Affirmed in Part, Reversed in Part, and Remanded; Opinion Filed June 1, 

2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00219-CV

IN THE INTEREST OF H.B.R., A CHILD

On Appeal from the 469th Judicial District Court

Collin County, Texas

Trial Court Cause No. 469-56844-2017

MEMORANDUM OPINION

Before Justices Reichek, Nowell, and Carlyle

Opinion by Justice Nowell

Father appeals from the trial court’s custody determinations in this divorce 

proceeding. In four issues, Father argues the trial court abused its discretion by 

finding he spoliated evidence, that without the spoliation sanction the evidence is 

insufficient to support the trial court’s deviation from the standard possession order, 

and that the court abused its discretion by awarding attorney’s fees to Mother based 

on the spoliation sanction. We conclude the trial court abused its discretion by 

sanctioning Father for spoliation of evidence and that the error was harmful. We

reverse the conservatorship, access and possession, and attorney’s fee award 
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portions of the divorce decree and remand for a new trial. In all other respects, we 

affirm the divorce decree.

Background1

Mother and Father married on July 8, 2014. H.B.R. was born in December 

2014. Mother filed for divorce in December 2017. Father filed a counter petition for 

divorce shortly afterwards. 

At Father’s deposition on February 12, 2018, the attorneys for the parties 

dictated their agreement into the record that Father would not delete any content on 

five specific electronic devices “until a later date that we can determine the 

computers can be imaged.” In March 2018, Father’s electronic devices were imaged 

by his expert, Lance Sloves. The images of the electronic devices created by Father’s 

expert were produced to Mother’s expert in July 2018. 

After additional motions and hearings regarding the production of electronic 

devices and the scope of discovery, the trial court signed an order on July 13, 2018 

requiring Father to turn his electronic devices over to Mother’s expert, Graciela 

Rubio, for imaging and inspection. In October 2018, the trial court issued an order

1 Writing this opinion presents an unusual problem because salient parts of the record are under a 

sealing order that we must respect. Kartsotis v. Bloch, 503 S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. 

denied). However, we also must hand down a public opinion explaining our decisions based on the record. 

See TEX. R. APP. P. 47.1, 47.3 (all opinions are open to the public and must be made available to public 

reporting services); TEX. GOV’T CODE ANN. § 552.022(a)(12) (“final opinions, including concurring and 

dissenting opinions, and orders issued in the adjudication of cases” are “public information”). Accordingly, 

we have made efforts to preserve the confidentiality of the information and avoided references to as much 

information as possible that is part of the sealed record. See Masterguard, L.P. v. Eco Techs. Int’l LLC, 441 

S.W.3d 367, 371 (Tex. App.—Dallas 2013, no pet.).
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limiting Rubio’s examination of the forensic images of the devices to searching for 

files containing vulgar, profane, obscene material of a sexual nature with individuals 

that could potentially be minors, images and videos of a pornographic nature with 

activity associated with the file after April 24, 2009, and any evidence of activity

indicating the deletion of information. 

Mother filed a motion for sanctions for spoliation of evidence on May 30, 

2019. She alleged Father breached the agreement announced at his deposition by 

deleting information on his iPad and MacBook Pro. She alleged that Father executed 

an application called Dr. Fone Erase on May 16, 2018 to delete data from his iPad 

and moved some fifteen thousand program and user files to the “trash” folder on his 

MacBook Pro. 

The trial court conducted a hearing on the motion for sanctions for spoliation 

of evidence on July 31, 2019. Father’s expert, Sloves, was not available but the trial 

court assured Father he would have an opportunity to present his evidence at a later 

time. Father testified that he purchased Dr. Fone Recover as part of a suite of 

applications that also included Dr. Fone Erase. The entire suite was downloaded 

automatically, but Father paid for and received an activation code only for Dr. Fone 

Recover. Father purchased the Dr. Fone Recover application in January 2018

because he wanted to see if Mother had put software on his devices, as she had done 

in the past. Father admitted that he did delete certain things after his deposition, such 
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as voicemails and downloaded movies, but did not delete anything Mother claimed 

was relevant to the case.

Rubio testified that she made forensic images of Father’s devices in July 2018 

and analyzed them pursuant to the court’s October order on protocol. She determined 

that Dr. Fone Erase was installed on Father’s iPad as part of the Dr. Fone suite in 

April 2018 and was executed on May 16, 2018. Dr. Fone Erase was still in the trial 

version, but it was executed on the iPad. Rubio testified that she has tested the Dr. 

Fone application before but not in this case. She was not able to recover any files 

erased by Dr. Fone Erase and did not know what was deleted by the application. 

Rubio also compared her forensic images from July with Sloves’s images 

from March and determined that approximately fifteen thousand program and user 

files on Father’s MacBook Pro had been moved to the “trash” folder between March 

5, 2018 and the time she imaged the device in July 2018. Rubio testified the files 

were not permanently deleted and she could still access them.

Two weeks before trial, the trial court signed an order granting the motion for 

sanctions and found that Father engaged in intentional and willful spoliation of 

evidence by deleting files and executing the Dr. Fone Erase application. The order 

states the court “presumes that the evidence would have been unfavorable to the 

cause of [Father].” 

Father filed a motion to reconsider the spoliation order shortly before trial. 

The trial court decided to carry the motion with the trial. At trial, Mother testified 
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that Father was excessively secretive about his electronic devices and that she had 

seen “a penis picture” on his computer. Mother also testified that before they were 

married, Father told her that in 2002 he went to Cleveland Ohio for a conference and 

also to meet with someone he met in a chat room. He was arrested for soliciting a 

minor but the arrest was expunged. Father told her the person was female but later 

admitted they were male.

The trial court heard evidence that Father sexually abused his cousin, S.R., 

from age eight or nine until S.R. was fifteen. S.R. testified that Father sexually 

abused other cousins. S.R. testified from prison where he was serving a felony 

sentence. The court-appointed child-custody evaluator initially recommended a 

tiered schedule of unsupervised possession and access for Father ending with 

expanded standard possession. She was questioned extensively about the spoliation 

order and how it impacted her recommendation. She testified that in light of the 

court’s spoliation sanction, she did not have confidence in relying on Father’s selfreported information that she was unable to verify. Without the spoliation sanction, 

however, her recommendation would be the same. The evaluator’s supervisor also 

testified that based on the spoliation ruling, the credibility of Father’s self-reports 

had been undermined and the supervisor did not have the same level of confidence 

about the evaluator’s recommendations.

Mother’s expert on child sexual-abuse allegations interviewed S.R. and some 

of his family members and concluded his allegations against Father were credible. 
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She did not interview Father or the child in this case. She concluded that the child 

would be at risk in the unsupervised care of Father. 

The trial court also heard testimony from a licensed sex-offender treatment 

provider that tests performed on Father showed a normal arousal pattern for adult 

and adolescent females and did not show any arousal patterns to children. The expert 

did not find any evidence to show Father was “pedophilic which would represent a 

risk to the child.”

Father denied sexually abusing S.R. Father admitted that in 2002, when he 

was twenty-four, he had oral sex with a person called Ian who was under the age of 

eighteen. Father testified that Ian was either sixteen or seventeen at the time but was 

above the age of consent in jurisdiction where the conduct occurred. Father also 

admitted that he had sexual contact with “very few, one or two possibly,” persons 

who were under the age of eighteen while he was over the age of eighteen. 

Father testified that during the marriage he met four men on Grindr, a dating 

website. He invited the men to his home where they had sexual contact. With one 

exception, Father did not know the exact age of the men. Father testified that H.B.R. 

was in school during the times he met with these men and she was never around 

anyone he met through social media.

Lance Sloves testified as an expert in forensic computer analysis with a 

background and training in identifying and recovering evidence of child 

pornography in criminal and civil matters. Sloves made forensic images of Father’s 
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devices in March 2018 and analyzed them to identify any type of illegal images, 

communications, or activity related to child pornography or improper attempts to 

communicate with children. He did not find anything on the devices consistent with 

child pornography or improper communications. He testified that it would be almost 

impossible to hide such evidence if it existed. 

Sloves also tested the Dr. Fone application. He purchased only the Dr. Fone 

Recover application and downloaded the application. The download included four 

modules, Recover, Erase, and two others. Sloves did not have the option to download 

only the Recover application. Sloves ran the Erase product and it “went to the end 

and then stated that if you want to erase the data off the phone, you’ll need to 

purchase an additional module.” He confirmed that the Erase software would not 

allow him to erase data without purchasing the module. When the Erase program 

would not allow him to go further, he shut the Erase program down and it left behind 

a log. Sloves concluded based on his testing that Father did not delete anything using 

the Dr. Fone Erase application. 

The trial court signed a final decree of divorce on November 7, 2019. The 

court appointed Mother and Father as joint managing conservators, found that good 

cause existed to deviate from the Standard Possession Order, and ordered that 

Father’s periods of possession would be supervised at all times. The trial court also 

awarded Mother $32,000 in attorney’s fees, with conditional appellate attorney’s 

fees. 
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At Father’s request, the trial court signed findings of fact and conclusions of 

law.

Standard of Review

We review a trial court’s imposition of sanctions for spoliation for an abuse 

of discretion. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). We

also review a trial court’s decision regarding child custody, control, possession, and 

visitation for an abuse of discretion. Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. 

App.—Dallas 1999, no pet.). A trial court abuses its discretion when it acts in an 

arbitrary or unreasonable manner or when it acts without reference to any guiding 

principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In 

re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.).

A spoliation analysis involves a two-step judicial process: (1) the trial court 

must determine, as a question of law, whether a party spoliated evidence, and (2) if 

spoliation occurred, the trial court must assess an appropriate remedy. Brookshire 

Bros., 438 S.W.3d at 14. To conclude that a party spoliated evidence, the court must 

find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) 

the party intentionally or negligently breached that duty by failing to do so. Id. The 

party alleging spoliation has the burden of establishing that the nonproducing party 

had a duty to preserve material and relevant evidence and breached that duty either 

negligently or intentionally. See id. at 20–21. 
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On finding that spoliation occurred, the trial court must exercise its discretion 

to impose an appropriate sanction, considering the spoliating party’s culpability and 

the prejudice to the nonspoliating party. Id. at 21; see also Petroleum Sols., Inc. v. 

Head, 454 S.W.3d 482, 488–89 (Tex. 2014). As with any discovery sanction, the 

sanction must be proportionate; it must relate directly to the conduct giving rise to 

the sanction and must not be excessive. Brookshire Bros., 438 S.W.3d at 14, 21–22. 

While a trial court’s discretion to remedy an act of spoliation is broad, it is not 

limitless. Petroleum Sols., 454 S.W.3d at 489. The trial court must consider the 

availability of lesser sanctions and, “in all but the most exceptional cases, actually 

test the lesser sanctions.” Id. (quoting Cire v. Cummings, 134 S.W.3d 835, 841 (Tex. 

2004)).

Because the abuse of discretion standard in family law cases overlaps the 

traditional sufficiency standard of review, legal and factual sufficiency are not 

independent grounds of error but are relevant factors in our assessment of whether 

the trial court abused its discretion. In re A.B.P., 291 S.W.3d at 95; Peck v. Peck, 

172 S.W.3d 26, 33 (Tex. App.—Dallas 2005, pet. denied). To determine whether the 

trial court abused its discretion because the evidence is insufficient to support its 

decision, we consider whether the trial court (1) had sufficient evidence upon which 

to exercise its discretion and (2) erred in its exercise of that discretion. Vardilos v. 

Vardilos, 219 S.W.3d 920, 921 (Tex. App.—Dallas 2007, no pet.). We conduct the 

applicable sufficiency review with regard to the first question. A.B.P., 291 S.W.3d 
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at 95; Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. 

denied). We then proceed to determine whether, based on the evidence, the trial court 

made a reasonable decision. Moroch, 174 S.W.3d at 857. If some evidence of a 

substantive and probative character exists to support the trial court’s decision, there 

is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 

2008, no pet.).

Findings of fact made after a bench trial are of the same force and dignity as 

a jury’s verdict upon special issues. In re C.H.C., 392 S.W.3d 347, 349–50 (Tex. 

App.—Dallas 2013, no pet.). The trial court’s findings of fact are reviewable for 

factual and legal sufficiency of the evidence under the same standards as applied in 

reviewing the sufficiency of the evidence supporting a jury’s answer to a special 

issue. Id. at 350. In determining whether there is legally sufficient evidence to 

support a finding, we examine the record and credit evidence favorable to the finding 

if a reasonable fact finder could and disregard evidence contrary to the finding unless 

a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 

(Tex. 2005). In a factual sufficiency review, we consider the entire record and will 

set aside the finding only if it is so contrary to the overwhelming weight of the 

evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 

1986) (per curiam); Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex. App.—Dallas 

2005, pet. denied).
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Analysis

A. Spoliation finding

Father argues that the trial court abused its discretion by finding that he 

spoliated evidence from his electronic devices and by imposing a sanction of 

presuming Father was in possession of illegal pornographic material and engaging 

in inappropriate sexual contact with underage individuals. Father contends that 

without the spoliation sanction, the evidence does not support the trial court’s 

determination that deviation from the standard possession order and supervised 

visitation for Father were in the best interest of the child.2

In its findings of fact and conclusions of law,3the trial court found that Father 

either intentionally or negligently breached his duty to preserve evidence on his 

electronic devices. Further, the court found that had the evidence been preserved it 

would have shown that Father was in possession of “illegal pornographic materials 

and was engaging in inappropriate sexual contact with underage individuals.” In 

addition, the court determined that the facts that Father was in “possession of illegal 

pornographic materials and was engaging in inappropriate sexual contact with 

underage individuals were taken to be established for purposes of the trial” due to 

2 Our harm analysis necessarily overlaps a sufficiency review of the evidence without the spoliation 

sanction. Because we conclude the error probably resulted in the rendition of an improper judgment, we 

also conclude the trial court abused its discretion by ordering supervised possession even if it were possible 

to ignore the spoliation finding. Therefore, we do not discuss Father’s second issue separately.

3

Father challenges several specific findings of fact and conclusions of law. We discuss these findings 

in general in light of the sealed record.
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Father’s spoliation of evidence. The court cited these spoliation findings among the 

reasons for its deviation from the standard possession order. 

Mother based her motion for spoliation sanctions on the agreement announced 

on the record at Father’s February 2018 deposition.4 That agreement provided that 

Father would not delete any content on his devices until they could be imaged. It is 

undisputed that Father’s expert imaged his devices in March of 2018 and those 

images were later provided to Mother’s expert. Mother’s only evidence of spoliation 

was that Dr. Fone Erase was executed in May 2018 and the files on Father’s 

MacBook Pro were moved to the trash folder sometime after Sloves imaged the 

devices. There is no evidence Father deleted any content on his devices before they 

were imaged by Sloves. Based on the agreement announced at Father’s deposition, 

Father’s duty to preserve evidence on his devices extended until those devices were 

imaged. Because there is no evidence that Father deleted any content on his devices 

before they were imaged, the trial court abused its discretion by concluding he 

spoliated evidence.

But assuming Father’s duty to preserve information extended beyond the 

agreement not to delete data until the devices could be imaged, the evidence does 

not support the severe sanction of presuming that father intentionally destroyed 

4 Both parties were served with a standing order of the Collin County District Courts, which prohibited 

the parties from, “Destroying, disposing of, or altering any e-mail, text message, video message, chat 

message, or other electronic information relevant to the suit.” Mother did not rely on this order in her motion 

for sanctions for spoliation of evidence.
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evidence of possession of illegal pornography and engaging in inappropriate sexual 

contact with underage individuals. The sanction is excessive because there is no 

evidence in this record that would support a reasonable inference that such evidence 

was present on Father’s devices before the alleged spoliation occurred.

In many spoliation cases there is some evidence of the existence and general 

nature of the spoliated evidence. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 

918 (Tex. 2015) (per curiam) (video recordings on charter bus involved in collision); 

Petroleum Sols., 454 S.W.3d at 485–86 (allegedly faulty flex-connector in diesel 

fuel piping system); Brookshire Bros., 438 S.W.3d at 15 (surveillance video in slipand-fall case); In re J.H. Walker, Inc., No. 05-14-01497-CV, 2016 WL 819592, at 

*2 (Tex. App.—Dallas Jan. 15, 2016, orig. proceeding) (tractor trailer involved in 

fatal single vehicle collision). In this case, however, there is no evidence that child 

pornography or sexual communications with minors were present on Father’s 

devices before or at the time of the alleged destruction of that evidence.

Significantly, Sloves created forensic images of Father’s devices before any 

alleged spoliation occurred and those images were made available to Mother’s 

expert. Sloves analyzed the images he made and found no evidence they contained 

child pornography or improper communications with children. Rubio, whose

analysis under the October protocol order included searching for obscene material 

involving minors and pornography, never disputed Sloves’s testimony and never 

testified that child pornography or improper sexual communications with children 
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existed on Father’s devices at the time they were imaged by Sloves. Mother has 

never claimed and offered no evidence that such material was placed on Father’s 

devices after the devices were imaged and then deleted. 

Rubio testified the Dr. Fone Erase application was executed in May 2018 and 

deleted data from Father’s iPad. However, she admitted that Dr. Fone Erase was still 

in the trial version and she did not test the application in this case. There is no 

evidence she attempted to execute the trial version of Dr. Fone Erase to determine 

whether it would actually delete existing data from the device. Sloves did test the 

free version of Dr. Fone Erase and testified it would not allow him to erase data 

without purchasing an additional module. 

Rubio testified that fifteen thousand files were moved to the trash folder on 

the MacBook Pro after Sloves imaged the device. But she admitted those files were 

still accessible to her and had not been permanently deleted. She never testified and 

Mother offered no other evidence that any of those files contained child pornography

or evidence of inappropriate sexual contact with underage individuals. 

Mother’s testimony that she saw inappropriate pictures on Father’s devices 

was conclusory and her subjective opinion. She gave no underlying facts to support 

her opinion of inappropriateness other than that she saw “a penis picture” on his 

devices. Without more, any inference that the devices contained illegal pornographic 

material would be unreasonable. An inference premised on mere surmise or 

suspicion is not reasonable. “[S]ome suspicion linked to other suspicion produces 
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only more suspicion, which is not the same as some evidence.” Marathon Corp. v. 

Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003) (citing Johnson v. Brewer & 

Pritchard, P.C., 73 S.W.3d 193, 210 (Tex. 2002)). S.R.’s testimony that he viewed 

pornography with Father fifteen to twenty years earlier does not support a reasonable 

inference that illegal pornography existed on Father’s devices in 2018. And while 

the trial court was free to disregard Father’s testimony that he did not have illegal 

pornography or communications with minors on his devices, that would not create 

probative evidence that such material was on his devices. See Mathis v. Lockwood, 

166 S.W.3d 743, 745 (Tex. 2005) (holding that even if court disbelieved party’s 

testimony she did not receive notice of trial setting “that would not provide 

affirmative evidence that service occurred”). “When the testimony of a witness is 

not believed, the trier of fact may simply disregard it. Normally the discredited 

testimony is not considered a sufficient basis for drawing a contrary conclusion.”

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984).

We conclude there is no evidence in this record that Father’s devices 

contained illegal pornographic material or evidence of inappropriate sexual contact 

with underage individuals at the time of the alleged spoliation. Even if the trial court 

concluded that Father deleted data in violation of a duty to preserve that data, the 

sanction imposed was excessive. We conclude the trial court abused its discretion 

by finding Father spoliated evidence and presuming he was in possession of illegal 
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pornographic material and engaging in inappropriate sexual contact with underage 

individuals due to his alleged spoliation of evidence. 

B. Harm

An error is reversible if it probably caused the rendition of an improper 

judgment. TEX. R. APP. P. 44.1(a). In determining whether the erroneous spoliation 

findings were harmful, we review the entire record and require the appellant to 

demonstrate that the judgment turns on the particular evidence admitted. Brookshire 

Bros., 438 S.W.3d at 29. The trial court’s findings establishing facts based on 

spoliation of evidence is akin to a spoliation instruction to a jury. If a spoliation 

instruction should not have been, “the likelihood of harm from the erroneous 

instruction is substantial, particularly when the case is closely contested.” Id.

(quoting Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003)). A 

spoliation instruction—or, as in this case, a presumed factual finding—can be 

“tantamount to a death-penalty sanction.” Id. at 23. 

The record shows this case was hotly contested and highly emotional. Under 

the trial court’s amended temporary orders, Father’s possession and access was 

supervised throughout most of the case. At trial, Mother’s counsel placed significant 

emphasis on the spoliation issue in opening statement and closing arguments. 

Several witnesses were questioned about the impact of the spoliation finding on their 

opinions regarding Father’s possession of the child and whether his visitation should 

be supervised or not. Witnesses testified that if the trial court’s spoliation finding 
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remained in place their confidence in Father’s statements about prior incidents 

would be undermined and they would likely change their recommendations. 

Mother’s counsel at one point questioned a witness about Mother’s concern that 

Father deleted “thousands upon thousands of files that contain sexually explicit 

images.” But as discussed above, there was no evidence that Father deleted files 

containing sexually explicit images. Mother’s “concern” was based on mere surmise 

or suspicion, not evidence.

In some cases the spoliation issue may be peripheral in a lengthy trial. See 

Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 40–41 (Tex. App.—Texarkana 

2017, pet. denied) (finding harmless error where spoliation evidence was a small 

fraction of testimony in eight-day trial, not addressed in opening statements, and 

mentioned only briefly in closing argument). But that is not the case here. 

Throughout opening and closing arguments and questioning of multiple witnesses 

in this two-day trial, spoliation was repeatedly emphasized. Based on the spoliation 

finding, the court found as an established fact that Father was in possession of illegal 

pornographic material and engaged in inappropriate sexual contact with underage 

individuals. The spoliation findings were a significant part of the trial court’s 

findings of fact and conclusions of law and a basis for the court’s decision to deviate 

from the standard possession order. 

Mother points to other evidence she contends could support the trial court’s 

decision, relying primarily on S.R.’s testimony. In essence, Mother contends the trial 
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court could have ignored the spoliation evidence and exercised its discretion based 

on other evidence. However, the trial court’s express findings of fact belie this 

argument. The trial court specifically relied on the finding that Father spoliated 

evidence to deem that Father was in possession of illegal pornography and engaging 

in inappropriate sexual contact with underage individuals and relied on those 

deemed facts as reasons for deviating from the standard possession order. Given the 

extensive emphasis on spoliation throughout this hotly contested two-day trial, we 

conclude that the error probably caused the rendition of an improper judgment. See

Smith v. Williams, No. 06-14-00040-CV, 2015 WL 3526089, at *10 (Tex. App.—

Texarkana May 29, 2015, no pet.) (finding harm where there was significant 

emphasis on the spoliation issue in opening and closing statements and throughout 

trial testimony).

We sustain Father’s first two issues.5

C. Attorney’s fees

In his fourth issue, Father argues the trial court’s award of attorney's fees 

should be reversed and remanded in light of the erroneous spoliation sanction. As 

described in this opinion, the trial of the conservatorship and possession issues was 

5

Father’s third issue challenges the sufficiency of the evidence to support a single evidentiary finding 

by the trial court. Because the finding is not a controlling finding supporting the judgment, the issue is not 

dispositive and we do not discuss it. See TEX. R. APP. P. 47.1; see also Guillory v. Dietrich, 598 S.W.3d 

284, 290 (Tex. App.—Dallas 2020, pet. denied) (disregarding findings on evidentiary matters instead of on 

controlling issues); In re Marriage of Edwards, 79 S.W.3d 88, 94–95 (Tex. App.—Texarkana 2002, no 

pet.) (trial court should make findings only on ultimate or controlling issues rather than mere evidentiary 

issues).
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permeated with evidence of spoliation. Because we are not reasonably certain that 

the trial court’s attorney’s fee determination was not significantly affected by the 

errors regarding the spoliation findings, we sustain this issue. See Young v. Qualls, 

223 S.W.3d 312, 314–15 (Tex. 2007) (per curiam); Baltzer v. Medina, 240 S.W.3d 

469, 478 (Tex. App.—Houston [14th Dist.] 2007, no pet.). 

Conclusion

We conclude the trial court abused its discretion by imposing a spoliation 

presumption and that the error probably resulted in the rendition of an improper 

judgment. Accordingly, we reverse the conservatorship, access and possession, and 

attorney’s fees portions of the trial court’s final decree of divorce and remand for 

further proceedings. In all other respects, we affirm the final decree.

/Erin A. Nowell//

ERIN A. NOWELL

JUSTICE

2000219f.p05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF H.B.R., A 

CHILD

No. 05-20-00219-CV 

On Appeal from the 469th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 469-56844-

2017.

Opinion delivered by Justice Nowell. 

Justices Reichek and Carlyle 

participating.

In accordance with this Court’s opinion of this date, the final divorce decree 

of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE

the conservatorship, access and possession, and attorney’s fees portions of the trial 

court’s final decree of divorce. In all other respects, we AFFIRM the final decree 

of divorce. We REMAND this cause to the trial court for further proceedings 

consistent with this opinion.

It is ORDERED that appellant D.R. recover his costs of this appeal from 

appellee M.B.L.-R.

Judgment entered this 1

st day of June, 2022.