                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00045-CV


DEBORAH KAY LOGSDON AND                                            APPELLANTS
MARK ALLEN LOGSDON

                                       V.

MARK EDWARD LOGSDON                                                   APPELLEE


                                    ----------

         FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 233-510709-12

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                       MEMORANDUM OPINION1

                                    ----------

                               I. INTRODUCTION

     This is an appeal from a final decree of divorce following a bench trial. The

trial court made a disproportionate award of the community estate in favor of

Appellee Mark Edward Logsdon (Husband) after finding that Appellant Deborah


     1
      See Tex. R. App. P. 47.4.
Kay Logsdon (Wife) had committed actual fraud against the community estate by

transferring and expending community funds to benefit herself and the couple’s

adult son, Appellant Mark Allen Logsdon (Son). In support of its judgment, the

trial court made twenty-two findings of fact and twenty conclusions of law.2

      Wife raises eight issues, complaining that the trial court erroneously

included Son’s property in the community estate, erroneously found that she had

committed actual fraud on the community, erred in its disproportionate division of

the community estate, failed to issue additional findings of fact, failed to award

her child support, and erroneously awarded attorney’s fees to Husband on her

tort claims.   Son raises three issues complaining that the trial court wrongly

included property he owned in its division of Husband and Wife’s community

property.

      Because we hold that Husband’s settlement offer on Wife’s tort claims did

not comply with the procedures and time limits set forth in chapter 42 of the

Texas Civil Practice and Remedies Code and Texas Rule of Civil Procedure 167,


      2
         Although the trial court’s findings and conclusions were issued outside the
time period contemplated by the rules of civil procedure, we nonetheless
consider them. See Goldman v. Olmstead, 414 S.W.3d 346, 359 (Tex. App.—
Dallas 2013, pet. denied) (explaining rules do not preclude belated findings by
trial court nor their consideration by appellate court); Robles v. Robles, 965
S.W.2d 605, 610 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (same); see
also Kramer v. Weir SPM, No. 02-13-00093-CV, 2014 WL 3953928, at *2 (Tex.
App.—Fort Worth Aug. 14, 2014, pet. denied) (mem. op.) (holding failure to
timely file findings and conclusions harmless because appellant could not show
late-filed findings and conclusions hampered his ability to request additional
findings and conclusions or to properly present his appeal).

                                         2
we will modify the trial court’s judgment to delete the attorney’s fees of $3,120

that were awarded to Husband in defending against Wife’s tort claims, and we

will affirm the judgment as modified.

                             II. FACTUAL OVERVIEW3

      Husband and Wife married in 1984.       Son was born in 1989, and M.L.

(Daughter) was born in 1996. Husband and Wife owned and operated a family

business called Champion Sweeping, which performed parking lot, property, and

building maintenance.       Husband’s duties included obtaining customers,

performing the work, and maintaining the equipment. Wife handled the books for

the company from 1984 or 1985 until August 2012. Through the years, Wife paid

the family’s personal expenses directly from the Champion Sweeping account. 4

Son helped out at Champion Sweeping from the time he was seven years old

and worked there through college as the office manager.

      Husband and Wife separated in September 2010, and Husband moved out

of the family residence. On December 26, 2011, Husband admitted that he was

having an affair, and in January 2012, Wife began depleting the Champion

Sweeping account; she wrote backdated checks, cashed them, and transferred

the money into accounts in her name and in Son’s name. On February 4, 2012,


      3
      A more detailed factual discussion is set forth, as necessary, in
connection with our discussion of the parties’ issues below.
      4
     When asked what personal expenses were paid through the Champion
Sweeping account, Wife answered, “Everything.”

                                        3
Wife caught Husband with another woman, and six days later, Wife filed for

divorce. Husband answered and filed a counterpetition for divorce.

      Due to the parties’ difficulties in continuing to jointly operate the business,

Husband filed a motion for the appointment of a receiver, which the trial court

granted. The receiver initially allowed Wife and Husband to attempt to run the

business together, but when that became unworkable, the receiver took over

running Champion Sweeping in September 2012. The receiver discovered and

documented that on January 20, 2012, Wife had written backdated checks that

she had made payable to herself, to Husband, and to Son and had negotiated all

of the checks herself.

      Husband later filed a motion for leave to add Son as a necessary third-

party, claiming that through discovery, he had learned that large sums of

money—which Husband believed constituted community property—were being

held in Son’s name and that Son had “borrowed the money” to buy two new

vehicles. The trial court granted Husband’s motion. Husband then amended his

counterpetition for divorce to add claims against Son for fraud and civil

conspiracy.   Husband pleaded that Son was the record title holder and/or

registered owner of certain property belonging to the community estate, including

“a Jeep Wrangler, a Ford F[-]150 motor vehicle, and certain monetary funds” held

in Son’s name or in trust for Son. Husband’s pleading sought a judgment against

Wife and Son for actual and exemplary damages and requested the trial court to

find that the assets listed were transferred to Son by commission of a fraud on

                                         4
Husband’s community interest in the assets, to set aside the transfers, to declare

the assets to be community property, and to order Son to return any funds paid

to him. Son filed a general denial.

      Two weeks before the divorce trial commenced, Wife amended her petition

to add causes of action for assault, intentional infliction of emotional distress, and

breach of fiduciary duty by Husband. Husband attempted to settle these claims

for $100 before trial, but Wife did not accept the settlement offer.

      During trial, a court-appointed appraiser testified regarding the value of

Champion Sweeping.       The receiver testified regarding the alleged fraudulent

transfers that Wife had made to herself and to Son. Wife and Husband testified

regarding assets owned by the community estate, and each provided a proposed

property division. Wife and Husband also testified regarding the possession and

conservatorship of Daughter.

      At the conclusion of Wife’s case in chief and Husband’s case in chief, Son

stipulated that the sum of $119,706.67 that the receiver had recovered from

Son’s account was not Son’s property but was community property to be

considered in the division of his parents’ community estate. Son then moved for

a directed verdict as to the two claims Husband had pleaded against him––fraud

and civil conspiracy––arguing that no evidence existed that he had participated

with Wife in either a fraud or a civil conspiracy.5 After hearing arguments from


      5
       In his appellate brief, Son points out that his motion should have been
labeled a motion for judgment, not a motion for directed verdict, because there
                                          5
Son’s attorney and Husband’s attorney concerning the motion for directed

verdict, the trial court ruled that although evidence existed of Son’s involvement

in the actual fraud perpetrated by Wife, no evidence existed of any independent

damage to the community caused by Son. Accordingly, the trial court concluded

that the damage to the community, if any, was a property-division consideration

under Schlueter.6 The trial court then granted Son’s motion for directed verdict.

      At the conclusion of the trial, the trial court granted the divorce and took all

other issues under advisement. The trial court signed a final decree of divorce

several months later, signed a corrected final decree from which Wife and Son

appeal, and signed findings of fact and conclusions of law.

                            III. STANDARDS OF REVIEW

      Unless otherwise specified below, we apply an abuse-of-discretion

standard of review to each of the issues raised, which implicate the trial court’s

decisions regarding property division, child support, and attorney’s fees. See

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Murff v. Murff, 615

S.W.2d 696, 698 (Tex. 1981); see also Compass Bank v. Nacim, 459 S.W.3d 95,

109 (Tex. App.—El Paso 2015, no pet.) (applying abuse-of-discretion standard to



was no jury. Because all references in the trial court and the parties’ briefs refer
to the motion as a motion for directed verdict, we will use that term for
consistency.
      6
       Schlueter v. Schlueter, 975 S.W.2d 584, 589–90 (Tex. 1998); see also
Chu v. Hong, 249 S.W.3d 441, 445 (Tex. 2008) (reiterating that third party cannot
be held liable in tort when community property is taken by one of the spouses).

                                          6
whether trial court erred by not applying the offer-of-settlement rule found in

Texas Rule of Civil Procedure 167 and chapter 42 of the Texas Civil Practice and

Remedies Code). A trial court abuses its discretion if it acts without reference to

any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low

v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,

838–39 (Tex. 2004).

      In family-law cases, the traditional sufficiency standards of review overlap

with the abuse-of-discretion standard of review; therefore, legal and factual

insufficiency are not independent grounds of error but are relevant factors in our

assessment of whether the trial court abused its discretion.               Neyland v.

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

determine whether there has been an abuse of discretion because the evidence

is legally or factually insufficient to support the trial court’s decision, we must

determine (1) whether the trial court had sufficient evidence upon which to

exercise its discretion and (2) whether the trial court erred in its application of that

discretion. Id. The applicable sufficiency review comes into play with regard to

the first question. Id.

      The sufficiency standards of review we apply are the same for a trial

court’s findings of fact as for a jury’s answers to questions in the court’s charge;

the findings are reviewable for legal and factual sufficiency of the evidence to

support them. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson

v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin.

                                           7
Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).

Evidence is legally insufficient to support a trial court’s finding of fact only when

(1) the record discloses a complete absence of evidence of a vital fact, (2) the

court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact

is no more than a mere scintilla, or (4) the evidence establishes conclusively the

opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether

there is legally sufficient evidence to support the finding under review, we must

consider evidence favorable to the finding if a reasonable factfinder could and

disregard evidence contrary to the finding unless a reasonable factfinder could

not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);

City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). When reviewing

an assertion that the evidence is factually insufficient to support a finding, we set

aside the finding only if, after considering and weighing all of the evidence in the

record pertinent to that finding, we determine that the credible evidence

supporting the finding is so weak, or so contrary to the overwhelming weight of all

the evidence, that the answer should be set aside and a new trial ordered. Pool

v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.

1965).



                                          8
                                IV. SON’S APPEAL

      Son argues in three issues that the trial court included property he owns in

his parent’s community estate and that the divorce decree’s community-property

division improperly divested him of his separate property.7 Son did not testify.

Wife testified that various items of personal property listed in Husband’s

proposed property division belonged to Son or were gifted to Son. But Husband

controverted Wife’s testimony and listed the assets Son claimed to own as

community assets in his proposed property division that was admitted into

evidence. Son moved for, and obtained, a directed verdict on Husband’s claims

against him; Son had a general denial on file but no pleading seeking affirmative

relief or a declaration that certain assets belonged to him.8 Because, prior to



      7
       Son’s three issues are as follows:

            1. Did the trial court abuse its discretion by dividing property
      owned by [Son] after the trial court granted his motion for directed
      verdict?

            2. Did the trial court abuse its discretion in divesting [Son] of
      his separate property in the divorce proceedings of his parents?

            3. Was there any evidence presented at trial that the disputed
      property was community property of [Wife] and [Husband]?
      8
        After the trial court signed the judgment, Son filed a first-amended motion
to reconsider and to clarify, asserting that certain assets “were not proven to be
community property subject to division in this case” and were assets of Son. But
Son did not seek leave to file a post-trial pleading amendment seeking a
declaration that the assets belonged to him. See Tex. R. Civ. P. 67 (providing for
post-trial pleading amendment), 301 (providing that trial court’s judgment shall
conform to the pleadings); In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.––Dallas
                                        9
entry of judgment, Son did not plead in the trial court for the relief he asks this

court to grant him, we hold that he has waived his right to pursue such relief.

See, e.g., Perl v. Patrizi, 20 S.W.3d 76, 81–82 (Tex. App.—Texarkana 2000, pet.

denied) (holding that defendant who had obtained directed verdict and had failed

to pursue affirmatively pleaded counterclaims before jury was discharged waived

them); see also In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth

2010, orig. proceeding) (“A trial court abuses its discretion by awarding relief to a

person who has not requested such relief in a live pleading.”); Bean v. Massoud,

No. 05-08-00177-CV, 2009 WL 2385563, at *2 (Tex. App.—Dallas Aug. 5, 2009,

no pet.) (mem. op.) (holding that because daughter nonsuited her claims to her

father’s real property, she was not a party when trial court entered final divorce

decree and lacked standing to appeal from final divorce decree).             Having

determined that Son waived his right to seek the relief requested in his three

issues, we overrule them.

      V. WIFE’S CHALLENGE TO COMMUNITY-PROPERTY CHARACTERIZATION

      In Wife’s sixth issue, she challenges the trial court’s community-property

characterization of the items that Son claims to own, which are as follows: the

funds remaining in BBVA/Compass account 6825, a 1967 Ford Mustang, a 2011

Ford F-150, a 2011 Jeep Wrangler, a 2012 Dragmaster trailer, and some

government series EE bonds in Son’s and Wife’s names. Although evidence

2009, no pet.) (holding trial court’s jurisdiction to render judgment is invoked by
pleadings, and a judgment unsupported by pleadings is void).

                                         10
exists that these assets were acquired during the marriage with funds from

Champion Sweeping or other community assets, thus triggering the community-

property presumption, Wife claims that these assets belong to Son; in conclusion

of law 15, the trial court characterized them as community assets.

      In dividing property in a divorce action, the trial court must confine itself to

the community property of the parties. See Jacobs v. Jacobs, 687 S.W.2d 731,

733 (Tex. 1985); see generally Tex. Fam. Code Ann. § 7.001 (West 2006)

(requiring trial court to divide “estate of the parties”); Pearson v. Fillingim, 332

S.W.3d 361, 363 (Tex. 2011) (stating that phrase “estate of the parties”

encompasses community property of a marriage but not separate property).

Property possessed by either spouse during or on dissolution of marriage is

presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West

2006); Pearson, 332 S.W.3d at 363. A party seeking to rebut the presumption

that property possessed by either spouse during the marriage is community

property must do so by clear and convincing evidence. Tex. Fam. Code Ann.

§ 3.003(b). Any doubt as to the character of property should be resolved in favor

of the community estate. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort

Worth 2004, no pet.).

      The evidence at trial documented Wife’s use of Champion Sweeping funds

during the marriage to pay for Son’s college (the remaining balance of which was

in BBVA/Compass account 6825), the series EE bonds in Son’s and Wife’s

names, the 2011 Jeep Wrangler, the 2011 Ford F-150, the 1967 Ford Mustang,

                                         11
and the 2012 Dragmaster trailer. Husband denied that these assets were gifts to

Son and testified that he did not know of or consent to Wife’s use of Champion

Sweeping funds for these purposes.      Wife offered no evidence showing that

these assets were not acquired during the marriage or that the assets were

acquired utilizing Wife’s or son’s separate property.     Thus, the community-

property presumption applied to these assets. See Tex. Fam. Code Ann. § 3.002

(West 2006), § 3.003(a), (b); Pearson, 332 S.W.3d at 363; Barnett v. Barnett, 67

S.W.3d 107, 111 (Tex. 2001) (applying community-property presumption in the

absence of evidence that asset was separate property when purchased); Boyd,

131 S.W.3d at 612; see also Osuna v. Quintana, 993 S.W.2d 201, 205, 209 (Tex.

App.—Corpus Christi 1999, no pet.) (applying community-property presumption

to monies mistress admitted were deposited into her account by husband). The

trial court specifically found that Wife did not meet her burden to rebut by clear

and convincing evidence the presumption that the funds remaining in

BBVA/Compass account 6825, the 1967 Ford Mustang, the 2011 Ford F-150, the

2011 Jeep Wrangler, the 2012 Dragmaster trailer, and the government series EE

bonds in Son’s and Wife’s names were community property. Accordingly, we

hold that the trial court did not abuse its discretion in conclusion of law 15 by

characterizing these assets as part of the community estate.9 See Barnett, 67


      9
      The trial court also expressly found that the separate property claims of
Wife and Son concerning these assets “were not proven by clear and convincing
evidence.”

                                       12
S.W.3d at 111; Boyd, 131 S.W.3d at 612; see also Osuna, 993 S.W.2d at 205,

209. We overrule Wife’s sixth issue.10

                          VI. FRAUD ON THE COMMUNITY

      In her third issue, Wife argues that no evidence exists to support the trial

court’s finding number 16 that she committed actual fraud on the community by

transferring property from the community estate and by expending community

funds to benefit herself and Son.

      The relationship between a husband and wife is a fiduciary relationship,

and the spouses are bound by the fiduciary relationship in dealing with the

community estate. See Vickery v. Vickery, 999 S.W.2d 342, 357 (Tex. 1999)

(Hecht, J., dissenting) (dissenting to the Texas Supreme Court’s denial of petition

of review); Sw. Tex. Pathology Assocs., L.L.P. v. Roosth, 27 S.W.3d 204, 208

(Tex. App.—San Antonio 2000, pet. dism’d w.o.j.). Although a spouse has the

right to dispose of community property under her control, a presumption of

constructive fraud arises when one spouse disposes of the other spouse’s one-

half interest in community property without the other’s knowledge or consent.

Mazique, 742 S.W.2d at 807–08. Actual fraud on the community arises when

      10
        To the extent Wife claims these assets or monies were gifts to Son,
Husband testified that the expenditures were made without his knowledge and
consent, thereby shifting the burden to Wife to show fairness in disposing of
Husband’s interest in these community assets or monies. See, e.g., Mazique v.
Mazique, 742 S.W.2d 805, 807–08 (Tex. App.––Houston [1st Dist.] 1987, no
writ). Wife failed, at trial and on appeal, to address or allege that her use of
community funds to purchase these assets or to make these transfers to Son
was fair to Husband’s interest in the community estate.

                                         13
such a transfer is made with “dishonesty of purpose or intent to deceive.” See

Schlueter, 975 S.W.2d at 589–90; Wright v. Wright, 280 S.W.3d 901, 908–09

(Tex. App.—Eastland 2009, no pet.) (explaining that “[a] spouse commits actual

fraud if he or she transfers community property . . . for the primary purpose of

depriving the other spouse of the use and enjoyment of the assets involved in the

transaction”).

      The trial court made the following finding of fact concerning Wife’s actual

fraud on the community:

      16. The Court finds that DEBORAH KAY LOGSDON committed
      actual fraud against the community estate of the parties by the
      transfer of community property and expenditure of community funds
      to and for the benefit of DEBORAH KAY LOGSDON and MARK
      ALLEN LOGSDON with intentional dishonesty and the intent to
      deceive MARK EDWARD LOGSDON.

Generally, the evidence presented at trial supporting this finding showed that

Wife had created and cashed backdated “payroll” checks made payable to

herself, Son, and Husband written on the Champion Sweeping account; that she

had transferred approximately $280,000 from the couple’s joint accounts into

accounts in Son’s name; that she had removed money from the couple’s E*Trade

account; and that she had paid approximately $130,000 from community funds to

her mother in Indiana.

      Detailing this evidence more specifically, it established that Champion

Sweeping had never issued Husband a paycheck until March 2012, when the

trial court ordered that Husband should receive paychecks.         Nonetheless,


                                       14
Husband discovered payroll checks made payable to him; he had not cashed

them, but they had been negotiated without his signature and deposited into an

account that he did not have access to. The receiver compiled a chart listing

checks from the Champion Sweeping account that were made payable to

Husband, that he did not receive, and that were all negotiated on January 20,

2012; those checks were backdated from October 2011 through January 2012,

were not written in numerical order,11 and totaled $26,187.20.12 The receiver

testified that during his review of all the banking records, he was unable to find

anything that would reflect the deposit of those funds into an account operated by

Husband. Additionally, the receiver compiled a chart listing the checks from the

Champion Sweeping account that were made payable to Wife and that were

negotiated by Wife on January 20, 2012; the chart reflects that the checks were

backdated from May 2010 through January 2012, that the checks were not

written in numerical order, and that the checks totaled $23,699.35. The receiver

also compiled a chart listing the checks from the Champion Sweeping account




      11
       For example, check number 29341 was dated January 9, 2012, while
check number 31108 was dated November 7, 2011.
      12
        One of the individual checks Wife wrote on the Champion Sweeping
account and made payable to Husband was a check for $17,838 for the
December 25 through 31 pay period in 2011. Wife admitted, however, that
Husband did not endorse or deposit the check even though it was negotiated
during January 2012.

                                       15
that were made payable to Son and negotiated on January 20, 2012;13 those

checks were backdated from May 2010 through January 2012, were not written

in numerical order, and totaled $6,397.30.

         In June 2012, after suit was filed and shortly before the receiver was

appointed, Wife again cashed checks from Champion Sweeping made payable

to herself totaling $24,065.10;14 to Son totaling $9,848.17; and to Husband

totaling $6,077.35.15    Similar to previous checks written on the Champion

Sweeping account, the checks were not written in numerical order and were

notated as covering payroll for periods dating back to May 2010.

         Wife withdrew $126,000 from an account that she held jointly with

Husband and transferred the money into an account for Son. Wife explained that

she put aside this $126,000 for college for Daughter and asked Son to make sure

that Daughter went to college in the event that something happened to Wife.

Wife also withdrew $150,000 from an account that she held jointly with Husband

and transferred the money into an account held in her name as trustee for Son.

Wife did not deny making the transfers, nor did she testify that she had consulted

with Husband prior to making them.

         13
          These checks were not signed by Son but were marked “For Deposit
Only.”
         14
        Of the individual checks payable to Wife, she received a check totaling
$20,980.50 for the December 25 through 31 pay period in 2011; however, the
receiver said that he was not aware of any Christmas bonuses being paid.
         15
          Husband received $1,887.75 of this amount.

                                       16
      The receiver testified that at the very beginning of the receivership, Wife

withdrew $13,000 from an E*TRADE account held by the receiver and deposited

it into a Compass Bank account ending in 2580. The receiver said that Wife

admitted that she had taken money out of the E*Trade account and that she had

deposited the funds into her bank account because she had no access to any

money. The receiver asked Wife to repay the $13,000 to him so that he could

replenish the E*TRADE account, but Wife refused. The receiver said that he had

requested that the E*TRADE account be frozen so that no one else could have

access to it.

      Husband testified that from January 2009 through March 2013 Wife had

written    monthly   checks   on   the   Champion    Sweeping    account    totaling

approximately $130,000 to Wife’s mother in Indiana. Husband said that Wife told

him they were purchasing land in Indiana from Wife’s mother. In fact, the couple

gained no ownership interest in the property.       Wife testified at trial that the

payments were to “rent” the land from her mother and that Wife had one vehicle

stored on the land.16




      16
        As the finder of fact and the sole judge of the credibility of the witnesses
and the weight to be given their testimony, the trial court was entitled to believe
Husband’s testimony and to conclude that Wife’s payments to her mother
constituted actual fraud on the community. See Strong v. Strong, 350 S.W.3d
759, 771 (Tex. App.––Dallas 2011, pet. denied) (recognizing that when evidence
on issue of whether transfer was made without non-transferring spouse’s consent
is disputed, trial court’s resolution of the issue will not be disturbed).

                                         17
      Considering the evidence favorable to the trial court’s actual fraud finding

and disregarding the contrary evidence because a reasonable factfinder could,

we hold that the evidence is legally sufficient to support the trial court’s finding

that Wife committed actual fraud on the community by transferring community

property and by expending community funds to and for the benefit of herself and

Son with intentional dishonesty and with the intent to deceive Husband. See

Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–51 (Tex. 1996);

Wright, 280 S.W.3d at 909–12 (holding husband’s actual fraud established by

evidence that without wife’s knowledge or consent, he drained bank accounts,

transferred title to motorcycles to sons, and transferred stock to third party days

after wife filed suit for divorce). Considering and weighing all of the evidence in

the record pertinent to the trial court’s actual fraud finding, the credible evidence

is not so weak nor the contrary evidence so overwhelming that the finding should

be set aside. Accordingly, we hold that the evidence is factually sufficient to

support the trial court’s finding that Wife committed actual fraud on the

community. Because legally and factually sufficient evidence exists supporting

the trial court’s actual fraud finding against Wife, the trial court did not abuse its

discretion in making the finding. We overrule Wife’s third issue.17


      17
        To the extent Wife argues on appeal that “as long as property is
recovered by the community estate after a transfer, then a fraudulent transfer
never occurred[,]” we cannot agree. See, e.g., Schlueter, 975 S.W.2d at 590
(holding Mr. Schlueter committed actual fraud on the community––which could
be considered in property division––by transferring community assets to his
father even though community was made whole by money judgment against Mr.
                                         18
                           VII. RECONSTITUTED ESTATE

      In her fourth issue, Wife argues that if there was a fraudulent transfer, the

trial court should have reconstituted the estate and then divided the property

equitably. See Tex. Fam. Code Ann. § 7.009 (West Supp. 2015).

      Concerning the “reconstituted estate,” the receiver testified that he

“couldn’t determine if there is [money that someone had siphoned from the

community estate and was holding against the receivership order], if there’s other

money out there that’s hidden, not placed in bank accounts, or anything like that.”

The receiver said that he could testify with certainty only that he had control over

Wife’s accounts “[a]s far as [he] kn[e]w.” The record thus demonstrates, and

Wife agrees, that the trial court had before it a proposed property division from

each of the parties—both of which included the funds and items that the receiver

had been able to recoup. Testimony and evidence also existed concerning the

approximately $130,000 Wife had paid to her mother and the exact dollar amount

of depletion of the community funds transferred by wife that had occurred from

the time the transfers occurred until the time the receiver tracked down the funds

and took control of them. In making the property division, the trial court therefore

had before it the reconstituted estate—the total value of the community estate

that existed if Wife’s actual fraud on the community had not occurred. See id.

§ 7.009(a) (defining “reconstituted estate”).

Schlueter’s father and in favor of community estate in amount of asset
fraudulently transferred).

                                         19
       Wife argues that after reconstituting the estate, the trial court should then

have divided it “equitably.” However, Wife interprets the term “equitably” to mean

equally.   In the examples set forth in her brief, Wife proposes that the

reconstituted estate be divided in half. The statute, however, does not require

the trial court to divide the reconstituted estate equally between the parties but

instead instructs the trial court to “divide the value of the reconstituted estate

between the parties in a manner the court deems just and right.”             See id.

§ 7.009(b)(2); see also Murff, 615 S.W.2d at 699 (reiterating that community

property need not be equally divided). In making a just-and-right division of the

reconstituted estate, the statute specifically provides that the trial court may grant

any legal or equitable relief necessary to accomplish a just-and-right division,

including awarding to the wronged spouse an appropriate share of the

community estate. See Tex. Fam. Code Ann. § 7.009(c)(1).

      Because the record reflects that the trial court did reconstitute the estate

and because the trial court was authorized under family code section 7.009(c)(1)

to make a disproportionate property division of the reconstituted estate, we

overrule Wife’s fourth issue complaining that the estate was not reconstituted and

that an equal division of the reconstituted estate is required. See id.; Schlueter,

975 S.W.2d at 590; Everitt v. Everitt, No. 01-11-00031-CV, 2012 WL 3776343, at

*6–7 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem. op.).




                                         20
                    VIII. DIVISION OF THE COMMUNITY ESTATE18

      In her first and second issues, Wife argues that the trial court abused its

discretion by making a disproportionate property division because there is no

evidence to support the disproportionate division. Wife argues that “[l]eaving

aside the alleged fraud on the community, all of the factors favor the wife” and

argues in her reply brief that “[u]nless the husband can offer evidence of fraud-

against-the-community, the disproportionate property division must be set aside

as an abuse of discretion.”

      Community property does not have to be divided equally.           Murff, 615

S.W.2d at 699. When exercising its broad discretion in dividing the community

estate, “[w]aste, fraudulent transfer[s], or other damage to community property

are claims belonging to the community itself, so they must be included in the trial

court’s just-and-right division of community property upon divorce.” Chu, 249

S.W.3d at 444–45; see also Schlueter, 975 S.W.2d at 589–90. The trial court

may additionally consider other factors, including the nature of the property; the

relative earning capacity and business opportunities of the parties; the parties’

relative financial conditions and obligations; the parties’ educations; the size of

the separate estates; the age, health, and physical conditions of the parties; fault


      18
         Wife asserts numerous and detailed arguments challenging various
aspects of the trial court’s disproportionate property division favoring Husband.
Because these arguments form the crux of Wife’s appeal, we address each of
them even though they present sometimes overlapping, partially redundant, and
alternative contentions.

                                        21
in breaking up the marriage; the benefit the innocent spouse would have

received had the marriage continued; and the probable need for future support.

See Murff, 615 S.W.2d at 699; In re Marriage of C.A.S., 405 S.W.3d 373, 384

(Tex. App.—Dallas 2013, no pet.). A disproportionate division must be supported

by some reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.—

Waco 2004, no pet.). The party complaining of the division of the community

estate has the burden of showing from the evidence in the record that the trial

court’s division of the community estate was so unjust and unfair as to constitute

an abuse of discretion. C.A.S., 405 S.W.3d at 384.

      We have already held that the trial court’s finding that Wife committed

actual fraud against the community is supported by the evidence and did not

constitute an abuse of discretion. And because Husband proved Wife’s actual

fraud on the community, the trial court rightly considered Wife’s fraud as a factor

in making a disproportionate property division. See Chu, 249 S.W.3d at 444–45;

Schlueter, 975 S.W.2d at 590.

      Examining other factors the trial court may consider in making a just-and-

right division of the community estate, the evidence established that Husband

and Wife were married in September 1984. They founded Champion Sweeping

shortly thereafter, in 1984 or 1985. Both Husband and Wife worked exclusively

at Champion Sweeping throughout their almost thirty-year marriage. As a result,

Husband’s and Wife’s financial conditions and obligations (both tied to Champion

Sweeping) are comparable.       Likewise, their earning capacity based on both

                                        22
Husband’s and Wife’s almost thirty years of employment with Champion

Sweeping appears comparable.             Wife served as Champion Sweeping’s

bookkeeper while Husband worked in the day-to-day cleaning operations and

maintained the equipment. Husband graduated from high school and obtained

one year of a college education. Wife graduated from high school but did not

attend college. Wife had some prior “office work” job experience. Although Wife

claimed she was no longer healthy enough to work, the trial court, as the judge of

the credibility of the witnesses, was free to disbelieve her and apparently did

disbelieve her. Wife’s actual fraud on the community required the receiver to

engage in efforts to track down the fraudulently transferred assets and monies,

causing the community to incur fees for this work by the receiver. And finally,

Wife’s payment of almost $130,000 to her mother to “rent” land in Indiana is also

a fact the trial court was entitled to consider in its just-and-right property division.

While the trial court granted the divorce partially on the ground of adultery by

Husband “committed more than one year after separation of the parties,” no

requirement exists that this factor result in a disproportionate property division in

favor of Wife. See Murff, 615 S.W.2d at 698.

      Based on the evidence presented to the trial court relevant to a just-and-

right property division, we hold that the evidence is both legally and factually

sufficient to support the trial court’s decision to make a disproportionate award of




                                          23
the community estate to Husband.19 See Cont’l Coffee Prods. Co., 937 S.W.2d at

450–51; Dailey v. Dailey, No. 02-12-00097-CV, 2013 WL 105667, at *5 (Tex.

App.—Fort Worth Jan. 10, 2013, no pet.) (mem. op.) (holding that evidence at

trial supported implied finding of fraud and provided a legal basis for the alleged

disproportionate award to wife of the community estate). We therefore hold that

the trial court did not abuse its discretion in making a disproportionate award of

the community estate, and we overrule Wife’s second issue.

      We next turn to Wife’s arguments that the trial court nonetheless exercised

its discretion unreasonably in arriving at the amount or percentages of the

disproportionate property division based on the above facts. Husband and Wife

both prepared inventories assessing the value of the community property; the

trial court’s property division used the valuation figures proposed by Husband.20


      19
        Wife also points to Husband’s alleged abuse as a factor favoring her in
the property division. But the trial court expressly found that Wife’s tort claims
against Husband were not established by the evidence.
      20
         To the extent that Wife asserts that Husband’s proposed property
division and inventory constitutes “no evidence” of value because it was admitted
only as a property division, we reject this contention. Husband’s inventory was
admitted for all purposes, without objection or a request that its consideration be
limited. See, e.g., Tex. R. Evid. 105(a); Cigna Ins. Co. v. Evans, 847 S.W.2d
417, 421 (Tex. App.––Texarkana 1993, no writ) (“Evidence admitted without
limitation comes into evidence for any and all purposes.”). To the extent Wife
asserts that Husband’s proposed property division and inventory constitutes “no
evidence” of value because it is not sworn, we note that Wife’s trial attorney
questioned Husband almost line by line about the contents of Husband’s
proposed property division so that Husband provided sworn testimony on its
contents. See, e.g., Means v. Means, 535 S.W.2d 911, 915–16 (Tex. App.—
Amarillo 1976, no writ) (holding trial court did not err by permitting husband to
submit amended inventory and appraisement after both parties rested and closed
                                        24
Utilizing Husband’s valuation figures, the property division favors Husband 57.7%

to Wife’s 42.3%; the same property division using Wife’s valuation figures favors

Husband 61.9% to 38.1%. Wife argues that the trial court should have effected

an exact fifty/fifty division or given her a greater share of the community estate

because the community estate contained approximately $1.4 million in cash; the

disproportionate division constitutes a $575,000 penalty against her and is

excessive in light of what she characterizes as only an alleged $13,000

fraudulent transfer; each type of property should have been divided equally; and

the trial court erroneously included Son’s property in the community estate.

      We cannot agree with any of these arguments by Wife. A trial court’s

failure to effectuate a fifty/fifty property division is not automatically an abuse of

discretion. See Tex. Fam. Code Ann. § 7.001 (requiring trial court to order a just

and right, not an equal, division of the community estate); Murff, 615 S.W.2d at

700. The cash component of the community estate does not somehow mandate

a different or more equal percentage division of the community estate. A trial

court’s consideration of a spouse’s actual fraud on the community is not

restricted to a dollar-for-dollar credit for only unrecouped assets or monies; actual

fraud on the community is a factor the trial court may consider in its just-and-right

division of the community property regardless of whether the community estate


in absence of objection by wife); see also Warriner v. Warriner, 394 S.W.3d 240,
248 (Tex. App.––El Paso 2012, no pet.) (recognizing sworn inventory is simply
another form of testimony).

                                         25
has been made whole by the return of the community assets or monies

transferred by a spouse in committing actual fraud on the community. See, e.g.,

Schlueter, 975 S.W.2d at 590. Like types of property in the community estate

need not be divided equally between the spouses. See Tex. Fam. Code Ann.

§ 7.001. And the trial court found that the property Wife asserts belonged to Son

was, in fact, part of the community estate and that Wife and Son had failed to

establish its separate character by clear and convincing evidence.

      For these reasons and based on this record, Wife has failed to meet her

burden to show that the percentage amounts of the trial court’s disproportionate

division of the community estate were so unjust and unfair as to constitute an

abuse of discretion. See Lucy v. Lucy, 162 S.W.3d 770, 777–78 (Tex. App.––El

Paso 2005, no pet.) (upholding disproportionate award of community estate 55%

to 45% in favor of wife based on implied finding of husband’s actual fraud on the

community and despite “equalizing” money judgment for estate based on

fraudulent transfer); Loaiza v. Loaiza, 130 S.W.3d 894, 902–03 (Tex. App.––Fort

Worth 2004, no pet.) (upholding disproportionate award of community estate

77% to 33% in favor of wife based on husband’s constructive fraud on the

community); see also Garcia v. Garcia, No. 02-11-00276-CV, 2012 WL 3115763,

at *9 (Tex. App.—Fort Worth Aug. 2, 2012, no pet.) (mem. op.) (upholding

disproportionate award of community estate 68% to 32% in favor of wife based

on multiple factors including husband’s fraud on the community). We hold that

whether the trial court divided the community estate 57.6% to 42.4% in favor of

                                       26
Husband––as Husband alleges, or 61.9% to 38.1% in favor of Husband––as

Wife alleges, Wife has not established that based on the evidence either division

is so unjust or unfair as to constitute an abuse of discretion. We overrule Wife’s

first issue.

                             IX. ADDITIONAL FINDINGS

       In her fifth issue, Wife argues that this appeal must be abated because the

trial court failed to make additional findings of fact. Wife contends that under

Texas Family Code section 6.711, the trial court was required to make findings

as to the value of the community estate’s assets on which disputed evidence was

presented.21   But Wife did not request additional findings under family code

section 6.711.     Instead, Wife timely requested initial findings of fact and

conclusions of law under Texas Rule of Civil Procedure 296 and requested

       21
        Texas Family Code section 6.711 states that in a suit for dissolution of a
marriage in which the trial court has rendered a judgment dividing the estate of
the parties,

              on request by a party, the court shall state in writing its
       findings of fact and conclusions of law concerning:

             (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.

              (b) A request for findings of fact and conclusions of law under
       this section must conform to the Texas Rules of Civil Procedure.

Tex. Fam. Code Ann. § 6.711(a)–(b) (West 2006).
                                        27
additional findings of fact and conclusions of law under Texas Family Code

section 7.009, specifically requesting findings of fact as to (1) the value by which

the community estate was depleted as a result of the fraud on the community

and (2) the value of the reconstituted estate. The trial court did not make any

additional findings.

      While the trial court’s duty to make findings requested under section 6.711

is mandatory, a party’s request for findings of fact under rule 296 does not

preserve the party’s right to findings under section 6.711. See Tenery v. Tenery,

932 S.W.2d 29, 30 (Tex. 1996) (recognizing trial court’s mandatory duty to make

findings under family code section 6.711); Moore v. Moore, 383 S.W.3d 190,

200–01 (Tex. App.—Dallas 2012, pet. denied) (holding initial request for fact

findings solely pursuant to rule 296 waived right to section 6.711 findings

requested after the expiration of time for initial request for fact findings); cf. In re

D.C., No. 05-12-01574-CV, 2014 WL 1887611, at *6 (Tex. App.—Dallas May 9,

2014, no pet.) (mem. op.) (holding request for fact findings pursuant to rule 296

did not preserve right to findings under family code section 153.258). 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 Moore, 383

S.W.3d at 200–01.

      To the extent that Wife argues in her reply brief that she was entitled to the

additional findings that she did request under family code section 7.009, she has

                                          28
not shown that the trial court’s failure to issue additional findings under section

7.009 prevented her from adequately presenting her complaint on appeal. Wife’s

and Husband’s inventories show their valuations of the items in the community

estate. We have held that the trial court did not abuse its discretion regardless of

which party’s valuations it used. If the record shows that the complaining party

did not suffer injury, the failure to make additional findings of fact does not

require reversal. See, e.g., Tex. R. App. P. 44.1(a); Villarreal v. Guerra, 446

S.W.3d 404, 414 (Tex. App.––San Antonio 2014, pet. denied) (explaining that to

obtain reversal for trial court’s failure to make additional findings of fact, appellant

must show that such failure prevented adequate presentation of appellant’s case

on appeal in that she was forced to guess the reasons for the trial court’s

decision); Honeywell Int’l, Inc. v. Denton Cent. Appraisal Dist., 441 S.W.3d 495,

507 (Tex. App.—El Paso 2014, pet. denied) (same); H.K. Global Trading, Ltd. v.

Combs, 429 S.W.3d 132, 141 (Tex. App.—Austin 2014, pet. denied) (same);

Tamez v. Tamez, 822 S.W.2d 688, 692–93 (Tex. App.––Corpus Christi 1991,

writ denied) (generally same). Accordingly, because Wife has not explained, and

we cannot discern, how she was harmed by the trial court’s failure to make the

additional findings of fact that she requested under section 7.009, even if such

failure constituted error, reversal is not required. See, e.g., Tex. R. App. P.

44.1(a); Villarreal, 446 S.W.3d at 414. We overrule Wife’s fifth issue.




                                          29
                                X. CHILD SUPPORT

      In her seventh issue, Wife argues that the trial court abused its discretion

by not awarding her child support for Daughter.         The trial court made the

following findings of fact pertinent to the trial court’s decision not to award Wife

child support:

             7.    There is one child, [Daughter], aged 17.

            8.    The Court finds that the child, [Daughter], has been
      completely alienated from her Father, MARK EDWARD LOGSDON,
      and is only marginally supervised by her Mother, DEBORAH KAY
      LOGSDON.

             9.    The Court finds that based on [Daughter]’s age,
      conduct, lack of supervision, and lack of meaningful discipline[,] she
      is de facto emancipated.

             10. There is another child of the marriage, MARK ALLEN
      LOGSDON, over the age of 18, who was a Third[-]Party Respondent
      to this suit.

The trial court also made the following conclusions of law pertinent to its decision

to not award Wife child support:

             6.    The parents should be named Joint Managing
      Conservators sharing the rights of parents as set out in Texas
      Family Code § 153.073 with each having the non-exclusive right to
      establish the residence and domicile of the child.

            7.     Each parent should be obligated to pay one[-]half of the
      costs of the child’s medical care and to support the child during [his
      or her] respective periods of possession which should be scheduled
      by the agreement of the parties and the child.

      A trial court has authority to require one joint managing conservator to pay

child support to another joint managing conservator. See Tex. Fam. Code. Ann.


                                        30
§ 153.138 (West 2014) (“The appointment of joint managing conservators does

not impair or limit the authority of the court to order a joint managing conservator

to pay child support to another joint managing conservator.”). The amount of a

periodic child support payment established by the child-support guidelines is

presumed to be reasonable, and an order of support conforming to the guidelines

is presumed to be in the best interest of the child. Id. § 154.122(a) (West 2014).

      A court, however, may determine that the application of the guidelines

would be unjust or inappropriate under the circumstances. Id. § 154.122(b). In

determining whether application of the guidelines would be unjust or

inappropriate under the circumstances, the trial court shall consider evidence of

all relevant factors, including, among other factors, the age and needs of the

child; the ability of the parents to contribute to the support of the child; any

financial resources available for the support of the child; the amount of time of

possession of and access to a child; and any other reason consistent with the

best interest of the child, taking into consideration the circumstances of the

parents. Id. § 154.123(b) (West 2014).

      The evidence established that Daughter had missed 230 days of school

the year prior to the trial while living with Wife and that Daughter had

accumulated 250 days of absences the year prior to that. Husband was alarmed

at Daughter’s truancy and said that she had a 28 average in chemistry when the

trial court ultimately ordered Husband to take Daughter to and from school.



                                         31
Husband said that once he started taking Daughter to school, she missed zero

days of school, was tardy only three times, and made the A Honor Roll.

      Husband testified that during the pendency of the divorce, he had tried on

multiple occasions to see his daughter, but every time, he was “stonewalled

either by the child directly or with an accomplice of her mother.” Husband said

that the only time he had access to Daughter was during the prior school year

when he was ordered to take her to and from school. Husband believed that

Daughter was alienated from him but asked to keep his visitation rights in place,

and Wife said that she believed it is important for Daughter to have a relationship

with Husband.

      Daughter was scheduled to graduate from high school in December 2013,

which was two months after the divorce trial.22 Wife said that her residence

would remain in Tarrant County until Daughter graduated from high school.

Husband testified that he wanted Daughter to attend school and to excel, that he

had put aside money for Daughter to attend college, and that he wanted her to

have the opportunity to “better herself.”

      On this record, we hold that the evidence is both legally and factually

sufficient to support the trial court’s fact findings that Daughter is alienated from

Husband and only marginally supervised by Wife and that based on Daughter’s


      22
        Thus, at the time the trial court signed the corrected final decree of
divorce on February 3, 2014, it is possible that Daughter had already graduated
from high school.

                                            32
age, conduct, lack of supervision, and lack of meaningful discipline, she is de

facto emancipated. See Cont’l Coffee Prods. Co., 937 S.W.2d at 450–51 (legal

sufficiency); Pool, 715 S.W.2d at 635 (factual sufficiency).      Moreover, after

reviewing the record, we hold that the trial court did not abuse its discretion by

determining that application of the child-support guidelines would be unjust or

inappropriate under these circumstances or by concluding that Wife and

Husband should each pay half of Daughter’s medical care and were each

responsible for Daughter’s support during their respective periods of possession.

See Tex. Fam. Code Ann. § 154.122(b); In re K.L.D., No. 12-10-00386-CV, 2012

WL 2127464, at *6 (Tex. App.—Tyler June 13, 2012, no pet.) (mem. op.) (finding

no abuse of discretion in failing to require either parent to pay child support

because they shared joint, equal possession); Dennis v. Smith, 962 S.W.2d 67,

72 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (finding no abuse of

discretion in failing to require parents to pay child support when, among other

factors, they shared joint managing conservatorship); cf. Warner v. Warner, 615

S.W.2d 904, 906–07 (Tex. Civ. App.—Fort Worth 1981, no writ) (holding

evidence supported finding that eighteen-year-old son was emancipated when he

moved to start work on a six-year medical degree). We overrule Wife’s seventh

issue.

                   XI. ATTORNEY’S FEES FOR WIFE’S TORT CLAIMS

         In her eighth issue, Wife argues that there is no evidence to support the

trial court’s award of $3,120 in attorney’s fees to Husband under rule 167. Two

                                         33
weeks before the divorce trial commenced, Wife amended her petition to add

causes of action for assault, intentional infliction of emotional distress, and

breach of fiduciary duty. Four days later, Husband faxed an offer of settlement

on Wife’s newly-added tort claims to Wife’s attorney; the settlement offer stated

that it was made pursuant to chapter 42 of the Texas Civil Practice and

Remedies Code, offered Wife $100 in exchange for her agreement to dismiss the

tort claims, and set a deadline for accepting the settlement offer at 5:00 p.m. that

same day. Wife did not accept the offer of settlement.

      Texas Rule of Civil Procedure 167 and section 42.004 of the Texas Civil

Practice and Remedies Code provide for the award of litigation costs, including

reasonable attorney’s fees, under certain circumstances when a settlement offer

is rejected.23 See Tex. Civ. Prac. & Rem. Code Ann. § 42.004(a) (West 2015);

Tex. R. Civ. P. 167.1.24 Litigation costs are not recoverable, however, absent

compliance with the specific procedures set forth in the rule and in the statute.

Tex. Civ. Prac. & Rem. Code Ann. § 42.002(c); Tex. R. Civ. P. 167.2(a), (e)

      23
        Husband sought, and the trial court awarded, attorney’s fees only in
connection with Wife’s tort claims. See Tex. Civ. Prac. & Rem. Code Ann.
§ 42.002(a), (b) (West 2015) (stating these procedures apply only to claims for
monetary damages and do not apply to an action brought under the family code);
Tex. R. Civ. P. 167.1(d), 167.2(d) (same).
      24
        Section 42.005 of the Texas Civil Practice and Remedies Code states
that the Texas Supreme Court “shall promulgate rules implementing this chapter”
and that the rules promulgated by the Texas Supreme Court must provide the
deadlines and procedures involved. See Tex. Civ. Prac. & Rem. Code Ann.
§ 42.005(a), (b) (West 2015). Those rules are found in Texas Rule of Civil
Procedure 167. See generally Tex. R. Civ. P. 167.

                                        34
(stating settlement offer may not be made until defendant has filed declaration

invoking rule 167 and requiring declaration to be filed no later than forty-five days

before trial setting); Tex. R. Civ. P. 167.2(b)(5) (requiring acceptance deadline be

no sooner than fourteen days after offer is served).

      Husband’s settlement offer does not comply with the procedures set forth

in Texas Rule of Civil Procedure 167 and section 42.004 of the Texas Civil

Practice and Remedies Code. The declaration Husband was required to file

invoking rule 167 is not contained in the record before us. See Tex. R. Civ. P.

167.2(a) (providing that “a settlement offer under this rule may not be made until

a defendant . . . files a declaration invoking this rule”). Even if we could construe

Husband’s settlement offer as simultaneously functioning as a declaration, the

forty-five-day deadline was not met. See Tex. R. Civ. P. 167.2(a). Rule 167.5(a)

allows a trial court to modify the time limits for filing a declaration or for making a

settlement offer, but a written order modifying the rule’s time limits is required,

and the record before us contains no such order. See Tex. R. Civ. P. 167.5(a).

Furthermore, the trial court is not authorized to alter the statutory time period

imposed for acceptance of a settlement offer. See Tex. R. Civ. P. 167.2(b)(5)

(prohibiting acceptance deadline shorter than fourteen days from service of

offer); see also In re CompleteRx, Ltd., 366 S.W.3d 318, 324–25 (Tex. App.—

Tyler 2012, orig. proceeding) (explaining that rule 167.5(a) authorizes trial court

to modify only certain time limits set by rule and holding that appellate court was

without authority to rewrite rule).

                                          35
      Because Husband’s settlement offer did not comply with the procedures

and time limits set forth in chapter 42 of the civil practice and remedies code and

in rule 167, the trial court abused its discretion by awarding attorney’s fees under

chapter 42. See Tex. Civ. Prac. & Rem. Code Ann. § 42.002(e); Tex. R. Civ. P.

167.7; see also Orix Capital Mkts., LLC v. La Villita Motor Inns, J.V., 329 S.W.3d

30, 50 (Tex. App.—San Antonio 2010, pet. denied) (rejecting recovery of

attorney’s fees because La Villita did not comply with the procedures mandated

under chapter 42 and rule 167). We sustain Wife’s eighth issue.

                                 XII. CONCLUSION

      Having sustained Wife’s eighth issue, we modify the trial court’s judgment

to delete the first three paragraphs under the heading “Judgment” on page 24 of

the corrected final decree of divorce so that the new first paragraph under the

heading “Judgment” will begin with the following: “The Court finds that CAROLE

ORTH has satisfactorily discharged all of the attorney duties and obligations

under chapter 107 of the Texas Family Code, . . . .” Having overruled Son’s

three issues and having overruled Wife’s first through seventh issues, we affirm

the trial court’s judgment as modified.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

DELIVERED: November 25, 2015


                                          36
