




02-11-184-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00184-CV
 
 



Aimee Delyn Halleman


 


APPELLANT




 
V.
 




Edward Charles Halleman


 


APPELLEE



 
 
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FROM THE 16th
District Court OF Denton COUNTY
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OPINION
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I.  Introduction
          In
five issues, Appellant Aimee Delyn Halleman appeals from the divorce decree
dissolving her marriage to Appellee Edward Charles Halleman and from an order
awarding Edward attorney’s fees pending appeal.  We will affirm.
II.  Background
          Aimee
and Edward married in October 2000.  They lived in Flower Mound; had one child
together, L.L.H., born in June 2005; and both worked for the same employer before
and during much of the marriage.  Aside from these and a few other undisputed facts,
Aimee’s and Edward’s versions of many of the events that occurred during their
marriage differed markedly.
          According
to Aimee, she first noticed that her marriage with Edward was “on the rocks”
shortly after L.L.H. was born.  Their relationship had become “volatile,”
Edward was spending a considerable amount of time away from home with his
friend Gary, they had sex only a few times between L.L.H.’s birth and when
Aimee filed for divorce, and they did not share a ride to work as often as they
used to.  Aimee considered filing for divorce in the summer of 2007 but instead
saw a marriage counselor in October 2007 in hopes of improving the marriage.  Things,
however, just “got worse,” even after Gary had moved away.
          According
to Edward, after L.L.H.’s birth, Edward and Aimee did not grow apart; they
continued to have a regular sexual relationship; they continued to carpool to
work until January 2008; Edward did not spend nearly as much time with Gary as
Aimee contended; and before March 2008, Aimee never recommended that they
attend counseling nor did she tell Edward that she had visited a counselor.  But
beginning in November or December 2007, Edward noticed that Aimee was spending
more time traveling with her boss, Mark, and returning home later at night
after entertaining clients with him.  Edward was also surprised that unlike in
2005 and 2006, when he and Aimee both used vacation time during the last two
weeks of the year to shop for Christmas, Aimee did not use any vacation time at
the end of the year but instead worked, sometimes at nights with Mark.  Edward developed
a concern that “something was going on” in their marriage.  In March 2008, Edward
used Aimee’s work laptop at home to finish a presentation and discovered a
series of emails between Aimee and Mark that led Edward to believe that Aimee
was having an affair with Mark.  Heartbroken, Edward confronted Aimee with the
emails, but she denied having an affair.  Edward asked Aimee to stop traveling
with Mark for work, but she declined the request.  Thereafter, Aimee’s
communication with Edward slowed, and she tried to “isolate” him from L.L.H.
“every opportunity she had.”
          Aimee
filed for divorce in May 2008 and requested the exclusive right to designate
L.L.H.’s primary residence.  Edward filed a counterpetition for divorce also requesting
that he be awarded the exclusive right to designate the primary residence of
L.L.H.  The trial court issued temporary orders naming Edward primary
conservator and gave Aimee a standard possession order.
A
final jury trial commenced in October 2010 to determine who had the right to
designate L.L.H.’s primary residence.[1]  After considering the
testimony of Aimee, Edward, and numerous other witnesses, the jury chose
Edward.  The remaining issues—dissolution, property division, visitation, and
support—were heard and determined by the trial court.  In addition to granting
the divorce, dividing the community estate, and awarding Edward $50,000 in
attorney’s fees, the trial court awarded Edward the exclusive right to consent
to medical, dental, and surgical treatment of L.L.H. involving invasive
procedures; the exclusive right to consent to psychiatric and psychological
treatment of L.L.H.; and the exclusive right to make decisions concerning
L.L.H.’s education.  The trial court later entered findings of fact and
conclusions of law and a temporary order pending appeal awarding Edward
appellate attorney’s fees in the amount of $95,000.
III.  Primary Conservatorship
and Exclusive Rights
          In
her first issue, Aimee argues that the evidence is factually insufficient to
support the jury’s verdict awarding Edward the exclusive right to determine
L.L.H.’s primary residence.  In her second issue, Aimee argues that the trial
court abused its discretion by awarding Edward the exclusive right to consent
to L.L.H.’s medical and psychological treatment and to make decisions regarding
her education.  Because the evidence is interrelated, we will conduct a
consolidated review.
          A.      Standards
of Review
          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).  The jury is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.  Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).  A jury confronted
with conflicting evidence may choose to believe one witness and disbelieve
others, it may resolve inconsistencies in the testimony of any witness, or it
may accept lay testimony over that of experts.  City of Keller v. Wilson,
168 S.W.3d 802, 819–20 (Tex. 2005).
          We
review the trial court’s decisions on custody, control, possession, and
visitation matters for an abuse of discretion.  Newell v. Newell, 349
S.W.3d 717, 720 (Tex. App.—Fort Worth 2011, no pet.).  To determine whether a
trial court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, we must
decide whether the act was arbitrary or unreasonable.  Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004).  Legal and factual sufficiency are not independent grounds of
error in this context, but they are relevant factors in deciding whether the
trial court abused its discretion.  In re T.D.C., 91 S.W.3d 865,
872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g).
          The
best interest of the child shall always be the primary consideration in
determining the issues of conservatorship and possession of and access to the
child.[2]  Tex. Fam. Code Ann.
§ 153.002 (West 2008); see Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976) (listing nonexhaustive factors court may use to determine
best interest).
          B.      Specific
Arguments and Analysis
          Aimee
argues that in order to reach the conclusion that it did—award Edward primary
conservatorship—the jury had to both reject her testimony and “discredit all of
the evidence adduced from objective, impartial third parties.”  She contends
that the jury’s “[i]mputing a perception of one party’s lack of credibility
[presumably Aimee’s] on all objective corroborations of that party’s position
is not reasonable”; therefore, the jury’s verdict fell outside
the zone of reasonable disagreement.  Likewise, in attacking the trial court’s
decision to award Edward certain exclusive decision-making rights, Aimee argues
that “[i]t was not reasonable for the Trial Court to ignore all of the evidence
demonstrating that the parties were competent to exercise these rights
independently.”  She challenges the sufficiency of the evidence to support the
trial court’s findings of fact 6, 7, 8, and 9, which pertain to the exclusive
decision-making rights awarded to Edward.[3]
          We
have reviewed the record.  In arriving at its determination that it is in
L.L.H.’s best interest that Edward be the conservator with the exclusive right
to designate L.L.H.’s primary residence, the jury reasonably could have (1) determined
that Aimee and several of her purportedly impartial, third-party witnesses were
less credible than Edward and several of his witnesses; (2) resolved
conflicting evidence in favor of Edward; and (3) given less weight to
Aimee’s and some of her witnesses’ testimony than to Edward’s and some of his witnesses’
testimony.  As factfinder, the trial court could have reasoned similarly regarding
L.L.H.’s education and her medical and psychological treatment.  We set out some,
but not all, of the evidence that the factfinders could have considered.  See
Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006)
(“[N]either the appellate rules nor this Court require detailed recitations of
the evidence when a factual sufficiency complaint is overruled.”).
                   1.       Aimee’s
Relationship with Mark
          Aimee
acknowledged that her testimony at the May 2008 temporary orders hearing that
her relationship with Mark was “purely professional” was not “the complete
truth.”  She testified that Mark was actually “a very close friend” at the
time.  Further, although Aimee claimed that she did not begin to have a
physical relationship with Mark until July 2008, after the temporary orders
hearing, the jury heard Edward’s testimony about the concern that he had
developed by late 2007 or early 2008 that “something was going on” with his
marriage, and it considered emails between Aimee and Mark that had ultimately led
Edward to conclude that Aimee was having an affair.  Specifically, Aimee stated
the following to Mark in several of the emails dated around February 2008:  “Lets
go make out!”; “You just owe me a nice juicy make out session!  VERY SOON!”; “Could
have made it a HOT date night!!”; and “74.00 at the Sheraton or 125.00 at the
Ritz?  Will you be all mine???”  In addition to rejecting Aimee’s testimony
that she did not begin a physical relationship with Mark until after the
divorce was filed, the jury could have reasonably concluded that Aimee was less
credible after she admitted to not being completely truthful with the trial
court.
                   2.       Aimee’s
Allegations of Violence
          Aimee
testified that when Edward confronted her with the emails in early March 2008,
he grabbed her by the wrists, threw her down on the floor, grabbed her again,
and said, “I ought to knock your teeth out right now.”  Edward disagreed with
Aimee’s testimony.  He explained that he did not touch Aimee that night and
that he had never struck her, pushed her down, held her head on the carpet, or
been violent to her in any way.  Aimee agreed that she did not call the police
that night, did not file for divorce until two months later, and did not file a
motion for a protective order.  The jury could have chosen to reject Aimee’s
testimony that Edward was physically violent with her and concluded that her
testimony negatively impacted her credibility.
                    3.       Aimee’s
Allegations of Drug Use
          Aimee
accused Edward of smoking marijuana before and after L.L.H. was born and up
until the divorce was filed.  Edward acknowledged that he had smoked marijuana
but said that he had last done so sometime in 2002 or 2003—several years before
L.L.H. was born.  The trial court admitted in evidence several photographs that
Aimee had contended showed Edward’s marijuana located at the marital residence,
but Edward was unable to identify what the photographs actually depicted.  Several
of the photographs did, however, contain the date “APR 27 2008” printed
on them, which was only four days before Aimee filed her original petition for
divorce.  Edward testified that “[w]ithout question” it was clear to him that
from March 2008 forward, Aimee’s goal was to “destroy” him in the divorce.  Again,
the jury could have rejected Aimee’s testimony that Edward was a habitual drug
user and reasoned that her testimony negatively impacted her credibility.
                    4.       Aimee’s
Testimony About Edward and L.L.H.
          Aimee
testified that Edward was “indifferent” when he learned that she was pregnant,
that he attended only 40% of her weekly doctor’s appointments during her high-risk
pregnancy, and that she thought he felt inconvenienced during her two-and-a-half-day
stay at the hospital after L.L.H.’s birth.  Aimee recalled that when L.L.H. was
born, Edward left the hospital to let the dogs out and to go to Gary’s.  Aimee said
that Edward spent even more time with Gary after L.L.H. was born (as much as
four times a week every week) and that she had asked him every day if he would
stay home more often, but Edward responded that he had things to do at Gary’s.  Aimee
also expressed concern about L.L.H.’s hygiene when Edward has possession of
L.L.H., explaining that there have been times when her hair was greasy, she did
not smell clean, and she was wearing the same clothes that she was wearing when
Aimee dropped her off.
          Contrary
to Aimee’s testimony, Edward said that he was “elated” when Aimee became
pregnant and that he missed only one doctor’s visit during her pregnancy, and he
described to the jury the events surrounding L.L.H.’s birth in detail.  Edward
explained that he left the hospital later in the evening after L.L.H.’s birth
to go take care of the dogs and (on the advice of their veterinarian) to allow
the dogs to sniff the blankets that L.L.H. had been wrapped in but that he “[a]bsolutely
[did] not” go to Gary’s.  Edward disagreed that he spent as much time with Gary
after L.L.H.’s birth as Aimee estimated, pointing out that his Sunday routine
included taking L.L.H. to the park to feed the ducks and to play.  Suzanne
Freeney, a neighbor of Aimee’s and Edward’s since 2005, testified that she
thought Edward was more involved with L.L.H. than Aimee was before Aimee moved away. 
Regarding L.L.H.’s hygiene, Edward testified that he ensures that L.L.H. is
always cleaned, and he explained that he does indeed return L.L.H. to Aimee in
the same clothes that L.L.H. wears when Aimee returns L.L.H. to him because when
he does not, the clothes that he purchases for L.L.H. “don’t come back, and
specifically the socks I put [L.L.H.] in, [Aimee] cuts them up in front of
[L.L.H.]”  The jury reasonably could have resolved these conflicts in Aimee’s
and Edward’s testimony in favor of Edward.
                    5.       Dr. Michael
Flynn
          The
trial court appointed Dr. Flynn, a psychologist and lawyer, to perform a
social study.  He interviewed both Aimee and Edward and gathered information
from several individuals (or “collateral sources”) as part of his evaluation.  Dr. Flynn
ultimately opined that Aimee is better suited to be L.L.H.’s primary
conservator because “her social skills are smoother and more facile” than
Edward’s, Edward “is a little stiff with people,” and L.L.H. will survive with
Edward but thrive with Aimee.  On cross-examination, however, Dr. Flynn
acknowledged that family code section 107.0514 identifies two elements of a
social study as including the “interview . . . of each child at
issue in the suit who is at least four years of age” and “the obtaining of information
from relevant collateral sources.”  See Tex. Fam. Code Ann.
§ 107.0514(a)(2), (4) (West 2008).  Dr. Flynn explained that he neither
interviewed L.L.H. nor did he talk to any of the “collateral sources” that
Edward had identified for him.  Although Dr. Flynn explained his actions
by pointing out that he did speak to L.L.H., albeit in the presence of Aimee
and Edward, and that when performing a social study he seeks to avoid
interviewing sources that may have an “agenda,” such as neighbors or relatives,
nothing prohibited the jury from altogether rejecting or affording less weight
to Dr. Flynn’s recommendation that Aimee be appointed primary conservator
because the jury could have resolved the best-interest-of-the-child inquiry without
the benefit of Dr. Flynn’s testimony.  See City of Keller, 168
S.W.3d at 820 (providing that jurors may disregard even uncontroverted expert
testimony unless the subject is one for experts alone); Garcia v. Garcia,
No. 04-06-00440-CV, 2007 WL 2116399, at *2–4 (Tex. App.—San Antonio July 25,
2007, no pet.) (mem. op.) (holding evidence legally and factually sufficient to
support jury’s decision to appoint father primary conservator despite different
recommendation in social study).
                    6.       Michelle
Kearby
          Kearby
testified that Aimee began bringing L.L.H. to counseling in February 2009.  Kearby
was concerned about several things that L.L.H. had reported about Edward—that
she had showered with him and that he had tickled her in her “private
parts”—but Kearby said that those things were no longer occurring.[4]
 Kearby reported to CPS L.L.H.’s “outcry” that Edward had tickled her “private
parts,” but CPS ruled out the allegation.[5]  When pressed to give an
opinion about whether it would be in L.L.H.’s best interest for either Aimee or
Edward to be primary conservator, Kearby responded that she thought it was in
L.L.H.’s best interest “to have equal time with both of her parents.”  The jury
could have reasonably concluded that Kearby’s testimony favored neither Aimee
nor Edward.
                    7.       Shauna
Walker and Diana Kravik
          Walker
and Kravik both taught L.L.H. at the Primrose School of Wellington, where
L.L.H. attended daycare and pre-kindergarten, and both testified relatively
favorably for Aimee.  Walker recalled that L.L.H. was dressed nicer when Aimee
dropped her off, that L.L.H. was often late when Edward dropped her off, that
L.L.H. sometimes seemed tired after staying with Edward, and that L.L.H. was
Aimee’s number one priority.  Kravik echoed some of Walker’s testimony about
L.L.H. and additionally opined that L.L.H. was “in awe” of Aimee.
          But
Edward testified that after Aimee moved out of the marital residence, she began
bringing goody bags to L.L.H. at Primrose, calling L.L.H. there every day, and
taking her out for lunch during periods of his possession.  For various
reasons, Edward asked the Primrose staff to stop permitting Aimee to do those
things, but they did not respond to all of his requests, and his relationship
with the staff consequently deteriorated as the divorce proceeded.  Although he
did not go into any specifics, Edward testified that there were occasions when
he thought that Walker had lied to him.  Edward consequently enrolled L.L.H. in
kindergarten at a different school.  The jury reasonably could have weighed the
evidence about L.L.H. and Primrose either equally between both Aimee and Edward
or in favor of Edward.
                    8.       Aimee’s
Involvement at L.L.H.’s Current School
          Aimee
testified at the bench trial that she is “very active” at L.L.H.’s school.  Specifically,
she is on the PTA, she volunteers, she coordinates the kindergarten lunch
program, she is a “technology mom” and a “Monday mom,” she works in the
library, and she eats lunch with L.L.H. at school up to three times a week.  Edward
explained that his level of participation at L.L.H.’s school is not as high as
Aimee’s because L.L.H. needs to establish her independence and because Aimee’s
significant involvement is disruptive to L.L.H.  Edward cited these concerns as
reasons to award him the exclusive right to make decisions regarding L.L.H.’s
education.
                    9.       Aimee,
Edward, and L.L.H.
          Aimee
is employed and testified that she wants to be the primary conservator of L.L.H.
because she wants “to be there to protect her, and to be with her, make sure
she’s taken care of, she’s healthy, she’s in good schools, and that she’s
safe.”  According to Aimee, the most important thing for L.L.H. is that she is
happy.
          Edward
testified that he lost his job in July 2010 after working for the same employer
for twenty years but that he planned to “vigorously” pursue a job after the
divorce proceedings concluded.  Edward explained the routine that he and L.L.H.
have developed, that L.L.H. has many friends in the neighborhood, and that the
highest priority in his life is L.L.H.
                    10.     Holding
          The
evidence supporting the jury’s verdict awarding Edward the exclusive right to
determine L.L.H.’s primary residence is not 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.  See Pool, 715 S.W.2d at 635; Cain,
709 S.W.2d at 176.  Therefore, the evidence is factually sufficient to support
the jury’s verdict.  Further, the trial court’s decision to award Edward the
exclusive right to consent to L.L.H.’s medical and psychological treatment and
to make decisions regarding her education was neither arbitrary nor
unreasonable and, therefore, not an abuse of discretion.  See Low,
221 S.W.3d at 614.  Except for findings 6, 7, 8 and 9, which are subsumed
in our holding immediately above, to the extent that any of the other
challenged findings are erroneous for one of the reasons identified by Aimee,
they are immaterial.[6]  See Cooke Cnty. Tax
Appraisal Dist. v. Teel, 129 S.W.3d 724, 731 (Tex. App.—Fort Worth 2004, no
pet.) (reasoning that immaterial finding of fact is harmless and not grounds
for reversal).  Accordingly, we overrule Aimee’s first and second issues.
IV. 
Property Division
          In
her third issue, Aimee argues that the trial court abused its discretion in its
division of the community estate.  She points out that the trial court divided
the community assets 76% to Edward and 24% to Aimee but that Edward received
99.6% of the community estate when the $50,000 attorney’s fee award is accounted
for.
          A
trial judge is charged with dividing the community estate in a “just and right”
manner, considering the rights of both parties.  Tex. Fam. Code Ann. § 7.001
(West 2006); Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort Worth
2009, no pet.).  The court has broad discretion in making a just and right
division, and absent a clear abuse of discretion, we will not disturb that
division.  Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd v.
Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth 2004, no pet.).
          Community
property does not have to be divided equally, but the division must be
equitable.  Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso
1998, pet. denied).  The trial court may consider the following non-exclusive
factors, among others, in determining whether the division of the community
estate is equitable:  (1) the spouse’s capacities and abilities;
(2) education; (3) the relative financial conditions and obligations
of the parties; (4) size of the separate estates; (5) the nature of
the property; (6) disparities in earning capacities and income;
(7) fault of the breakup of the marriage; and (8) any wasting of the
community assets by one of the spouses.  Murff v. Murff, 615 S.W.2d 696,
699 (Tex. 1981).  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.).
          According
to Aimee’s proposed property division, the marital residence had a gross value
of approximately $287,000 and community property equity in the amount of approximately
$48,000.  Aimee proposed that the trial court award Edward all of the community
estate in the residence, and it did, in addition to awarding Edward all of the
approximately $220,000 in debt remaining on the residence.  Edward had a
separate property interest in the residence of approximately $26,000.
          The
community portion of Edward’s 401(k) consisted of approximately $100,000, and
Aimee proposed to divide that amount almost equally between her and Edward, but
the trial court awarded Edward all of the community funds in the account.  Aimee’s
401(k) contained approximately $44,000 of community funds, and the trial court
awarded the entire amount to Aimee, as she had requested.  Edward’s separate
property interest in his 401(k) was approximately $34,000, and Aimee’s separate
property interest in her 401(k) was approximately $8,000.
          It
thus appears that the primary difference between Aimee’s proposed property
division and the property division ordered by the trial court is its award to
Edward of 100% instead of 50% of the community funds in his 401(k) and $50,000
in attorney’s fees.  A reasonable basis supports the trial court’s
disproportionate division of the community estate.
          Edward
was unemployed at the time of trial, and the trial court awarded all of the remaining
debt on the marital residence to him.  Conversely, Aimee was employed at the
time of trial (working for a business for which her mother is the president),
her mother purchased her house for her, and her mother makes the monthly
mortgage payments on the house.  Although Aimee denied that she had tried to
get Edward fired, he testified that Aimee played a “significant role” in his
termination from his long-time employer—sometime after Aimee filed for
divorce, she complained to Edward’s employer that he had accessed the emails on
her laptop back in March 2008, and Edward was placed on suspension and
eventually let go.
          Also,
Edward incurred approximately $195,000 in attorney’s fees over the course of
the divorce, and although his mother helped him pay the fees, Edward explained
that he was obligated to reimburse her.  Aimee testified that she had incurred
approximately $175,000 in attorney’s fees and that her mother had paid the
fees, but Aimee did not testify that she was obligated to repay her mother.
          To
the extent that the trial court concluded that Aimee’s relationship with Mark
played a role in the breakup of the marriage, it could have considered those
facts in making its property division.  Accordingly, we hold that the trial
court’s community property division was equitable and that the trial court
therefore did not abuse its discretion by dividing the community estate in
favor of Edward.  We overrule Aimee’s third issue.
V.  Property Division Punishment
and Fault Factor
          In
her fourth issue, Aimee argues that the trial court erred by using the property
division as a means to punish her.  There is nothing in the record to support this
argument.  As we concluded above, a reasonable basis supports the trial court’s
equitable disproportionate property division.
          Aimee
also argues that there was no evidence that she committed adultery prior to
filing for divorce and, therefore, that the trial court abused its discretion by
relying on her pre-divorce adultery as a factor in its disproportionate
division of the community estate.
          Circumstantial
evidence may be used to establish any material fact, but it must transcend mere
suspicion, and the material fact must be reasonably inferred from the known
circumstances.  Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001). 
Adultery can be shown by circumstantial evidence.  Newberry v. Newberry,
351 S.W.3d 552, 556 (Tex. App.—El Paso 2011, no pet.).
          The
trial court could have reasonably inferred that Aimee committed adultery before
filing for divorce based on the following evidence:  (1) the content
of the emails that Aimee and Mark exchanged, (2) Edward’s testimony that
he thought “something was going on” with his marriage, (3) Aimee’s
admission that she had a physical relationship with Mark, and (4) Aimee’s
acknowledgment that she was not completely truthful with the trial court at the
temporary orders hearing about her relationship with Mark.  See id. (holding
evidence legally and factually sufficient to support trial court’s finding of
adultery as basis for divorce when appellant went into room with his high
school sweetheart and stayed there with the doors closed and lights off for
more than twenty minutes).  Moreover, for the reasons set out already, the
trial court’s disproportionate property division is equitable even in the
absence of any evidence that Aimee committed adultery before filing for
divorce.  We overrule Aimee’s fourth issue.
VI.  Appellate
Attorney’s Fees
          In
her fifth issue, Aimee argues that the trial court abused its discretion by
awarding Edward appellate attorney’s fees pending appeal in the total amount of
$95,000.
          The
family code permits the trial court to render a temporary order necessary for
the preservation of the property and for the protection of the parties during
an appeal, including an order for the payment of attorney’s fees and expenses. 
Tex. Fam. Code Ann. § 6.709(a)(2) (West 2006); see also id. § 109.001
(West 2008) (permitting order for attorney’s fees necessary for the safety and
welfare of the child pending appeal).  “As long as there is a credible showing
of the need for attorney’s fees in the amount requested and the ability of the
opposing spouse to meet that need, the trial court has authority by temporary
orders to require the payment of such fees.”  Herschberg v. Herschberg,
994 S.W.2d 273, 279 (Tex. App.—Corpus Christi 1999, no pet.).
          Edward
initially argues that Aimee is collaterally estopped from asserting this issue
because this court already considered the same issue in an original proceeding
filed by Aimee in cause 02-11-00259-CV.  See Halleman v. Halleman, Nos.
02-11-00238-CV, 02-11-00259-CV, 2011 WL 5247882, at *3–5 (Tex. App.—Fort Worth
Nov. 3, 2011, orig. proceeding) (mem. op.).  We disagree.  The trial
court’s original order awarding Edward attorney’s fees pending appeal did not
condition the awards on an unsuccessful appeal by Aimee.  Instead, the order
required Aimee to prepay $95,000 into the trial court’s registry.  Aimee therefore
(multifariously) argued in her third issue in the original proceeding that the
trial court abused its discretion “by ordering her to pay $95,000 in [Edward’s]
attorney’s fees on appeal and to prepay that amount into the court’s
registry.”  Id. at *3 (emphasis added).  We concluded that the trial
court had abused its discretion by requiring Aimee “to prepay” the $95,000 and that
Aimee did not have an adequate remedy by appeal, and we ordered the trial court
(a) to vacate the provisions of its order requiring “the immediate deposit
of $95,000 into the trial court’s registry” and (b) to substitute language
in the order awarding Edward appellate attorney’s fees conditioned upon his
success at the intermediate appellate court and at the supreme court.  Id.
at *4–5 (emphasis added).  Thus, while we agreed with Aimee that the trial
court had abused its discretion by requiring her to deposit $95,000 into the
trial court’s registry “in order to continue with her appeal,” we did not otherwise
address or sustain her argument that the trial court had abused its discretion
by awarding Edward $95,000 in appellate attorney’s fees pending appeal.[7]
          Moreover,
the issue is ripe for review.  In our analysis in the Halleman original
proceeding, we contrasted the facts there with the facts of In re
Merriam, 228 S.W.3d 413, 416 (Tex. App.—Beaumont 2007, orig. proceeding),
in which the court of appeals held that the relator had an adequate remedy by
appeal—and therefore was not entitled to mandamus relief—because the trial
court order at issue did not require him to pay appellate attorney’s fees until
the conclusion of an unsuccessful appeal.  See Halleman, 2011 WL
5247882, at *4–5.  Here, having ordered the trial court to substitute language
in the order awarding Edward appellate attorney’s fees conditioned upon his
success at the court of appeals and the supreme court, this case now stands in
the same procedural posture as Merriam did, and like the relator there,
who could challenge the appellate attorney’s fees “in his pending appeal from
the final judgment,” Aimee may challenge in this appeal from the final judgment
the award of appellate attorney’s fees pending appeal.  See Merriam, 228
S.W.3d at 416.
          Turning
to Aimee’s argument, Heather King testified at the hearing on Edward’s motion
for temporary orders pending appeal that she is a board certified family law
attorney who handles trials and appeals involving divorces and that based on
her experience, an award of appellate attorney’s fees in the amount of $50,000
for defending the appeal at the court of appeals, $10,000 for defending against
a petition for review at the supreme court, and $35,000 for full briefing at
the supreme court would be reasonable and necessary.  Edward testified that he
was unemployed at the time of trial and that he was still unemployed; that he
receives assistance from his family to pay bills; that Aimee had not paid him
any part of the $50,000 judgment for attorney’s fees awarded to him by the
divorce decree; and that since the final trial, he had incurred additional expenses
related to defending himself against “false” CPS allegations.  Also, Edward is L.L.H.’s
primary conservator and responsible for the debt owed on the residence.  Although
Aimee testified that her monthly bills slightly exceeded her net income, she is
employed and confirmed that her mother “will pay” the costs associated with the
appeal.  Indeed, Aimee’s mother paid Aimee’s attorney’s fees incurred at trial
($175,000) and paid appellate counsel a $25,000 retainer.
          We
hold that the trial court did not abuse its discretion by awarding Edward
attorney’s fees pending appeal as modified by our November 3, 2011
memorandum opinion and judgment.  See, e.g., In re Garza, 153
S.W.3d 97, 101 (Tex. App.—San Antonio 2004, orig. proceeding) (holding that
trial court had authority to award appellate attorney’s fees because real party
in interest “has primary responsibility for the children and for the care and
upkeep of and the debt on the children’s principal home”).  In light of the
modified award of attorney’s fees pending appeal, Edward is entitled to $50,000
upon issuance of the mandate in connection with this appeal because he filed a
brief in this court and we have affirmed the trial court’s entire judgment.  See
Halleman, 2011 WL 5247882, at *5.  Further:
·      Edward will be
entitled to $10,000 following the supreme court’s final judgment denying a
petition for review filed by Aimee in connection with this appeal if he files a
reply to the petition for review pursuant to a request by the supreme court; and
 
·      Edward will be
entitled to $35,000 following the rendition of judgment by the supreme court if
he files a brief pursuant to the supreme court’s request for full briefing and
the supreme court renders an opinion affirming this court’s judgment in whole.
See
id. 
Accordingly, we overrule Aimee’s fifth issue.
VII.  Conclusion
          Having
overruled all of Aimee’s issues, we affirm the trial court’s judgment.
 
 
BILL MEIER
JUSTICE
 
PANEL: 
GARDNER,
MCCOY, and MEIER, JJ.
 
DELIVERED:  August 23, 2012




[1]The sole jury question
submitted asked, “To which parent do you find, from a preponderance of the
evidence, it would be in the best interest of the child to grant the exclusive
right to set the residence of the child?”


[2]The jury was so instructed
at trial.


[3]Aimee also challenges
other findings of fact—7, 12, 13, 14, 15, 16, 17, 19, 20, 21, 24, 25, 26, 27,
29, 30, 32, 33, 34, 35, 36—on the grounds that they either misapply the law,
pertain to a non-ultimate issue, or relate to an issue that the jury decided.


[4]Edward explained that he
had showered with L.L.H. on one occasion, but it happened after they had been
swimming and he wore his bathing suit.


[5]Two additional reports
were later made to CPS, but they too were either ruled out or dismissed.


[6]Aimee argues that the only
way to rationalize the trial court’s findings is to conclude that it based its
decisions on events that occurred after the temporary orders were entered but
before the final trial.  There is nothing in the record to support this
contention.


[7]Indeed, the memorandum
opinion concluded by stating that we merely sustained Aimee’s third issue “in
part.”  Halleman, 2011 WL 5247882, at *6.


