Affirmed and Memorandum Opinion filed December 27, 2018.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-17-00049-CV


                    CARLTON DEVON SYKES, Appellant

                                         V.

                        KISHON KIM SYKES, Appellee



                    On Appeal from the 246th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-68288

                 MEMORANDUM                       OPINION


      In this appeal following dissolution of the parties’ marriage, appellant Carlton
Devon Sykes asserts that the trial court mischaracterized his separate property as
community property, which he claims resulted in a division of the community
property that is manifestly unjust and unfair in favor of appellee Kishon Kim Sykes.
We affirm.
                                   I. BACKGROUND

      Kishon and Carlton were married in 2008. They have one child together.
During their marriage, in May 2011, Carlton settled a discrimination suit against his
employer, FMC Technologies, Inc. for $778,571.43 for “mental anguish, pain and
suffering, emotional distress, loss of enjoyment of life, [and] physical injuries.” The
settlement did not include “payment for back pay, front pay, or lost benefits.” As
part of the agreement, Carlton agreed to resign from his job at FMC. Funds from
the FMC settlement in the amount of $447,640.32, after attorney’s fees were paid,
were placed in a savings account at USAA. No sums were withheld for taxes.
      Kishon and Carlton purchased a house later that year for $286,196. The loan
for the house was in Kishon’s name and both parties’ names were on the deed. Funds
from the USAA savings account were used to make a down payment of $131,136.98
as well as monthly mortgage payments and the final pay-off, in January 2013, in the
amount of 131,610.89.

      Kishon filed for divorce in November 2015, asserting as grounds
insupportability, cruelty, and adultery. Carlton filed a counterpetition for divorce,
also on the grounds of insupportability, cruelty, and adultery. The parties entered
into a mediated settlement agreement as to issues concerning their child.

      Kishon filed a first amended petition. Initially, the electronic filing was
rejected. It was successfully filed shortly thereafter but less than seven days before
trial. Carlton objected to and moved to strike the amended petition because Kishon
(1) raised new claims for fraud and wasting community assets; and (2) asked the trial
court to reconstitute the estate less than seven days before trial. Carlton argued that
Kishon’s new claims could impact the division of the community estate and were
based on documents provided in March 2016. The trial court heard and denied
Carlton’s motion to strike before the start of trial.

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      The trial court signed the final decree of divorce, incorporating the mediated
settlement agreement as to issues concerning the child. The trial court granted
Kishon a divorce from Carlton on the grounds of insupportability and cruelty. The
trial court awarded Carlton, among other things, the house and all the household
furnishings. Although Carlton sought reimbursement for the entire purchase price
of the house because the funds used to buy the house were purportedly his separate
property, the trial court denied Carlton’s request for reimbursement. Instead, the
trial court awarded Kishon $160,000 payable by Carlton and imposed an owelty lien
on the entire homestead to secure the $160,000 debt to Kishon. The trial court
awarded Kishon a disproportionate share of the community estate. The parties did
not request and the trial court did not make findings of fact and conclusions of law.

                                      II. ISSUES

      Carlton brings the following issues in this appeal: (1) the trial court committed
reversible error by denying his claim for reimbursement; (2) the trial court abused
its discretion in characterizing and dividing the marital property; (3) the evidence is
legally and factually insufficient to support the trial court’s finding that Carlton is
guilty of cruel treatment; and (4) the trial court committed reversible error by
overruling and denying Carlton’s objection to, and motion to strike, Kishon’s first
amended petition for divorce.

                                   III. ANALYSIS

A.    Whether Carlton is Entitled to Reimbursement

      In his first issue, Carlton contends that the trial court erred by denying his
claim for reimbursement for the down payment, monthly mortgage payments, and
final pay-off amount on the house from the funds in his USAA savings account. See
In re Marriage of O’Brien, 436 S.W.3d 78, 82 (Tex. App.—Houston [14th Dist.]


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2014, no pet.) (stating that “[r]eimbursement is an equitable right that arises when
the funds or assets of one estate are used to benefit and enhance another estate
without the first estate receiving some benefit.”). Carlton asserts that the settlement
funds were his separate property and those funds were used to pay for the house. To
decide the issue, we first must determine the nature of the settlement funds.

      Under both the Texas Constitution and the Texas Family Code, a spouse’s
separate property consists of (1) the property the spouse owned or claimed before
marriage, and (2) the property the spouse acquired during marriage by gift, devise,
or descent. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001; Villalpando
v. Villalpando, 480 S.W.3d 801, 806 (Tex. App.—Houston [14th Dist.] 2015, no
pet.). Community property, by contrast, consists of all property, other than separate
property, acquired by either spouse during the marriage.             Tex. Fam. Code
Ann. § 3.002; Villalpando, 480 S.W.3d at 806. The law presumes all property
possessed by either spouse during or on dissolution of marriage to be community
property. Tex. Fam. Code Ann. § 3.003; Villalpando, 480 S.W.3d at 806.

      The burden of overcoming this presumption rests on the party asserting
otherwise, and that party must make the showing by clear and convincing evidence.
Barras v. Barras, 396 S.W.3d 154, 163 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied). “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. Villalpando, 480 S.W.3d at 806.
This evidence generally must trace and clearly identify the property as separate.
Zamarripa v. Zamarripa, No. 14-08-00083-CV, 2009 WL 1875580, at *3 (Tex.
App.—Houston [14th Dist.] June 30, 2009, pet. denied) (mem. op.). “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

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property.” Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied). The clear-and-convincing standard is not satisfied by
testimony that the property possessed at the time the marriage is dissolved is separate
property when the testimony is contradicted or supported by documentary evidence
tracing the asserted separate nature of the property. Barras, 396 S.W.3d at 163.

      Carlton asserts funds recovered for mental pain and anguish are his separate
property. See Licata v. Licata, 11 S.W.3d 269 (Tex. App.—Houston [14th Dist.]
1999, pet. denied). Recovery for personal injuries, including mental pain and
anguish, to a spouse is the separate property of that spouse. Id. at 273. The
community estate is entitled to recovery for loss of earning capacity during the
marriage, for medical expenses incurred during the marriage, and for other expenses
associated with injury to the community estate. Id.

      The settlement agreement between Carlton and FMC stated that the settlement
payment did “not include payment for back pay, front pay or lost benefits” but only
for claims of “mental anguish, pain and suffering, emotional distress, loss of
enjoyment of life, [and] physical injuries.” Carlton argues this language “displaced
the presumption of community property and created a presumption that the
settlement proceeds are [his] separate property.” Id. at 274. According to Carlton,
these recitals “become prima facie evidence the recovery is separate property.” Id.
The spouse claiming that the recovery is community property then must present
evidence to rebut this separate-property presumption, and the failure to do so
conclusively establishes that the recovery is separate property. Id.

      Under Licata, it would appear that the settlement funds are Carlton’s separate
property. Yet, the settlement agreement also contained a confidentiality provision,
which prohibited disclosing the terms of the agreement. In the settlement agreement,
Carlton agreed that:

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      “[H]e will maintain the confidentiality of this Agreement and will not
      disclose in any fashion or publish on any website this Agreement, the
      amount of this settlement, and/or the substance or content of the
      settlement discussions involved in reaching this Agreement to any
      person other than his attorneys, accountants, and tax advisors as
      required by appropriate taxing authorities or as required by law. If
      inquiries are made of EMPLOYEE regarding said case, EMPLOYEE
      will state that the case is resolved and shall not further characterize this
      settlement.
      In its oral rendition, the trial court relied, in part, on the confidentiality
provision in finding that the settlement funds were not separate property:

      I also find that the settlement was not made with both parties; therefore,
      the settlement agreement is completely one-sided. And there’s no way
      to determine whether it is a community settlement, a separate property
      settlement, or what it is. Since it’s not clear, I have to find that it’s
      community property. . . . And . . . it says that this document is not to be
      used as evidence in any proceeding other than between the two parties
      to this agreement. Therefore, whatever it says in here, the petitioner
      states in this that that’s no evidence at all.
The trial court concluded that the settlement agreement was no evidence at all
because the agreement stated that it could not be used as evidence in any other
proceeding other than one between the parties to the agreement. The interpretation
of an unambiguous contract is a question of law for the court. In re Marriage of I.C.
& Q.C., 551 S.W.3d 119, 122 (Tex. 2018). Carlton does not challenge the trial
court’s finding that the settlement agreement is no evidence of the separate-property
nature of the settlement funds. There is no ambiguity in the settlement agreement
regarding the confidentiality of the terms of the agreement, and we agree that it is
not evidence that the settlement funds are Carlton’s separate property. Therefore,
Carlton is not entitled to a presumption that the settlement funds are his separate
property. Cf. Licata, 11 S.W.3d at 274 (holding that recitals in settlement agreement
that the payment was for physical pain, mental anguish, physical disfigurement, and
other intangible damages created a rebuttable presumption that the settlement
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proceeds were the wife’s separate property).

      Because there is no evidence that the funds deposited into the USAA savings
account in May 2011 were Carlton’s separate funds, they are presumed to be
community property. To prevail, Carlton had to overcome the community-property
presumption by clear and convincing evidence. See Barras, 396 S.W.3d at 163.

      The trial court admitted into evidence a May 31, 2017 statement for the USAA
savings account showing that $447,665.32 was deposited on May 17, 2017.
However, Carlton did not testify or present documentary evidence showing the date
the USAA savings account was opened, the amount of funds in the account as of the
date of marriage, or all deposits and withdrawals from the date the account was
opened, particularly after the marriage. In the absence of tracing of the funds used
to make the down payment, monthly mortgage payments, and final pay-off amount,
Carlton has failed to show by clear and convincing evidence that the funds he used
to pay for the house were his separate property. See Smith v. Smith, 22 S.W.3d 140,
146 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“Generally, when separate
property and community property are commingled in a single bank account, we
presume that the community funds are drawn out first, before separate funds are
withdrawn, and where there are sufficient funds at all times to cover the separate
property balance in the account at the time of divorce, we presume that the balance
remains separate.”).

      Carlton further asserts that Kishon judicially admitted that he used separate-
property funds on the house. Kishon stated twice in her proposed inventory and
property division, admitted into evidence, that Carlton’s separate estate was entitled
to reimbursement from the community of $133,136.98.            Carlton asserts these
statements in Kishon’s proposed inventory and property division constitute a judicial
admission that the settlement funds were his separate property. Kishon’s statements,

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however, do not qualify as judicial admissions that Carlton’s settlement recovery is
his separate property because judicial admissions involve statements of fact, not
conclusions of law. See Rolls v. Rolls, No. 03-24-00453-CV, 2016 WL 284373, at
*2 (Tex. App.—Austin Jan. 14, 2016, no pet.) (holding that husband’s inventory
reflecting a mistaken legal conclusion that a portion of a policy was community
property could not be considered a judicial admission).

      The trial evidence supports an implied finding by the trial court that Carlton
failed to prove by clear and convincing evidence that Carlton used separate funds to
pay for the house. See Hinton v. Burns, 433 S.W.3d 189, 196 (Tex. App.—Dallas
2014, no pet.) (stating that “a spouse making a claim for reimbursement on behalf
of a separate estate must prove by clear and convincing evidence that the funds
expended on behalf of the community estate were separate funds”). The trial court
did not abuse its discretion by denying Carlton’s claim for reimbursement. See id.
We overrule Carlton’s first issue.

B.    Whether the Trial Court Abused its Discretion in Dividing the
      Community Estate
      In his second issue, Carlton claims that the trial court abused its discretion in
dividing the community estate.

      In cases such as this, in which no findings of fact or conclusions of law were
filed, we imply all findings of fact necessary to support the trial court’s judgment.
In re Marriage of Russell, 556 S.W.3d 451, 457 (Tex. App.—Houston [14th Dist.]
2018, no pet.). Where a reporter’s record is brought forward on appeal, the appellant
may challenge these implied findings by challenging the legal and factual
sufficiency of the evidence. Licata, 11 S.W.3d at 272.

      In a divorce decree, the trial court must order a division of the estate of the
parties in a manner that the court deems just and right. Stavinoha v. Stavinoha, 126

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S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The trial court
possesses wide discretion in ordering a property division. Barras, 396 S.W.3d at
163. To convince this court to disturb the trial court’s division of property, Carlton
must show the trial court clearly abused its discretion by a division that is manifestly
unjust and unfair. See Villalpando, 480 S.W.3d at 805. Under the abuse-of-
discretion standard, legal and factual sufficiency are not independent grounds of
error but are relevant factors in assessing whether the trial court abused its discretion.
Willis v. Willis, 533 S.W.3d 547, 551 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). A trial court does not abuse its discretion if the record contains some evidence
of a substantive and probative nature to support the decision. Knight v. Knight, 301
S.W.3d 723, 728 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

      In reviewing the trial court’s property division, we must consider (1) whether
the trial court had sufficient information upon which to exercise its discretion and
(2) whether the trial court abused its discretion by dividing the property in a manner
that is manifestly unjust and unfair. Evans v. Evans, 14 S.W.3d 343, 346 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). We are to resolve every reasonable
presumption in favor of a proper exercise of discretion of the trial court in dividing
the property of the parties. Chavez v. Chavez, No. 14-14-00481-CV, 2016 WL
1613240, at *5 (Tex. App.—Houston [14th Dist.] April 21, 2016, no pet.).

      Carlton asserts that the trial court mischaracterized the settlement funds as
community property rather than his separate property, which resulted in the denial
of his claim for reimbursement and a manifestly unjust and unfair property division.
As discussed above, the trial court did not abuse its discretion by finding that the
settlement funds were community property and, in turn, denying Carlton’s claim for
reimbursement regarding the purchase of the house.

      Carlton also asserts that the trial court abused its discretion by denying his

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request for reimbursement of the purchase of home furnishings in the amount of
$17,401.49 because they were bought with the settlement funds. But, as already
discussed, Carlton failed to overcome the community-property presumption, and the
trial court did not abuse its discretion by denying Carlton reimbursement for the
purchase of the furniture.

      Carlton also maintains that the trial court abused its discretion by denying his
claim for reimbursement with respect to a BMW car. Under the trial court’s
temporary orders, Kishon had exclusive possession and use of the car and she was
ordered to make the payments on the car and pay the insurance on the car. Kishon
testified, however, that Carlton verbally agreed to continue to pay the insurance on
the car.

      Kishon was involved in accident in the BMW. When she called to make a
claim, she learned that the insurance would not cover the costs of the repairs. Kishon
approved $9,000 in repairs on the car but did not pay the mechanic. Kishon also
testified that she stopped making payments on the car after the accident. USAA took
$3,172 out of Carlton’s account (to apply to the indebtedness) after Kishon stopped
making payments. USAA paid the mechanic and sold the car. The remaining debt
on the BMW is $15,247.46. Carlton asked that Kishon reimburse him the $3,179.11
that was taken from his USAA savings account for the car payments Kishon failed
to make. The trial court awarded Carlton and Kishon each 50% of the BMW debt.
The trial court did not award Carlton reimbursement for the $3,179.11 USAA took
out of the checking account.

      Carlton claims that he should have been reimbursed for the BMW payments.
According to Carlton, the funds taken out of his USAA savings account were his
separate property because Kishon had exclusive use and possession of the BMW and
she was ordered to make the monthly payments and insurance. But, because Carlton

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failed to overcome the presumption by clear and convincing evidence that the
settlement funds deposited into the USAA savings account were community
property, the trial court did not abuse its discretion by not ordering Carlton
reimbursed for the BMW payments.

      Carlton further complains that the trial court should not have awarded him
half of the BMW debt. Carlton, however, admitted that the BMW was community
property and the loan was community debt. Thus, there was no abuse of discretion
by the trial court in awarding Carlton half of the BMW debt.

      Finally, Carlton complains about the trial court’s finding of fraud as to his
cashing out a 401(k) account at FMC. When the trial court makes a finding of fraud,
it must perform two calculations: the first is the “value by which the community
estate was depleted as a result of the fraud on the community,” and the second is
“the amount of the reconstituted estate.” Cantu v. Cantu, 556 S.W.3d 420, 427 (Tex.
App.—Houston [14th Dist.] 2018, no pet.) (quoting Tex. Fam. Code
Ann. § 7.009(b)(1)). The reconstituted estate is defined as the total value of the
community estate that would have existed had a fraud on the community not
occurred.   Id. (citing Tex. Fam. Code Ann. § 7.009(a)).          After making these
calculations, the trial court must “divide the value of the reconstituted estate between
the parties in a manner the court deems just and right.” Id. (quoting Tex. Fam. Code
Ann. § 7.009(c)).

      Fraud is presumed when one spouse disposes of the other spouse’s one-half
interest in community property without the other spouse’s knowledge or consent.
Id. This presumption arises not only by evidence of specific transfers or gifts of
community assets outside of the community, but also by evidence that community
funds are unaccounted for by the spouse in control of those funds. Id. Once the
presumption of fraud arises, the burden shifts to the disposing spouse to prove the

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fairness of the disposition. Id.

      Kishon alleged that Carlton fraudulently cashed out his FMC 401(k) account
without her knowledge. Kishon testified that she first learned during the July 29,
2016 mediation that Carlton had cashed out the 401(k), which, in April 2015, was
worth $43,000. Carlton does not remember being asked whether he was married
when he cashed out the 401(k) account. Carlton was able to cash out the 401(k)
account without Kishon signing anything, and Kishon confirmed that she did not
sign any documents regarding the withdrawal of the funds from the 401(k) account.
Carlton testified that he deposited the money from the 401(k) account into his
checking account at USAA, which was in his name only. He then transferred
$25,000 from the checking account to the USAA savings account.

      Kishon stated that, in August 2015, Carlton mentioned to her that he had taken
some money out of the 401(k) account, but he did not tell her that he had taken out
all the money. Kishon testified that Carlton told her that he had used it for their
vacation in Virginia in August 2015. The trip was planned around the same time
that Carlton cashed out the 401(k) account in April 2015, but Kishon did not know
if he took the money out before or after the trip was planned. Kishon stated that she
did not know what Carlton had done with the money after he put it into the USAA
savings account.

      Carlton testified that he and Kishon first started discussing cashing out the
401(k) account after they had spent $15,000 on a trip to Disney World, where
Kishon’s daughter had participated in a track meet, and $7,500 on a birthday party
for Kishon. Also, according to Carlton, he had set aside money to pay taxes, but that
money was spent on Kishon’s birthday party. Carlton explained that “I knew we
were going to have to struggle the next year to pay for the taxes.”

      Kishon testified that when confronted, Carlton confirmed that he gave some
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money to a female, Joycelin Phelps, who was not a relative. Carlton did not tell
Kishon that Phelps was a party planner, or that he had given Phelps money to plan a
birthday party for Carlton’s other daughter in 2015. According to Kishon, Carlton
told her that Phelps was a close friend and he gave money to Phelps because she
“had gotten put out of her house.”

      These facts support a presumption of fraud on the community estate. See id.
The checking and savings accounts at USAA were in Carlton’s name and under his
control, and he could not account for where all of the $43,000 from the 401(k)
account had been spent. Kishon testified that Carlton gave money to his close female
friend. Carlton has not established the fairness of the disposition. See id.

      Moreover, Carlton has not overcome the community-property presumption.
Not all the funds in the 401(k) account were acquired during marriage. Carlton
worked at FMC for about two years before and he and Kishon were married. Carlton
did not provide any statements showing what portion of the 401(k) account was his
separate property and what portion belonged to the community. Because Carlton
did not overcome the community-property presumption, the trial court did not
mischaracterize the money from the 401(k) account as community property.

      Carlton has not shown that the trial court abused its discretion by dividing the
estate of the parties in a manner that is manifestly unjust and unfair. We overrule
Carlton’s second issue.

C.    Whether the Evidence is Sufficient to Support the Trial Court’s Finding
      of Cruel Treatment
      In his third issue, Carlton contends that the evidence is legally and factually
insufficient to support the trial court’s finding of cruel treatment. To be considered
“cruel treatment,” the conduct of the accused party must rise to such a level as to
render the couple’s living together insupportable. Henry v. Henry, 48 S.W.3d 468,

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473 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also Tex. Fam. Code
Ann. § 6.002. “Insupportable,” for purposes of “cruel treatment,” means incapable
of being borne, unendurable, insufferable, or intolerable. Henry, 48 S.W.3d at 473.
Mere trivial matters or disagreements do not justify the granting of divorce for cruel
treatment. Id. at 474.

      In support of his position, Carlton states that the only time Kishon made a
police report was when she alleged that he had taken her cell phone, which he
returned. The police report, which was admitted into evidence, stated:

      There was a disturbance that could be heard from outside the home.
      Male and female were having a disagreement over Instagram. No
      physical violence only verbal. Both were emotionally stressed. They
      were advised to separate for the evening.
      He also asserts that Kishon was not able to identify any specific act which
amounted to cruelty. But, Kishon testified that there had been some tumultuous
issues between them during the marriage; the police had been called; and they had
been to counseling. Kishon also testified that Carlton at times had been “physically
violent” and they had discussed Carlton going to anger-management classes.
Moreover, Carlton stated in a text: “I’m taking classes on anger management and
domestic violence.”

      Under the applicable standards of review, we conclude that the evidence is
legally and factually sufficient to support the trial court’s finding of cruelty. See
Henry, 48 S.W.3d at 473–75. We overrule Carlton’s third issue.

D.    Whether the Trial Court Abused its Discretion by Denying Carlton’s
      Motion to Strike Kishon’s First Amended Petition
      In his fourth issue, Carlton contends that the trial court abused its discretion
by overruling and denying his objection, to and motion to strike, Kishon’s first
amended petition for divorce.

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      A party may amend pleadings up to seven days before trial. Tex. R. Civ. P.
63. After the time for filing amended pleadings has passed, the trial court abuses its
discretion in denying leave to file an amended pleading unless (1) the party opposing
the amendment presents evidence of surprise or prejudice, or (2) the amendment is
prejudicial on its face because it contains a new claim or defense, and the opposing
party objects to the amendment. Tony’s Barbeque & Steakhouse, Inc. v. Three
Points Invs., Ltd., 527 S.W.3d 686, 691–92 (Tex. App.—Houston [14th Dist.] 2017,
no pet.) (quoting In re Mem’l Park Condo Ass’n, No. 14-11-00818-CV, 2011 WL
4452834, at *1 (Tex. App.—Houston [14th Dist.] Sept. 27, 2011, orig. proceeding)
(mem. op.)). An amendment is not prejudicial solely because it contains a new
claim. Id. at 692. An amendment is prejudicial on its face if (a) it contains new
substantive matter that reshapes the nature of the trial itself; (b) the opposing party
could not have anticipated it in light of the development of the case up to the time
the amendment was requested; and (c) the opposing party’s presentation of its case
would be detrimentally affected by the amendment. Tanglewood Homes Ass’n, Inc.
v. Feldman, 436 S.W.3d 48, 64–65 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied).

      Kishon attempted to file her first amended petition on July 29, 2016, but her
filing was rejected. Kishon successfully filed her first amended petition on August
4, 2016, less than seven days before trial. Kishon raised new issues on wasting of
community assets and actual and constructive fraud on the community. Kishon also
asked the trial court to reconstitute the community estate to its full value before
Carlton’s depletion of the estate.

      Kishon predicated her fraud and waste claims on Carlton’s withdrawal of the
funds in the FMC 401(k) account without her knowledge. Kishon informed the trial
court that (1) Carlton had received a copy of her amended petition on July 29, 2016,

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(2) Carlton had produced documents on July 18, 20, 25 and 29, 2016, and August 9,
2016, the day before trial. Kishon argued that she served supplemental requests
because she had not received the requested bank records. Kishon told the trial court
that it was not until she received “the last batch of bank records that I discovered
that there was an amount of money that was on these bank records that was
unaccounted for.”

      Carlton responded that that documents Kishon “relie[d] on were provided to
her in March of this year . . . [and] [s]he never raised any issue about these documents
until the first mediation on July 20th, and then she still waited nine days after that to
file this amended petition[.]” Carlton alleged surprise because Kishon had never
raised or disclosed any of the new claims in her answers to discovery. The trial court
determined that the claims raised in Kishon’s first amended petition were not a
surprise to Carlton.

      Carlton asserts that, if Kishon had disclosed her new claims earlier in the case,
he would have had the opportunity to investigate and prepare his defenses. He
further argues that Kishon’s new claims reshaped the nature of the trial because her
fraud and waste claims required him to spend a substantial amount of time cross-
examining her on these allegations and then attempting to recall all of the
circumstances surrounding the withdrawal of the FMC 401(k) account funds and to
provide an impromptu accounting of how the money was spent. Carlton also claims
that he could not have anticipated the new claims given the development of the case
up to the time of the amendment.

      A review of the testimony shows that Carlton was able to cross-examine
Kishon about her knowledge of the 401(k) account. Moreover, Carlton did not seem
to have any trouble recalling the circumstances of cashing out the 401(k) account.
Carlton has not shown that the Kishon’s first amended petition was prejudicial to

                                           16
him, that is, the amended petition did not detrimentally affect the presentation of his
case. Nor has Carlton presented evidence of surprise. Therefore, the trial court did
not abuse its discretion by impliedly finding that Carlton did not show surprise or
prejudice and by impliedly finding that the amendment was not prejudicial on its
face. See Tanglewood Homes Ass’n, Inc., 436 S.W.3d at 64–65. Carlton has not
shown that the trial court abused its discretion by denying his motion to strike
Kishon’s first amended petition. See id. We overrule Carlton’s fourth issue.

      Having overruled all of Carlton’s issues, we affirm the trial court’s judgment.




                                        /s/    Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices Busby and Wise.




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