                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                             ______________________

                               NO. 09-17-00162-CV
                             ______________________

                      BOBBY G. BENNETT JR., Appellant

                                          V.

                  LAURA MERRYMAN BENNETT, Appellee


                    On Appeal from the 418th District Court
                         Montgomery County, Texas
                       Trial Cause No. 15-05-04918-CV


                           MEMORANDUM OPINION

      Bobby G. Bennett Jr. (Bobby) and Laura Merryman Bennett (Laura) were

married in 1991. In 2015, Laura filed a petition for divorce, and Bobby filed a

counter petition for divorce. A jury trial was conducted on the conservatorship of

their children, and a bench trial was held on the terms of visitation, child support,

and the division of the marital estate. The trial court signed a final decree of divorce

and issued findings of fact and conclusions of law. The final decree of divorce stated

                                           1
that, in accordance with the jury verdict and the evidence, the trial court appointed

Laura as sole managing conservator and Bobby as possessory conservator of the two

children, ordered child support to be paid by Bobby, and made a division of the

marital estate. On appeal, Bobby raises four issues challenging only the division of

the marital estate. Bobby (1) contends the trial court abused its discretion in not

excluding certain testimony from Laura’s expert witness about fraud and waste of

the community estate; (2) challenges the factual sufficiency of the evidence

supporting the trial court’s findings of fraud, breach of fiduciary duty, constructive

fraud, and waste; (3) asserts the trial court abused its discretion in failing to make a

just and right division of the community estate; and (4) argues the trial court abused

its discretion by ordering Bobby to pay all attorney’s fees. 1


      1
         After Bobby’s initial appellate attorney filed his appellate brief, and after the
Appellee had already filed her brief, on March 6, 2018, Bobby filed a motion for
substitution of appellate counsel, and this Court granted the motion. This Court
denied Bobby’s motion to strike his original brief and to file an amended brief.
However, this Court granted Bobby’s motion for extension of time to file a
supplemental brief and allowed Bobby to raise “one additional issue . . . if new
appellant counsel deems [it] necessary.” See Tex. R. App. P. 38.7. In “Appellant’s
Supplemental Brief and Reply to Appellee’s Brief[,]” Bobby raises a fourth issue as
his “new issue” that we address as issue four in this Memorandum Opinion. To the
extent Bobby’s supplemental brief and reply raises any other “new issues,” we do
not consider them as those arguments were not raised in his original brief, and the
presentation of those new arguments are not on the terms prescribed by this Court’s
letter. See Tex. R. App. P. 38.3; see also ERC Midstream LLC v. Am. Midstream
Partners, LP, 497 S.W.3d 99, 108 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(refusing to consider appellants’ issue because it was a new issue raised in a
                                            2
                             Evidence from Bench Trial 2

      Buddy Smith, an investigator with Child Protective Services (the

“Department”), testified that after the docket call for the jury trial but the week prior

to the jury trial beginning, Bobby called in a report to the Department, alleging

neglectful supervision by Laura of their two children and Bobby said that Laura had

suicidal tendencies. Smith testified that he met with Laura and the two children, the

children made no outcries of abuse or neglect against Laura or their home

environment, the children did not voice any concerns related to allegations of

suicidal tendencies of Laura, Laura denied having suicidal tendencies, and Smith

learned that Laura and Bobby were involved in a highly contested divorce and

custody dispute that would soon go to trial. Smith’s report and his testimony

included statements that one of the children reported that Bobby had hit Laura in the



supplemental brief after appellee had filed response); Myan Mgmt. Grp., L.L.C. v.
Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 754 n.1 (Tex. App.—Dallas
2009, no pet.) (reply brief may not be used to raise new issues even to refute a matter
raised in an appellee’s response).
      2
        We restrict our discussion of evidence from the trial to the testimony related
to the court’s division of the marital estate because all of the complaints articulated
by Bobby pertain thereto. The trial court heard the evidence regarding the division
of the marital estate during a bench trial and the reporter’s record for the bench trial
notes that “[t]his record does not include jury trial testimony from 9/12/16 through
9/20/16, per Appellant’s Designation of Reporter’s Record.”

                                           3
past and that the police had twice been to the residence for welfare checks.

According to Smith, he found no concerns with respect to the children. Smith, on

behalf of the Department, notified Laura that the Department had investigated the

allegations and concluded the alleged abuse or neglect did not occur, and the

Department closed the investigation.

      Laura testified that she and Bobby were married in 1991 and separated in

2015. According to Laura, she petitioned for a divorce on the grounds of Bobby’s

cruel treatment toward her and because the marriage had become insupportable.

According to Laura, during the pendency of the divorce she and the children were

living in Tyler, Texas with her parents. At the time of trial, Laura had access to about

$15,000 in her bank account and all other assets were under Bobby’s sole

management and control. A spreadsheet of Laura’s monthly expenses was admitted

into evidence. Laura testified that she has a “business degree” from Baylor

University, but she has not worked outside the home in over twenty years. Laura

testified that at the time of trial she was unemployed and had not applied for a job,

but she explained that she was trying to look for employment and was getting

certified as a substitute teacher. According to Laura, she would like to buy or rent a

home and she estimated that monthly rent or a mortgage payment would cost $2,500

per month.

                                           4
      Laura hired Mike Stocker as her attorney in May of 2015 to represent her in

the divorce proceeding. She testified that she was requesting the trial court order the

payment of the balance of Stocker’s attorney’s fees as part of the division of the

marital estate. According to Laura, she recently learned that Bobby had prepaid some

taxes on The Woodlands residence that Bobby lived in without consulting her. Laura

requested that she be awarded The Woodlands residence so that she could sell it and

buy a home in Tyler. Laura also testified that she wanted the trial court to award her

their vacant lot in Tyler that they own free and clear so that she could sell it and

apply the proceeds to a new home. Laura testified that sometime after the jury verdict

in the custody case she learned about a Renasant Bank account ending in 7668 on

which her husband was a signatory along with his father. Laura also testified that

Bobby did not consult with her before he decided to liquidate the children’s 529

education accounts and that now the children do not have those funds available for

college.

      Bobby testified that he is an anesthesiologist and he has been in private

practice since 1992. According to Bobby, the family moved to Tyler in 1994 mainly

because Laura wanted to live there. Bobby testified that he worked at a hospital in

Tyler until 2005, when his physician group was replaced by the hospital. Bobby

testified that because the family had just built a million-dollar home in Tyler and

                                          5
Laura would not leave Tyler, Bobby commuted to work in Longview. After six years

of commuting, and because of Bobby’s strained relationship with administration at

the Longview hospital and his desire to work closer to home, Bobby accepted a job

in “pain work” in Tyler. Bobby testified that he eventually believed working in Tyler

was no longer in his family’s best interest and the family moved to The Woodlands

where Bobby found employment. According to Bobby, The Woodlands job provided

a good income and was a “semiretirement position[]” because he was not required

to be on call, and although the job limited his ability to make a lateral transfer to jobs

in other cities, he thought he would have more time for his family.

      Bobby testified that he knew Laura did not want to move from Tyler, that after

the move to The Woodlands Laura became hostile, and that they separated in 2015.

Bobby’s counter-petition sought a divorce on grounds of irreconcilable differences

and Laura’s cruel treatment towards Bobby. According to Bobby, he alleged cruel

treatment by Laura as grounds for divorce based on Laura’s being “very demeaning

to [Bobby] [and] very demanding upon [Bobby]” and “discontent, . . . entitled, . . .

[and] insulting.”

      Bobby testified that, as of the time of trial, he was “[d]evasted” financially

and the divorce “has cost total nearly $2 million.” According to Bobby,



                                            6
      [a]ll of my kids’ college education money is gone except that money
      which I’ve given to Laura’s mother that’s being used for high school
      that came from me, not from her mother, and then all of most of my
      retirement, a good portion of my retirement is gone. All of my
      emergency savings is gone.

According to Bobby, despite his attempts during the divorce, he has been unable to

find comparable employment in Tyler.

      Bobby testified that his lawyers instructed him that he could use investment

money for case expenses. Bobby believed liquidating the 529 education accounts

had the least tax consequences over other investments, and that is why he chose to

liquidate the $184,000 in one account in October 2015 and the $157,000 in the other

account in April or May of 2016 to pay his attorney’s fees and expenses for the case.

Bobby testified that in October 2015 he also cashed out a combined $44,000 out of

two Uniform Gift to Minors Act accounts that were savings accounts for his children

because he wanted “[t]o prevent Laura from potentially getting access to those

funds.” According to Bobby, he initially kept the funds in the form of a check “for

emergency in [his] safe” but later deposited the check into his operating account to

pay bills once the trial court ordered all assets frozen and “all [Bobby’s] expenses

were three and four times” his monthly income. Bobby testified that during the

pendency of the divorce he was making $14,865 per month after taxes and paying

$6,137 for spouse and child support and court fees, and that his monthly expenses

                                         7
were close to $23,000 per month. According to Bobby, the only way he could pay

the $1.2 million in attorney’s fees and expenses for the case without liquidating other

retirement sources was to liquidate the 529 accounts, which had the least tax

consequence, and withdraw $350,000 out of his IRA, which was profit from the sale

of the Tyler home and a non-taxable amount. Bobby testified that he did not try to

hide money from Laura and that he believes his spending has been fair and it was

allowed by the standing orders. Bobby agreed that on the day of the temporary order

hearing, he took out a $200,000 line of credit on the Tyler home and he sent the

money in the form of a cashier’s check to his mother in Tupelo, Mississippi. He later

had his mother mail him the check that he then deposited into his own bank account,

and when the Tyler home sold per the court’s order, Bobby paid the line of credit off

with the proceeds from the sale of the Tyler home. Bobby also testified that he spent

money to pay “Vidoc Razor” to try to get access to his wife’s phone because the

passwords he had would not work.

      Stewart Gagnon testified that he is a lawyer and of counsel to the law firm of

Norton Rose Fulbright, U.S., L.L.P. and a former partner of the firm. According to

Gagnon he has been a licensed practicing attorney since 1974, and he is certified

with the Texas Board of Legal Specialization in family law. Gagnon testified he has

“written extensively” on “the characterization of marital property in the state of

                                          8
Texas, reimbursement as it relates to marital property in the state of Texas and

various elements of reimbursement [such as] reconstitution of the estate that has

since become part of our family code[.]” According to Gagnon, he has “written

extensively both [for][] the Advanced Family Law Course, the Marriage Dissolution

Course, New Frontiers of Marital Property, which [he] ha[s] spoken at several times,

as well as several programs at the American Academy of Matrimonial Lawyers.”

Gagnon testified that he was the chair of the Family Law Section Legislative

Committee for eighteen years and appeared before the legislature and lobbied on

behalf of the Family Law Section for and against legislation. Gagnon testified that

“[o]ne of those legislations was Section 7.009 of the Family Code, which allows the

Court, upon a finding of waste, to reconstitute the marital estate in order to divide it

appropriately.” Gagnon explained he has lectured and written about matters related

to breach of fiduciary duty and to various aspects of actual and constructive fraud in

family law cases. According to Gagnon, he and two other attorneys wrote a three-

volume treatise on Texas marital property law that is published by Reuters and West

Publication.

      Gagnon testified that the legal definition of “waste” in a family law case is

“the unreasonable use by a spouse in a harmful or destructive manner of a marital

estate so that it changes or diminishes the value of that estate at a point in time.”

                                           9
According to Gagnon, Bobby produced documents after the jury verdict in the

custody case that revealed Bobby had an out-of-state Renasant bank account with

his father. Bobby had deposited funds from a line of credit into this account and

obtained a cashier’s check, and the account had not been listed on any of Bobby’s

prior inventories that Bobby had submitted in the divorce. Gagnon testified that a

temporary order agreed to by the parties had been entered on August 20, 2015, and

that in the agreed temporary order Bobby agreed to the appointment of Laura as sole

managing conservator and that Bobby would have supervised visits with their

children. According to Gagnon, for purposes of his testimony regarding Laura’s

waste claim, Gagnon focused on the time of August 2015 until shortly before trial

and that $988,602.86 of Bobby’s own litigation-related expenses were paid by

Bobby from the community estate during that period. Gagnon testified that he

reviewed the trial judge’s order in which the judge ordered the parties not to receive

or pay any additional fees or pay any additional legal expenses from the community

estate. Gagnon testified that based on his review of Bobby’s inventories, he

concluded that even after the judge’s order telling Bobby not to do so, Bobby

liquidated the children’s 529 accounts and used the funds to pay his own legal fees

in violation of the order. Gagnon testified that these actions by Bobby “required

additional work on behalf of both parties and additional fees on behalf of both parties

                                          10
[that] led to a subsequent fallback of those funds back into the marital estate at least

for a time period[.]”According to Gagnon, the money in the 529 accounts was not

Bobby’s but was instead money solely in the children’s names that was gifted to

them. Gagnon also testified that Bobby violated the court’s order when he made an

August 18, 2016 payment of $10,045 to Dr. Seth Silverman, Bobby’s retained expert

witness who did not testify at trial.

      Gagnon testified that he reviewed documents related to the litigation expenses

and Petitioner’s Exhibit 81, which he described as an accounting of the litigation and

litigation-related expenses involved in the divorce case. Gagnon explained that

Petitioner’s Exhibit 81 was prepared by Stewart & Hurst, a forensic accounting firm

retained by Laura that, among other things, does marital property forensic

accounting and tracing for divorce cases. Petitioner’s Exhibit 81 listed the total

divorce-related payments at $1,226,455.97, as of October 25, 2016. Gagnon testified

that, based on his review of Petitioner’s Exhibit 81, Bobby had retained and paid

more than $5,000 to an ad litem or amicus attorney for the children in the custody

case. According to Gagnon, this relates to Laura’s waste claim because Bobby had

no legal authority to retain and pay an ad litem because (1) under the temporary

orders he was not sole managing conservator of the children and lacked the authority

to contract or employ people on their behalf and (2) it is only the trial court who can

                                          11
appoint someone to act on behalf of the children as an attorney or ad litem. On direct

examination, Gagnon also testified:

      Q. Are you aware of the witnesses and the cost associated with
      witnesses subpoenaed by Dr. Bennett for purposes of the jury trial, just
      the child custody issues?

      A. Well, my understanding is he subpoenaed a significant number of
      witnesses including a lot of witnesses well outside the subpoena range
      of this court and then withdrew those subpoenas.

      Q. Are you aware of the cost, the expenditure by the community estate
      for the issuing of those subpoenas?

      A. I have seen those subpoenas.

      ....

      Q. . . . [L]ook at Petitioner’s Exhibit 81[.]

      A. Okay. I have it.

      Q. . . . Items 1 through 39 . . . what if anything is waste and/or attorney
      fees issues, in your opinion?

      ....

      A. Again, after August -- end of August of 2015, Dr. Bennet’s
      continued insistence regarding the custody of his children caused
      additional fees to be incurred on behalf of both Ms. Bennett and the
      marital estate. For example, Kit Harrison was paid $8,000.00 on
      September 9th. If Dr. Bennett had not pursued unreasonably that
      custody determination all the way through a jury trial where he didn’t
      testify, those expenses for Dr. Harrison would not have been necessary.

      Q. . . . Line items 40 through and including 79.

                                          12
A. . . . There is $10,000 to Ruth Vernier. $10,000 to Seth Silverman,
who was engaged by Dr. Bennett as an expert witness but then never
until on the eve of trial provided any disclosure under Rule 194 as to
his opinions or conclusions or what he had considered and then never
testified.

Q. Was Dr. Seth Silverman a retained expert?

A. Yes. In fact, it was noted as such.

Q. All right. The disclosure you just mentioned, that came literally, like,
within a few days of the . . . jury selection, didn’t it?

A. That’s correct.

Q. Well after the August 18th[] discovery cutoff for purposes of the
trial?

A. That is exactly right.

Q. So did Dr. Seth Silverman add anything to this case?

A. No. But again, that was a habit of Dr. Bennett of designating expert
witnesses and then never even using them or engaging in a lot of money
and never using them, and there was no benefit to the community estate
for that.
       For example, Dr. Bennett designated somebody to do tracing and
testify as to characterization of separate property, which the only
separate property ever listed on any of the documents he provided was
a few items of personal property that were not contested and a
$200,000.00 cashier check that was apparently in the possession of his
mother at one time and all of a sudden dropped off his inventory. There
was no need to designate an expert witness with that type of testimony
and engage -- incur the expenses for that type of testimony when that
person -- there is no issue regarding separate property.

....

                                    13
      Q. Line 66. Would you look at that?

      A. There [are] Claudia Canales expenses, which is Line 55. Obviously,
      her expenses after August 31st wouldn’t be necessary if Dr. Bennett
      wasn’t unreasonably pursuing a sole managing conservatorship custody
      case. You asked me about 66? --

      Q. Yes.

      A. -- Laura Marburger, that’s $5,000.00 we talked about earlier.

      Q. All right.

      A. Additional Claudia Canales expenses. There is Pathway Forensics.
      There was Jed Moffett’s fee of $20,000.00 where Dr. Bennett
      apparently -- and it’s obvious from the record that he changed lawyers
      several times, from Mr. Jackson to Ms. Vernier to Mr. Moffett to Mr.
      Jackson to Ms. Vernier to Mr. Jackson again. I mean, all of that
      behavior, all of that action unreasonably cost without any benefit to this
      community estate, diminishes that estate.

      Gagnon stated that several payments by Bobby were made to his lawyers, and

according to Gagnon, changing lawyers as often as Bobby did drastically increased

the legal fees as each new attorney had to “recreate the wheel and that’s an

unreasonable expense, especially when you are bouncing between the same lawyers

back and forth.” According to Gagnon, Bobby also paid $10,000 to a private

investigator to record Laura’s actions and activities. Gagnon also testified about line

155 on Petitioner’s Exhibit 81 which reflected a payment made to “Vidoc Razor,

L.L.C.” which is a computer forensics company. According to Gagnon, the person

associated with the Vidoc Razor company was not designated to testify and the
                                    14
payment was made in violation of the court’s order. Gagnon also opined that these

payments along with other litigation-related expenses constituted waste.

      Gagnon reviewed Bennett’s 2013, 2014, and 2015 tax returns that

cumulatively resulted in a tax overpayment of $62,250 which Gagnon stated should

be a refund available to the taxpayer, but Bobby did not list the refund on Bobby’s

inventory. Gagnon noted in his testimony that Bobby prepaid with community funds

the 2016 property and school taxes on The Woodlands residence, and the amount

that he prepaid was also never disclosed on Bobby’s inventories. Gagnon explained

that “any of these prepayments to the IRS[,] to the tax appraisal districts or anything

like that of anything that is not due right now is a prepayment for his benefit and

should have been reflected as an asset on his inventory and not doing that caused

[Laura’s counsel] to do additional work and . . . hides assets that are not disclosed

by him.”

      Raymond Blevins, a certified public accountant and the Bennetts’ CPA prior

to the divorce, testified that the income tax liability for the Bennetts was $26,873 in

2013, $3,397 in 2014, and $41,421 for 2015. According to Blevins, approximately

$20,000 of the $41,421 tax liability was attributable to the sale of the $184,000 529

plan. Blevins testified that there was an overpayment of $37,841 from 2015 to 2016

and that approximately $62,500, in addition to the $37,841 had been prepaid by

                                          15
Bobby to the IRS for 2016. Blevins testified that there will be at least a $15,000 to

$18,000 tax liability for the $157,000 529 plan that was cashed out by Bobby, and

that the approximate total tax liability for 2016 will be $35,000 to $40,000 including

the penalty for the 529 plan. According to Blevins, based on estimated tax liability

for 2016 and amounts already paid, the Bennetts should have an overpayment and

refund of approximately $60,000. Blevins also testified that Bobby always wanted

the least money going out for taxes so he could keep the bills paid, and that if he had

wanted to try to harm the community estate then he could have taken other accounts

that could have created a greater tax burden.

                               Trial Court’s Findings

      In dividing the marital estate, the trial court awarded the following assets to

Bobby and Laura, respectively, and listed values for the assets in the trial court’s

written Findings of Facts and Conclusions of Law3:

Property Awarded to Bobby                            Value
Residential house in The Woodlands                   $890,560.00
Bank account ending in 932                           $1,897.23
Bank account ending in 4772                          $49,825.89
Retirement account ending in 8619                    $0.04
Retirement account ending in 0706                    $325,949.54
2012 Honda Ridgeline                                 $27,396.00



      3
         The parties stipulated that all other personal property would be divided in
arbitration and would not be a part of the marital estate divided by the trial court.
                                           16
Tyler Anesthesia Services d/b/a                       $25,595.45
      Bennett Enterprises, PA, which
      includes Bank account ending
      in 8696
BGB Management Company, LLC,                          $5,620.17
      which includes the BankCorp
      South money market account
      ending in 4883
Family Partnership                                    $0.00

Property Awarded to Laura                             Value
Vacant lot in Tyler, Smith County, Texas              $125,000.00
Bank account ending in 3384 in Petitioner’s name      $12,000.00
Portion of bank account ending in 4772 in name        $50,000.00
      of Respondent
Retirement account ending in 8934                     $190,892.89
Retirement account ending in 8933                     $55,168.65
Retirement account ending in 7267                     $192,428.39
Retirement account ending in 0996                     $434,391.31
Annuity                                               $106,983.46
Annuity                                               $59,083.25
2008 Toyota Sequoia                                   $11,340.00
2007 Honda Ridgeline                                  $4,345.00

The trial court also included the following findings of fact, in pertinent part:

      [] The Court finds that Respondent, Bobby G. Bennett, Jr., is guilty of
      cruel treatment toward Petitioner, Laura Merryman Bennett, of a nature
      that renders further living together insupportable.

      ...

      [] The Court finds that Bobby G. Bennett, Jr. is awarded any and all
      claims against his mother, which would include, but not be limited to
      the two distributions he made to her in the amounts of $97,507.48 and
      $20,346.19. The Court further finds that Bobby G. Bennett, Jr. wasted
      community assets in the total amount of $19,045.00 (See Petitioner’s
      Exhibit 81, lines 155 and 173).
                                        17
...

[] The Court finds that Laura Merryman Bennett and Bobby G. Bennett,
Jr. are each awarded the Holly Tree Country Club courtesy membership
in his or her own name.

[] The Court finds that Laura Merryman Bennett and Bobby G. Bennett,
Jr. should be ordered to file a joint married return for the tax year 2016.

[] The Court finds that the parties shall not be allowed to carry forward
or rollover any 2016 prepaid taxes to 2017.

[] The Court finds that Bobby G. Bennett, Jr. shall be responsible for
all the costs of Ray Blevins, CPA to prepare the parties’ 2016 tax return.

[] The Court finds that Laura Merryman Bennett shall be awarded 62%
of the parties’ 2016 tax refund and Bobby G. Bennett, Jr. shall be
awarded 38% of that refund.

[] The Court finds that should there be any tax liability for tax year
2016, Bobby G. Bennett, Jr. shall be 100% responsible for that liability.

....

[] The Court finds that attorney’s fees as a judgment in the amount of
$350,000.00 should be awarded to Petitioner as part of the just and right
division of the marital estate.

....

[] The Court finds that there is an outstanding balance owed to Claudia
Canales, the Amicus attorney, in the amount of $8,974.31, which
amount is ordered to be paid by Bobby G. Bennett, Jr. at or before entry
of the Final Decree of Divorce. . . .

....


                                    18
      [] The Court finds that the following are liabilities of the community
      estate and are ordered to be paid by Bobby G. Bennett, Jr.

      (a) Mortgage owed on [The Woodlands residence]: $706,888.24.

      ....

      [] The Court took into consideration the following factors in making a
      determination of a disproportionate division, which is a just and right
      division of the parties’ marital estate:
      (a) fault in the breakup of the marriage by Bobby G. Bennett[, Jr.];
      (b) ages of the spouses;
      (c) the length of the marriage of the parties;
      (d) breach of fiduciary duty by Bobby G. Bennett, Jr.;
      (e) fraud on the community by Bobby G. Bennett, Jr.;
      (f) constructive fraud by Bobby G. Bennett, Jr.;
      (g) benefits the innocent spouse may have derived from the
          continuation of the marriage;
      (h) disparity of earning power of the spouses and their ability to support
          themselves;
      (i) education and future employability of the spouses:
      (j) community indebtedness and liabilities;
      (k) the spouse to whom conservatorship of the children is granted;
      (l) needs of the children of the marriage;
      (m) tax consequences of the division of property;
      (n) earning power, business opportunities, capacities, and abilities of
          the spouses;
      (o) need for future support for Laura Merryman Bennett;
      (p) nature of the property involved in the division;
      (q) wasting of community assets by Bobby G. Bennett, Jr.;
      (r) attorney’s and expert fees and expenses paid and to be paid; and
      (s) the size and nature of the separate estates of the spouses.

The trial court also stated in its conclusions of law that it granted the divorce in favor

of Laura “on the ground of cruelty by Bobby G. Bennett, Jr. toward Laura Merryman

Bennett that renders further living together insupportable.”
                                          19
                                 Expert Testimony

      In his first issue, Bobby argues the trial court erred in admitting the expert

testimony of Stewart Gagnon on waste, fraud, and reconstitution of the community.

According to Bobby, Gagnon was not qualified to give the opinion, his opinion was

not reliable, and “the pleading relied up[]on w[as] filed out[]side of time permitted

by the scheduling order.”

      We first address Bobby’s complaint about the alleged untimely-filed pleading.

In his statement of facts in his initial appellate brief, Bobby mentions that Laura’s

Second Amended Petition for Divorce filed August 18, 2016 was filed “less than

thirty days before trial and clearly outside the Court Ordered Deadline[,]” and he

argues the Second Amended Petition was the first time Laura had included fraud,

waste, and a request for reconstitution. According to Bobby’s statement of facts, the

trial court sua sponte granted leave for the amended pleadings “with no discussion

about harm or surprise.” However, Bobby provides no argument, authority, or

discussion as to why Gagnon’s testimony should have been excluded as it relates to

the amended pleading being untimely filed. Bobby has waived that point of error

due to inadequate briefing. See Tex. R. App. P. 38.1(i); Fredonia State Bank v. Gen.

Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (“error may be waived by

inadequate briefing[]”).

                                         20
      As to Gagnon’s testimony, on appeal Bobby argues that Gagnon is not a

forensic accountant, his opinions are not reliable under the Robinson factors, his

opinions were nothing more than a personal subjective interpretation of litigation

strategy and expenses, and he did not state a methodology or standard criteria in

determining his opinion. If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education

may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702.

Testimony, in the form of an opinion or inference otherwise admissible, is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Tex. R. Evid. 704. “Expert testimony is admissible if (1) the expert is qualified, and

(2) the testimony is relevant and based on a reliable foundation.” Cooper Tire &

Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

      A trial court’s decision to accept or exclude expert testimony is reviewed

under an abuse-of-discretion standard. Gammill v. Jack Williams Chevrolet, Inc.,

972 S.W.2d 713, 718-19, 727 (Tex. 1998). To testify as an expert, a witness must be

qualified in a particular area or field of expertise. Id. at 718 & n.9. The determination

of whether a witness is qualified as an expert is a preliminary question to be decided



                                           21
by the trial court. Id. at 718. The party offering the expert testimony bears the burden

to prove the witness is qualified under Rule 702. Id.

      In E.I. du Pont de Nemours and Company v. Robinson, the Texas Supreme

Court established that an expert’s “underlying scientific technique or principle must

be reliable.” 923 S.W.2d 549, 557 (Tex. 1995). It identified six factors that courts

may consider when determining whether an expert’s scientific testimony is reliable

and thus admissible. See id. The factors are: (1) the extent to which the theory has

been or can be tested; (2) the extent to which the technique relies upon the subjective

interpretation of the expert; (3) whether the theory has been subjected to peer review

and/or publication; (4) the technique’s potential rate of error; (5) whether the

underlying theory or technique has been generally accepted as valid by the relevant

scientific community; and (6) the non-judicial uses which have been made of the

theory or technique. Id. The Texas Supreme Court has clarified that the six factors

are nonexclusive and “do not fit every scenario.” TXI Transp. Co. v. Hughes, 306

S.W.3d 230, 235 (Tex. 2010); see Gammill, 972 S.W.2d at 726. Where, as here, an

expert relies on principles and analysis rather than on a particular methodology to

reach a conclusion, we must assess reliability by determining whether there is

“simply too great an analytical gap between the data and the opinion proffered[]” for

the opinion to be reliable. Gammill, 972 S.W.2d at 726 (quoting Gen. Elec. Co. v.

                                          22
Joiner, 522 U.S. 136, 146 (1997)). In determining whether there is too great an

analytical gap, we look to the facts the expert relied on, the facts in the record, and

the expert’s ultimate opinion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d

338, 349 (Tex. 2015). The Texas Supreme Court has elaborated that analytical gaps

“may include circumstances in which the expert unreliably applies otherwise sound

principles and methodologies, the expert’s opinion is based on assumed facts that

vary materially from the facts in the record, or the expert’s opinion is based on tests

or data that do not support the conclusions reached.” Id. (internal citations omitted).

      At trial, Bobby’s counsel made a Daubert challenge, and objected to

Gagnon’s opinion testimony under Rules 702, 703, and 705 of the Texas Rules of

Evidence on the basis that Gagnon is not a forensic accountant and, therefore, not an

expert witness who can opine as to fraud and waste by reviewing financial

documents. Bobby did not argue that whether waste or fraud or reconstitution existed

would be ultimately a legal question for the trial judge to decide, nor did he argue

that Gagnon was attempting to testify on pure legal questions. 4 Prior to denying the


      4
        An expert may state an opinion on a mixed question of law and fact if the
opinion is limited to the relevant issues and is based on proper legal concepts. GTE
Southwest, Inc. v. Bruce, 998 S.W.2d 605, 619-20 (Tex. 1999). An issue involves a
mixed question of law and fact when a standard or measure has been fixed by law
and the question is whether the person or conduct measures up to that standard.
Mega Child Care, Inc. v. Texas Dep’t of Protective & Regulatory Servs., 29 S.W.3d
303, 309 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Expert testimony on a
                                          23
Daubert challenge, the trial court responded to Bobby’s counsel by stating, “I’ll let

you explore that with him on your cross and if you convince me, then I will not

consider his opinions.”

      Regarding his qualifications to give an expert opinion on fraud, waste, and

reconstitution, Gagnon testified that he has written extensively on the

characterization of marital property in the state of Texas, lectured and written for

family law courses on matters such as breach of fiduciary duty and fraud in family



mixed question of law and fact must meet the requirements applicable to expert
testimony generally which means it must be helpful to the trier of fact as required by
Texas Rule of Evidence 702. Louder v. De Leon, 754 S.W.2d 148, 149 (Tex. 1988)
(per curiam); Lyondell Petrochemical Co. v. Fluor Daniel, Inc., 888 S.W.2d 547,
554 (Tex. App.—Houston [1st Dist.] 1994, writ denied). An expert, however, may
not testify on pure questions of law. Mega Child Care, Inc., 29 S.W.3d at 309. An
expert is not allowed to testify directly as to his understanding of the law but may
apply legal terms to his understanding of the factual matters in issue. Welder v.
Welder, 794 S.W.2d 420, 433 (Tex. App.—Corpus Christi 1990, no writ). Based
upon the record before us, the trial court could have reasonably concluded that the
challenged testimony included mixed questions of facts and no more than the
expert’s understanding of the law as applied to such facts. Even if we had found that
it was error for the trial court to admit the testimony of Gagnon, to reverse a
judgment based on error in the admission or exclusion of evidence, we must then
also determine the error probably caused the rendition of an improper judgment.
Tex. R. App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989). Error regarding evidentiary rulings is usually not reversible unless the
judgment turns on the particular excluded or admitted evidence. Port Terminal R.R.
Ass’n v. Richardson, 808 S.W.2d 501, 510 (Tex. App.—Houston [14th Dist.] 1991,
writ denied).


                                         24
law cases, assisted with writing a treatise on Texas marital property law, was the

chair of the Family Law Section Legislative Committee for eighteen years, and

testified before the legislature and lobbied regarding legislation such as section 7.009

of the Family Code that allows for reconstitution of the marital estate upon a finding

of waste. Based on the evidence in the record, we cannot say the trial court abused

its discretion in allowing Gagnon to testify or in considering his testimony as an

expert.

      Gagnon provided his opinion on whether and to what degree Bobby

committed waste of the marital estate, and his analysis was based on evidence in the

record, including documents formulated by a forensic accounting firm and other

documents admitted as exhibits at trial. See Tex. R. Evid. 401, 402, 702; Marathon

Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (expert opinion must be

supported by the facts in record). Bobby did not call an expert to contradict Gagnon’s

testimony or conclusions, nor did Bobby dispute the accuracy of the underlying

documents. Having reviewed the entire record, we conclude there is not too great of

an analytical gap between the data and the opinion proffered, nor do we see any

indication that Gagnon’s opinions were based on an unreliable application of

otherwise sound principles and methodologies, on assumed facts that varied



                                          25
materially from the facts in the record, or on data that did not support the conclusions

reached. See Gharda USA, Inc., 464 S.W.3d at 349. We overrule issue one. 5

    Fraud, Constructive Fraud, and Waste, Attorney’s Fees, and Division of the
                                Community Estate

      In issue two, Bobby challenges the factual sufficiency of the evidence

supporting the trial court’s findings “on fraud, constructive fraud[,] and waste to

justify reconstitution division of assets” resulting in a disproportionate distribution

of the community estate in favor of Laura. 6 In issue three, Bobby argues the trial

court abused its discretion in not making a “just and right” division of the marital

property because the division was disproportionate. 7 In issue four, Bobby argues the



      5
         Although we have concluded that the trial court did not err in overruling
Bobby’s objections and in admitting the Gagnon testimony, even if the trial court
erred in the admission of such testimony, we cannot say that the admission of such
testimony probably resulted in an improper judgment. See Tex. R. App. P.
44.1(a)(1).
      6
         As to Bobby’s statement in the summary of his argument for issue two that
the trial court could not find fraud, breach of fiduciary duty, and constructive fraud
as a matter of law “because the activity occurred during the l[iti]gation and spouses
do not owe a fiduciary duty to the other spouse once divorce action begins[,]” Bobby
provides no argument or authority in support of his contention. See Tex. R. App. P.
38.1(i).
      7
          Bobby asserts in his supplemental brief that the trial court awarded Laura
80.86 percent of the community property estate and Bobby was awarded 19.14
percent. He states that these percentages are a correction to his prior assertion in his
initial brief that Laura was awarded more than 99 percent of the community property
                                         26
trial court, by ordering Bobby to pay all attorney’s fees, created a division of the

community estate that was so disproportionate that it constituted an abuse of

discretion. We address issues two, three, and four together as all three issues relate

to the trial court’s division of the marital estate and Bobby’s contention that the trial

court erred in failing to make a “just and right” division.

      Under section 7.001 of the Texas Family Code, in a divorce case, the trial

court must divide the estate of the parties in a “just and right[]” manner. Tex. Fam.

Code Ann. § 7.001 (West 2006). Trial courts may exercise wide discretion in

ordering a property division. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.

1998); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Ohendalski v. Ohendalski,

203 S.W.3d 910, 914 (Tex. App.—Beaumont 2006, no pet.). Thus, we review

property-division issues for abuse of discretion. Murff, 615 S.W.2d at 698. A trial

court abuses its discretion when it acts arbitrarily or unreasonably, and without

reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108,

109 (Tex. 1990).

      In Bradshaw v. Bradshaw, the Texas Supreme Court explained “just and

right” as follows:



and he was awarded less than 1 percent. For purposes of the resolution of the appeal
we need not determine the percentages.
                                        27
      The division of a community estate in divorce must be “just and right,
      having due regard for the rights of each party and any children of the
      marriage.” “Just” and “right” are broad terms. Black’s Law Dictionary
      defines “just” as “[l]egally right; lawful; equitable”, and “right” as
      “[t]hat which is proper under law, morality, or ethics”. And “due
      regard” simply means the “[a]ttention, care, or consideration” that is
      “[j]ust, proper, regular, and reasonable”. A trial court should consider
      many factors, including “the spouses’ capacities and abilities . . . and
      the nature of the property.” The court may consider the “fault in
      breaking up the marriage”, though the community-property division
      “should not be a punishment for the spouse at fault.” In the end, “the
      court is to do complete equity as between the husband and wife and the
      children, having due regard to all obligations of the spouses and to the
      probable future necessities of all concerned.”

      Because the standards for dividing a community estate involve the
      exercise of sound judgment, a trial court must be accorded much
      discretion in its decision. The division “should be corrected on appeal
      only where an abuse of discretion is shown in that the disposition made
      of some property is manifestly unjust and unfair.” The appellate court
      cannot merely reweigh the evidence. Rather, “[a] determination of
      whether the property division decreed in a divorce constitutes an abuse
      of discretion presents a legal rather than a factual question for appellate
      review.” And in deciding that legal question, the trial court is entitled
      to no deference. “[A] trial court has no discretion in determining what
      the law is or applying the law to the facts, even when the law is
      unsettled.”

555 S.W.3d 539, 543 (Tex. 2018) (internal citations omitted).

      A trial court’s division of property need not be equal, and we presume the trial

court properly exercised discretion in determining the value and division of marital

property. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). A trial court may award an

unequal division of marital property when a reasonable basis exists for doing so.

                                          28
Loaiza v. Loaiza, 130 S.W.3d 894, 899 (Tex. App.—Fort Worth 2004, no pet.).

“Legal and factual sufficiency are relevant factors, rather than independent bases for

reversal, in determining whether the trial court abused its discretion.” Aduli v. Aduli,

368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.] 2012, no pet.). “The party

attacking the property division bears the heavy burden of showing that the trial

court’s property division was not just and right.” Pletcher v. Goetz, 9 S.W.3d 442,

446 (Tex. App.—Fort Worth 1999, pet. denied). In reviewing the division of a

marital estate, the appellate court should not substitute its own discretion for that of

the trial court. See McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976). An

abuse of discretion requires something more than an appellate court determining that

the trial court should have reached a different result. Nath v. Tex. Children’s Hosp.,

446 S.W.3d 355, 371 (Tex. 2014). We engage in a two-pronged analysis in deciding

whether the trial court abused its discretion: first, we consider whether the trial court

had sufficient evidence upon which to exercise its discretion; and, second, we

consider whether the trial court erred in its application of that discretion. Cantu v.

Cantu, 556 S.W.3d 420, 426 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

      In exercising its discretion to divide the marital estate, the trial court may

consider several factors, including each party’s earning capacity, abilities, education,

business opportunities, physical health, financial condition, age, and size of separate

                                           29
estates, as well as any future needs for support, custody of any children,

reimbursements, gifts to a spouse during marriage, fault in the breakup of the

marriage, length of the marriage, and a spouse’s dissipation of the estate. Murff, 615

S.W.2d at 699; Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.—Houston [1st

Dist.] 2004, no pet.); Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—

Houston [1st Dist.] 1993, writ denied); Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex.

App.—Beaumont 1991, no writ) When one spouse not only deprives the other of

community assets but does so with dishonesty and an intent to deceive, the trial court

may consider such heightened culpability in its division. Schleuter, 975 S.W.2d at

589-90.

      The circumstances of each marriage dictate what factors should be considered

in division of the marital estate. Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980).

Because the trial court has “the opportunity to observe the parties on the witness

stand, determine their credibility, evaluate their needs and potentials, both social and

economic[,]” we defer to the trial court on factual resolutions and credibility

determinations. See Murff, 615 S.W.2d at 700; Allen v. Allen, 475 S.W.3d 453, 458

(Tex. App.—Houston [14th Dist.] 2015, no pet.). Although the trial court may

consider fault in the breakup of the marriage, a just and right division should not be

punitive against the errant spouse. Young, 609 S.W.2d at 762.

                                          30
       Appellant complains that the percentage awarded to the wife amounts to 80.86

percent. As noted by the concurring opinion in Bradshaw, there is no set threshold

of percentages allowed or disallowed under either the Texas Family Code or under

our jurisprudence. 555 S.W.3d at 546 (Devine, J., concurring). Accordingly, even if

the percentage of the marital estate awarded to the Appellee may have been 80.86

percent as alleged by Appellant, this Court and other appellate courts have

previously affirmed divisions where one spouse received more than 80 percent of

the property. See, e.g., Ohendalski, 203 S.W.3d at 912 (affirming award of 81

percent of the community estate to wife); Wright v. Wright, 65 S.W.3d 715, 716

(Tex. App. — Eastland 2001, no pet.) (affirming award of 88 percent of the

community estate to wife). The Family Code “simply instructs that the property

division be just and right . . . [and] [i]f the evidence supports a disproportionate

division of the marital estate, a trial court must order a division that is just and right,

guided by that evidence.” Bradshaw, 555 S.W.3d at 547 (Devine, J., concurring).

      A fiduciary duty exists between a husband and wife regarding the community

property controlled by each spouse. Zieba v. Martin, 928 S.W.2d 782, 789 (Tex.

App.—Houston [14th Dist.] 1996, no writ) (op. on reh’g); In re Marriage of Moore,

890 S.W.2d 821, 827 (Tex. App.—Amarillo 1994, no writ). “Fraud on the

community” is a judicially created concept based on the theory of constructive fraud

                                            31
and is applied when there is a breach of legal or equitable duty, which violates this

fiduciary relationship existing between spouses. Zieba, 928 S.W.2d at 789; Moore,

890 S.W.2d at 827. Such conduct in the marital relationship is termed fraud on the

community because it has all the consequences and legal effects of actual fraud since

the conduct tends to deceive the other spouse or violates marital confidences.

Wheeling v. Wheeling, 546 S.W.3d 216, 225 (Tex. App.—El Paso 2017, no pet.)

(citing Zieba, 928 S.W.2d at 789); Moore, 890 S.W.2d at 827. A presumption of

constructive fraud arises where one spouse breaches the fiduciary duty owed to the

other spouse and disposes of the other spouse’s one-half interest in community

property without the other’s knowledge or consent. Zieba, 928 S.W.2d at 789;

Jackson v. Smith, 703 S.W.2d 791, 795 (Tex. App.—Dallas 1985, no writ). When

that occurs, the burden of proof is on the disposing spouse to show fairness in

disposing of the community assets. Zieba, 928 S.W.2d at 789.

      Attorney’s fee awards in divorce cases are also reviewed for an abuse of

discretion. Murff, 615 S.W.2d at 699 (citing Carle v. Carle, 234 S.W.2d 1002, 1005

(Tex. 1950)). A trial court may apportion attorney’s fees in a divorce action as part

of a “just and right” division of the community estate. See Ayala v. Ayala, 387

S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Vazquez v.

Vazquez, 292 S.W.3d 80, 86 (Tex. App.—Houston [14th Dist.] 2007, no pet.)). “The

                                         32
reasonableness of the fee awarded is a question of fact that must be supported by the

evidence.” Id. (citing Vazquez, 292 S.W.3d at 86). A trial court abuses its discretion

in awarding attorney’s fees if the resulting division is “manifestly unfair.” Mann v.

Mann, 607 S.W.2d 243, 245 (Tex. 1980).

      In his second issue, Bobby argues that, once Gagnon’s expert opinion is

excluded, the remaining evidence is insufficient to support findings of breach of

fiduciary duty, fraud on the community, and wasting of community assets. The trial

court specifically found that Bobby wasted community assets in the total amount of

$19,045. The trial court could have concluded, even without the testimony of

Gagnon, and simply from the exhibits and testimony provided by Laura and

developed on cross-examination of Bobby, that Bobby made payments in violation

of the trial court’s order and made tax overpayments on The Woodlands home and

on his income taxes that constituted waste. The amount of those transactions alone,

without consideration of the other hundreds of thousands of dollars of alleged waste

testified to by Gagnon, exceeds the amount of $19,045 found by the trial court. See

Wheeling, 546 S.W.3d at 225 (stating that a waste finding can be supported by

evidence that spouse used excessive funds without the other spouse’s consent).

Furthermore, the trial court could have concluded, even without the testimony of

Gagnon, and solely from exhibits and Bobby’s and Laura’s testimony, that Bobby’s

                                         33
actions during the pendency of the divorce resulted in excessive attorney’s fees

constituting waste in an amount exceeding $19,045. See id. We conclude the trial

court did not err in finding that Bobby breached his fiduciary duty, perpetrated fraud

on the community, and wasted community assets. Even if we were to have reached

a different conclusion with respect to the admission of Gagnon’s testimony or as to

the sufficiency of the remainder of the evidence, Bobby has the burden to also

demonstrate that the alleged error caused the trial court to abuse its discretion in the

overall division of the community estate, essentially showing that the error was

harmful. See id. at 227. Bobby has failed to meet his burden.

      In this appeal, Bobby does not challenge the trial court’s findings or

conclusions that Bobby was guilty of cruel treatment towards Laura of a nature that

rendered living together insupportable. Grounds for a fault-based divorce include

cruelty. See Tex. Fam. Code Ann. § 6.002 (West 2006) (“The court may grant a

divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward

the complaining spouse of a nature that renders further living together

insupportable.”). We note that the trial court may have also considered that factor,

along with others, in making a disproportionate division of property. See Ohendalski,

203 S.W.3d at 914-15.



                                          34
      Furthermore, the jury determined that Laura should be appointed sole

managing conservator of the children and in its findings the trial court listed one of

the factors it considered in making a just and right division of the community

property as “the spouse to whom conservatorship of the children is granted[]” and

the needs of the children. The trial court also stated it considered the length of the

marriage as a factor in dividing the community estate. The trial court heard evidence

of Laura’s and Bobby’s education, income, and earning power, and the trial court in

its findings listed disparity of earning power of the spouses, Laura’s and Bobby’s

ability to support themselves, a need for future support for Laura, and future

employability of the spouses as factors the court considered in making a just and

right division of the community property. The trial court heard testimony and

received evidence of waste by Bobby, and the trial court listed waste as a factor it

considered in dividing the community estate. The trial court also heard evidence that

Bobby made overpayments of property and income tax without Laura’s knowledge,

failed to list certain assets on his inventories, and made payments after entry of the

trial court’s orders instructing the parties not to do so. Therefore, on the record before

us, we conclude that the trial court could have reasonably determined that Bobby

committed waste, fraud, constructive fraud, or a breach of fiduciary duty as to the

community estate. The trial court also stated in its findings that in dividing the

                                           35
community estate it considered the attorney’s fee paid and to be paid. The record

shows the parties presented evidence of fees incurred and paid, and the trial court

could have also considered whether those fees were reasonable and necessary, and

whether the conduct of the parties unnecessarily increased such fees.

      We cannot conclude that the trial court acted arbitrarily or unreasonably and

without reference to any guiding principles in dividing the estate. Worford, 801

S.W.2d at 109; Hailey, 176 S.W.3d at 380. We cannot say the resulting distribution

was manifestly unfair. After considering the entire record and giving deference to

the trial court’s factual and credibility determinations, we conclude that the trial

court had sufficient evidence upon which to exercise its discretion and that the trial

court did not err in its application of that discretion. The trial court had a reasonable

basis for awarding a disproportionate distribution and the trial court’s division was

not so unjust and unfair as to be an abuse of discretion. We overrule issues two,

three, and four. We affirm the trial court’s judgment.

      AFFIRMED.

                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice




                                           36
Submitted on February 19, 2019
Opinion Delivered May 2, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                      37
