial court’s a ttorney’s fees award. First, the trial court had equitable power to a ward either spouse attor ney’s fees as part of its just and ri ght division of the marital estate. See Tex. Fam. Code Ann. § 7.001; Mandell v. Mande ll , 310 S.W.3d 531, 541 (Tex. App.

— Fort Worth 2010, pet. denied); see also Bowen v. Bowen , No. 02

- 10

- 00297

- CV , 2011 WL 3426233, at *1 2 (Tex. App.

—

Fort Worth Aug. 4, 2011, pet. denied) (mem. op.) (“Because the award of attorney’s fees in a divorce case can be part of the property division, the t rial court can award them to either party, regardless of who is succes sful in the trial court or on appeal.”). Second, the trial c ourt also had power to award Wife fees in the bill of review proceeding because there was a legal basis for awarding them in the underlying cause of action , i.e. , the divorce

. See, e.g., Dias , 2014 WL 6679525, at *9

- 10

. Wife’s attorney testified an d offered evidence addressing the fees in curred in51

both the bill of review proceeding and at trial. For the bi ll of review, the attorney said Wife incurred $386,768.33 in fees and expenses. For the subsequent trial, the
atto rney said Wife incurred $563,9 50.95 in fees and expenses. To support t hese amounts, Wife’s attorney also offered into evidence two affidavit s and over 150 pages of billing records. These billing recor ds include (1) a description of each task performed in the matters; (2) the person p erforming the work; (3) the date the work was performed; (4) the amount of time required; and (5) the charges i ncurred. This evidence is legally and factually sufficient t o support the trial court’s $100,000 attorney’s fee aw ard. See Finley v. Finley , No

. 02

- 11

- 00045

- CV , 2015 WL 294012, at *7 ( Tex. App.

— Fort Worth Jan. 22, 2015, no pet.) (mem. op.) (“To support a request for reasonable attorney’s fees, testimony should be given regarding the hours spent on the case, the natur e of preparation, the complexi ty of the case, the experience of the att orney, and the prevailing hourly rate.”). In his second argument, Husb and asserts the trial court erred by refusing to issue findin gs of fact addressing the authority under which the tr ial court awarded fees. We di sagree

. As we discussed above, there is no reversible error if the refusal to file additional findings or con clusions does not prevent a party from adequatel y presenting an argument on appeal. See Main Place Custom Homes, I nc. , 192 S.W.3d at 612; Jamest own Partners, L.P. , 83 S.W.3d at 386. Here, t he trial court had two bases for awarding attorney’s fees and Wif e’s attorney presented evidence sufficient to su pport a $100, 000 fee award pursuant to either standard. Husband di d not raise any specific chall enges with respect to this evidence. Rather, Husband contends that, because the trial court divided the partie s’ estate as of October 7, 2013, the trial court was limited to an award of fees incurred as of this date. Husband does not cite any case law or other authority to support52

that contention and we decline to impose that limitation here.
We overrule Husband’ s challenges to the trial court’s attorney’s fee s award.
B. Wi fe’s Issue In her cross appeal, Wife contends that the “trial court’s award of only 10% of the attorney’s fees Wife incurred in unveiling Husband’s fraud was neither just nor right.” Wife asks t hat we reverse the fees award and “instruct the trial court t o instead award Wife judgment for 100% of her proven r easonable and necessary
attorn ey’s fees and costs.” As stated above, the trial court here could award attorney’s fees as part of its divisi on of the parties’ estate or following the bill of review pro ceeding because the underlying action (the parties’ di vorce) permitted a fee award. See Dias , 2014 WL 6679525, at *9

- 10; Mandell , 310 S.W.3d at 541. An award of attorney’s fees in a divorce pro ceeding is committed to the trial court’s “sound discretion” and is “but another element for the court to consider in dividing the marital estate .” Mandell , 310 S.W.3d at 541; see also In re Marriage of C.A.S. and D.P.S. , 405 S.W.3d 373, 386 (Tex. App.

— Da llas 2013, no pet.) (“as in its decision to awar d fees as par t of the division [of the marital estate], the trial c ourt has broad discretion in d etermining the amount”). To warrant reversal, p arties challenging the valuation of a particular asset allocate d in a divorce proceeding must contend that the erroneous val uation caused the court to abuse its discretion in its overall division of the commu nity estate. See Ball v. Roney , No. 2

- 08

- 213

- CV, 2008 WL 4831412, at *2 (Tex. App.

— Fort Worth Nov. 6, 2008, no pet.) (mem. op.). Here, Wife’s challenge to the trial cour t’s attorney’s fees award addressed only the fee award itself

— Wife did not demonst rate how the trial court’s allo cation of this asset rendered its overall division an abuse of discretion.53

Acco rdingly, even if the trial court erred in its valuation of Wi fe’s attorney’s fees, Wife did not show that such erro r would require reversal of th e trial court’s judgment dividi ng the parties’ estate. See, e.g., Lynch v. Lynch , 540 S.W.3d 107, 132 (Tex. Ap p.

— Houston [1st Dist.] 2017, pet. denied); Kemp v. Kemp , No. 11

- 11

- 00292

- CV, 2013 WL 5891583, at *6 (Tex. App.

— East land Oct. 31, 2013, no pet.) ( mem. op.).
We overrule Wife’s c hallenge to the trial court’s attorney’s fees award.
C ONCLUSION
We affirm the trial court’s December 18, 2019 final judgment

.

/s/ Meagan Hassan Justice

Panel consists of Chief J ustice Christopher and Justices Hassan and Poissant.