Opinion filed December 13, 2018




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-16-00343-CV
                                  __________

                 CLAUDIA S. DONALDSON, Appellant
                                        V.
               DAVID VAUGHN DONALDSON, Appellee


                    On Appeal from the 318th District Court
                            Midland County, Texas
                       Trial Court Cause No. FM-59,221


                     MEMORANDUM OPINION
      This is an appeal from a divorce proceeding. Both of the spouses were pro se
at trial, and they are pro se on appeal. However, Appellant, Claudia S. Donaldson,
is an attorney. She presents three issues on appeal. In her first issue, Appellant
contends that the trial court erred by denying her motion for a new trial. In her
second issue, Appellant argues that the trial court erred by not finding Appellee,
David Vaughn Donaldson, at fault based on cruel treatment. In Appellant’s third
issue, she contends that the trial court erred by not finding fraud on the community
by Appellee for allegedly violating their Agreed Mutual Temporary Injunction
entered during the divorce proceedings. We affirm.
                                   Background Facts
      Appellant and Appellee were married in 1982. Appellee filed an original
petition for divorce in 2015 and an amended petition in 2016, both based on the no-
fault ground of insupportability. See TEX. FAM. CODE ANN. § 6.001 (West 2006).
Appellant filed a counterpetition for divorce, citing both no-fault insupportability
and cruel treatment, a “fault” ground for divorce. See id. § 6.002. The case was
originally set for a jury trial, but Appellant withdrew her jury demand.
      Following a one-day bench trial, the trial court issued a letter ruling indicating
that it would grant the divorce on a no-fault basis. The trial court’s letter ruling also
set out a property division. Appellant subsequently filed a motion for new trial
alleging that the trial court’s letter ruling “is tainted by [Appellee’s] unlawful witness
tampering.” She generally asserted that Appellee prevented her from testifying fully
at trial and that, had she been able to do so, the outcome would have been different.
The trial court denied Appellant’s motion for new trial without conducting a hearing
on the motion. The trial court subsequently entered a Final Decree of Divorce.
                                        Analysis
      In her first issue, Appellant contends that the trial court erred by denying her
motion for new trial. As noted previously, she contends that she was entitled to a
new trial because Appellee prevented her from presenting all of the evidence that
she wanted to present at trial. We review a trial court’s ruling on a motion for new
trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922,
926 (Tex. 2009). Under this standard, we must determine whether the trial court
acted without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The exercise of discretion is
within the sole province of the trial court, and an appellate court may not substitute
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its discretion for that of the trial court. Johnson v. Fourth Ct. App., 700 S.W.2d 916,
918 (Tex. 1985). Rather, an abuse of discretion occurs only when the trial court
reaches a decision that is “so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” Id. at 917.
      Appellant contends that she was entitled to an evidentiary hearing on her
motion for new trial and that her uncontroverted allegations in the motion for new
trial should have been accepted as true. We disagree. Generally, a trial court is not
required to hold a hearing on a motion for new trial. Olsen v. Comm’n for Lawyer
Discipline, 347 S.W.3d 876, 887 (Tex. App.—Dallas 2011, pet. denied); Landis v.
Landis, 307 S.W.3d 393, 394 (Tex. App.—San Antonio 2009, no pet.). A trial court
is only required to conduct a hearing on a motion for new trial when the motion
presents a question of fact upon which evidence must be heard. Olsen, 347 S.W.3d
at 887; Landis, 307 S.W.3d at 394.
      Rule 324 of the Texas Rules of Civil Procedure identifies some types of new
trial complaints “on which evidence must be heard such as one of jury misconduct
or newly discovered evidence or failure to set aside a judgment by default.” TEX. R.
CIV. P. 324(b)(1). Appellant’s complaint of alleged witness tampering does not fit
within any of these categories. The evidence that Appellant asserts that she wanted
to present at trial is not newly discovered because it was known to Appellant at the
time of trial. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) (listing
the elements of a claim of newly discovered evidence), overruled in part on other
grounds by Moritz v. Preiss, 121 S.W.3d 715, 720–21 (Tex. 2003).
      In a bench trial, the trial court, as factfinder, is the sole judge of the credibility
of the witnesses. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—
Houston [1st Dist.] 1992, writ denied). In this role, the judge may take into
consideration all the facts and surrounding circumstances in connection with the
testimony of each witness and accept or reject all or any part of that testimony. Id.
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      If a hearing on the motion for new trial had occurred, the trial court would
have also served as the sole judge of the witnesses’ credibility for the purposes of
that hearing. See Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.—
Dallas 1993, writ dism’d). Appellant would not have been able to obtain a new trial
based upon the inflammatory allegations in her motion for new trial unless the trial
court determined that her allegations were credible. In light of the nature of
Appellant’s allegations and the trial court’s role as the factfinder at trial, we conclude
that the trial court was not required to conduct a hearing on the motion for new trial
to receive additional evidence. The trial court was able to assess and implicitly reject
the credibility of Appellant’s allegations from the motion itself.
      We also disagree with Appellant’s assertion that the trial court was required
to accept her allegations as true because Appellee did not controvert them. To assert
that her allegations must be accepted as true, Appellant relies on cases from the
context of an equitable motion for new trial filed after the entry of a default judgment
in order to satisfy the Craddock1 test. See Strackbein v. Prewitt, 671 S.W.2d 37, 38–
39 (Tex. 1984).       Those cases are distinguishable, however, because in those
instances, the matters alleged by the defendant in order to obtain a new trial could
not be readily controverted by the plaintiff. See State ex rel. Prot. of Holst, No. 12-
08-00360-CV, 2010 WL 457448, at *3 n.5 (Tex. App.—Tyler Feb. 10, 2010, pet.
denied) (mem. op.).
      “A trial court sitting as the trier of fact is not required to accept as true the
statements made in an affidavit, even if that affidavit is uncontradicted.” Walker v.
Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 624 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). “Further, the uncontradicted testimony of an
interested witness cannot be considered as doing more than raising an issue of fact
to be decided by the trial court if there are circumstances in evidence tending to

      1
       Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
                                                 4
discredit or impeach the interested witness’s testimony.” Id. The record from the
trial contradicts Appellant’s allegations because it does not indicate that she was
prevented from presenting any evidence at trial. Accordingly, the trial court was not
required to accept Appellant’s inflammatory allegations that Appellee prevented her
from presenting all of her evidence at trial.
      We conclude that the trial court did not abuse its discretion by denying
Appellant’s motion for new trial. It was within the trial court’s discretion to
determine that Appellant’s inflammatory allegations were not credible based upon
the matters she alleged in the motion for new trial and the trial court’s observation
of the parties at trial. Furthermore, the record from the trial does not support
Appellant’s allegation that she was restricted in any way from presenting evidence
at trial. We overrule Appellant’s first issue.
      Appellant challenges the legal and factual sufficiency of the evidence in her
second and third appellate issues. In her second issue, Appellant contends that the
trial court erred by not finding Appellee at fault for the divorce based on cruel
treatment. In her third issue, Appellant contends that the trial court erred by not
finding that Appellee committed fraud on the community. These are findings for
which Appellant had the burden of proof at trial.
      We review most appealable issues in family law cases under an abuse of
discretion standard. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 382 (Tex.
App.—Dallas 2013, no pet.); Sandone v. Miller-Sandone, 116 S.W.3d 204, 205
(Tex. App.—El Paso 2003, no pet.). This standard of review applies to a trial court’s
granting of a divorce on fault grounds and to a trial court’s division of property.
C.A.S., 405 S.W.3d at 382; Wells v. Wells, 251 S.W.3d 834, 838 (Tex. App.—
Eastland 2008, no pet.). “In family law cases, the traditional sufficiency standard of
review overlaps with the abuse of discretion standard of review; therefore, legal and
factual insufficiency are not independent grounds of error but are relevant factors in
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our assessment of whether the trial court abused its discretion.” Sink v. Sink, 364
S.W.3d 340, 344 (Tex. App.—Dallas 2012, no pet.); accord Boyd v. Boyd, 131
S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.).
      When a party challenges the legal sufficiency of an adverse finding on which
she had the burden of proof at trial, she must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In conducting this review, we
examine the record for evidence that supports the trial court’s finding “while
ignoring all evidence to the contrary.” Id. If no evidence supports the finding, we
then examine the entire record to determine if the contrary proposition is established
as a matter of law. Id. When a party challenges the factual sufficiency of an adverse
finding on which she had the burden of proof at trial, the party must demonstrate on
appeal that the adverse finding is against the great weight and preponderance of the
evidence. Id. at 242. We consider and weigh all of the evidence, and we set aside
the verdict only if the evidence is so weak, or the finding is so against the great
weight and preponderance of the evidence, that it is clearly wrong and unjust. Id.
      When, as in this case, no findings of fact or conclusions of law are filed or
requested in a bench trial, we imply all findings of fact necessary to support the
judgment. Roberts v. Roberts, 402 S.W.3d 833, 838 (Tex. App.—San Antonio 2013,
no pet.). “If the evidence supports the trial court’s implied findings, ‘we must uphold
the judgment on any theory of law applicable to the case.’” Id.
      In her second issue, Appellant contends that the trial court erred by not finding
Appellee at fault for the divorce based on her allegation of cruel treatment.
Appellant asserts that her “evidence was legally and factually sufficient to establish
that [Appellee] deliberately under-reported their income on federal taxes and then
threatened and blackmailed her over the evasion.” Appellant also asserts that,
“[b]ecause the trial court did not weigh [Appellee’s] cruelty in the property division,
                                           6
it most likely rendered an improper judgment in awarding him a disproportionate
share of the community estate.”
      It is within a trial court’s discretion to choose between non-fault and fault-
based reasons when deciding the grounds on which to grant a divorce. Baker v.
Baker, 469 S.W.3d 269, 279–80 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
“Although seldom used since the advent of no-fault divorce, it is still possible for a
court to grant a divorce on the ground of cruel treatment.” Henry v. Henry, 48
S.W.3d 468, 473 (Tex. App.—Houston [14th Dist.] 2001, no pet.). A spouse’s
conduct rises to the level of cruel treatment when it renders the couple’s cohabitation
insupportable. Id. “Insupportable” means “incapable of being borne, unendurable,
insufferable, intolerable.” Id. (quoting Cantwell v. Cantwell, 217 S.W.2d 450, 453
(Tex. Civ. App.—El Paso 1948, writ dism’d)). Mere disagreements or trivial matters
do not justify granting a divorce for cruelty. Shankles v. Shankles, 445 S.W.2d 803,
807 (Tex. Civ. App.—Waco 1969, no writ). Post-separation acts may be used to
support a finding of cruelty. Redwine v. Redwine, 198 S.W.2d 472, 473 (Tex. Civ.
App.—Amarillo 1946, no writ).
      Appellant bases her cruelty argument on Appellee’s alleged tax fraud.
Appellant testified at trial that Appellee “forged [her] name to what [she] believe[d]
was a fraudulent tax return for 2014.” She claimed in her testimony that Appellee
said to her: “I’ll just tell the IRS you filed that fraudulent tax return. You’re the
lawyer; it’ll be your fault. I’ll tell them you spent the money.” Appellant filed for
“innocent spouse” relief with the IRS and confronted Appellee about her belief that
their reported gross income was $90,000 less than it should have been. However,
Appellant stated that she and Appellee “were going to disagree . . . until the cows
come home on what constitutes gross income.”
      At trial, Appellee denied Appellant’s tax fraud allegation. He also told the
trial court that he had not been audited but that he had communicated with the IRS
                                          7
about Appellant’s claim. In the trial court’s letter ruling, the trial court stated as
follows: “The Court declines to enter an order concerning an alleged federal income
tax liability for 2014, leaving that matter to federal law.”
      Reviewing the evidence offered at trial, Appellant did not establish as a matter
of law that Appellee committed tax fraud or that his conduct with the 2014 tax return
constituted cruel treatment. As with Appellant’s ground for seeking a new trial, her
claims were dependent on the trial court determining that her allegations were
credible. As the factfinder, the trial court was the sole judge of the credibility of the
witnesses, and it was free to resolve any inconsistencies in the testimony. See Iliff v.
Iliff, 339 S.W.3d 74, 83 (Tex. 2011). Appellee’s testimony supported the trial
court’s finding against cruel treatment as a ground for divorce. Furthermore, the
evidence supporting the trial court’s finding against cruel treatment was not against
the great weight and preponderance of the evidence. Accordingly, we conclude that
the trial court did not abuse its discretion in declining to grant a divorce on the
ground of cruel treatment.
      We also find no abuse of discretion in the trial court’s division of the
community property estate. Although Appellant claims that “[t]he [trial] court
shifted the community assets to bankrupt [Appellant] all on its own to a degree not
even sought by [Appellee],” there is no evidence in the record to support her claim
that she only received “$0.1 million of the $2.2 million estate” while being “ordered
to pay all of the couple’s community debt.” We note that the trial court divided
Appellee’s retirement benefits and deferred income account 50/50 between the
spouses. Accordingly, the trial court did not abuse its discretion in its division of
the community property estate. We overrule Appellant’s second issue.
      In her third issue, Appellant contends that the trial court erred by not finding
that Appellee committed fraud on the community. She bases this contention on the


                                           8
allegation that Appellee violated their Rule 11 agreement regulating their
expenditure of funds during the pendency of the divorce.
      A fiduciary duty exists between spouses regarding the community property
each controls. Zieba v. Martin, 928 S.W.2d 782, 789 (Tex. App.—Houston [14th
Dist.] 1996, no writ). The breach of this duty is termed “fraud on the community,”
a judicially created concept based on the theory of constructive fraud. Id. “Fraud
on the community” and “constructive fraud” are essentially the same tort. In re
Marriage of Moore, 890 S.W.2d 821, 827 (Tex. App.—Amarillo 1994, no writ). It
is constructively fraudulent for one spouse to dispose of the other spouse’s interest
in community property without that spouse’s knowledge or consent. In re Marriage
of DeVine, 869 S.W.2d 415, 428 (Tex. App.—Amarillo 1993, writ denied).
      Appellant raises multiple arguments as part of her third issue. First, Appellant
contends that Appellee’s alleged tax fraud constituted fraud on the community
because “[f]ederal tax evasion is fraudulent as between all citizens, whether married
or not. Making your lifetime partner an unwilling party to federal tax fraud and then
blackmailing her to keep quiet about it violated the confidence and trust and
breached [Appellee’s] fiduciary duties with regard to their community property
interests.” As discussed above, Appellee provided testimony denying Appellant’s
allegations of tax fraud.
      Second, Appellant claims that Appellee violated their Rule 11 Agreement and
Agreed Mutual Temporary Injunction during the pendency of the divorce without
first seeking permission to do so. Appellant argues that Appellee “did not use good
faith and frankness in his dealings with [Appellant] . . . over the agreement to
mutually enjoin their conduct (spending) during pendency of divorce.”
      Appellant claims that Appellee “wasted most of [his] ill-gotten gains on a race
car and expensive concerts and luxury travel for him and his friends.” Appellee
testified that he purchased a Corvette prior to filing for divorce but that he sold it
                                          9
back to the dealer prior to trial “as a good faith gesture” when he “saw it was going
to end up in divorce.” With regard to his other post-separation purchases, Appellee
testified at trial that he was “not doing new behavior” and that his expenses related
to recreational activities, such as attending Rolling Stones concerts, were not
excessive but, rather, what he had “done [his] whole life.”
        The trial court denied Appellant’s plea for a disproportionate share of the
parties’ estate based on fraud on the community, noting in its letter ruling that it
“assigned no value to allegations of wasting or fraud.” Based on the evidence
offered at trial, the trial court did not abuse its discretion by not finding that Appellee
committed fraud on the community. Appellant did not conclusively establish these
matters, and Appellee’s testimony regarding the tax return and his spending during
the pendency of the divorce constituted evidence supporting the trial court’s ruling
against a finding of fraud by either party. Furthermore, the trial court’s “no fraud”
finding was not against the great weight and preponderance of the evidence so as to
be clearly wrong and unjust. We overrule Appellant’s third issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.


                                                                   JOHN M. BAILEY
December 13, 2018                                                  CHIEF JUSTICE

Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals2;
and Wright, S.C.J.3

Willson, J., not participating.

        2
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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