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

Trial 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 Agreed Decree of Divorce” 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 following the parties’ 

divorce, Husband’s equity interest underwent several partial sales for a total of 
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approximately $14 million in proceeds. 

In May 2017, Wife filed a petition for bill of review. In her second amended 

petition, Wife alleged that, during their 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 extrinsic fraud prevented 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 review and setting 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 awarded 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 

OVERVIEW

The issues raised in this appeal address three separate parts of the underlying 

proceeding: the order granting the bill of review, the trial court’s subsequent 

1 This case was transferred to this court from the Second Court of Appeals by Texas 

Supreme Court Transfer Order, Misc. Docket No. 20-9048. Because of the transfer, we must 

decide the case in accordance with the precedent of the Second Court of Appeals if our decision 

otherwise would have been inconsistent with 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 substantive elements: (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 the petitioner’s fault 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. Husband also contends 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 the trial court’s division 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 insufficient 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 

property 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. 
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ANALYSIS

I. Bill of Review

A. Governing Law and Standard of Review

A bill of review is an independent action to set aside 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 construe 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. App.—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 the cause of action 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 406-07; see also Moseley v. Omega OB-GYN 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. 02-14-00382-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 words, 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 court 
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abused its discretion merely because the appellate court would have ruled 

differently in 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 trial court abused 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 

supports 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 

credibility 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 whether sufficient evidence 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 hearing. The 

bill of review 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 addressed the two remaining bill-ofreview elements.

1. First 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 on 
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October 7, 2013. Under the heading “Division of Marital Estate”, the decree 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 that it divides “almost all of [the] marital property 50-

50”. The divorce decree also states 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 admitted into evidence during Husband’s testimony was a worksheet 

he filled 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 HCHB interest was included in the portion of the 

worksheet 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 Estates of the Parties” is struck through 

and there are no separate assets 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 portion 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” worksheet.

Wife was the second witness to testify at the hearing. 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 financial assets into the 

marriage. Wife testified that Husband “handled the finances” during their 
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marriage and said that she did not “feel that [she] had the ability to make purchases 

when [she] wanted to.” Wife testified that Husband “controlled all the banking 

and the money” and monitored 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 not 

answer, “he would call [her] four and five more times and text [her] until [she] 

answered 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 Husband 

returned 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 augmentations. 

According to Wife, 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 controlling” and “more demanding” after 

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 Husband’s closet for him. 

Wife recalled 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 of 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

According to Wife, she did not feel like she could choose to keep working. 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 drink when it reached a certain level.

In July 2013, Wife found out that Husband was having an affair 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 begged him 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 divorce, 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 Husband also told her not to 

tell anyone about the divorce, including her friends. Wife said Husband 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 street with 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 

[HCHB] shares that were not [hers].” According to Wife, Husband told her his 

attorney confirmed the HCHB 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 without Husband knowing. Wife 

said her friends encouraged her to speak with an attorney. Wife met with an 

attorney on July 31, 2013, and signed a fee agreement entitled “Potential Divorce 
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Matter — Limited Scope Fee Agreement — Legal Advice ONLY”. The portion of 

the fee agreement entitled “LIMITED SCOPE OF REPRESENTATION” includes 

the following:

[The attorney] may:

• Review any pleadings or documents regarding your divorce. 

• Provide you with legal advice regarding your divorce.

[The attorney’s] representation specifically DOES NOT include the 

following:

• Filing or signing an answer, 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 attending any hearing, mediation, or settlement 

negotiations on your behalf.

According to Wife, she was “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 the attorney contacted her once by emailing a billing statement 

to her friend’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 the prima facie 

proof in the meritorious 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 

wrongful act of Husband, (2) unmixed with any fault or negligence of her own. 

See Baker, 582 S.W.2d at 406-07.
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2. Second Part of Hearing

Five witnesses testified during the second portion of the bill of review 

hearing. 

The first witness to testify was Jim Griffin, 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 HCHB and 

members of the “executive 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 market” 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 HCHB. 

Griffin said that in “the May-June [2013] time frame”, it was estimated that the 

market 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 little less than two — less — less than two times 

what [Griffin] received.” 

Francine Cohan was the second witness to testify. Cohan said she met 

Husband and Wife in June 2012, when she moved to their neighborhood. Cohan 

said she and Wife “became friends and started seeing each other for lunches and 

things 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 “constantly making sure everything was just so” 
11

because Husband “liked 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 affair. Cohan recommended to Wife that she 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 into.” According to Cohan, Wife “was 

extremely afraid of having an attorney locally” in case the attorney knew Husband. 

Cohan recalled 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 receive 

an email regarding payment. 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 very thin very quickly. She was not eating. 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 train wreck. She was 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 they were married and that he had to 

divorce her.” According to Cohan, Wife seemed 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 wellbeing of her animals. Where was she going to live? What she was 
12

going to do? What was going on with [Husband’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 visit him. According to 

Cohan, Wife bought a house in Tarrant County, 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 it 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 Johnston; 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. Albritton 

testified that this number of visits is “indicative of the level of distress 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”, “inappropriate, 

almost disheveled grooming”, and was “almost anorexic.” Johnston stated in her 

notes that Wife had a “flat affect” with “no expression” except “occasionally being 

tearful.” According to Dr. Albritton, Johnston’s impression was that Wife “was 

having tremendous trouble putting thoughts together in a meaningful way” and had 

“some cognitive impairment.” Dr. Albritton testified that Johnston diagnosed Wife 

as having severe major depression and an anxiety disorder. Johnston 

“recommended, in fact, almost insisted on inpatient hospitalization” and made a 

“psychiatric referral” based on the issues she observed with Wife. According to 
13

Dr. Albritton, Wife declined hospitalization but continued to visit Johnston several 

times a week for therapy.

Dr. Albritton testified that Johnston’s notes also included impressions of 

Wife’s relationship with Husband. According to the notes, Wife “felt fearful” and 

felt like Husband “was dictating her behavior, and . . . specifically mentioned the 

attorney issue because 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 concerned about Wife’s “level of dependency”. 

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 Wife’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]articularly, continuing after the 

divorce in a relationship, that was very unusual.” After Wife moved to Arizona, 

Dr. Albritton testified that she would continue to visit Husband and “was very 

hopeful that somehow the relationship would be, you know, resurrected.” Dr. 

Albritton also said Wife had “difficulty setting appropriate boundaries” and noted 

that her sexual relationship with Husband “turned into what [Wife] described as 

more of a bondage-servant-slave-master relationship.” Dr. Albritton said Wife 

maintained this relationship with Husband for at least a year after the divorce.

Dr. Albritton said he first met with Wife in January 2014 and said “she was 

still kind of disorganized and her thoughts were not a hundred percent clear”. 

According to Dr. Albritton, Wife had a conversation with a friend in the summer of 

2016 “that led her to become — start questioning whether there had been foul gain 
14

in the divorce”.

Husband testified again during the second part of the bill of review hearing. 

During Husband’s testimony, portions of his video-taped deposition were played. 

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 lawyer that [he] had hired, that [he] would treat her fairly and give 

her what she was due”. 

During 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 that the HCHB interest was his separate property was based on “[his] 

opinion and Google.” 

Testifying at the hearing, Husband said he and Wife talked about her hiring 

an attorney for the divorce proceeding. According to Husband, he and Wife “had a 

discussion around [sic] there was no reason to. This was a very common, spliteverything divorce.” Husband acknowledged telling Wife that he “wanted to keep 

the divorce proceedings secret” and did not want her “to discuss [their] personal 

life with people in the neighborhood or people in the industry or her friends.” 

Husband said Wife agreed to keep the divorce a secret. Husband said he and Wife 

put together the “Inventory and Appraisement” worksheet valuing their assets.

Husband testified that Wife was financially dependent on him after she 

stopped working. According to 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” and “had a long 

commute.” Husband said Wife “was making very little money” at her job and it 

“was probably 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 the 
15

home build completed. 

After the divorce, Husband recalled that Wife asked him to come back 

“multiple 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, amazing sex.”

Wife was the last witness to testify at the hearing. Describing her marriage 

to Husband, Wife said there was no limit on what she would do for him. Even 

after the divorce, Wife said she “would have done anything” to keep Husband in 

her life. Wife said she went along with Husband’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 write 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 

separate property. Wife said she never saw any documents pertaining to the 

HCHB interest. 

Wife also was questioned about the attorneys she retained before and after 

the divorce proceeding. Wife said she retained an attorney in 2013 and had a onehour initial consultation. Wife said she did not have any further interactions with 

the attorney out of “fear.”

Wife said she signed a second contract for legal representation in April 

2014. According to Wife, she had one phone call with an attorney because she had

questions about the allotment of the sales proceeds from the parties’ marital home. 

Wife said she saw therapist Johnston for two-to-three years after the divorce 

and did not work during this time. Wife said she returned to work full-time in 
16

February 2016. Wife said that, in the summer of 2016, she had a conversation with 

a friend that led her to think 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] had not been honest with [her] during the divorce 

. . . about the HCHB shares.” 

Wife recalled that, when she visited with her attorneys in August 2016, she 

did not have any records or documents regarding the HCHB interest but only had 

the divorce decree. Wife agreed that it was “important . . . to know for sure that 

[she] w[as] on solid footing” before going forward with her petition for bill of 

review because of the cost it would incur. Wife also said she had to “really, really

think about” whether she wanted to “challenge” Husband. According to Wife, the 

petition for bill of review was filed approximately nine months after she consulted 

with her attorney. Wife said she brought the bill of review proceeding “[t]o stand 

up for [her]self and to stand up to [Husband] for the first time.” 

3. The Trial Court’s Ruling

On September 27, 2018, the trial court signed an order granting Wife’s 

petition for bill of review.

On November 1, 2018, the trial court signed a “Corrected and Clarified 

Order from the ‘Baker Hearing’ for the Bill of Review.” In this order, the trial 

court clarified the extent to which the 2013 divorce decree was set aside:

In granting the Bill of Review, the Court hereby sets aside only the 

property division as set forth in the Decree of Divorce signed on 

October 7, 2013. The Court will divide the parties’ 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)”, the 
17

trial court issued the following findings with respect to the bill of review 

proceeding:

1. Petitioner herein, [Wife], established facts sufficient to constitute a 

meritorious defense to the original 2013 property division. 

2. Petitioner herein, [Wife], established that the original 2013 property 

division was rendered 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 challenges whether sufficient evidence supports the 

trial court’s findings that Wife (1) had a meritorious defense, (2) which she was 

prevented from making by Husband’s fraud, (3) unmixed with any fault or 

negligence of her own. We examine these elements individually. 

1. Meritorious Defense

In a bill of review proceeding, the petitioner must first, as a pre-trial matter, 

present prima facie proof to support the alleged meritorious defense or claim. 

Baker, 582 S.W.2d at 408; Elliott v. Elliott, 21 S.W.3d 913, 917 (Tex. App.—Fort 

Worth 2000, pet. denied). A prima facie defense or claim is presented if the trial 

court determines that (1) the petitioner’s claim or defense is not barred as a matter 

of law and (2) the petitioner will be entitled to judgment on re-trial if no contrary 

evidence is offered. Baker, 582 S.W.2d at 408-09; Elliott, 21 S.W.3d at 917.

Whether a prima facie showing has been made is a question of law for the 

court. Elliott, 21 S.W.3d at 917. Prima facie proof may be comprised of 

documents, answers to interrogatories, admissions, and affidavits on file along with 

such other evidence that the trial court may receive in its discretion. Baker, 582 

S.W.2d at 409; Elliott, 21 S.W.3d at 917. The bill of review respondent may 
18

respond with like proof showing that the petitioner’s claim or 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 involving bills of review to set aside divorce decrees regarding 

division of property, courts have held that a meritorious claim is presented by 

proof that the petitioner would obtain a more favorable property division on 

retrial.” Elliott, 21 S.W.3d at 919 (internal quotation omitted). Analyzing 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 wife]. 

In the divorce decree in that case, Wife received her jewels, a new 

Cadillac, $44,000 in cash and $3,000 per month for 120 months as 

contractual alimony. Husband received the remainder of the property, 

including stock in a business he managed, which he listed as separate 

property worth approximately $2 million. Wife filed a bill of review 

some two years later, claiming that she had suffered from severe 

depression during the period of the divorce, that Husband had taken 

advantage of her condition and threatened to seek custody of the 

couple’s only child if she pursued discovery, and that he 

misrepresented that the stock was his separate property and that the 

company was in a precarious financial condition.

At a Baker v. Goldsmith hearing, Wife offered evidence discovered by 

her subsequent to the divorce that the stock was community property, 

that Husband paid himself a dividend of approximately $2.8 million 

shortly after the divorce became final, and that there had been $6 

million in retained earnings in the company at the time of the divorce.

Based on this evidence, the court of appeals in Martin concluded that 

the trial court erred in dismissing Wife’s bill of 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 evidence, 
19

Wife “demonstrated that she would obtain a more favorable property 

division on retrial.”

Elliott, 21 S.W.3d at 919-20 (quoting Martin, 840 S.W.2d at 589-90).

Guided by this reasoning, we conclude the trial court did not abuse its 

discretion by concluding that Wife met her burden to present prima facie proof of a 

meritorious claim to the property division in the 2013 divorce decree.2 The decree 

divided most of the parties’ marital estate into two approximately equal portions. 

However, the divorce decree also awarded Husband all the HCHB interest. 

Conflicting evidence was presented regarding whether the HCHB interest 

was part of the community estate or was Husband’s separate property. See Irvin v. 

Parker, 139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, no pet.) (whether 

property is characterized as community or separate is a question of fact). The 

divorce decree lists the HCHB interest as part of the “Marital Estate”, which 

includes the parties’ other community assets. On his “Inventory and 

Appraisement” worksheet, Husband listed the HCHB interest as part of the 

“Community Estate of the Parties” and struck through the portion of the worksheet 

entitled “Separate Estates of the Parties”. But Wife also testified that, prior to the 

divorce, Husband told her the HCHB interest was his separate property — a 

classification that, Husband told Wife, he had confirmed with his attorney. Under 

the applicable standard of review, we resolve this factual dispute in Wife’s favor 

and conclude she presented evidence sufficient to establish a prima facie case that 

the HCHB interest is community property. See Baker, 582 S.W.2d at 409; Elliott, 

21 S.W.3d at 917. 

Evidence at the hearing also showed that, approximately two months after 

2 For this analysis, we rely on the evidence presented during 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 HCHB interest was a substantial 

asset in the divorce — an asset that was awarded to Husband in full. 

As the Fort Worth Court of Appeals noted, the proof in Martin sufficed to 

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 million 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 all the HCHB interest; (2) a portion of this interest was sold for 

$6.7 million two months after the parties signed the divorce decree; and (3) the 

HCHB interest was community property. No evidence was presented showing that 

Wife’s claim was barred as a matter of law. Accordingly, the trial court did not err 

by finding that Wife presented prima facie proof to support the alleged meritorious 

claim to the parties’ 2013 property division. 

We overrule Husband’s challenge to this finding.

2. Extrinsic Fraud

To secure a bill of review, the petitioner must establish by a preponderance 

of the evidence that the prior judgment was rendered as a result of fraud, accident, 

or wrongful conduct of the opposite party. Baker, 582 S.W.2d at 409. Here, 

according to the findings of fact and conclusions of law, the trial court found that 

the parties’ 2013 property division was rendered as a result of Husband’s fraud.

In the bill of review context, extrinsic fraud is wrongful conduct that 
21

occurred outside the challenged trial proceeding and affected the manner in which 

the judgment was procured. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 

1984). Extrinsic fraud prevents a real trial upon the issues presented and includes 

acts such as keeping a party away from court, making false promises of 

compromise, and denying a party knowledge of the lawsuit. Id.; see also Boaz v. 

Boaz, 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 to 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 underlying 

action. McIntyre v. Wilson, 50 S.W.3d 674, 680 (Tex. App.—Dallas 2001, pet. 

denied). 

Conversely, intrinsic fraud relates 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 presented to and considered by the trial 

court in rendering the challenged judgment. Id. Intrinsic fraud does not support a 

bill of review because each party must guard against adverse findings on issues 

directly presented. Id. Thus, “[a]s a matter of law, misrepresentation with respect 

to the value of known community assets does not alone constitute extrinsic fraud.” 

Rathmell v. Morrison, 732 S.W.2d 6, 13 (Tex. App.—Houston [14th Dist.] 1987, 

no writ). 

Several courts have considered similar cases where, as here, the wife alleged 

that the husband’s threats or deception kept her from pursuing a claim to 

community assets. Most recently, the Corpus Christi Court of Appeals examined 

whether this type of evidence was sufficient to defeat a motion for summary 
22

judgment 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.—Corpus Christi Aug. 9, 

2012, pet. denied) (mem. op.). In her summary judgment response, the wife in 

Hester attested that, when she was going through the process of divorcing her 

husband, she “immediately requested her husband to disclose all assets, including

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 money on a lawyer to answer discovery.” Id. Concluding this evidence 

was sufficient to raise an issue of fact with respect to extrinsic fraud, the court held 

that “[f]raudulent concealment, in addition to threats designed to coerce a spouse 

into not investigating the other party’s financial status, is sufficient to establish 

extrinsic fraud”. Id.; see also Hill v. Steinberger, 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 “admitted he made fraudulent misrepresentations concerning 

[wife’s] need for an attorney in the divorce proceedings, and that those 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 misrepresentation of the 

market value of the Rathmell companies but also threats by [husband] 

that if [wife] obtained an interest in the companies or even if she 

merely insisted on having the companies appraised, [husband] would 

dissolve the companies, close them down and walk across the street 

and start new companies.
23

Id. at 14. Concluding this evidence was sufficient to support a finding of extrinsic 

fraud, this court held that, “[i]f [wife] was induced by [husband’s] threat to forego 

an appraisal and agreed to the property settlement agreement based on [husband’s] 

representations regarding the value of the companies, she was prevented from 

having a fair opportunity of presenting in the divorce trial evidence concerning the 

value of the companies.” Id.; see also Vickery v. Vickery, No. 01-94-01004-CV, 

1997 WL 751995, at *24-25 (Tex. App.—Houston [1st Dist.] Dec. 4, 1997, pet. 

denied) (op. on reh’g, not designated for publication) (evidence sufficient to 

support finding of extrinsic fraud because the wife testified that her husband 

“duped her into getting the divorce by persuading her that it was necessary to 

protect the family’s assets and that the couple would reunite”).

Examined in light of these authorities, the evidence presented at the bill of 

review hearing is sufficient to support the trial court’s finding that extrinsic fraud 

prevented Wife from asserting her claim to the HCHB interest in the 2013 property 

division. 

When the parties were preparing to divorce, Wife recalled Husband telling

her there was “no reason for either of [them] to have an attorney” because they 

would “split the cash in the bank and the house.” 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 interest] shares that were not [hers].” Wife said Husband 

told her his HCHB interest was his separate property and that he had confirmed 

that classification with his attorney. Wife also said that Husband instructed her not 

to tell anyone about their divorce. 

Wife testified that, when she told Husband that she too was going to hire an 

attorney, Husband told her “he would throw [her] and [her] four dogs out on the 

street with no money” and that she “wouldn’t get anything.” Wife said her friends 
24

encouraged her to see an attorney before finalizing the divorce and that she met 

with an attorney once in July 2013 for a one-hour consultation. According to 

Wife, she did not have any further contact with the attorney out of “fear.”

Similarly, Cohan also testified 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 also recalled that Wife “was extremely afraid of having an 

attorney locally” in case the attorney knew Husband. Cohan described Wife as 

“erratic” during this time and said Wife was concerned about “her well-being”, 

“the well-being of her animals”, and where she was going to live. And according 

to Dr. Albritton’s testimony, Husband’s threats to Wife regarding her retention of 

an attorney also were mentioned in Johnston’s notes taken during Wife’s therapy.

Evidence of these threats comports with other testimony addressing the 

broader nature of Husband’s and Wife’s relationship. In her testimony, Wife 

described Husband as “controlling” and “demanding” and said he had total control 

over their finances. Wife said she did not feel like she had the ability to make 

purchases when she wanted to and recalled that Husband monitored her spending. 

Wife also testified that Husband was demanding with respect to how certain 

household tasks were completed and expected Wife to immediately attend to his 

needs. Likewise, Cohan testified that, once she got to know Wife, “it was evident 

. . . that [Wife] was afraid” of Husband. 

This evidence supports the conclusion that Husband threatened Wife and 

told her that, if she retained an attorney in the divorce proceeding, she would not 

get anything from the division of the parties’ estate. As in the cases discussed 

above, these threats constitute extrinsic fraud, i.e., conduct that occurred outside 

the challenged trial proceeding that affected the manner in which the judgment was 

procured. See, e.g., Hester, 2012 WL 3252721, at *3-4; Vickery, 1997 WL 
25

751995, at *24-25; Hill, 827 S.W.2d at 62; and Rathmell, 732 S.W.2d at 13-14. 

Based on this evidence, the trial court’s finding that the 2013 property division was 

rendered as a result of Husband’s fraud does not constitute an abuse of discretion. 

Challenging this finding, Husband contends that the evidence does not show 

that he prevented Wife from obtaining an attorney during the divorce proceedings. 

To support this argument, Husband points to evidence showing that Wife 

(1) consulted with an attorney in July 2013; (2) signed a fee agreement and paid a 

retainer fee; and (3) purchased a secret flip phone to communicate with her 

attorney. 

But the record also contains evidence showing that Husband’s threats 

prevented Wife from having anything more than an initial consultation with the

attorney. Specifically, Wife testified that she only had a one-hour consultation 

with the attorney and did not have any further 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 taking any substantive action in the 

divorce proceeding on Wife’s behalf. Moreover, Wife testified that she used a 

secret phone and her friend’s email address to communicate with the attorney, 

further underscoring her assertion that she was scared to work with an attorney. 

Reconciling this evidence fell to the trial court which, as fact-finder, was 

charged with “judg[ing] the credibility of the witnesses” and “determin[ing] the 

weight to be given their testimony.” See Okon, 2015 WL 4652775, at *3 (internal 

quotation omitted). We decline to revisit that determination on appeal. The 

witnesses’ testimony and evidence regarding Wife’s limited interactions with an 

attorney and the reasons she did not pursue further legal representation support the 

trial court’s extrinsic fraud finding. 
26

Husband also contends the evidence at the hearing “reveals anything but 

fraud” and is “far from egregious”. Husband points out that there is no evidence of 

physical or sexual abuse and that “[t]he police were never called to [the parties’] 

home.” 

But this argument overstates the evidence necessary to show extrinsic fraud. 

To prove extrinsic fraud, the petitioner must produce evidence of wrongful conduct 

that occurred outside the challenged proceeding which affected the manner in 

which the judgment was procured. See Montgomery, 669 S.W.2d at 312. As 

shown by the authorities discussed above, this showing can be made through 

evidence of threats or deception that kept the petitioner from pursuing a claim to 

community assets in a divorce proceeding. See, e.g., Hester, 2012 WL 3252721, at 

*3-4; Vickery, 1997 WL 751995, at *24-25; Hill, 827 S.W.2d at 62; and Rathmell, 

732 S.W.2d at 13-14. The cases do not require that the petitioner show physical 

abuse or similar actions of that nature to establish extrinsic fraud. Accordingly, we 

will not apply that standard here. 

We overrule Husband’s challenge to this finding.

3. Unmixed With Fault or Negligence

The final element for a bill of review requires the petitioner to show that her 

failure 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; Moseley, 2008 WL 

2510638, at *2. Specifically, 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 (Tex. App.—Dallas July 23, 2015, pet. denied) (mem. op.). “‘Adequate legal 

remedies’ only consists of motions that could have been 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, at *4 (Tex. App.—Corpus Christi Nov. 25, 2014, 

pet. denied) (mem. op.).

A person who knew or, by the exercise 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 entitled to a bill of review. Hesser v. Hesser, 842 S.W.2d 

759, 765 (Tex. App.—Houston [1st Dist.] 1992, writ denied). “However, 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 (petitioner 

raised an issue of fact on negligence element in bill of review proceeding where 

she alleged she “was unable . . . to exercise such prudence because of her mental 

condition”). 

The application of these principles is illustrated in Rose v. Rose, 598 S.W.2d 

889 (Tex. App.—Dallas 1980, writ dism’d w.o.j.). There, the wife filed for 

divorce from 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 

divorce, the wife obtained the husband’s signature on a property settlement 

agreement that awarded all the parties’ property to the wife. Id. The husband later 

filed a petition for bill of review to set aside the property agreement, which the trial 

court granted. Id.

On appeal, the wife argued that the evidence did not support the trial court’s 

finding that the 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 [he] was disoriented, slow, dazed, and on heavy medication at the 

time” of the divorce and that the husband’s medication “caused side-effects such as 

lethargy and disorientation.” Id. “This evidence”, the court concluded, was 
28

“sufficient to support the finding that the [husband] was not negligent in his actions 

concerning the divorce action.” Id. 

Here too, the record contains evidence sufficient to support the trial court’s 

finding that Wife’s failure to assert her claim with respect to the parties’ 2013 

property division was unmixed with her own fault or negligence. 

According to Wife, Husband told her there was “no reason for either of 

[them] to have an attorney” in the divorce proceedings because they would “split 

the cash in the bank and the house.” Wife testified that Husband threatened her 

when she said she wanted her own attorney and told her that, if she did, “he would 

throw [her] and [her] four dogs out on the street with no money” and that she 

“wouldn’t get anything.” Wife said she was afraid of Husband’s threats and, as a 

result, only had a single consultation with an attorney with respect to the divorce.

Cohan also testified about Wife’s emotional state during the divorce 

proceedings. Cohan said Wife’s health deteriorated quickly and she recalled that 

Wife “was not eating”; “became very thin”; “was distraught”; “cried constantly”; 

and “was a train wreck.” Cohan recalled that it was “difficult to speak” with Wife 

during this time and that Wife’s thoughts were “erratic”. 

Cohan also said she was concerned because Wife continued to have sex with 

Husband. According to Cohan, Wife seemed to think she “was going to be able to 

win [Husband] back by having sex with him”. Similarly, Wife testified that she 

“would have done anything” to keep Husband in her life and went along with 

Husband’s sexual requests because she “would have done anything for him 

because [she] was still in love with him.” Wife also 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. Testifying about these sessions, 

Dr. Albritton said Johnston described Wife as a “puddle” who was “having a great 

deal of trouble functioning”; Johnston also noted that Wife had “[b]ad hygiene”, 

“inappropriate, almost disheveled grooming”, and was “almost anorexic.” 

Johnston diagnosed Wife as having severe major depression and an anxiety 

disorder and recommended inpatient hospitalization. 

After Wife moved to Arizona, Dr. Albritton testified that she would continue 

to visit Husband for at least a year and “was very hopeful that somehow the 

relationship would be, you know, resurrected.” Dr. Albritton said Wife had 

“difficulty setting appropriate boundaries” and noted that her sexual relationship 

with Husband “turned into what [Wife] described as more of a bondage-servantslave-master relationship.” Dr. Albritton said when he first met with Wife in 

January 2014, she was “still kind of disorganized and her thoughts were not a 

hundred percent clear.” According to Wife, it was not until summer 2016 that a 

conversation with a friend led her to think she could have had a claim to the HCHB 

interest. 

This evidence supports the conclusion that Wife was emotionally distraught 

and exhibiting symptoms consistent with severe major depression and an anxiety 

disorder before, during, and after her divorce from Husband. Accordingly, this 

evidence is sufficient to support the trial court’s finding that Wife was not 

negligent in failing to assert a claim to the HCHB interest in the parties’ divorce 

proceeding. See Rose, 598 S.W.2d at 894; see also Vickery, 1997 WL 751995, at 

*24-25 (evidence sufficient to support finding that the wife was not negligent or at 

fault, in spite of some evidence showing that the wife was a legal assistant who 

should have understood the legal process and that the wife never called or wrote to 
30

the attorney her husband hired for her). 

Challenging this finding on appeal, Husband argues that the “undisputed 

facts” show Wife (1) signed a waiver of service in the divorce proceeding; 

(2) signed the agreed divorce decree; (3) signed a qualified domestic relations 

order; and (4) retained counsel during the pendency of the proceedings. Therefore, 

Husband argues, Wife was “consciously indifferent to protecting her rights.”

But whether the petitioner’s failure to raise a meritorious claim or defense 

was unmixed with any fault or negligence of her own is a question of fact. See 

Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950). Husband’s argument 

asks us to revisit the trial court’s resolution of this question in light of the 

conflicting evidence presented at the hearing: the evidence showing Wife was 

mentally and emotionally distraught before, during, and after the divorce versus the 

evidence showing Wife participated in the divorce proceedings and retained 

counsel. We decline to second-guess the trial court’s determination on this point. 

Because some evidence of substantive and probative character supports the trial 

court’s determination that Wife was not negligent or at fault, we will not reverse 

that 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 

approximately nine months after Wife signed a retainer contract with her current 

attorneys. But this alone does not render the trial court’s finding an abuse of 

discretion. Testifying at the hearing, Wife said she did not have any documents or 

records pertaining 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 the 
31

petition for bill of review.

The trial 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 judicial notice 

of its own file at any stage of proceedings and is presumed to have done so with or 

without a request from a party.”). Wife’s original petition for bill of review 

included a detailed recitation of the facts underlying Wife’s claim and the relevant 

legal authorities pertaining 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 sufficient to support 

the trial court’s finding that Wife was not negligent or at fault. 

We overrule Husband’s challenge to this finding. 

D. Husband’s Challenge Regarding Additional Findings of Fact

The trial court issued findings of fact and conclusions of law on January 27, 

2020, after the trial on the parties’ property division. The trial court’s findings of 

fact state that Wife’s petition for bill of review was granted; the findings do not 

address the specific elements necessary to bring a bill of review. 

On February 12, 2020, the trial court issued “Additional or Amended 

Findings of Fact and Conclusions of Law (Second).” In relevant part, the trial 

court found that Wife (1) “established facts sufficient to constitute a meritorious 

defense to the original 2013 property division”; (2) “established that the original 

2013 property division was rendered as a result of fraud of [Husband]”; and 

(3) “established that the fraud was unmixed with any fault or negligence of her 
32

own.” 

Husband filed a “Request for Additional or Amended Findings of Fact and 

Conclusions of Law” and asserted as follows:

1. While the court found that [Wife] had “established facts 

sufficient to constitute a meritorious defense,” the Court did not 

find what those facts were, or what the meritorious defense was.

2. While the court found that [Wife] “established that the original 

2013 property division was rendered as the result of fraud, 

accident, or mistake of [Husband]” the court does not specify if 

it was fraud, accident or mistake. Further, the court did not find 

what that fraud, accident, or mistake was, nor did the court find 

any facts supporting that conclusion. 

3. The court failed to find any facts supporting the conclusion that 

the “fraud, accident, or mistake was unmixed with any fault or 

negligence” 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 required to file findings of fact and conclusions of law within 

twenty days after a timely request is made. Tex. R. Civ. P. 297. Upon a party’s 

timely request for additional findings, the trial court “shall file any additional or 

amended findings and conclusions that are appropriate.” Tex. R. Civ. P. 298.

The Fort Worth Court of Appeals has interpreted this rule to require 

additional findings and conclusions “only when they relate to ultimate or 

controlling issues.” Kirby v. Chapman, 917 S.W.2d 902, 909 (Tex. App.—Fort 

Worth 1996, no pet.). “Additional findings are not required if the original findings 

of fact and conclusions of law ‘properly and succinctly relate the ultimate findings 

of fact and law necessary to apprise [the party] of adequate information for the 

preparation of his 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. denied) (quoting In re 

Marriage of Morris, 12 S.W.3d 877, 886 (Tex. App.—Texarkana 2000, no pet.)). 

Additional findings and conclusions are not required “if they are evidentiary only.” 

Kirby, 917 S.W.2d at 909.

If the refusal to file additional findings or conclusions does not prevent a 

party from adequately presenting an argument on appeal, there is no reversible 

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

App.—Fort Worth 2006, pet. denied). To make this determination, we examine 

the record; if the record shows that a party did not suffer injury from the failure to 

make additional findings or conclusions, 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 

elements necessary to warrant a bill of review and those elements’ application in 

the context of a divorce are well-established in the case law. As shown by the 

analyses above, the trial court’s refusal to issue additional findings did not prevent 

Husband from adequately presenting 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 findings. 

We overrule Husband’s challenge with respect to the trial court’s refusal to 

issue additional findings with respect to the bill of review. 

II. Property Division

A. Governing Law and Standard of Review

In dividing the parties’ community estate, the trial court shall order a 
34

division 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 

estate need not be equal, but it should be equitable.” Barnard v. Barnard, 133 

S.W.3d 782, 787 (Tex. App.—Fort Worth 2004, pet. denied). This standard vests 

the trial court with broad discretion in dividing the marital estate; accordingly, we 

will not disturb the trial court’s division on appeal unless the complaining party 

shows that the division was so unjust and unfair as to constitute an abuse of 

discretion. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981); Neyland v. 

Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.). A trial 

court abuses its discretion if it acts without reference to any guiding rules or 

principles, that is, if its act is arbitrary or unreasonable. Boyd, 131 S.W.3d at 610. 

In reviewing a marital property division, the abuse of discretion standard 

overlaps with the traditional civil sufficiency standards of review. Chi Hua Lee v. 

Linh Hoang Lee, No. 02-18-00006-CV, 2019 WL 3024478, at *2 (Tex. App.—Fort 

Worth July 11, 2019, no pet.) (mem. op.). Therefore, legal and factual sufficiency

are not 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 factually insufficient to 

support the trial court’s decision, we engaged in a two-pronged inquiry: 

(1) whether the trial court had enough information upon which to exercise its 

discretion, and (2) whether the trial court erred in applying its discretion. Id. The 

applicable sufficiency review comes into play in answering the first question. Id. 

With respect to the second question, we determine whether the trial court’s 

decision is reasonable based on the elicited evidence. Id.
35

B. Evidence Addressing the HCHB Interest 

To analyze the parties’ arguments addressing the trial court’s property 

division, we focus on evidence addressing the characterization and value 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 percent 

owner” of HCHB in March 2006.

Anthony testified that she hired Husband as vice president of 

implementation services in 2005. Admitted into evidence was Husband’s offer 

letter from HCHB, which was dated August 20, 2005. According 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 

compensation component:

Bonus on Sale of Homecare Homebase – Offered to [Husband] 

8/20/2005

Introduction: Plan is meant to provide a bonus to key executives upon 

sale of the company, if employed by HCHB 30 days prior to the sale. 

Bonus payable will be calculated on the amount of sale less ten 

million dollars ($10,000,000). In other words, the bonus will be 

payable on the sale amount in excess of $10mm.

Bonus offered to [Husband] will be no less than $20,000, regardless 

of the date of sale after a minimum of 30 days employment. 

Percentage opportunity will escalate over time as follows:

Sale Date Bonus Payable

11/1/2005-4/30/2006 (Sale Price – 10,000,000) * .0025
36

5/1/2006-10/30/2006

11/1/2006-4/30/2007

On or after 5/1/2007

(Sale Price – 10,000,000) * .005

(Sale Price – 10,000,000) * .0075

(Sale Price – 10,000,000) * .01

Anthony described the bonus on sale as a “transaction based bonus that would 

occur upon there being an equity event for the company.” Continuing on, Anthony 

said that “[w]hen an equity event for the company occurred, [Husband] would have 

the opportunity to be paid an amount commensurate with the equity value of the 

transaction.” 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 responsibility 

and eventually expanded into a much more expansive role.” Based on this 

performance, Anthony said Husband’s transaction bonus was increased to 4% “in 

relatively short order.” According to Anthony, this increased transaction bonus 

was offered and accepted as part of a verbal agreement; Anthony said she was 

unable to find any documentation in writing to support the increased bonus.

According to Anthony, she “made the decision to stop these informal 

interests in [HCHB’s] equity sale and go to a more formal relationship” and 

accordingly “remove[d] the transaction bonus and replace[d] it with a formal 

equity instrument.” With respect to Husband, Anthony said he was granted a 3% 

equity interest in HCHB on January 1, 2007, as shown in the “First Amendment to 

Agreement of Limited Partnership of Home Care Home Base, L.P.” Anthony 

testified that the applicable percentage was reduced to 3% “to reflect the fact that 

you no longer have this $10 million threshold.” With respect to this exchange, 

Anthony testified as follows:
37

Question: When you offered [Husband] the 3 percent equity 

interest in HCHB, LP, he no longer had the option of 

a transaction bonus, correct?

Answer: Correct.

Question: And what — what I believe you said earlier is that at 

that point in time, 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 

conversation, 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 triggering 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 rights that the transaction bonus did not 

confer, such as the right to engage in partial sales. Payments made as part of the 

transaction bonus would also “be taxed as ordinary income at a higher tax rate”, 

making the equity interest “a much more effective tax instrument”.

Anthony testified that 40% of HCHB was purchased in 2011 by two private 

equity companies for a total of $56,550,000. From this sale, Husband received 

approximately $1,612,500 and his HCHB interest decreased from 3% to 1.8%.

Anthony said the company underwent “an extraordinary amount of growth” 

and, in summer 2013, the executives prepared to take it to market. On December 

19, 2013, Hearst purchased 85% of HCHB for approximately $625 million. From 

this sale Husband received approximately $6,669,544. 

In January 2018, Hearst purchased 30% of the rollover equity from the 
38

December 2013 transaction, from which Husband received approximately 

$1,923,942. Hearst purchased the remaining HCHB shares in May 2019, from 

which Husband received approximately $5,771,833. 

Husband also testified with respect to his compensation package and equity 

interest in HCHB. Husband said he initially was hired as HCHB’s vice president 

of implementation services and began work on September 6, 2005. According to 

Husband, he was promoted to chief operating officer in March 2006 and Anthony 

increased his transaction bonus to 4%. Like Anthony, Husband said this increased 

bonus amount was not recorded in writing. Husband said he received a 3% equity

interest in HCHB in January 1, 2007, as reflected in the first amendment to 

HCHB’s limited partnership agreement. 

Husband said his and Wife’s divorce was finalized on October 7, 2013, with 

the signing of their agreed divorce decree. Reviewing the divorce decree, Husband 

agreed that it “pretty basically reflect[ed] a 50-50 division of the bank accounts 

[and] the retirement plan” he had with HCHB. From their six bank accounts, 

Husband and Wife each received approximately $500,000. Husband said he also 

gave Wife a $12,000 credit for the furniture he kept. Admitted into evidence was a 

statement from Husband’s bank account showing these withdrawals were made 

when Husband paid the money to Wife.

Husband called Michael McDonald, an employment law attorney, as an 

expert witness with respect to the characterization of the HCHB interest. 

McDonald recounted the same timeline of events discussed in Anthony’s 

testimony: Husband was hired in 2005 and his compensation package included a 

transaction bonus ranging from .25% to 1%; Husband’s transaction bonus was 

increased to 4% in 2006; and Husband received an equity interest in HCHB in 

January 2007. 
39

According to McDonald, Anthony “exchanged” Husband’s 4% transaction 

bonus for the 3% equity interest in HCHB. McDonald acknowledged that there 

were not any sales triggering 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 certified public account, to testify with respect to 

the characterization and value of the HCHB interest. Rice opined that the HCHB 

interest was community property as of the date of the parties’ divorce. With 

respect to valuation, Rice testified that he believed “the value [of the HCHB 

interest] could be as high as about $14.4 million, which is essentially what 

[Husband] received subsequent to the date of his divorce for his remaining 

interest.”

According to Rice, rights to an equity partnership interest arise when the 

“equity interest is vested in the party who owns it” and “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 

HCHB’s limited partnership agreement in January 2007, which granted Husband a 

3% equity interest in the company. Noting that Husband and Wife were married in 

2006, Rice testified that he was “very” confident that Husband “first acquired his 

ownership interest in HCHB, LP during his marriage” to Wife.

Rice then testified regarding the value of the HCHB interest as of the 

parties’ divorce on October 7, 2013. Rice said he relied on a letter HCHB received 

from Hearst on October 3, 2013, in which Hearst offered to pay between $550 

million 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

Enterprise 

Value

$ to 

[Husband]

3.1.11 Cressey & Co. + 

SV Life 

Sciences

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. Final 

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 opined that it 

would be “equitable to divide . . . that type of percentage interest in kind because 

that simply keeps both of the parties 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 2013 Hearst offer letter, Rice said he valued 

Husband’s total 1.8% HCHB interest as of the October 7, 2013 divorce date at 

$7,881,816, with half of that amount equaling $3,940,908. Rice also noted that the 

.027% equity interest Husband retained after the December 2013 Hearst sale 

continued to yield 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 parties’ divorce date would have been subject to 
41

a capital gains 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 judgment on December 18, 2019. The trial 

court’s property division was 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 

personal effects in their possession or subject to their sole control; (2) each party 

received half of the proceeds in the six bank accounts; (3) each party received half 

the proceeds from the sale of the marital home; (4) each party received half the 

proceeds in Husband’s 401(k) plan with HCHB; (5) each party kept their vehicles; 

and (6) Husband retained the membership in the Trophy Club Country Club.

With respect to Husband’s HCHB interest, the trial court held:

With respect to the 1.8 percent of HomeCare HomeBase (“HCHB”), 

the remaining portions of which are represented by monies held by 

[Husband] in the “enjoined account,”[3]the Court awards to [Wife], 

from those proceeds, the sum of $3,152,726.50, plus prejudgment 

interest on that amount calculated at the rate of 5 percent, per annum, 

simple interest, beginning October 7, 2013, and plus post-judgment 

interest on that amount calculated at the rate of 5 percent, per annum, 

simple interest, beginning on the date of the signing of this Final 

Judgment in Bill of Review Proceeding, all 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 May 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 first challenge to the trial court’s property division, Husband argues 

the trial court erred by classifying the HCHB interest as community property 

subject to division. Specifically, 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 equity interest. 

Therefore, Husband argues, the HCHB equity interest retained its character as 

separate property. 

Only community property is subject to the trial court’s just and right 

division. Barnard, 133 S.W.3d at 789. Under Texas law, property possessed by 

either spouse during or on dissolution of the marriage is presumed to be 

community property, absent clear and convincing evidence to the contrary. Tex. 

Fam. Code Ann. § 3.003. Clear and convincing evidence means the measure or 

degree of proof that 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 proceedings and the reasonable-doubt standard that

applies to most criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 

1980); In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied). 

“Clear and convincing evidence must outweigh evidence that would satisfy the 

preponderance standard, 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 612. 

Inception of title occurs when a party first has a right of claim to the property by 
43

virtue of which title is finally vested. Id.

In order to overcome the community presumption, the burden is on the 

spouse claiming certain property as separate to trace 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 the separate origin of the property through evidence showing 

the time and means by which the spouse originally obtained possession of the 

property. Boyd, 131 S.W.3d at 612. Separate property will retain its character 

through a series of exchanges so long as the party asserting separate ownership can 

overcome the presumption of community property by tracing the assets on hand 

during the marriage back to property that, because of its time and manner of 

acquisition, is separate in character. Id. 

Citing these principles, 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 equity interest. Therefore, 

Husband argues, the HCHB equity interest retained its character as separate 

property. We reject Husband’s contention and conclude the trial court did not err 

by classifying the HCHB interest as community property subject to division. 

The premise underlying Husband’s argument on this point is correct: 

separate property retains its character through 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 property, becomes the separate property of him whose money purchases 

or whose property is given in exchange”). But this precept refers only to 

exchanges of property; here, Husband’s interest with respect to the transaction 

bonus originally included as a component of his HCHB compensation did not meet 
44

this standard. 

Husband did not have any defined, vested interest in the transaction bonus 

— rather, as supported by Anthony’s testimony and Husband’s 2005 offer letter 

from HCHB, the transaction bonus was contingent upon there being a qualifying 

equity event. But this contingency did not take place. As Anthony testified, the 

transaction bonus “never came into effect” because the triggering sale to a thirdparty for greater than $10 million did not occur before the transaction bonus was 

replaced with a formal equity interest. See Raulston v. Raulston, 531 S.W.2d 683, 

685 (Tex. App.—Texarkana 1975, no writ) (“It is settled, however, that a . . . 

possibility of acquiring a title in the future is not such a legal expectancy as will 

amount to a present right or title in property.”).

Moreover, Anthony testified that the transaction bonus was extinguished 

when formal equity interests in HCHB were established via the first amendment to 

HCHB’s limited partnership agreement. According to Anthony, if Husband had 

declined the offered HCHB equity interest and instead chose to leave the company, 

he would not have been entitled to enforce any rights associated with the 

transaction bonus. 

Aligned with Anthony’s testimony on this issue, Rice testified that 

Husband’s equity interest in HCHB vested when the first amendment to the HCHB 

limited partnership agreement was executed and Husband was formally granted a 

3% equity interest. At this time, Rice testified, Husband was able to exercise 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 that he was “very” 

confident that Husband “first acquired his ownership interest in HCHB, LP during 

his marriage” to Wife.
45

To overcome the community presumption, the burden was on Husband to 

prove by clear and convincing evidence that the HCHB interest constituted his 

separate property. 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 trial court’s characterization of the 

HCHB interest as community property subject to division. 

2. Division of the HCHB Interest

In his second challenge to 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, Husband argues that “none of the numbers posited 

as the value of the HCHB asset represent a figure equal to double the award.” 

We reject this contention. As we noted above, the trial court has broad 

discretion in dividing the marital estate and we do not disturb that division unless 

the complaining party shows the overall division was so unjust 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 evidence supports the trial court’s decision to award 

Wife $3,152,726.50 as her portion of the HCHB interest.

Testifying at trial, Rice said he valued the HCHB interest as of October 7, 

2013, the day the parties signed the agreed divorce decree. In making this 

valuation, Rice consulted the October 3, 2013 letter from Hearst offering to 

purchase HCHB for between $550 million and $600 million. At this time, 

Husband owned a 1.8% equity interest in HCHB. After the December 19, 2013 

sale of 85% of HCHB to Hearst, Husband received $6,669,544 and retained a 

.027% interest in the company. Extrapolating these figures to calculate the value 
46

of Husband’s full 1.8% interest at the time of the December 2013 sale, Rice valued 

the asset at $7,881,816. 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 $6,305,453 figure, divided in half, equals $3,152,726.50, which is what 

the trial court awarded to Wife for her share of the HCHB interest. This division 

of the asset comports with the trial court’s other allocations of the parties’ 

community property, which also were divided approximately in half. Therefore, 

based on the evidence presented at trial, the trial court’s division of the HCHB 

interest does not constitute an abuse of discretion. 

We overrule Husband’s challenge to the trial court’s division of the HCHB 

interest. 

3. The Trial Court’s Findings of Fact

In his final issue addressing the trial court’s property 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. Without this information, Husband 

argues, “[i]t is impossible to know, and properly present an appeal on the issue of, 

the ultimate fact of how the [HCHB interest] was valued”. 

As stated above, the trial court’s December 18, 2019 final judgment awards 

Wife $3,152,726.50 as her portion of the HCHB asset, plus pre- and post-judgment 

interest. Within 20 days after the trial court signed the final judgment, Husband 

requested findings of fact and conclusions of law in accordance with Texas Rules 

of Civil Procedure 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:

With respect to the 1.8 percent of HCHB, the remaining portions of 

which are represented by the monies of which are held by [Husband] 
47

in the “enjoined account,” the Court awarded to [Wife], from those 

proceeds, the sum of $3,152,726.50, plus prejudgment interest on that 

amount calculated at the rate of 5 percent, per annum, simple interest, 

beginning October 7, 2013, all to be paid from said account.

In his first “Request for Additional and Amended Findings of Fact and 

Conclusions of Law”, Husband cited Texas Rule of Civil Procedure 298 and 

requested the trial court make a finding as to “[t]he value of the 1.8 percent of 

HCHB subject to division as of October 7, 2013”. Denying this request, the trial 

court held that the requested finding lacked the specificity required by Texas Rule 

of Civil Procedure 298 and was untimely pursuant to Texas Family Code section 

6.711.

Section 6.711(a) of the Family Code provides that, in a suit for dissolution of 

marriage, on the request 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 amount of the community estate’s assets, liabilities, 

claims, and offsets on which disputed evidence has been presented. Tex. Fam. 

Code Ann. § 6.711(a). However, as the Fort Worth Court of Appeals has held, a 

party must specifically request findings under section 6.711(a) to preserve for 

appeal any error associated with the trial court’s failure 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 findings under rule 296, did not request 

findings under section 6.711, and requested additional findings under family code 

section 7.009, we hold that Wife waived her 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 Rule 296 
48

waived right to section 6.711 findings requested after the expiration of time for 

initial request 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 Husband 

waived his right to findings 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 to 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 HCHB interest by refusing to partition in 

kind in accordance with Texas law.” This erroneous 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. 

Assets may be partitioned in kind (meaning 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 2017, no pet.). 

Texas law 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 it is, instead, ‘incapable of partition’ in kind because a ‘fair and equitable 

division’ cannot be made.” Bowman v. Stephens, 569 S.W.3d 210, 220 (Tex. 

App.—Houston [1st Dist.] 2018, no pet.) (quoting Tex. R. Civ. P. 761, 770). 

Here, Wife did not cite (and our research did not find) any cases or other 
49

authority supporting a partition in kind where an asset has already been divested in 

favor of monetary proceeds. Rather, the cases Wife cites discuss a partition in kind 

with respect to assets that are still intact. See Tarver v. Tarver, 394 S.W.2d 780, 

781 (Tex. 1965) (discussing partition in kind with respect to oil royalties, stocks, 

and bonds); Hailey v. Hailey, 331 S.W.2d 299, 301-03 (Tex. 1960) (discussing 

partition in kind with respect to real property 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 partition in kind in 

the context of the parties’ personal property, including furniture, appliances, and 

tools); and Braswell v. Braswell, 476 S.W.2d 444, 445 (Tex. App.—Waco 1972, 

writ dism’d) (discussing partition in kind with respect to stock in a closely-held 

corporation). These authorities do not support the conclusion that the trial court 

erred by failing to partition in kind an interest that no 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 above, the evidence 

shows the trial court’s allocation of this asset does not constitute an abuse of 

discretion. 

We overrule Wife’s challenge to the trial court’s property division. 

III. Attorney’s Fees

In its final judgment, the trial court included the following provision 

awarding attorney’s fees:

The Court awards a judgment in favor of [Wife] against [Husband] in 

the amount of $100,000.00 for reasonable and necessary attorney’s 

fees, plus post-judgment interest on that amount calculated at the rate 
50

of 5 percent, per annum, simple interest, beginning on the date of the 

signing of this Final Judgment in Bill of Review Proceeding, all to be 

paid from the “enjoined account.”

Challenging this award, Husband asserts (1) the evidence is legally and factually 

insufficient to support the award of attorney’s fees, and (2) the trial court failed to 

issue the requisite findings of fact and conclusions of law. Turning to Wife’s 

challenge, she contends that, because the award only represented 10% of her total 

fees incurred in the underlying proceedings, it was neither just nor right. 

We begin with Husband’s arguments. 

A. Husband’s Issues

Husband’s first argument challenges the legal and factual sufficiency of the 

evidence underlying the trial court’s attorney’s fees award. We conclude the 

award is supported by sufficient evidence. 

Here, at least two legal bases support the trial court’s attorney’s fees award. 

First, the trial court had equitable power to award either spouse attorney’s fees as 

part of its just and right division of the marital estate. See Tex. Fam. Code Ann. 

§ 7.001; Mandell v. Mandell, 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 *12 (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 trial court can award them to either party, regardless of who is successful in the 

trial court or on appeal.”). Second, the trial court 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 and offered evidence addressing the fees incurred in 
51

both the bill of review proceeding and at trial. For the bill of review, the attorney 

said Wife incurred $386,768.33 in fees and expenses. For the subsequent trial, the 

attorney said Wife incurred $563,950.95 in fees and expenses. To support these 

amounts, Wife’s attorney also offered into evidence two affidavits and over 150 

pages of billing records. These billing records include (1) a description of each 

task performed in the matters; (2) the person performing the work; (3) the date the 

work was performed; (4) the amount of time required; and (5) the charges incurred. 

This evidence is legally and factually sufficient to support the trial court’s 

$100,000 attorney’s fee award. 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 nature of preparation, the complexity of 

the case, the experience of the attorney, and the prevailing hourly rate.”).

In his second argument, Husband asserts the trial court erred by refusing to

issue findings of fact addressing the authority under which the trial court awarded 

fees. We disagree. 

As we discussed above, there is no reversible error if the refusal to file 

additional findings or conclusions does not prevent a party from adequately 

presenting an argument on appeal. See Main Place Custom Homes, Inc., 192 

S.W.3d at 612; Jamestown Partners, L.P., 83 S.W.3d at 386. Here, the trial court 

had two bases for awarding attorney’s fees and Wife’s attorney presented evidence 

sufficient to support a $100,000 fee award pursuant to either standard. Husband 

did not raise any specific challenges with respect to this evidence. 

Rather, Husband contends that, because the trial court divided the parties’ 

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 support 
52

that contention and we decline to impose that limitation here.

We overrule Husband’s challenges to the trial court’s attorney’s fees award. 

B. Wife’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 that we reverse the fees award and “instruct the trial court to 

instead award Wife judgment for 100% of her proven reasonable and necessary 

attorney’s fees and costs.” 

As stated above, the trial court here could award attorney’s fees as part of its 

division of the parties’ estate or following the bill of review proceeding because 

the underlying action (the parties’ divorce) 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 proceeding 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.—Dallas 2013, no pet.) (“as in its decision to award 

fees as part of the division [of the marital estate], the trial court has broad 

discretion in determining the amount”). To warrant reversal, parties challenging 

the valuation of a particular asset allocated in a divorce proceeding must contend 

that the erroneous valuation caused the court to abuse its discretion in its overall 

division of the community 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 court’s attorney’s fees award addressed 

only the fee award itself — Wife did not demonstrate how the trial court’s 

allocation of this asset rendered its overall division an abuse of discretion. 
53

Accordingly, even if the trial court erred in its valuation of Wife’s attorney’s fees, 

Wife did not show that such error would require reversal of the trial court’s 

judgment dividing the parties’ estate. See, e.g., Lynch v. Lynch, 540 S.W.3d 107, 

132 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Kemp v. Kemp, No. 11-

11-00292-CV, 2013 WL 5891583, at *6 (Tex. App.—Eastland Oct. 31, 2013, no 

pet.) (mem. op.).

We overrule Wife’s challenge to the trial court’s attorney’s fees award. 

CONCLUSION

We affirm the trial court’s December 18, 2019 final judgment.

/s/ Meagan Hassan

Justice

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.